Virginia High Court Hears Appeal in Police GPS Tracking Case

A lawyer for a sex offender asked the Virginia Supreme Court on Thursday to reverse his client's conviction, arguing police failed to obtain a search warrant before using an electronic tracking device to monitor his whereabouts.

Amid a series of sexual assaults in northern Virginia, Fairfax County police put a tracking device on a van David L. Foltz drove for work because they suspected him in the attacks. He was a suspect in part because of his past sexual assault conviction.

GPS data indicated the van was at the scene of a sexual assault in February 2008, so police deployed officers to follow him. Later that month, they saw Foltz knock a woman to the ground and try to unbutton her pants. The officers intervened and arrested Foltz, who was convicted of abduction with intent to defile and sentenced to life in prison.

In arguing Thursday to overturn the conviction, Foltz's attorney Christopher Leibig cited the U.S. Supreme Court's unanimous ruling in January that police cannot install GPS technology to track suspects without a warrant.

Virginia Theisen, a lawyer with the state attorney general's office, argued that there was a gap in time between the GPS monitoring and the attempted assault, which makes the officers' testimony admissible.

Police gathered evidence by “old-fashioned” surveillance that helped them identify Foltz and ultimately stop his attempted assault, she said.

“He was already a suspect,” she said. “This was why they used GPS.”

Leibig, however, argued police relied on the three hours of GPS surveillance to help build the case against Foltz.

Theisen acknowledged the police acted illegally when using the tracking device, but argued that officers' eyewitness evidence was admissible.

Judges asked whether it mattered that Foltz's employer, and not Foltz himself, was the owner of the van being tracked.

Leibig said U.S. Supreme Court Justice Samuel Alito said there's no distinction based on vehicle ownership, because it's the person inside the vehicle, not the vehicle itself, being tracked. 

Courts in several states are addressing the GPS tracking issue in light of the high court's ruling. 

The South Dakota Supreme Court ruled in March that police must get a warrant from a judge before using GPS technology to track a suspect over an extended period. The ruling overturned the drug convictions of Elmer Wayne Zahn Jr., who was charged after GPS tracking led to drugs and other evidence in a storage locker.

In Kentucky, a federal judge last month ruled that police illegally used a GPS device on a suspect and barred prosecutors from using the discovery of 150 pounds of marijuana as evidence.

While the Supreme Court ruled police need warrants to employ GPS tracking devices, it didn't specify whether law enforcement agencies need warrants to track suspects by their cell phone signals, which also transmit geolocation information.

Federal lawmakers are considering legislation that would require law enforcement officials to obtain court warrants to collect cell phone data.