Warrantless GPS Tracking, Commonwealth v. Foltz (amicus)
David Foltz was a registered sex offender on probation for sexual assault. He worked for a company that allowed employees to use a company van to drive to the company headquarters, to various work sites, and home. Foltz also had permission to drive the van to meetings with his probation officers. Foltz came under suspicion in a new series of sexual assaults that fit his previous MO. The police attached a GPS tracking device to Foltz’s work van, without a warrant or permission from Foltz’s employer. After another sexual assault took place, the police checked the GPS data and found that Foltz had been nearby at the time of the assault. The next day, the police actually followed Foltz and caught him in the act of assaulting a woman. At trial, Foltz unsuccessfully sought to exclude any evidence arising from the GPS device, arguing that the Fourth Amendment required a warrant before the device could be used. A panel of the Virginia Court of Appeals affirmed. After the full Court of Appeals agreed to rehear the case, we filed an amicus brief in October 2010 and argument took place in November. On April 5, 2011, the en banc court affirmed the conviction, holding that even if the warrantless use of the GPS device violated the Fourth Amendment, the eyewitness testimony of officers was not "fruit of the poisonous tree."
Court Documents (click links to view .pdf)
Brief Amicus Curiae- Virginia Court of Appeals