VA upholds GPS tracking of a suspected serial rapist’s car involving real-time tracking

The Virginia Court of Appeals today upheld GPS tracking of a suspected serial rapist’s car against a Fourth Amendment and a state constitutional challenge. Merely placing the GPS device on the defendant’s truck bumper in a public place was not a seizure and neither was monitoring it. Foltz v. Commonwealth, 57 Va. App. 68, 698 S.E.2d 281 (2010):

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, 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. 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 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, 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.

. . .

In the case before this Court, as in McIver [9th Cir. 1999] and Garcia [9th Cir. 2007], 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. Thus, the installation in this case did not constitute a seizure for Fourth Amendment purposes.

. . .

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.

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 (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.

Bad cases make bad law. The court’s description of this guy’s behavior that warranted them following him is really creepy. But, all defense lawyers have represented creepy people before. My friend John Zweiling’s office was on the brief.