Foltz v. Commonwealth Of Va.

• Decision Date: 07 September 2010
• Docket Number: Record No. 0521-09-4.
• Citation: 57 Va.App. 68,698 S.E.2d 281
• Court: Virginia Court of Appeals
• Parties: David L. FOLTZ, Jr., s/k/a David Lee Foltz, Jr.v.COMMONWEALTH of Virginia.

57 Va.App. 68

698 S.E.2d 281

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,

Alexandria.

Sept. 7, 2010.

COPYRIGHT MATERIAL OMITTED

Christopher R.K. Leibig (Andrea Moseley; Zwerling, Leibig & Moseley, P.C., on briefs), Alexandria, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; J. Robert Bryden, II, Assistant Attorney General, on brief), for appellee.

Present: FELTON, C.J., and HALEY and BEALES, JJ.

BEALES, 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. On appeal, appellant argues that the trial court erred in denying his motion to suppress. In particular, appellant contends that the court erred by ruling (1) that the placement of a GPS (global positioning system) device in the bumper of his work van did not violate the Fourth Amendment of the United States Constitution or Article 1, section 10, of the Virginia Constitution, and (2) that the use of a GPS device to track appellant did not violate the Fourth Amendment of the United States Constitution or Article 1, section 10, of the Virginia Constitution. ¹ After reviewing the relevant case law and the record here, we affirm appellant's conviction for abduction with intent to defile.

I. Background

Appellant, a registered sex offender on probation for committing sexual assault, became a suspect in a new series of sexual assaults in Northern Virginia that followed a pattern similar to his previous crimes. At the time, appellant worked for a food services company that provided him with a company van. Company employees who were assigned vans were only allowed to drive them to the company headquarters, to off-site workplaces, and to their homes, unless they were given special permission. Appellant, however, was allowed to use the van assigned to him after work to drive to probation-related appointments. Employees were allowed to keep personal items in their assigned vans and were responsible for the vans while they were in the employees' possession.

The police reviewed appellant's schedule for work and for probation-related meetings, comparing that schedule to the areas and times for the series of unsolved sexual assaults. They determined that the offenses occurred “around the general area” where appellant worked and attended meetings, and the times were consistent with his work and meeting times. Based on all the information that they had collected, the police decided to monitor appellant's movements by attaching a GPS system to one of his vehicles. The police did not obtain a warrant. They also did not ask appellant's employer for permission to attach a GPS device to the van assigned to appellant.

On February 1, 2008, the Fairfax County police attached a GPS system to appellant's work van, which was parked on the street in front of appellant's home. The GPS system used three satellites to give the police information on the van's location. The GPS device itself operated on an independent battery and, therefore, did not draw any power from the van. To install the GPS device, an officer “reached [his] hand sort of underneath the bumper to a place that is not observable [from] the public street.” The bumper on the van was “a long tube” with plastic ends and holes in it. The GPS device was attached to the left side of the rear bumper using a magnet and “a sticky substance.”

The GPS system did not take pictures nor allow the police to hear any conversations. It could not track particularly well “in a covered parking area,” but could provide general information in any place with cell phone service and could send a signal through glass and plastic. The system archived the information that it collected,² but the police could also track the GPS device in real time.

The police had no policy regarding the use of GPS devices, in part because the devices were not used particularly often.³ The police did not predetermine how long they would track appellant. The police also did not develop a policy to avoid following the van into private areas.

The only allegedly private area that the van entered between February 1, 2008, and February 6, 2008, was appellant's employer's place of business, a warehouse located down a short access road marked “Private Property.” The warehouse was not open to the public, and vans in the warehouse were not visible from the public street. The GPS tracking log included information that the van was at the workplace, but the officers apparently did not examine this data before appellant's arrest.

The police did not examine any data from the GPS until the afternoon of February 5, 2008, when they observed, in real time via a computer screen with a map, that the van was driven in and out of various neighborhoods. This pattern of driving concerned the officers, who characterized the pattern as hunting behavior. The officers watched the data stream for about 30 to 40 minutes-as the van was driving around.

On the evening of February 5, 2008, another sexual assault occurred. The police checked the GPS log to determine if appellant's work van was in the area at the time of the attack. They discovered that the van was parked about a block or two away from the scene of the attack at the time it occurred. The police decided to follow appellant themselves on February 6, 2008, the next day.

While actually following appellant on February 6, 2008, the police observed him park his vehicle,⁴ get out, and put on a jacket and gloves. Two officers then followed appellant on foot. They observed him run, grab a woman who was walking down the street, and knock her to the ground. Appellant then pulled his victim under a tree, pinned her down, and tried to unbutton her pants. The police stopped the assault and arrested appellant.

Prior to trial, appellant filed a motion to suppress all evidence collected after the police turned on the GPS system and began tracking the work van that he was driving. He argued that the police needed a warrant to attach the device to the van and also needed a warrant to use the GPS system to track him. At the conclusion of the suppression hearing, the trial court found appellant had standing to argue Fourth Amendment violations of privacy in the placement of the GPS on the van and in the tracking of the van.⁵ However, the trial court denied appellant's motion to suppress, finding that the police needed reasonable suspicion, not a warrant, to put the GPS device on the van and concluding that the police had reasonable suspicion that appellant was committing the sexual assaults. The court also found that the van was not seized when the GPS device was placed in the bumper and that appellant had no reasonable expectation of privacy in the exterior of a van parked on a public street. Regarding the tracking itself, the trial court found “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.” Thus, the trial court found that appellant had failed to show “any actual invasion of his privacy.” In addition, the trial court also found that appellant failed to show that any tracking at his employer's warehouse violated appellant's privacy.

II. The Fourth Amendment ⁶ and Privacy

Appellant argues that the installation of the GPS device in the bumper of his work van was both a search and a seizure of the vehicle. ⁷ He also argues that the use of the GPS system was a search-both while he was driving the van and while it was parked inside his employer's warehouse.⁸ Therefore, he contends, the police infringed upon his Fourth Amendment privacy interests and needed a search warrant before they could install the GPS device in the van and before they could activate the GPS system in order to track the van's movements.

On appeal, we review questions involving Fourth Amendment issues as mixed questions of fact and law. McCain v. Commonwealth, 275 Va. 546, 551, 659 S.E.2d 512, 515 (2008). In such cases:

we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error.

Id. at 552, 659 S.E.2d at 515 (citations omitted).

When considering a Fourth Amendment argument, courts must first determine whether a Fourth Amendment privacy right is involved-using a well-established, two-pronged test:

[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See [

Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan concurring) ]. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” [ California v.] Ciraolo, [476 U.S. 207] 211 [106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986) ].

Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 2042-43, 150 L.Ed.2d 94 (2001); see also

Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). Thus, in order to prevail here, appellant must establish both that he exhibited a subjective expectation of privacy in the bumper of the van and in his movements with the van and that society recognizes these expectations as reasonable.

A. ...