On its own motion, the Virginia Court of Appeals has decided to hear en banc its Sept. 7 decision upholding use of a warrantless GPS device on a man suspected of multiple sexual assaults in the Arlington area.
Judge Randolph A. Beales said in the earlier panel opinion that neither installation of the device nor tracking the van’s movements on public streets violated the Fourth Amendment rights of David L. Foltz Jr., especially since the police had reasonable, articulable suspicion that Foltz was involved in the sexual assaults before installing the device and tracking the van.
In a concurrence, Chief Judge Walter S. Felton Jr. said he did not disagree with the majority’s analysis. But he articulated narrower grounds for upholding the trial court decision. Foltz sought to suppress the officers’ eyewitness accounts of the assault they interrupted. The record provided no basis to exclude that eyewitness testimony, and Foltz’s conviction could be affirmed without addressing the Fourth Amendment GPS issue, Felton said.
The appellate court stayed the mandate and reinstated the case on its docket.
By Deborah Elkins