[JURIST] The Court of Appeals of Virginia [official website] on Tuesday upheld [opinion, PDF] a conviction where police officers used a GPS device to track the movement of a suspect in a string of sexual assaults without obtaining a warrant. The state’s second highest appellate court failed to address whether the Fourth Amendment [text] generally requires a warrant in such a situation, ruling on narrower grounds [AP report] that the police would have had access to the same evidence they used to convict the suspect without the GPS device and thus the evidence of sexual assault was excepted from the fruit of the poisonous tree doctrine [Cornell LII backgrounder]. The suspect, David Foltz, was on probation for sexual assault and became a suspect after police noticed a strong similarity between assaults occurring at the time and those previously committed by Foltz. Foltz’s only mode of transportation was a work van provided by his employer which Foltz was supposed to use only for work and probation-related meetings. The employer’s records showed the van had been near the location of each recent assault. Officers then placed a tracking device on the van and tracked it to the location of a subsequent assault. Finally, police physically followed Foltz as he drove the van and arrested him as he attempted to assault another woman which led to the conviction upheld Tuesday. The court reasoned:

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. 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. * * * 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.”

Two judges filed a concurring opinion, arguing that the court should address the Fourth Amendment issues raised in the case and concluding that did Foltz did not have a reasonable expectation of privacy in his employer’s van that he was allowed to use only for limited purposes, especially since officers placed the GPS device on the van’s bumper while it was parked on a public street. Tuesday’s ruling upheld a decision [opinion] by a three-judge panel from the Court of Appeals of Virginia last year which held that placing the GPS on the employer’s van did not violate Foltz’s Fourth Amendment rights.

The use of GPS technology and other surveillance devices [JURIST news archive] by law enforcement agents has been a controversial issue in the US, with courts across the country coming to divergent conclusions. In December, the US Court of Appeals for the District of Columbia Circuit [official website] declined to rehear en banc [JURIST report] a bid by the DOJ to overturn a decision that prevents the government from using GPS technology to track suspects without a warrant. A Pennsylvania appeals court allowed use of evidence obtained with GPS technology [JURIST report] in December. In September, a three-judge panel for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that at times the government might need a warrant to obtain cell phone data [JURIST report] to track a person’s location. Last year, the US Supreme Court unanimously held that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employermsearch of private text messages does not violate [JURIST report] the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose.