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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia
DAVID L. FOLTZ, JR., S/K/A
DAVID LEE FOLTZ, JR.
                                                                                                                           OPINION BY
v.                                                                                                  Record No. 0521-09-4   CHIEF JUDGE WALTER S. FELTON, JR.
APRIL 5, 2011
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Christopher Leibig (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; Thomas Okuda Fitzpatrick
(Third Year Practice Certificate), on brief), for appellant.
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
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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
1 When Lt. Akre related the substance of Kraut’s call to a senior Fairfax County
detective, the senior detective immediately knew Kraut was referring to appellant.
2 Police files revealed that the offenses involving appellant in the 1986-1990 timeframe
shared similar characteristics with the recently reported offenses and that after appellant was
arrested in 1990, he had confessed to committing six sexual offenses, including a rape in 1986.
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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
e,”                                                                                                  officers then followed appellant on foot.  They observed him, with “something up over his fac
aw                                                                                                   run after a woman who was walking down a public sidewalk.  The officers testified that they s
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
3 The surveillance team consisted of 18 police officers in 10 unmarked vehicles.
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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
4 This appeal is governed by Rule 5A:20(c) as worded prior to its revision effective July
1, 2010, changing the requirement from setting forth “questions presented” to setting forth
“assignments of error.”
5 Pursuant to Rule 5A:20(e) we do not address appellant’s question presented III because
appellant did not address that question presented in his brief to the en banc Court.
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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
(1963).
From our review of the record on appeal, we conclude that the trial court did not err in
denying appellant’s motion to suppress the eyewitness testimony of the police officers.  We
reach this conclusion without addressing whether the use of the GPS device, attached to
employer’s van assigned to appellant, without first obtaining a search warrant, violated
appellant’s rights under the Fourth Amendment of the United States Constitution and Article I,
Section 10 of the Virginia Constitution.6
6 At oral argument, the parties agreed that the basis for our decision today was not raised
to the trial court.  However, we conclude, for the reasons stated herein, that the trial court’s
decision to deny appellant’s motion to exclude the officers’ eyewitness testimony of appellant’s
attack on his victim was the correct decision.
“Failure to make the argument before the trial court is not the
proper focus of the right result for the wrong reason doctrine.
Consideration of the facts in the record and whether additional
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The record on appeal clearly demonstrates that the officers’ investigation of recent
unsolved sexual assaults in the region pointed to appellant as the likely perpetrator of those
assaults, based on the perpetrator’s unique modus operandi in those assaults and the locations
where those assaults occurred.  Prior to placing the GPS device on the van, the investigating
officers acquired significant and reliable information that led them to focus on appellant, a
registered sexual offender on probation, as the prime suspect in the recent sexual assaults.  The
record also reflects that prior to use of the GPS device, the investigating officers compared the
modus operandi appellant used in the previous sexual assaults with the modus operandi used by
the perpetrator of the recent unsolved sexual assaults in the region.  Additionally, the recent
assaults occurred in the area where appellant lived and worked, and where he attended
probation-related meetings.  Based on that information, and the report of a sexual assault
occurring the previous night in an area where GPS records indicated appellant’s assigned work
van had been parked nearby, the officers concluded that appellant was likely the perpetrator of
the sexual assaults and that he was likely to attack again.  Based on those factors, the officers
decided to visually follow appellant’s movements the following day.
During their visual surveillance of appellant, the officers witnessed his sexual assault on
the victim.  The officers were not engaged in any unlawful conduct whatsoever when they
conducted a visual surveillance of appellant as he traveled in his personal truck over public
factual presentation is necessary to resolve the newly-advanced
reason is the proper focus of the application of the doctrine.”
Banks v. Commonwealth, 280 Va. 612, 617, 701 S.E.2d 437, 440 (2010) (quoting Perry, 280 Va.
at 580, 701 S.E.2d at 436).
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roads.  When they saw appellant sexually assault the victim, they quickly intervened, rescued the
victim, and apprehended him.7
The officers’ eyewitness testimony was material, competent, and relevant to prove that
appellant was guilty of abduction with intent to defile.
“As a general rule, a litigant is entitled to introduce all competent,
material, and relevant evidence tending to prove or disprove any
material issue raised, unless the evidence violates a specific rule of
admissibility.”                                                                                         “Evidence is admissible if it is both relevant and
material,” and it is inadmissible if it fails to satisfy either of these
criteria.                                                                                               “Evidence is relevant if it has any logical tendency,
however slight, to establish a fact at issue in the case.”   “Evidence
is material if it relates to a matter properly at issue.”
Calhoun v. Commonwealth, 35 Va. App. 506, 509, 546 S.E.2d 239, 241 (2001) (quoting Peeples
v. Commonwealth, 28 Va. App. 360, 365, 504 S.E.2d 870, 873 (1998) (citations omitted)).
However, appellant asserts that, because information obtained from the GPS device was a
factor in the police officers’ decision to personally follow him, any unlawful acts they observed
him commit in their presence must be excluded as “fruit of the poisonous tree.”  We disagree.
Whether evidence should be excluded as derivative of an illegal act and, therefore,
suppressed under the exclusionary rule as “fruit of the poisonous tree” of that act, depends on
whether “‘the evidence to which instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”
Wong Sun, 371 U.S. at 488 (quoting John M. Maguire, Evidence of Guilt 221 (1959)), quoted
with approval in Hudson v. Michigan, 547 U.S. 586, 592 (2006).  The United States Supreme
Court has observed that evidence is not “‘fruit of the poisonous tree’ simply because it would not
have come to light but for the illegal actions of the police.”  Id. (emphasis added).  See Hudson,
547 U.S. at 592 (observing that “but-for causality is only a necessary, not a sufficient, condition
                                                                                                        7 Police “officers may arrest, without a warrant, any person who commits any crime in
the presence of the officer . . .                                                                       .”  Code § 19.2-81(B).
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for suppression”).  The exclusion of evidence “‘has always been our last resort, not our first
impulse,’ and our precedents establish important principles that constrain application of the
exclusionary rule.”  Herring v. United States, 555 U.S. 135, ___, 129 S. Ct. 695, 700 (2009)
(quoting Hudson, 547 U.S. at 591).  Evidence is obtained by means sufficiently distinguishable
to be admissible despite an illegality by the authorities if it is “evidence attributed to an
independent source” or “evidence where the connection has become so attenuated as to dissipate
the taint.”  Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974).
Here, we hold that the exclusionary rule does not bar the eyewitness testimony of the
officers who witnessed appellant sexually assault the victim.  The assault the officers observed
was a new and distinct offense from the previously committed crimes the officers were
investigating, and sufficiently independent of any information obtained by them from the GPS
tracking device.8   The officers’ focus on appellant, a registered sex offender on probation, as the
likely perpetrator of the recent sexual assaults did not begin with the placement of the GPS
device on his assigned work van.  They knew that appellant resided, worked, and attended
probation-related meetings where the recent assaults occurred.  They knew that the manner in
which the perpetrator of the recent sexual assaults attacked those victims was “amazingly like”
that appellant used in previous sexual assaults to which he had previously confessed.  The
additional information obtained from the GPS tracking of the van’s locations near the scene of
the latest attack was just one more piece of information to add to the already strong focus on
appellant as the person responsible for the assaults.  The officers’ immediate concern for public
8 Cf. United States v. Sprinkle, 106 F.3d 613 (4th Cir. 1997) (affirming conviction for
new, distinct crime committed by suspect’s response to an illegal stop); Testa v. Commonwealth,
55 Va. App. 275, 685 S.E.2d 213 (2009) (applying Sprinkle to affirm conviction of obstruction
of justice for threatening police officer committed during allegedly unlawful entry); Brown v.
City of Danville, 44 Va. App. 586, 606 S.E.2d 523 (2004) (affirming conviction where appellant
engaged in a new and distinct criminal act in response to unlawful police conduct).
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safety and the urgency of apprehending the predatory sexual attacker resulted in their decision to
visually follow appellant as he drove his personal vehicle along the public streets the day
following the most recent sexual assault in that area.  The officers’ testimony, which appellant
sought to suppress, related to events they observed as they saw appellant assault the innocent
victim as she walked along a public sidewalk.
We hold that the officers’ observations of that criminal act were sufficiently attenuated
from any argued taint arising from the placement and use of the GPS device to track the
movements of appellant’s assigned work van and that there is no basis in law to exclude the
officers’ eyewitness testimony of a violent assault being committed in their presence.
III.  CONCLUSION
For the reasons stated herein, we hold that the trial court did not err in denying
appellant’s motion to suppress the eyewitness testimony of the police officers.  Accordingly, we
affirm the judgment of the trial court.
Affirmed.
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Beales, J., with whom Haley, J., joins, concurring.
While I agree that this Court should affirm appellant’s conviction, I believe that the best
and narrowest ground for resolving this appeal is to address the Fourth Amendment issue that
was presented to the trial court and to this Court on appeal.  This Fourth Amendment issue was
extensively briefed and argued by the parties in the trial court, and it was the issue that the trial
court actually addressed in denying appellant’s motion to suppress.  Furthermore, this same
Fourth Amendment issue was the issue presented to this Court in appellant’s petition for appeal,
and it was the subject of the questions presented granted by this Court.9   On appellate review in
this Court, it is clear that no Fourth Amendment violation occurred under the particular facts of
this case (and no one has ever argued that any Virginia statute was violated here either).10
Accordingly, I would squarely address the Fourth Amendment issue that is before this Court in
this case, and I would affirm the trial court on this Fourth Amendment basis as argued by the
parties - not on an alternative basis.
I.  BEST AND NARROWEST GROUND FOR AFFIRMING
If this Court is confronted with more than one reason to affirm a trial court’s decision,
then we should, of course, affirm that decision on the best and narrowest ground available from
the record.  Podracky v. Commonwealth, 52 Va. App. 130, 134, 622 S.E.2d 81, 84 (2008).  Thus,
9 Appellant raised two related issues before this Court, which were the same issues he
raised at trial - whether his Fourth Amendment rights were violated by putting a GPS device in
the bumper of his work van or by using a GPS device to track his movements in the work van.
This Court granted appellant’s petition for appeal on these issues.  By basing our ruling on the
Fourth Amendment, we would be affirming the trial court on the same grounds on which the trial
court itself based its denial of appellant’s motion to suppress.
10 Appellant never argues that there is any Virginia statute requiring that a warrant be
issued before a GPS device may be placed in the bumper of his work van.  The only question on
appeal before this Court in this case is whether the Fourth Amendment prohibits the use of a
GPS device on a person’s work vehicle (which is owned by the person’s employer) when there is
reasonable, articulable suspicion that this person has committed or is about to commit a crime -
or, as here, a continuing series of crimes.
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in appropriate cases, appellate courts can and should affirm a trial court’s ruling on a different
basis than the basis used by the trial court - provided that this alternative ground is the best and
narrowest one for affirming the trial court’s decision.
In some cases, such as the case today before this Court, the best and narrowest ground for
affirming the denial of a suppression motion is to hold that the trial court simply did not err in its
ruling on the substantive constitutional issue.  It is not necessary, on appeal in such a case, to
avoid addressing the substantive constitutional issue altogether and instead reach the conclusion
that the exclusionary rule is inapplicable.  See, e.g., United States v. Pineda-Chinchilla, 712 F.2d
942, 944 (5th Cir. 1983).  No controlling authority holds or even suggests that this Court must
consider the exclusionary rule when seeking to determine the best and narrowest ground for
affirmance - especially when it is clear that the trial court’s ruling on the substantive
constitutional issue was not erroneous.  See Armstead v. Commonwealth, 56 Va. App. 569, 576,
695 S.E.2d 561, 564 (2010) (“We do not address the exclusionary rule issue because ‘the best
and narrowest ground available’ for decision is the first premise of Armstead’s argument - that
the trial court’s decision is inconsistent with [Arizona v. Gant, 129 S. Ct. 1710 (2009)].  We do
not believe it is.” (footnotes and citation omitted)).11
11 Like the majority, I do not tend to believe that the testimony of the police officers
describing appellant’s actions on February 6, 2008, which appellant sought to suppress as fruit of
the poisonous tree, is subject to the exclusionary rule.  However, an appellate court need not
actually address the exclusionary rule on appeal, if the better and narrower ground for affirmance
is to address the substantive Fourth Amendment issue.  See Armstead, 56 Va. App. at 576, 695
S.E.2d at 564.  In addition, a significant function of an appellate court is to “to provide guidance
to trial courts” on substantive legal issues, unless doing so would result in an advisory opinion.
See Angel v. Commonwealth, 281 Va. 248, 273 n.6, 704 S.E.2d 386, 401 n.6 (2011) (internal
quotation marks omitted); see also United States v. Cruz, 581 F.2d 535, 541 (5th Cir. 1978) (en
banc) (“The dual function of appellate courts is to review the record of trials for alleged error
and, incident thereto, to announce and apply principled rules for the guidance of trial courts,
lawyers, and litigants.”), overruled on other grounds by United States v. Causey, 834 F.2d 1179,
1184 (5th Cir. 1987).  Here, applying the Fourth Amendment principles considered by the trial
court to the facts of this case certainly would not be providing an advisory opinion.
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Here, “the best and narrowest ground,” id., for resolving this appeal is to address the
Fourth Amendment issue that was actually presented to the trial court and that was presented to
this Court on appeal.  The Fourth Amendment principles pertinent to this case are well
established.  The trial court based its ruling on these Fourth Amendment principles.  The
questions presented raised by appellant and granted by this Court were based on these Fourth
Amendment principles.  Addressing these Fourth Amendment principles on appellate review, it
is clear that appellant’s Fourth Amendment rights were not violated, given the facts in this
particular case.  Therefore, in this case, it is certainly appropriate to apply these well-established
Fourth Amendment principles to the very specific factual situation presented here.
II.  FOURTH AMENDMENT ANALYSIS
I certainly acknowledge up front that there are some very legitimate concerns arising
from the development and use of sophisticated technology such as GPS devices.  See, e.g.,
United States v. Knotts, 460 U.S. 276, 284 (1983); United States v. Maynard, 615 F.3d 544, 565
(D.C. Cir. 2010); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007).  The government
could potentially abuse this technology in an Orwellian manner by truly invading the private
lives of individuals without any constitutional justification.
Although I certainly share these concerns about the potential use of Orwellian practices
by the state that would abuse the privacy rights of the citizenry, the particular facts of this
specific case simply do not even raise such concerns.  See Dow Chemical Co. v. United States,
476 U.S. 227, 239 n.5 (1986) (“Fourth Amendment cases must be decided on the facts of each
case,” not based on generalizations.).  As Judge Posner wrote on behalf of the Seventh Circuit in
Garcia, affirming the use of GPS tracking in that case, “[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
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case.”   474 F.3d at 998.  Similarly, this Court need not tackle such “momentous issues” in this
case.  Here, given the specific facts of this case, this appellant’s Fourth Amendment rights
clearly were not violated.
“The Fourth Amendment of the United States Constitution provides that ‘the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.’”  Gibson v. Commonwealth, 50 Va. App. 744, 749, 653
S.E.2d 626, 628 (2007) (quoting U.S. Const. amend. IV).  Thus, “[t]he Fourth Amendment
protects the privacy and security of individuals against arbitrary searches and seizures by
governmental officials.”  Harris v. Commonwealth, 276 Va. 689, 694, 668 S.E.2d 141, 144
(2008) (citing Camara v. Municipal Court, 387 U.S. 523, 528 (1967); Brown v. Commonwealth,
270 Va. 414, 418, 620 S.E.2d 760, 762 (2005)).   “The key inquiry regarding whether the
[Fourth] Amendment affords protection is ‘whether a person has a constitutionally protected
reasonable expectation of privacy.’”  Gibson, 50 Va. App. at 749, 653 S.E.2d at 628 (quoting
Oliver v. United States, 466 U.S. 170, 177 (1984)); see United States v. Knights, 534 U.S. 112,
118 (2001) (noting that “[t]he touchstone of the Fourth Amendment is reasonableness”).  The
United States Supreme Court has made it clear that a constitutionally protected reasonable
expectation of privacy exists under the Fourth Amendment only if a person has a subjective
expectation of privacy and if society recognizes that subjective expectation of privacy as
reasonable.  Kyllo v. United States, 533 U.S. 27, 33 (2001); Oliver, 466 U.S. at 177.
“[T]he Fourth Amendment protects people, not places.”  Katz v. United States, 389 U.S.
347, 351 (1967).12   This case does not concern a search and seizure of appellant’s person, or the
12 Although the actual text (as opposed to the footnote) of Judge Humphreys’s
concurrence appears to suggest that the United States Supreme Court should overturn (or
significantly alter) decades of Fourth Amendment precedent from that Court, other federal
appellate courts, and the Virginia Supreme Court, the parties here agree that the United States
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recording of any of appellant’s private conversations.  This case does not involve appellant’s
home or even appellant’s own property.  Especially as this case concerns a van owned and
regulated by appellant’s employer, the circumstances in this case certainly did not violate
appellant’s own privacy protections under the Fourth Amendment.
A.  Placement of GPS Device
In this case, the police installed a GPS device in the bumper of a van that was owned by
appellant’s employer - it is undisputed that the van was not appellant’s own vehicle.  Appellant
used this work van with his employer’s consent, and the employer allowed him to use it only for
work and to travel to appointments with his probation officer when time would not permit him to
go home first and use his own vehicle.  In short, appellant’s employer clearly regulated the use of
this work van, and it forbade him from using the van for almost all personal activities.
Furthermore, the employer’s van used by appellant in this case was parked on a public
street when the police attached the GPS device to the van.  The device was placed in the bumper
of the van; thus, attaching the device did not require opening the van’s passenger compartment or
accessing its battery power.  Given these circumstances (and for the reasons that follow), no
Fourth Amendment violation resulted from the placement of the GPS device on the employer’s
van in this manner.
The placement of the GPS device in the bumper of appellant’s employer’s van is similar
in some ways to the situation addressed by the United States Supreme Court in United States v.
Karo, 468 U.S. 705 (1984).  In Karo, tracking devices were placed in containers that were then
purchased by Karo, who in turn placed the containers in his vehicle.  Id. at 707.  The Supreme
Supreme Court’s decisions in Katz and its progeny are the controlling cases on the Fourth
Amendment issues raised in this appeal.
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Court found that the transfer to Karo of the containers with the hidden tracking devices did not
infringe on his privacy, explaining:
[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 (emphasis added).  Similarly, in this case, the installation of the GPS device in the
bumper of appellant’s employer’s van did not relay any information - private or otherwise, from
appellant or from anyone else - to the police.  Therefore, the police did not infringe appellant’s
privacy by installing the device in the work van because nothing private was actually exposed by
the placement.
In addition, placing the GPS device in the bumper of his employer’s van, while that van
was parked on a public street, did not expose anything that was not already visible and freely
accessible to the public.  See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (“If a
neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to
retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain.”), reh’g
en banc denied, 617 F.3d 1120 (9th Cir. 2010); United States v. McIver, 186 F.3d 1119, 1127
(9th Cir. 1999) (finding McIver did not prove that “he intended to preserve the undercarriage” of
the vehicle “from inspection by others” and that “the officers did not pry into a hidden or
enclosed area” when they installed a GPS device on the vehicle); United States v. Rascon-Ortiz,
994 F.2d 749, 754-55 (10th Cir. 1993) (finding that the agent did not violate a defendant’s
privacy when he examined the undercarriage of a vehicle because “[t]he undercarriage is part of
- 16 -




the car’s exterior, and as such, is not afforded a reasonable expectation of privacy” and because
the agent did not “disturb[] or move[] parts of the car in order to facilitate his observations”).13
The United States Supreme Court has noted that “[t]he public is fully aware that it is
accorded less privacy in its automobiles” because there is a “compelling governmental need” to
regulate motor vehicles.  California v. Carney, 471 U.S. 386, 392 (1985).  Accordingly,
“warrantless examinations of automobiles have been upheld in circumstances in which a search
of a home or office would not.”  South Dakota v. Opperman, 428 U.S. 364, 367 (1976).  This
case presents even less of a privacy interest than the situations addressed by the Supreme Court
in Carney and Opperman.  Here, the GPS device was placed inside the bumper of the work van
that appellant’s employer allowed him to drive - not inside the passenger compartment or in the
glove compartment, where personal articles are often kept.  The bumper of appellant’s
employer’s van, parked on a public street, certainly does not “provide the setting for those
intimate activities that the [Fourth] Amendment is intended to shelter from government
interference or surveillance.”  Oliver, 466 U.S. at 179.
Based on the specific facts in this case, the police did not violate appellant’s reasonable
expectation of privacy when they installed the GPS device in the bumper of his employer’s work
van.  The employer’s van was not appellant’s personal property, and it was not parked on his
property.  Although appellant drove the van, he was not in control of where the van was
supposed to go.  Instead, appellant’s employer told him where he could drive the van.  Thus, the
employer strictly controlled the van’s movements and directed appellant where he was supposed
to be going with it.
13 The fact that the police had to touch the work van to install the GPS does not mean that
the installation violated a reasonable expectation of privacy in some way.  See Cardwell v.
Lewis, 417 U.S. 583, 591 (1974) (finding that a defendant’s privacy rights were not violated
when the police examined a tire and took a paint sample from his car as it was in a public
parking lot).
- 17 -




Furthermore, appellant did nothing to remove his employer’s van from the public’s view
- it was parked on the street without a cover, and nothing prevented the public from observing
the van.  In fact, appellant’s employer clearly wanted the public to notice this van - the business’
logo and contact information were publicized on the side of the van, obviously intending to
attract attention.
Moreover, the installation of the GPS device did not require that the police open the
doors or the hood of the employer’s van, and the police did not connect the device to any
operational part of the vehicle.  Compare Karo, 468 U.S. at 707 (finding “no Fourth Amendment
interest of Karo or of any other respondent was infringed by the installation of the beeper” which
merely occupied space in a can purchased by Karo) with Commonwealth v. Connolly, 913
N.E.2d 356, 361-62, 369 (Mass. 2009) (finding that installation of a GPS device by attaching it
to the car’s battery violated the Massachusetts Declaration of Rights).  Instead, the GPS device
used its own power source.  See Garcia, 474 F.3d at 997.  No evidence suggested that the device
affected the performance of the employer’s van or impeded in any way appellant’s ability to use
the van for his job.
Given all of these circumstances, I would find that the installation of the GPS device in
this particular case did not violate appellant’s Fourth Amendment rights.
B.  GPS Tracking
I would also find that appellant’s Fourth Amendment privacy rights were not violated
when the police used the GPS device to track appellant’s movements while appellant was driving
on the public streets14 in his employer’s van, especially given his movements in the van were
already regulated by the employer, as the van’s owner.
14 Appellant also claims that his Fourth Amendment rights were violated when the police
tracked the van to his employer’s place of business, which was in a business park marked
“private” property.  However, as the trial court found, appellant presented no evidence that
- 18 -




The United States Supreme Court has repeatedly held that society does not recognize an
expectation of privacy in the movement of vehicles on public streets.  Knotts, 460 U.S. at 281
(“A person traveling in an automobile on public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another.”); Cardwell v. Lewis, 417 U.S. 583, 590
(1974) (“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 Carney, 471 U.S. at 392
(“The public is fully aware that it is accorded less privacy in its automobiles . . .                   .”); Rakas v.
Illinois, 439 U.S. 128, 148 (1978) (“We have on numerous occasions pointed out that cars are
not to be treated identically with houses or apartments for Fourth Amendment purposes.”).  Here,
appellant drove his employer’s work van on public streets.
Given the limited expectation of privacy in a vehicle’s movement on public roads, the
particular facts here make it very clear that the use of GPS tracking in this case did not violate
appellant’s privacy rights.  First, in this case, the police used the GPS device to track appellant’s
movements as he drove his employer’s work van - not as he drove his own vehicle.  The
movements of this van were already being “tracked” by its owner, appellant’s employer, who
regulated appellant’s use of its work van.  Therefore, this case is unlike Maynard, 615 F.3d at
555, where the police tracked the defendant’s unrestricted driving of his personal vehicle for a
number of weeks.  This case is also unlike Connolly, 913 N.E.2d at 361, and State v. Weaver,
appellant had any expectation of privacy at his employer’s warehouse - especially regarding the
movement of the van, which his employer owned.  The police did not track the employer’s van
onto any property owned by appellant or to any other private place where appellant would have a
reasonable expectation of privacy.  As a result, I agree with the trial court that appellant’s
privacy rights were not violated when the GPS device tracked the employer’s van to the
employer’s warehouse.  See Katz, 389 U.S. at 351.
- 19 -




909 N.E.2d 1195, 1195 (N.Y. 2009),15 where the police tracked the personal vehicles of the
suspects.  In those three cases, unlike here, no one regulated the defendants’ use of their vehicles.
Here, on the other hand, appellant’s employer limited appellant’s use of the work van.
Appellant did not have permission to drive the van wherever he liked or to do whatever he
wanted with it.  He could not sell it or rent it to other people.  He could not drive it for personal
errands.  As the prosecutor noted in the trial court, appellant was not even permitted to use his
employer’s van “to stop on the way home from work for grocery shopping.”  Appellant was only
allowed to drive the van to the places where his employer told him to take it and to pre-approved
probation meetings.  Therefore, appellant’s movements with the work van were already
essentially “under surveillance” by his employer.
Indeed, this case concerns only appellant’s movements while he drove his employer’s
work van.  As the trial court found, the police “didn’t put the device on him; they put it on [the
employer’s] van.”   (Emphasis added).  This situation is simply very different than the situation in
Maynard.  In that case, over the course of a month, the authorities tracked all of that defendant’s
unregulated and otherwise unmonitored movements in his own vehicle.  Maynard, 615 F.3d at
558.  In this case, over a much shorter period of time, GPS tracking was only used to track
appellant’s movements in his employer’s van - and appellant could not have had a reasonable
expectation of privacy in his movements in his employer’s van because he understood that his
movements in this van were already supposed to be regulated by and revealed to his employer.
15 Both the Massachusetts and the New York courts have found that GPS tracking
specifically violated their state constitutions, not necessarily the federal constitution.  See
Connolly, 913 N.E.2d at 369; Weaver, 909 N.E.2d at 1201-03.  The privacy rights afforded by
the Massachusetts and New York state constitutions are broader than those afforded under the
federal constitution.  Commonwealth v. Balicki, 762 N.E.2d 290, 299 n.11 (Mass. 2002);
Weaver, 909 N.E.2d at 1202.  In Virginia, on the other hand, Article I, Section 10, of our state
constitution is simply coextensive with the Fourth Amendment of the United States Constitution.
Lowe v. Commonwealth, 230 Va. 346, 348, 337 S.E.2d 273, 274 (1985) (citing A. Howard, I
Commentaries on the Constitution of Virginia 182 (1974)).
- 20 -




See Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (“This Court consistently has held that a
person has no legitimate expectation of privacy in information he voluntarily turns over to third
parties.”).
In addition, the employer’s van in this case was designed to attract attention, unlike the
personal vehicles in Maynard, 615 F.3d at 555, Connolly, 913 N.E.2d at 361, and Weaver, 909
N.E.2d at 1195.16   In those cases, the vehicles were typical cars or vans - private vehicles
belonging to the suspects being tracked.  Here, the vehicle was a commercial van owned by
appellant’s employer.  The employer had placed its logo and business information on the side of
the van - essentially advertising the business as appellant drove the employer’s work van on the
streets and parked it in public places.  Clearly, appellant’s employer wanted people to notice the
van’s movements.  Appellant, as the driver of the van and an employee, knew that this
conspicuous advertising had been placed on the work van.
Appellant simply cannot claim that he has a privacy expectation in the movements of his
employer’s van as it moves on the public streets.  Both the appearance of the van and his
employer’s control of the van establish that appellant’s movements with the van were already
exposed while he drove it on the public streets and were certainly not kept private.  Moreover,
the police in this case were investigating a continuing series of sexual assaults, and appellant
16 Moreover, the manner in which appellant drove his employer’s van certainly attracted
attention.  Tracking the movements of the employer’s van using GPS technology, police officers
observed (in real time) how the employer’s van was being driven in and out of various
neighborhoods on the afternoon of February 5, 2008.  This pattern of driving concerned the
officers, who characterized the pattern as “hunting” behavior.  Detective Kirk, one of the
detectives who observed the GPS data, testified, “What I was observing was the vehicle driving
on the same streets, driving at a slow rate of speed.  That concerned me from my experience of
working sex-crimes cases.  It is often a pattern that is shown by sex offenders, rapists.”
“[W]hoever is driving that vehicle should be looked at,” Detective Kirk recalled saying at that
time, and the other officers assigned to the case agreed with his suggestion.  That night, another
sexual assault occurred - and the GPS data indicated that the employer’s van was parked within
two blocks of the scene of the attack at the time it occurred.  The police then began following
appellant themselves on February 6, 2008 - the next day.
- 21 -




does not now contest the trial court’s finding that the police had reasonable, articulable suspicion
to consider him a suspect in these offenses.  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 - and the police tracked appellant’s movements
with the GPS device only while he drove his employer’s vehicle.  Under these circumstances, the
use of GPS tracking in this case was certainly not arbitrary - and was not unconstitutional.  See
Knights, 534 U.S. at 118; Camara, 387 U.S. at 528.
Consequently, the use of GPS tracking in this case did not violate appellant’s Fourth
Amendment rights.
III.  CONCLUSION
In my view, the best and narrowest ground for deciding this case is to hold that the trial
court did not err in denying appellant’s motion to suppress because the installation and use of the
GPS device here simply did not violate the Fourth Amendment.
I recognize the potential for abuses of GPS technology by the government, but a
multitude of circumstances in this case establish that appellant’s privacy rights simply were not
violated:
•   the fact that the van was owned by appellant’s employer - not appellant himself17 ;
•   the fact that the employer told appellant where to drive its van and otherwise regulated
his use of the van;
•   the fact that the van was intended by its owner to be seen - as a conspicuous form of
advertising for appellant’s employer - as it was being driven on the public streets;
17 The employer has never expressed any concern about the police’s placement of the
GPS device on his van - not when he testified before the trial court and apparently not at any
other time.
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•   the fact - not even contested on appeal - that the police had reasonable, articulable
suspicion that appellant had recently committed a series of sexual assaults (similar to
crimes for which he had been previously convicted) and that he was continuing to assault
women;
•   the fact that the employer’s van was parked on a public street when the GPS device was
installed;
•   the fact that the GPS device was not connected to the employer’s van’s mechanical
workings, such as its battery;
•   the fact that the device was placed in the employer’s van’s bumper - not inside its
passenger compartment; and
•   the fact that the employer’s van’s movements were tracked while it was being driven on
the public streets, where the police could, of course, have followed appellant in person at
any time without obtaining a warrant.
Given all of these circumstances, which certainly do not establish any kind of arbitrary
“intrus[ion] upon an individual’s privacy,” Wyoming v. Houghton, 526 U.S. 295, 300 (1999), I
believe it is unnecessary to decide this case by holding that the exclusionary rule - a remedy for
a Fourth Amendment violation - is inapplicable in this case.  See Armstead, 56 Va. App. at 576,
695 S.E.2d at 564.
Accordingly, I would squarely address the Fourth Amendment issue that was the subject
of appellant’s questions presented in this Court and that was the issue upon which the appeal was
granted by this Court - the same issue that was also the focus of argument in the trial court and
on which the trial court made its decision.  On this Fourth Amendment issue, it is clear that the
trial court committed no error.  Therefore, while I agree with the majority that the trial court’s
conviction of appellant for abduction with intent to defile should be affirmed, I would instead do
- 23 -




so by addressing the questions presented to, and granted by, this Court - and by holding that
there was no Fourth Amendment violation under the specific facts of this particular case.
- 24 -




Humphreys, J., concurring.
I join entirely in the analysis and judgment of the majority that we need not address the
merits of the Fourth Amendment implications of the use of GPS tracking devices by law
enforcement officers because, for the reasons noted by the majority, the exclusionary rule does
not operate to suppress the eyewitness testimony of the police officers in this case.  I write
separately only to address some of the points raised by Judge Beales in Section II of his
concurring opinion.
The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and
security of individuals against arbitrary invasions by government officials.”  Camara v. Mun.
Court of San Francisco, 387 U.S. 523, 528 (1967); see also Skinner v. Ry. Labor Execs.’ Ass’n,
489 U.S. 602, 613-14 (1989) (“The [Fourth] Amendment guarantees the privacy, dignity, and
security of persons against certain arbitrary and invasive acts by officers of the Government or
those acting at their direction.” (citing Camara, 387 U.S. at 528)).  Since 1967, the Fourth
Amendment has been understood to be fundamentally concerned with protecting an individual’s
“privacy” from invasion and interference by the government and its agents.  Katz v. United
States, 389 U.S. 347 (1967).  With the advent of the telephone—and the subsequent ability to tap
it from the premises of a third party, the phone company—the Supreme Court recognized that the
old property-centric reading of the Fourth Amendment that married the concepts of “search and
seizure” to physical trespass was no longer tenable.  Id. at 351-53.  Twentieth century technology
had made it easy for government to intrude upon people's personal lives without intruding on
their property.  Consequently, the Supreme Court changed course in Katz, and determined that
the Fourth Amendment “protects people, not places,” id. at 351, and substituted “reasonable
expectations of privacy” for property rights as the defining element of a government “search,” id.
at 360-61 (Harlan, J., concurring).  Thus, under the current understanding of the Fourth
- 25 -




Amendment, the Constitution is concerned only with government actions that violate a
“reasonable expectation of privacy,” which courts have held is limited to the exposure of what
was previously secret and not exposed in public.  See, e.g., Carter v. Commonwealth, 209 Va.
317, 320, 163 S.E.2d 589, 592 (1968) (“A search implies a prying into hidden places.”).
Advances in technology in the twenty-first century have engendered a growing number of
previously unavailable investigative and surveillance techniques—such as the GPS location
tracking illustrated by this case—that allow the government to conduct what many intuitively
find to be an increasingly troubling degree of monitoring of its citizens, potentially on a vast
scale, by targeting information that is at least, in some sense, “public.”  As was the case in
United States v. Maynard, 615 F.3d 544, 555 (D.C. Cir. 2010), we are not talking about the
“public” events of a single evening, but rather the comprehensive observation or electronic
tracking that takes place over a period of days, weeks, or months.  While it is reasonable to
expect that anyone might witness any one of such a series of public activities or events, it does
not follow that one cannot reasonably expect that a particular person or group would not be privy
to all of them.  Similarly, one might reasonably expect something as intensely personal as their
genetic profile to remain private even if such a profile could in principle be extrapolated from
residual DNA left upon a glass or fork “abandoned” in a public restaurant.  Thus, Maynard can
be read to suggest that private (and thus protected) facts may be extrapolated from the
aggregation of individual public events or from a technologically assisted analysis of “public”
objects or information.   615 F.3d at 565-66.  Kyllo v. United States, 533 U.S. 27, 33 (2001), also
supports the latter point.
However, although “privacy” is the centerpiece of current Fourth Amendment
jurisprudence, the word “privacy” does not actually appear in the text of the Fourth Amendment.
The constitutional protection actually promised is “security,” and the time may be ripe for the
- 26 -




courts to reconsider that term as it was used and understood by the framers of the amendment in
the context of our current “Information Age” where privacy is becoming an increasingly scarce
commodity.  While “privacy” and “security” are overlapping concepts, they are not congruent.
Granting that we as a people feel freer and more secure when our government and its agents
respect our privacy, the limits of government intrusion that reasonable citizens find unacceptable
are not necessarily circumscribed only by what they choose to keep private.
Perhaps the time has come that courts recognize that by its own terms, the Fourth
Amendment actually stipulates that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
.”  U.S. Const. amend. IV (emphasis added).  Courts tend to abridge this phrase essentially to
“the right against unreasonable searches and seizures shall not be violated.”  Thus, the words
“people” and “secure” get lost in the editing.  Nevertheless, the framers presumably chose those
words with some care and deliberation.  With regard to their use of the word “people,” they were
certainly capable of speaking in the singular.  For example, in the Fifth Amendment they
provide, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury, . . . nor shall any person be subject for the same
offense to be twice put in jeopardy . . .                                                             .” U.S. Const. amend. V (emphasis added).  This indicates
to me that their choice of the plural in the Fourth Amendment was deliberate.  In other words, the
protection afforded by the Fourth Amendment is not just concerned with how government
searches and seizures affect the interests of particular individuals, but it is also concerned with
those that affect the public generally.  Moreover, the overall purpose of the Bill of Rights was to
restrain the arbitrary and capricious use of government power.  Thus, given the Fourth
Amendment’s ratification in the aftermath of a revolution largely precipitated by such abuse of
governmental power, it seems obvious to me that “security” was actually a significant legal
- 27 -




concept in the minds of the framers—something free people enjoyed in contrast to the insecurity
generated by the arbitrary exercise of government authority as experienced by the framers and
their fellow colonists prior to our independence as a nation.
If we consider the increasingly ubiquitous presence of public video surveillance camera
networks, the use of electronic scanners that perform a virtual “strip search” of those who make
use of some forms of public transportation along with the increasing use of GPS tracking
devices, whatever intuitive unease we feel about the methods employed by agents of the
government has less to do with a sense that the individual “right to privacy” of any particular
person has been violated than with concerns about our sense of security from governmental
monitoring of the citizenry as a whole.
Although the Supreme Court of the United States will ultimately have the last word, “the
Fourth Amendment must keep pace with the inexorable march of technological progress, or its
guarantees will wither and perish.”  United States v. Warshak, 631 F.3d 266, 285 (6th Cir. 2010).
Therefore, as the courts consider how to construe the confluence of revolutionary advances in
technology with the fundamental principles embodied in the Fourth Amendment, it may be time,
in cases where these issues may be more appropriately addressed than this one, for the courts  to
do so with the express language and the original purpose of the Fourth Amendment in mind. 18
Perhaps in addition to determining whether an individual’s reasonable expectation of privacy has
been violated, we might also consider whether reasonable people would remain secure in their
liberties if a particular investigative or surveillance method were pervasive.  If they would not,
18 Contrary to Judge Beales’s assertion, I do not “suggest that the United States Supreme
Court should overturn (or significantly alter) decades of Fourth Amendment precedent from that
Court.”  I merely observe that as our culture continues to rapidly evolve based upon
technological advances, Fourth Amendment jurisprudence must likewise continue to evolve, as it
has done since the founding of the Republic, to accommodate such changes.  I only suggest that
as the courts participate in this evolution, as we must, we should do so with the original purpose
of the Fourth Amendment in mind.
- 28 -




the courts should determine what restrictions—such as requiring reasonable articulable suspicion
of criminal activity or a judicially authorized warrant based upon probable cause—would
sufficiently narrow the method’s application in a way that leaves all reasonable citizens with a
realistic sense of security from arbitrary and invasive governmental monitoring of their daily
activities.
- 29 -




VIRGINIA:
In the Court of Appeals of Virginia on  Thursday  the                                                       23rd day of  September, 2010.
David L. Foltz, Jr., s/k/a
David Lee Foltz, Jr.,                                                                                                                       Appellant,
against                                                                                                     Record No. 0521-09-4
Circuit Court No. CR08-312
Commonwealth of Virginia,                                                                                   Appellee.
From the Circuit Court of Arlington County
Before the Full Court
Pursuant to Code § 17.1-402(D)(ii), the Court, on its own motion, has decided to hear this case
en banc.  The parties shall file briefs in compliance with Rule 5A:35(b).  It is further ordered that the
appellant shall file twelve additional copies of the appendix previously filed in this case.
In accordance therewith, the mandate entered herein on September 7, 2010 is stayed pending the
decision of the Court en banc and the appeal is reinstated on the docket of this Court.
A Copy,
Teste:
original order signed by the Clerk of the
Court of Appeals of Virginia at the direction
of the Court
Clerk




COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Felton, Judges Haley and Beales
Argued at Alexandria, Virginia
DAVID L. FOLTZ, JR., S/K/A
DAVID LEE FOLTZ, JR.
                                                                                                                               OPINION BY
v.                                                                                                      Record No. 0521-09-4   JUDGE RANDOLPH A. BEALES
SEPTEMBER 7, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Christopher R.K. Leibig (Andrea Moseley; Zwerling, Leibig &
Moseley, P.C., on briefs), 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.
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.19   After reviewing the relevant case law and
the record here, we affirm appellant’s conviction for abduction with intent to defile.
19 This Court granted appellant’s petition to consider three questions.  However, during
oral argument, appellant conceded that the Commonwealth now agreed with him that the GPS
system was able to track appellant’s van while it was in his employer’s warehouse, which had




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
been the central disagreement upon which the third question presented was based.  Therefore,
appellant concluded, his third question presented was not important to the resolution of his
appeal.  As a result, we do not consider the third question presented in this opinion.
- 2 -




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,20 but th

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