Police use of a GPS system to track a sex offender in an Arlington County abduction case has survived a rehearing en banc in the Virginia Court of Appeals.
But the appellate court refused to endorse the investigative technique. Instead, it held that police already had good reason to tail David L. Foltz Jr. as a suspect in a series of sexual assaults. It was their good fortune, and the victim’s, when police caught him in the act of assaulting a woman on a public sidewalk.
The court today released its decision that affirmed the trial court’s denial of Foltz’s motion to suppress the police officers’ eyewitness testimony. Foltz argued the testimony was “fruit of the poisonous tree” because it resulted from use of the GPS device. Police had tracked Foltz with the global positioning system attached to his employer’s work van after they determined the modus operandi of recent attacks matched past conduct of Foltz, who was a registered sex offender on probation. Foltz said using the GPS was a warrantless search that violated his Fourth Amendment rights.
The focus on Foltz did not begin with putting the GPS device on his work van, but with standard police investigative work. Police knew Foltz lived, worked and went to probation-related meetings where recent assaults had occurred. They knew the recent attacks were “amazingly like” those Foltz had confessed to in the past. The undercover GPS was just one piece of the puzzle. Police decided to follow Foltz as he drove his personal vehicle along public streets the day after the most recent assault. That’s when they saw him grab a woman from behind, knock her to the ground, pin her and try to unbutton her pants.
With “no basis in law” to exclude the officers’ eyewitness accounts, the court’s majority opinion by Chief Judge Walter S. Felton Jr. affirmed Foltz’s conviction of abduction with intent to defile and life sentence.
Judges Randolph Beales and James W. Haley Jr. filed a concurrence that took on concerns about the “potential use of Orwellian practices by the state” and drew a distinction because the GPS went on the employer’s van, parked on a public street, with the employer’s consent. Police action did not violate any reasonable expectation of privacy, Beales wrote.
Judge Robert Humphreys concurred separately to discuss the shifting boundary for a sense of privacy in an “‘Information Age’ where privacy is becoming an increasingly scare commodity,” given electronic scanners that perform a virtual “strip search” of passengers taking public transportation.
By Deborah Elkins