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.
698 S.E.2d 281
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
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.
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 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
II. The Fourth Amendment6 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
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. Installation of the GPS Device
Appellant argues that the police violated his privacy interests when they placed the GPS device inside the bumper of his work van while it was parked on the street in front of his house. He also argues that the police committed a seizure when they installed the GPS device because it “changed the nature” of the van by decreasing its value. We find neither argument persuasive.
1. Installation of GPS as a Search
Appellant claims he exhibited an expectation of privacy in the van‘s bumper while it was parked on a public street. The evidence does not support this assertion.
Neither the United States Supreme Court nor the Supreme Court of Virginia has addressed the issue of whether installing a tracking device directly on a car violates an expectation of privacy. However, the United States Supreme Court in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), considered facts similar to the ones in this case. In Karo, tracking devices were placed in containers of ether that were then purchased by Karo, who in turn placed
[The transfer] conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.
Id. at 712, 104 S.Ct. at 3302. Similarly here, the installation of the GPS device did not relay any private information to the police.
The United States Court of Appeals for the Ninth Circuit addressed whether the installation of tracking devices on a vehicle violates a suspect‘s expectation of privacy in United States v. McIver, 186 F.3d 1119 (9th Cir.1999). In that case, forestry agents photographed McIver at the site of growing marijuana plants and then attached two tracking devices to the undercarriage of his 4Runner. McIver argued that the agents needed a search warrant to attach the devices. The Ninth Circuit Court of Appeals found that the officers did not “search” the vehicle by placing magnetized tracking devices on its undercarriage because McIver did not prove “that he intended to preserve the undercarriage” of the vehicle “from inspection by others” and “the officers did not pry into a hidden or enclosed area.” Id. at 1127.
Similarly here, appellant did nothing to prevent others from inspecting the bumper of the work van. See Cardwell v. Lewis, 417 U.S. 583, 591, 94 S.Ct. 2464, 2469-70, 41 L.Ed.2d 325 (1974) (finding a defendant‘s privacy rights were not violated when the police examined a tire and took a paint sample from a car in a public parking lot because the vehicle was exposed to the public). The vehicle was not parked on private property, but instead was on a public street where anyone could approach it. See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.2010) (“If a neighborhood child had walked up Pineda-Moreno‘s driveway and
Because the actual act of simply placing the GPS device in the bumper of appellant‘s work van conveyed no private information to the police and because appellant did nothing to prevent the public from observing the bumper, we find he did not exhibit an expectation of privacy in this area of the van. Thus, the installation was not a search that raised a Fourth Amendment privacy issue.
As we find that appellant did not exhibit a subjective expectation of privacy in the bumper of his vehicle, we need not address whether society is prepared to recognize such an expectation as reasonable. However, we do note that the bumper of a van parked on a public street-as opposed to a place that would indicate appellant intended to prevent public access and viewing of the van-does not “provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities” that might occur in a bumper, especially when vehicles are parked on public streets that “are accessible
2. Installation of GPS as a Seizure
Appellant also claims that he had an expectation of privacy against seizures of the van. He argues that the police seized the van when they placed the device in the van‘s bumper because it “changed the nature” of the property, decreasing its value.
The United States Supreme Court in Karo explained that seizure of property occurs “when ‘there is some meaningful interference with an individual‘s possessory interests in that property.‘” Karo, 468 U.S. at 712, 104 S.Ct. at 3302 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). The Court then noted, “The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Id. at 712-13, 104 S.Ct. at 3302 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).
Here, appellant does not establish the placement of the GPS in the van‘s bumper was a “meaningful interference” with his interest in the van. Although appellant contends that people commonly do not want to purchase vehicles that can be tracked by the police, it seems just as common for people to purchase cars that have devices installed that allow tracking of the vehicle. In addition, appellant‘s “possessory interests” in
Appellant urges this Court to consider Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009), where the Massachusetts Supreme Court concluded that “the installation and use of the GPS tracking device” was a seizure. Id. at 811, 913 N.E.2d at 361. In that case, the Massachusetts police installed a GPS device in the engine compartment of Connolly‘s minivan, so that the device could draw power from the vehicle‘s battery. Id. at 811-12, 913 N.E.2d at 361-62. Relying on the Massachusetts Declaration of Rights, which is more expansive than the Fourth Amendment,11 the Massachusetts court concluded:
a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for one hour, but also operation of
the vehicle‘s electrical system, in order to attach the device to the vehicle‘s power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant‘s vehicle, an ongoing physical intrusion.
Id. at 822, 762 N.E.2d at 369. Clearly, the installation in Connolly differs greatly from the installation in this case. Here, the police did not access the inside of the vehicle by lifting the hood or moving any part of the van. The GPS device installed by the Fairfax police did not use any power from the van‘s battery, but instead operated independently, unlike the one in Connolly. In addition to these factual differences, the legal analysis of the Massachusetts court is not relevant here as Article I, § 10 of the Virginia Constitution is coextensive with the Fourth Amendment of the United States Constitution-not broader. Lowe v. Commonwealth, 230 Va. 346, 348, 337 S.E.2d 273, 274 (1985). Therefore, Connolly is not persuasive authority for this Court.
Instead, we find McIver instructive. In that case, discussed supra, the Ninth Circuit Court of Appeals found that officers did not “seize” the vehicle because the defendant did not prove that the placement of the tracking devices “deprived him of dominion and control of his Toyota 4Runner, nor did he demonstrate” that the devices damaged his vehicle in some way. 186 F.3d at 1127. The court concluded that McIver had not established that the placement “meaningfully interfere[d]” with his “possessory interest” in the 4Runner. Id.
We also find United States v. Garcia, 474 F.3d 994 (7th Cir.2007), persuasive. In Garcia, the police attached a self-powered GPS to Garcia‘s car while it was parked on a public street. Garcia argued that the installation of the GPS was a seizure of his car. The United States Court of Appeals for the Seventh Circuit disagreed, explaining that Garcia‘s argument was “untenable.” The court explained:
The device did not affect the car‘s driving qualities, did not draw power from the car‘s engine or battery, did not take up room that might otherwise have been occupied by pas-
sengers or packages, did not even alter the car‘s appearance, and in short did not “seize” the car in any intelligible sense of the word.
In the case before this Court, as in McIver and Garcia, the installation of the GPS device in no way interfered with appellant‘s ability to operate the vehicle. The police did not damage the van by installing the GPS device in the bumper. No private information was exposed by the act of simply installing the device. In addition, as noted supra, appellant‘s possessory interest in the vehicle was limited, as the van belonged to his employer, not to him. We, therefore, conclude that any interference with appellant‘s limited possessory interest in the van was not a “meaningful interference” by the police. Karo, 468 U.S. at 712, 104 S.Ct. at 3302. Thus, the installation in this case did not constitute a seizure for Fourth Amendment purposes.
B. Activation of the GPS Device
Appellant also argues that the actual tracking of the van violated his Fourth Amendment privacy interests. Specifically, he contends that continually tracking his movements on the public roadways was a violation of his expectation of privacy. He also contends that tracking the van to his employer‘s warehouse, i.e., on private property, violated the Fourth Amendment.
Before addressing the specifics of his argument, we note that appellant raises several dire predictions of law enforcement officers attempting to track the whereabouts of every citizen in Virginia, if this Court finds the trial court did not err here. Several other appellate courts have acknowledged a very legitimate concern that, if the police are allowed to randomly track whole sections of the population without probable cause or reasonable suspicion, then privacy rights may well be violated. See, e.g., United States v. Knotts, 460 U.S. 276, 284, 103 S.Ct. 1081, 1086, 75 L.Ed.2d 55 (1983) (“[I]f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then
1. Tracking on Public Roadways
Appellant argues that he exhibited an expectation of privacy while he was driving the work van down public streets and that society recognizes this expectation of privacy as reasonable. In making this particular argument, appellant raises concerns of an Orwellian society resulting from the use of sophisticated technologies such as GPS tracking-concerns that do indeed initially raise practical and constitutional alarms. See Garcia, 474 F.3d at 998 (“One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States.“). However, given the facts of this particular case, as Judge Posner and the Seventh Circuit Court of Appeals also concluded in Garcia, “[w]hether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.” Id. As in Garcia, appellant‘s claims fail to hold water under the facts of this case because the police used the GPS device to crack this case by tracking appellant on the public roadways-which they could, of course, do in person any day of the week at any hour without obtaining a warrant. Therefore, we disagree with appellant‘s argument and find that Judge Posner‘s com-
a. Subjective Expectation of Privacy
Appellant claims that he manifested a subjective expectation of privacy with his “hunting” behavior, i.e., by driving around in the van looking for victims. While we believe that appellant wanted this behavior to remain undetected, this “hunting” behavior on the public streets did not indicate a subjective expectation of privacy. See Class, 475 U.S. at 114, 106 S.Ct. at 966.
The police tracked appellant as he drove a van that was emblazoned with his employer‘s logo, which helped advertise the company‘s name to people who observed the van going by them on the public streets. The van itself, therefore, suggested that people would observe its movements. Appellant did nothing to minimize the visibility of the logo or the van in general. In addition, nothing in this record suggests that appellant attempted to hide the movement of the van or “sneak” it down the road. He did nothing to prevent people from observing him as he drove on the public streets. In fact, the officers described his “hunting” behavior as driving slowly through the same areas, repeating a pattern-actually making it easier rather than harder for someone to observe the van‘s movements. This kind of behavior does not indicate that appellant actually attempted to prevent people from observing his actions. Compare Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (explaining that when an individual enters a phone booth, closes the door, and pays to make a call, the individual has evidenced an expectation that his conversation will not be heard by an “uninvited ear“). Appellant did not exhibit a subjective expectation of privacy while he was driving the work van down public streets.
Appellant also claims that society recognizes as reasonable an expectation “not to be constantly tracked.” However, the United States Supreme Court has held that society does not recognize such an expectation for vehicles on public streets. Knotts, 460 U.S. at 281, 103 S.Ct. at 1085 (“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.“); Cardwell, 417 U.S. at 590, 94 S.Ct. at 2469 (“A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.“); see also Garcia, 474 F.3d at 997 (“The substitute here [using GPS to track a suspect] is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.“). Society recognizes a privacy right not to be tracked in one‘s home, but the home is a very different setting from a public street. See Kyllo, 533 U.S. at 33, 121 S.Ct. at 2043 (“While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found ‘it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,’ 476 U.S. at 237, n. 4, 106 S.Ct. at 1826, n. 4 (emphasis in original).“); Karo, 468 U.S. at 715, 104 S.Ct. at 3303 (noting that, just as an officer cannot “surreptitiously” enter a home to determine if contraband is in the home, police cannot “surreptitiously employ[] an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house“). As appellant‘s movements in his home were not tracked-only the movements of the work van were recorded-no recognized privacy right was violated when the police used the GPS device to track the van‘s movements on the public streets.
Appellant acknowledges the United States Supreme Court‘s holding in Knotts that “persons do not have a reasonable expectation of privacy in their movements on the public streets.” However, he argues that technology has evolved since Knotts was decided, and, therefore, we should not con-
In Knotts, the police placed a beeper into a container that was then sold to Knotts and his co-defendants. 460 U.S. at 278, 103 S.Ct. at 1083-84. Unlike here, where the GPS system automatically tracked and recorded the movement of the van, the beeper technology discussed in Knotts required that the police follow the signal from the beeper as the container was moved. Id. We find that this advancement in tracking technology provides an insufficient basis for distinguishing Knotts. As the trial court found, the use of GPS tracking only enabled the police to “technologically supplement that information which the police could have obtained by their own sensory perception” if they had been physically following appellant-and physically following a van‘s movements on public streets (which is the key to the police‘s resolution of this case), without stopping or interfering with the van, is certainly constitutionally legitimate behavior for police officers.
The United States Supreme Court has acknowledged a difference between technology used as a substitute for legitimate police behavior and technology used as a substitute for police actions that violate the Fourth Amendment. Karo, 468 U.S. at 715, 104 S.Ct. at 3303. Based on the record in this case, the GPS technology used here did not provide a substitute for police behavior that would have otherwise violated a recognized right to privacy. Here, a police officer could have followed and personally recorded the movements of the van, and, as appellant concedes, such an investigation would not have violated any recognized right of privacy.12 The Court in
2. Tracking at the Employer‘s Warehouse
Appellant argues that the GPS system tracked the van onto the private property of his employer, which he alleges violated the Fourth Amendment. Therefore, he con-
The trial court specifically found that appellant had not proven “that by tracking him to the business, his place of business, that there was anything there that caused an invasion of his privacy.” On appeal, appellant does not explain how the police violated his own privacy expectations by tracking his work van to his employer‘s warehouse. Therefore, appellant has not established a subjective expectation of his own privacy that was violated by the GPS tracking of his employer‘s van when it was parked at his employer‘s place of business.14 See Kyllo, 533 U.S. at 33, 121 S.Ct. at 2042-43. Furthermore, it certainly appears, as the Commonwealth argues, that the GPS tracking of the work van while at the warehouse did not contribute in any way to the decision by the police to personally follow appellant on February 6, 2008.
Appellant cites several federal district court cases involving cell phones, which can and often are taken into private homes to support his position that the police cannot track individuals on private property. However, appellant does not argue that the police tracked his movements in his home, so those cases do not apply. The “potential” use of GPS tracking in other circumstances to follow individuals into truly private areas has no place in the analysis of this case. Karo, 468 U.S. at 712-13, 104 S.Ct. at 3301-02; Dow Chemical Co., 476 U.S. at 239 n. 5, 106 S.Ct. at 1827 n. 5.
III. Conclusion
We find the police did not violate the Fourth Amendment of the United States Constitution or Article 1, section 10, of the Virginia Constitution by installing a GPS device in the bumper of appellant‘s work van while it was parked on a public street or by tracking the van with the GPS system on the public
Based on the foregoing, we affirm the trial court‘s denial of appellant‘s motion to suppress and affirm appellant‘s conviction for abduction with intent to defile.
Affirmed.
FELTON, C.J., concurring.
I concur in that part of the majority opinion affirming the trial court‘s judgment denying appellant‘s motion to suppress the eyewitness testimony of the law enforcement officers who
Appellant was a registered sex offender who had recently been released from prison. At the time of appellant‘s attack on the victim, law enforcement officers were conducting a visual surveillance of appellant as he drove his personal car on public roadways. Based on information law enforcement officers had developed in investigating a series of unsolved sexual assaults in that region, they had begun to focus on appellant as a prime suspect in those unsolved crimes prior to placing the GPS device on appellant‘s employer‘s van.
Even assuming, without deciding, that the officers’ placing a GPS device in the bumper of employer‘s van driven by appellant, while that vehicle was on a public street, somehow violated appellant‘s Fourth Amendment rights, the evidence
In Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974),18 the Supreme Court provided three limitations to the exclusionary rule and the “fruit of the poisonous tree” doctrine: “(1) evidence attributed to an independent source; (2) evidence where the connection has become so attenuated as to dissipate the taint; and (3) evidence which inevitably would have been gained even without the unlawful action.” The record on appeal clearly reflects that the officers had obtained evidence independently of that provided through the GPS device that appellant was a strong suspect in the recent unsolved sexual assaults in the region. The record shows that their focus on appellant as a prime suspect was based on a comparison of the modus operandi that led to his prior conviction to the modus operandi used by a perpetrator of the recent unsolved sexual assaults. The latter assaults occurred in the area where appellant lived and where he attended meetings required as part of his probation requirements following his release from prison. Based on that information, the officers determined that they would visually follow appellant‘s movement. On the day of the attack at issue here, they observed appellant driving his personal car, then park and leave it on a public street and walk in the
In my view, the record on appeal provides no basis to exclude the eyewitness testimony of the officers who witnessed appellant‘s sexual attack on the victim. The officers’ eyewitness testimony, as well as that of the victim, was competent to prove that appellant was guilty of abduction with the intent to defile the victim. Accordingly, I would affirm appellant‘s conviction without addressing the GPS Fourth Amendment issue.