Foltz v. Commonwealth of Va..

• Decision Date: 05 April 2011
• Docket Number: Record No. 0521–09–4.
• Citation: 706 S.E.2d 914,58 Va.App. 107
• Parties: David L. FOLTZ, Jr., s/k/a David Lee Foltz, Jr.v.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 107

706 S.E.2d 914

David L. FOLTZ, Jr., s/k/a David Lee Foltz, Jr.

v.COMMONWEALTH of Virginia.

Record No. 0521–09–4.

Court of Appeals of Virginia, Richmond.

April 5, 2011.

Christopher Leibig, Alexandria (Andrea Moseley; Zwerling, Leibig & Moseley, P.C., on briefs), for appellant.Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Amicus Curiae: American Civil Liberties Union of Virginia Foundation, Inc. (Rebecca K. Glenberg, Richmond; Thomas Okuda Fitzpatrick (Third Year Practice Certificate), on brief), for appellant.Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

FELTON, Chief Judge.

David L. Foltz, Jr. (“appellant”) was convicted by a jury of abduction with intent to defile pursuant to Code § 18.2–48 and was sentenced to life imprisonment. Before a panel of this Court, appellant contended that the trial court erred by denying his motion to suppress eyewitness testimony of police officers who observed him sexually assault a victim while she walked on a public sidewalk. Specifically, he asserts that evidence was inadmissible because it was obtained as a result of police officers' use of a global positioning system (“GPS”) that they placed on his employer's work van to track his movement, without first obtaining a search warrant, in violation of the Fourth Amendment of the United States Constitution and Article I, Section 10, of the Virginia Constitution. In a published opinion, the panel affirmed appellant's conviction. See Foltz v. Commonwealth, 57 Va.App. 68, 698 S.E.2d 281 (2010). Pursuant to Code § 17.1–402(D)(ii), we ordered rehearing en banc and stayed the mandate of the panel decision. See Foltz v. Commonwealth, 57 Va.App. 163, 699 S.E.2d 522 (2010).

On rehearing en banc, we conclude that the trial court did not err in denying appellant's motion to suppress the eyewitness testimony of the police officers who observed him sexually assault the victim. Accordingly, we affirm appellant's conviction.

I. BACKGROUND

On appeal,

“[w]e consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial. We apply the same standard when, as here, we review the trial court's denial of the defendant's motion to suppress the evidence.”

Perry v. Commonwealth, 280 Va. 572, 578, 701 S.E.2d 431, 435 (2010) (quoting Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000) (citations omitted)).

At the time of his arrest, appellant was a registered sex offender on probation as a result of prior convictions, including rape. Appellant worked for a food services company (“employer”). Employer provided him with a company van to use for work-related purposes in May 2007. Employer limited appellant's use of the assigned van to drive to his home, to the company headquarters, to off-site workplaces and, by special permission, to probation-related appointments after work hours.

A series of sexual assaults bearing similar characteristics occurred in the Northern Virginia region beginning in November 2007. After hearing news reports related to those assaults, retired Fairfax County Police Detective J. Kraut determined that the recent assaults were “amazingly like” the unique modus operandi used in offenses he had investigated in the late 1980s, although he could not recall the name of the individual who was investigated in the earlier offenses.

In January 2008, Kraut contacted Lieutenant Akre of the Fairfax County Police Department's sex crimes unit and told her about his investigation of the earlier offenses.¹ At the time Kraut contacted her, Lt. Akre already had identified appellant as a suspect in the recent sexual assaults.²

The investigating officers obtained appellant's work schedule and his schedule for probation-related meetings. They compared those schedules with the times and locations of the recent sexual assaults. The officers determined that the recent assaults occurred in the general area where appellant worked and attended meetings and that the times and locations of those assaults were consistent with his presence for work and meetings in the same areas. From the information that they had collected, the officers focused on appellant as a strong suspect in the recent assaults.

Thereafter, on February 1, 2008, the officers attached a GPS system to the bumper of appellant's assigned work van while it was parked on the public street in front of his residence. They did not obtain a search warrant prior to doing so nor did they obtain employer's permission. The officers first examined data from the GPS tracking system on the afternoon of February 5, 2008, four days after they placed the device on the van. From that data, they observed that the van had been driven in and out of various neighborhoods where the recent sexual assaults had occurred. The pattern of the van's movements concerned the officers, who characterized the pattern as “hunting” behavior.

On the evening of that same day, February 5, 2008, another sexual assault occurred in the region. The investigating officers checked the GPS log and discovered that appellant's assigned work van was parked about a block or two away from the scene of that assault at the time it occurred. With that additional information, the officers determined it was critical to personally follow appellant as he moved around.

On the following day, officers visually followed appellant as he drove his personal truck.³ They observed him park his truck, get out, and put on a jacket and gloves. Two police officers then followed appellant on foot. They observed him, with “something up over his face,” run after a woman who was walking down a public sidewalk. The officers testified that they saw appellant grab the woman from behind and knock her to the ground. They then saw appellant pull his victim under a tree, pin her down, and try to unbutton her pants. The officers quickly intervened, stopped the assault, and apprehended appellant.

Prior to trial, appellant moved to suppress all evidence collected by the police flowing from their use of the GPS device to track the movement of his assigned work van. He argued that the police were required to obtain a search warrant prior to attaching the GPS device to the van, and to use that device to track his movements. He contended that the officers' failure to obtain a search warrant prior to attaching the GPS device required that any evidence obtained through the use of that device, including the testimony of the officers who observed him attack the victim, be suppressed under the exclusionary rule. The trial court denied appellant's motion to suppress. It found that prior to placing the GPS device on employer's van assigned to appellant, the investigating officers had already focused on appellant as the prime suspect in the recent sexual assaults on women in the region. Regarding the use of the GPS device, the trial court stated, “all it did was technologically supplement that information which the police could have obtained by their own sensory perception by actually trailing him or following him for a period of time, which they ultimately did in making the arrest in this case.”

Following his conviction, appellant petitioned this Court for an appeal. His petition for appeal contained twelve questions presented.⁴ By per curiam order dated September 29, 2009, we denied nine of the questions presented, and granted the following three questions:

I. Whether the trial court erred by ruling that the warrantless, Global Positioning System (GPS) tracking of Mr. Foltz did not violate the Fourth Amendment or Article [I], Section 10 of the Virginia Constitution where the tracking was done without probable cause, without real-time police monitoring, without attempts not to track in private areas, and where Mr. Foltz was tracked on private property not visible to the public.

II. Whether the trial court erred by ruling that the police's act of physically placing of a GPS device inside the bumper of a van controlled by Mr. Foltz violated the Fourth Amendment and Article [I], Section 10 of the Virginia Constitution.

III. Whether the trial court abused its discretion by denying Mr. Foltz the right to discover the precise make and model of the GPS system used by police to track him while refusing admission of Mr. Foltz's out-of-court GPS experiment on the grounds that Mr. Foltz failed to demonstrate that the GPS device used in the experiment was sufficiently similar to the police system.

Following the decision of a panel of this Court affirming appellant's conviction, we ordered rehearing en banc on the issues addressed by the panel in its opinion.⁵

II. ANALYSIS

“In this case, as in all others, we seek to decide cases, ‘on the best and narrowest ground available’ from the record.” Kirby v. Commonwealth, 50 Va.App. 691, 698 n. 2, 653 S.E.2d 600, 603 n. 2 (2007) (quoting Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d 924, 925 (2007) (Kinser, J., concurring) (citations omitted)). This approach encourages “ ‘judicial self-restraint’ ” by avoiding the resolution of broad, reasonably debatable legal issues when narrower, less debatable legal issues fully dispose of the appeal before the court. Cooper v. Commonwealth, 54 Va.App. 558, 566, 680 S.E.2d 361, 365 (2009) (quoting Craddock v. Commonwealth, 40 Va.App. 539, 551 n. 1, 580 S.E.2d 454, 461 n. 1 (2003)).

On appeal, appellant argues that the eyewitness testimony of the police officers who observed him attack the victim must be excluded from evidence as “fruit of the poisonous tree” from the unlawful use of a GPS tracking device. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

From our review of the record on appeal, we conclude that the trial court did not err in denying appellant's ...