Constitutional 4th Amendment Right Against “Unreasonable Search and Seizure”: Use of GPS Tracking Devices and the Foltz v. Commonwealth of Virginia Case – Specific Facts Can Make a Big Difference

Constitutional 4th Amendment Right Against “Unreasonable Search and Seizure”: Use of GPS Tracking Devices and the Foltz v. Commonwealth of Virginia[1] Case – Specific Facts Can Make a Big Difference

Author: Attorney Christopher A. Meyer

Most of us know that many of the rights that we have as Americans are contained in the Bill of Rights, which are the first ten amendments to the United States Constitution.  One of these rights is the right against “unreasonable search and seizure”, which is contained in the Fourth Amendment and reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[2]

There are many court cases deciding what an “unreasonable search and seizure” entails.  As technology improves it becomes possible to do things that the drafters of the Fourth Amendment never contemplated, and courts have had to scratch their heads and decide, in the context of modern technology, what does the Amendment actually prevent or allow.  Note that the United States Supreme Court has ruled that if the Fourth Amendment is violated any evidence that was obtained as a result of the violation is not admissible in court.  This rule means that many guilty criminals have gone free because the police have violated their Fourth Amendment rights.  Therefore whether a violation by the police of a person’s search and seizure rights can be very important.

A very recent case discussed an interesting situation that the drafters could never have conceived of.  Does the prohibition against an unreasonable search or seizure prevent the police from placing a GPS device on the backside of a bumper of a van and then using it to track the location of the van, and therefore the driver, wherever he went?  Is this an unreasonable search?  Have the police thereby “seized” the van for the purposes of the Fourth Amendment?

The facts of the case are this.  The defendant was a convicted sex offender.  He thus was required to let the police know of his residence and he did so.  The police noticed that there were a series of sexual assaults in his area and they were suspicious, but didn’t have enough evidence to arrest him.  The defendant was employed as a driver and drove a van owned by his employer.  He was the only driver of the van, and was allowed to take it home at night; however, he was not allowed to drive the van for personal use. The police did ask the employer, privately, where the van should have been according to the work schedule the defendant was on and the locations and the sexual assaults tended to match up.

Without telling anyone – including the employer – and without getting a warrant, the police attached a GPS device to the backside of the work van bumper and the device both recorded and transmitted the movements of the van.  The device apparently was reasonably accurate anywhere that cell phone service existed.  The police noted that a new sexual assault occurred a block from where the defendant had parked the van.  The police then decided that the next day they would follow the man first by car and then, when he got out of the van on foot.  They actually saw him attack a woman on the street and drag her off the street under a tree and they arrested him while he was attempting to sexually assault her.  He was tried and convicted of sexual assault and appealed on the grounds that the police had violated his rights by putting a GPS device on his employer’s truck without a judge’s approval via a warrant.

The Virginia Court of Appeals, the second highest court in Virginia, reviewed the case and decided that the man’s Fourth Amendment rights had not been violated.  The court reviewed earlier cases and considered a two-part test for determining if the police actions violated the 4th Amendment.  First, did the police actions violate a subjective expectation of privacy that the defendant had?  Second, does society recognize these expectations as reasonable?

In analyzing these questions, the court noted that the GPS device had been placed on the van while the van was parked on a public street, that the device was placed on the outside of the bumper (although on the back side), and that this area of the van was therefore “in the public eye” as the defendant had done nothing to prevent the public from observing this part of the van.  Therefore, the defendant did not have a subjective expectation of privacy and the installation was not a “search” within the meaning of the 4th Amendment.   Furthermore, the police had tracked the van only into public areas.  Under prior cases, the court also found that the placement of the GPS device was not a “seizure” because the placement of the device in no way interfered with the defendant’s possession of the van, because the defendant had only limited possession of the van since he did not own the van, and because the placement of the device did not change the value of the van, damage the van, nor interfere in a “meaningful way” with the defendant’s limited possession and use of the van. (The court distinguished another case where the police had entered a vehicle and attached a GPS device to the vehicle’s battery; in that case, another court had decided under those facts that the placement of the GPS tracking device was a search and seizure that required a warrant).[3]

After considering the installation, the court next considered the operation of the device.  The defendant claimed that the operation of the device to track the movement of the van violated his reasonable expectation of privacy in his movements and in particular tracking the van onto the private property of his employer violated the 4th Amendment.  While noting that routine or broad use of such tracking devices may raise Constitutional issues, the court noted in this case that the police already had reasonable suspicion the defendant was the perpetrator of the sexual assaults, that the police used the device to track the defendant on public, and that the defendant was only tracked for six days.  The Judges noted that all the GPS device did was to allow the police to track the defendant while he was driving on public highways.  They certainly could have “tailed” him in police vehicles had they so desired.  The GPS technology simply replaced one legal way of following the defendant with another.

Lastly, the defendant claimed he had a subjective expectation of privacy when he was driving around neighborhoods, i.e., “hunting”.   The court noted that although the defendant may not have wanted to be observed doing this, he took no steps to maintain his privacy while doing so.  First, he was on public roads.  Second, the van was emblazoned with his employer’s logo as a means of advertising, and thus was intended to draw attention.  Third, he was driving slowly from street to street, which increased his chances of being observed.  In no way did the defendant attempt to prevent people from observing his actions.   Defendant also claimed there was a societal expectation not to be constantly tracked in one’s movements on public roads.  The court found, however, that under the facts of this case there was no such expectation because the police could have followed the defendant on public roads. The court reviewed other court decisions and cited the following principle in analyzing new technology: “The United States Supreme Court has acknowledged a difference between technology used as a substitute for legitimate police behavior and technology used as a substitute for police actions that violate the Fourth Amendment.”[4] Under the facts of this case, the court held the use of the GPS tracking device was the former and, therefore, did not violate the 4th Amendment.

Different courts have arrived at different decisions on the use of GPS tracking devices; usually the differences are based on specific facts of each case.  While some cases, such as the Foltz case described above, have held the use of a GPS tracking device is not unconstitutional, these decisions are often limited to certain facts and do not mean that the use of such devices is always allowed.  As described above, there are many facts the court relied on for its decision and, had those facts been different, the result might be different also.

Modern technology has made it far easier for the police to follow a person and observe their movements.  To some people, this seems like “big brother” may not be here yet, but may be coming to a car near you – or your car – any day.  Yet even court decisions that allow use of a GPS tracking device, like Foltz, usually discuss the limitations of their ruling and make it clear that, had certain facts been different, the decision could easily be the opposite.  These decisions illustrate how Constitutional protections can be undermined a little at a time, and how attorneys and judges need to be vigilant to maintain the Constitutional protections of our rights.

About the Author: Chris Meyer is a car accident attorney in Mechanicsville Virginia with Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.

[1]Foltz v. Commonwealth of Virginia, 57 Va. App. 68; 698 S.E.2d 281 (2010); case at [2] See [3] Case cited was Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009).  For more information on this and other GPS tracking device court decisions around the United States, see [4] See footnote 1 above.