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9/10/2010
Virginia Appeals Court Upholds Warrantless GPS Spying
Second highest court in Virginia rules covert GPS trackers may be installed on cars without a warrant.

Chief Judge Walter S. Felton
Police officers in the commonwealth of Virginia can track the movements of motorists with secretly installed satellite tracking devices on their own authority, the state court of appeals ruled Tuesday. On February 1, 2008, Fairfax County police had attached a GPS tracking device to the work van of David L. Foltz, Jr based on a hunch that Foltz may have been involved in a series of crimes. The officers did not bother obtaining a warrant or asking the permission of the company that owned the van. The department used such devices on 159 such occasions between 2005 and 2007 but no policy guidelines were ever drafted to govern their use. Using a magnet and tape, an officer stuck the GPS unit under the van's bumper while it was parked on a public street.

In this case, the hunch proved correct. Five days after the tracker was placed, police followed the Foltz and were able to stop him in the midst of an assault. A trial judge ruled that "reasonable suspicion" was sufficient for any officer to install a GPS tracking device on a suspect's automobile, insisting that the there is no right to privacy on a public street. The appeals court agreed, noting that neither the US Supreme Court nor Virginia's highest court have ruled on the specific issue of GPS use.

"Because the actual act of simply placing the GPS device in the bumper of appellant's work van conveyed no private information to the police and because appellant did nothing to prevent the public from observing the bumper, we find he did not exhibit an expectation of privacy in this area of the van," Judge Randolph A. Beales wrote for the majority. "Although appellant contends that people commonly do not want to purchase vehicles that can be tracked by the police, it seems just as common for people to purchase cars that have devices installed that allow tracking of the vehicle."

The Virginia court distinguished its ruling from the Massachusetts Supreme Court which ruled against GPS spying last year (view opinion). The Virginia majority claimed that use of self-powered GPS trackers did not constitute a "seizure" under the Constitution, unlike the vehicle-powered GPS tracker used in the Massachusetts case. Instead, it sided with a Ninth Circuit federal court ruling that compared attaching a physical spying device to the car with a little girl temporarily crawling under a bumper to retrieve a lost ball. The court majority brushed aside concerns that this surveillance power could be misused.

"Several other appellate courts have acknowledged a very legitimate concern that, if the police are allowed to randomly track whole sections of the population without probable cause or reasonable suspicion, then privacy rights may well be violated," Beales wrote. "However, this case does not involve dragnets and mass surveillance, so these warnings are not as relevant here."

Focusing solely on the case at hand, the court found no problems with the methods police employed.

"As appellant's movements in his home were not tracked -- only the movements of the work van were recorded -- no recognized privacy right was violated when the police used the GPS device to track the van's movements on the public streets," Beales wrote.

Chief Judge Walter S. Felton, Jr agreed that Foltz should have been convicted solely based on eyewitness testimony of the police officers involved. He disagreed with the majority that any ruling should have been made on the broader Fourth Amendment issue. A copy of the decision is available in a 100k PDF file at the source link below.

Source: PDF File Foltz v. Virginia (Court of Appeals, State of Virginia, 9/7/2010)



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