Full court affirms man’s conviction, but declines to adopt earlier panel decision permitting police to attach GPS devices to cars without first obtaining a warrant.

Fairfax County, VA–The Virginia Court of Appeals has upheld the conviction of David Lee Foltz, Jr. in a case that raised -- but did not ultimately decide -- the issue of whether the police need a warrant in order to attach a GPS tracking device to a privately owned vehicle.
The case stems from a 2008 incident in Fairfax County in which police attached a GPS device to a van used by Foltz, who was on probation for sexual assault. Police used the device to track Foltz and determined that he was present at the time and place of a sexual assault.  Police then followed Foltz and witnessed him attempting 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.
Last year, a three-judge panel of the appeals court ruled that GPS devices placed on cars 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 reviewed the case, upholding the conviction but on grounds not related to the constitutionality of warrantless GPS tracking devices.
The ACLU of Virginia submitted a friend-of-the court brief to the full court, arguing that the police should have to obtain a warrant before engaging in GPS tracking.
“Better no decision on the warrantless use of tracking devices by police than the earlier one upholding the constitutionality of this highly suspect practice,” said ACLU of Virginia Executive Director Kent Willis.  “The door is still open for the court to decide in some future case that a warrant is required for this sort of surveillance, although the best scenario may be for the General Assembly to prohibit this practice before it spreads.”
“Advances in technology have often threatened privacy rights assumed but not explicitly  stated in the Constitution, leaving the courts and legislatures to play catch-up,” added Willis.  “There were no telephones or computers when the Fourth Amendment was adopted, but we put limits on the government’s right to access those devices. Similarly, we need to restrict the use of GPS tracking.”
“No one is trying to ban the use of GPS devices,” said Willis, “but we want the police to get permission from a magistrate before they do.  It’s called checks and balances, and it’s there to prevent any one branch of the government from overreaching its authority.”
See decision at http://www.courts.state.va.us/opinions/opncavwp/0521094.pdf.   See ACLU brief at http://acluva.org/wp-content/uploads/2010/10/20101012GPStracking-AmicusFoltzvVirginiaCourtofAppeals.pdf.

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

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