Brief filed in Virginia Court of Appeals says court erred when it allowed Fairfax Police to use GPS device to map motorist’s movements without first obtaining a warrant

Fairfax County, VA– The American Civil Liberties Union of Virginia today filed an amicus brief with the Virginia Court of Appeals contending that our constitutional right to privacy is violated when police surreptitiously place GPS devices on cars without first obtaining a warrant.
“If the police are allowed to attach a GPS device to anyone’s car and remotely follow its movements, then we have just officially entered the era of Big Brother,” said ACLU of Virginia Executive Director Kent Willis.
“Advances in technology have often threatened privacy rights assumed by the Constitution, leaving the courts and Congress to play catch-up,” added Willis.  “There were no telephones, computers, or emails when the Fourth Amendment was adopted, but through legislation and litigation, we put limits on the government’s right to access those devices.”
“Now that global positioning technology literally gives police the capability of following the movements of every person who drives a car, it is important to apply some brakes to the use of these devices by the government,” added Willis.  “We are hoping the Virginia Court of Appeals will do just that.”
“No one wants to curtail the police’s ability to fight crime,” said Willis. “We just want the checks and balances in our system to work as they’re supposed to.  So before the police place a device on your car to follow your every movement, we want them to explain to a magistrate why they are doing it and get a warrant.  It’s that simple.”
The case at issue, Foltz v. Commonwealth, stems from a 2008 incident in Fairfax County in which police attached a GPS device to a van used by David Lee Foltz, Jr., who was on probation for sexual assault. Police used the device to track and apprehend Foltz for another assault, for which he was convicted.  Foltz’s lawyer argued that the police had illegally tracked him by using a GPS device without first obtaining a warrant, and asked the Virginia Court of Appeals to review the case.
A three-judge panel of the appeals court ruled that GPS devices placed by police do not violate drivers’ privacy rights so long as the car is on public property when the device is attached.  The full Court of Appeals then decided to review the case.
The ACLU of Virginia’s amicus brief is available online at http://acluva.org/wp-content/uploads/2010/10/20101012GPStracking-AmicusFoltzvVirginiaCourtofAppeals.pdf.  The brief was submitted by Rebecca K. Glenberg, ACLU of Virginia Legal Director, and Thomas Okuda Fitzpatrick, ACLU of Virginia Dunn Fellow.

Contact: Kent Willis, Executive Director, 804-644-8022

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