FOLTZ v. COM

105 S.Ct. 2066, 2070, 85 L.Ed.2d 406 (1985) ("The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation."); South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976) (finding that "less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office").

2. Installation of GPS as a Seizure

Appellant also claims that he had an expectation of privacy against seizures of the van. He argues that the police seized the van when they placed the device in the van's bumper because it "changed the nature" of the property, decreasing its value.

The United States Supreme Court in Karo explained that seizure of property occurs "when `there is some meaningful interference with an individual's possessory interests in that property.`" 468 U.S. at 712, 104 S.Ct. at 3302 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). The Court then noted, "The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation." Id. at 712-13, 104 S.Ct. at 3302 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).

Here, appellant does not establish the placement of the GPS in the van's bumper was a "meaningful interference" with his interest in the van. 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. In addition, appellant's "possessory interests" in the value of the van are exceptionally limited because he did not own the van. It belonged to his employer. The president of that company testified at the suppression hearing, but he did not express and has not expressed any concerns or objections regarding the installation of the device in his company's van. Therefore, any decrease in the value of the van would have had a minimal, not a meaningful, interference with appellant's interests in the vehicle. We do not reach the question of whether there would have been a seizure of the van under these circumstances if appellant had owned the van because we do not need to do so in order to decide the question before us.

The police did not ask appellant's employer for permission to install the GPS device.

Nor do we reach the question of whether there would have been a search of the van under this situation if appellant had owned the van because we do not need to do so in order to decide the question before us.

Appellant urges this Court to consider Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009), where the Massachusetts Supreme Court concluded that "the installation and use of the GPS tracking device" was a seizure. Id. at 811, 913 N.E.2d at 361. In that case, the Massachusetts police installed a GPS device in the engine compartment of Connolly's minivan, so that the device could draw power from the vehicle's battery. Id. at 811-12, 913 N.E.2d at 361-62. Relying on the Massachusetts Declaration of Rights, which is more expansive than the Fourth Amendment, the Massachusetts court concluded:

In Commonwealth v. Balicki, 436 Mass. 1, 762 N.E.2d 290 (2002), the Massachusetts Supreme Court found, upon considering the plain view doctrine, that the Massachusetts Constitution "affords greater protections to a person in certain circumstances than those provided by Federal decisions interpreting the Fourth Amendment." Id. at 11 n. 11, 762 N.E.2d at 299 n. 11 (citation omitted).

a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for one hour, but also operation of the vehicle's electrical system, in order to attach the device to the vehicle's power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant's vehicle, an ongoing physical intrusion.

Id. at 822, 762 N.E.2d at 369. Clearly, the installation in Connolly differs greatly from the installation in this case. Here, the police did not access the inside of the vehicle by lifting the hood or moving any part of the van. The GPS device installed by the Fairfax police did not use any power from the van's battery, but instead operated independently, unlike the one in Connolly. In addition to these factual differences, the legal analysis of the Massachusetts court is not relevant here as Article I, § 10 of the Virginia Constitution is coextensive with the Fourth Amendment of the United States Constitution — not broader. Lowe v. Commonwealth, 230 Va. 346, 348, 337 S.E.2d 273, 274 (1985). Therefore, Connolly is not persuasive authority for this Court.

Instead, we find Mclver instructive. In that case, discussed supra, the Ninth Circuit Court of Appeals found that officers did not "seize" the vehicle because the defendant did not prove that the placement of the tracking devices "deprived him of dominion and control of his Toyota 4Runner, nor did he demonstrate" that the devices damaged his vehicle in some way. 186 F.3d at 1127. The court concluded that McIver had not established that the placement "meaningfully interfere[d]" with his "possessory interest" in the 4Runner. Id.

We also find United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), persuasive. In Garcia, the police attached a self-powered GPS to Garcia's car while it was parked on a public street. Garcia argued that the installation of the GPS was a seizure of his car. The United States Court of Appeals for the Seventh Circuit disagreed, explaining that Garcia's argument was "untenable." The court explained:

The device did not affect the car's driving qualities, did not draw power from the car's engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car's appearance, and in short did not "seize" the car in any intelligible sense of the word.

Id. at 996.

In the case before this Court, as in McIver and Garcia, 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, 104 S.Ct. at 3302. Thus, the installation in this case did not constitute a seizure for Fourth Amendment purposes.

B. Activation of the GPS Device

Appellant also argues that the actual tracking of the van violated his Fourth Amendment privacy interests. Specifically, he contends that continually tracking his movements on the public roadways was a violation of his expectation of privacy. He also contends that tracking the van to his employer's warehouse, i.e., on private property, violated the Fourth Amendment.

Before addressing the specifics of his argument, we note that appellant raises several dire predictions of law enforcement officers attempting to track the whereabouts of every citizen in Virginia, if this Court finds the trial court did not err here. 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. See, e.g., United States v. Knotts, 460 U.S. 276, 284, 103 S.Ct. 1081, 1086, 75 L.Ed.2d 55 (1983) ("[I]f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."); Garcia, 474 F.3d at 998 ("It would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment. . . ."). However, this case does not involve dragnets and mass surveillance, so these warnings are not as relevant here. See Dow Chemical Co. v. United States, 476 U.S. 227, 239 n. 5, 106 S.Ct. 1819, 1827 n. 5, 90 L.Ed.2d 226 (1986) (" Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations.").

1. Tracking on Public Roadways

Appellant argues that he exhibited an expectation of privacy while he was driving the work van down public streets and that society recognizes this expectation of privacy as reasonable. In making this particular argument, appellant raises concerns of an Orwellian society resulting from the use of sophisticated technologies such as GPS tracking — concerns that do indeed initially raise practical and constitutional alarms. See Garcia, 474 F.3d at 998 ("One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States."). However, given the facts of this particular case, as Judge Posner and the Seventh Circuit Court of Appeals also concluded in Garcia, "[w]hether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case." Id. As in Garcia, appellant's claims fail to hold water under the facts of this case because the police used the GPS device to crack this case by tracking appellant on the public roadways — which they could, of course, do in person any day of the week at any hour without obtaining a warrant. Therefore, we disagree with appellant's argument and find that Judge Posner's comments about judicial restraint are also appropriate and applicable here, where the police also used a GPS device primarily to track a suspect on public streets. Consequently, we do not address the concerns raised by appellant regarding what may one day be potential future practices of the police, but instead address appellant's arguments regarding the actual actions of the police taken in the case before us.

a. Subjective Expectation of Privacy

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, 106 S.Ct. at 966.

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, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (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.

b. Societal Expectation of Privacy

Appellant also claims that society recognizes as reasonable an expectation "not to be constantly tracked." However, the United States Supreme Court has held that society does not recognize such an expectation for vehicles on public streets. Knotts, 460 U.S. at 281, 103 S.Ct. at 1085 ("A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."); Cardwell, 417 U.S. at 590, 94 S.Ct. at 2469 ("A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view."); see also Garcia, 474 F.3d at 997 ("The substitute here [using GPS to track a suspect] is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment."). Society recognizes a privacy right not to be tracked in one's home, but the home is a very different setting from a public street. See Kyllo, 533 U.S. at 33, 121 S.Ct. at 2043 ("While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found `it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,' 476 U.S. at 237, n. 4, 106 S.Ct. at 1826, n. 4 (emphasis in original)."); Karo, 468 U.S. at 715, 104 S.Ct. at 3303 (noting that, just as an officer cannot "surreptitiously" enter a home to determine if contraband is in the home, police cannot "surreptitiously employ[] an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house"). 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.

Appellant acknowledges the United States Supreme Court's holding in Knotts that "persons do not have a reasonable expectation of privacy in their movements on the public streets." However, he argues that technology has evolved since Knotts was decided, and, therefore, we should not consider the United States Supreme Court's holding in that case as controlling here.

In Knotts, the police placed a beeper into a container that was then sold to Knotts and his co-defendants. 460 U.S. at 278, 103 S.Ct. at 1083-84. Unlike here, where the GPS system automatically tracked and recorded the movement of the van, the beeper technology discussed in Knotts required that the police follow the signal from the beeper as the container was moved. Id. We find that this advancement in tracking technology provides an insufficient basis for distinguishing Knotts. As the trial court found, the use of GPS tracking only enabled the police to "technologically supplement that information which the police could have obtained by their own sensory perception" if they had been physically following appellant — and physically following a van's movements on public streets (which is the key to the police's resolution of this case), without stopping or interfering with the van, is certainly constitutionally legitimate behavior for police officers.

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. Karo, 468 U.S. at 715, 104 S.Ct. at 3303. Based on the record in this case, the GPS technology used here did not provide a substitute for police behavior that would have otherwise violated a recognized right to privacy. Here, a police officer could have followed and personally recorded the movements of the van, and, as appellant concedes, such an investigation would not have violated any recognized right of privacy. The Court in Knotts, in fact, noted that "[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case." 460 U.S. at 282, 103 S.Ct. at 1086. The fact that the police used technology to follow the van's movements on public streets, therefore, did not somehow invade appellant's recognized privacy interests because the GPS did not act as a substitute for unconstitutional police action.

The facts of this case are distinguishable from those recently considered in United States v. Maynard, No. 08-3034, ___ F.3d ___, ___, 2010 WL 3063788, at *1, 7, 2010 U.S.App. LEXIS 16417, at *4, 20 (D.C. Cir. Aug. 6, 2010), which, of course, is not controlling precedent for this Court. In Maynard, the police tracked the movements of a co-defendant, Jones, 24 hours a day for four weeks using a GPS device they had installed on Jones's own Jeep without a warrant. Maynard, ___ F.3d at ___ _ ___, 2010 WL 3063788, at *7-8, 2010 U.S.App. LEXIS 16417, at *22. Reversing the denial of Jones's motion to suppress in that case, the United States Court of Appeals for the District of Columbia Circuit held that " the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil." Maynard, ___ F.3d at ___, 2010 WL 3063788, at *12, 2010 U.S.App. LEXIS 16417, at *35 (emphasis added). In so holding, the Court reasoned that a reasonable person does not expect a "stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine." Maynard, ___ F.3d at ___, 2010 WL 3063788, at *12, 2010 U.S.App. LEXIS 16417, at *35-36 (emphasis added). Here, the police used GPS technology affixed to the outside of appellant's work van (with its advertising of his employer's business on the van's sides and with his employer's restrictions on appellant's use of the van) to track appellant's movements with that van for at most six days. On these facts, the police were able to monitor only portions of appellant's daily movements for those six days — not the whole of his movements for nearly a month, which was the situation in Maynard. See Maynard, ___ F.3d at ___, 2010 WL 3063788, at *13, 2010 U.S.App. LEXIS 16417, at *39 "( The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises." (emphasis added)). Thus, whereas in Maynard the police used GPS technology to track the whole of defendant Jones's movements in his own Jeep around the clock for nearly a month, the police here used GPS technology for less than a week to track appellant while he was driving a company van that had advertising intended to reach the public on it — and never used GPS technology to track appellant while appellant was driving his own vehicle.

A New York appellate court has held that warrantless tracking of a defendant with a GPS device for 65 days violated the State of New York's constitution, but that court acknowledged that the United States Constitution might not include this level of protection. People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195, 1201-03 (2009). Here, the tracking with the GPS device was for at most six days.

As the Supreme Court explained in Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 2580-81, 61 L.Ed.2d 220 (1979), the analysis here requires that a court determine if the "contents" of private behavior were invaded by the police. Here, the police tracked the movement of a van. The GPS did not give the police the ability to intercept appellant's conversations or to observe any private behavior inside the van. The van did not go into appellant's home. See Cardwell, 417 U.S. at 590, 94 S.Ct. at 2469 ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects."); contrast United States v. Bailey, 628 F.2d 938, 943-44 (6th Cir. 1980) (finding Bailey's reasonable expectation of privacy was violated by the police using a beeper to track containers of chemicals being stored in various apartments). The GPS tracking simply "enabled the police to be more effective in detecting crime" because they could follow the van on the streets without losing it and without using limited police manpower. Knotts, 460 U.S. at 284, 103 S.Ct. at 1086. Improving "police efficiency" is certainly not unconstitutional as long as the underlying observation by the police was not unconstitutional. Id.; see Garcia, 474 F.3d at 998 (noting that the Fourth Amendment "cannot sensibly be read to mean that police shall be no more efficient in the twenty-first century than they were in the eighteenth"). As observing a person's work van on the public streets is not unconstitutional, the police's use of the GPS system to track appellant while he was in the van on the public streets likewise did not violate the Fourth Amendment.

2. Tracking at the Employer's Warehouse

Appellant argues that the GPS system tracked the van onto the private property of his employer, which he alleges violated the Fourth Amendment. Therefore, he contends, the trial court should have granted his motion to suppress.

The trial court specifically found that appellant had not proven "that by tracking him to the business, his place of business, that there was anything there that caused an invasion of his privacy." On appeal, appellant does not explain how the police violated his own privacy expectations by tracking his work van to his employer's warehouse. Therefore, appellant has not established a subjective expectation of his own privacy that was violated by the GPS tracking of his employer's van when it was parked at his employer's place of business. See Kyllo, 533 U.S. at 33, 121 S.Ct. at 2042-43. Furthermore, it certainly appears, as the Commonwealth argues, that the GPS tracking of the work van while at the warehouse did not contribute in any way to the decision by the police to personally follow appellant on February 6, 2008.

Employer did not in any way claim the tracking of its van onto the private property of its warehouse was improper, nor could appellant have objected on behalf of his employer even if employer had done so. Employer, of course, was not a party to this proceeding.

Appellant cites several federal district court cases involving cell phones, which can and often are taken into private homes to support his position that the police cannot track individuals on private property. However, appellant does not argue that the police tracked his movements in his home, so those cases do not apply. The "potential" use of GPS tracking in other circumstances to follow individuals into truly private areas has no place in the analysis of this case. Karo, 468 U.S. at 712-13, 104 S.Ct. at 3301-02; Dow Chemical Co., 476 U.S. at 239 n. 5, 106 S.Ct. at 1827 n. 5.

III. Conclusion

We find the police did not violate the Fourth Amendment of the United States Constitution or Article 1, section 10, of the Virginia Constitution by installing a GPS device in the bumper of appellant's work van while it was parked on a public street or by tracking the van with the GPS system on the public streets, especially given that, before installing the GPS device and tracking the van, the police had reasonable, articulable suspicion that appellant was involved in a series of sexual assaults. Because we find that there is no search or seizure prohibited under the Fourth Amendment or under the Virginia Constitution, we do not need to further address appellant's argument that the evidence he seeks to suppress should have been excluded at trial as "fruit of the poisonous tree."

During the suppression hearing, the Commonwealth asked the trial court to find that the evidence which appellant sought to suppress was not the "fruit" of a violation of his Fourth Amendment rights. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (discussing the "fruit of the poisonous tree" doctrine for exclusion of evidence). However, the trial court instead explicitly based its denial of the motion to suppress on its finding that appellant's Fourth Amendment rights were not violated. In discussing the facts that supported this decision, the trial court did find that, after collecting the information from the GPS device and reviewing it, the police then decided to personally follow appellant, suggesting that they would not have followed him unless they had knowledge of his movements that the GPS tracking provided. On appeal, the Commonwealth has argued that there is simply no Fourth Amendment violation in this case. The Commonwealth has not really argued to this Court that, even if there were a Fourth Amendment violation by attaching and using the GPS device to track the van on the public streets, the testimony of the police who then followed appellant and observed his attack on the victim was, nevertheless, not "fruit of the poisonous tree." Indeed, the Commonwealth states on brief, "[T]he defendant's driving on public roads on the afternoon and evening of February 5, 2008, provided the impetus for the physical surveillance" by the police that resulted in their observing his attack on the victim. Therefore, although the concurring opinion would decide this case on the "fruit of the poisonous tree" doctrine, we believe the better ground on which to decide this case is the lack of a Fourth Amendment violation here.

Based on the foregoing, we affirm the trial court's denial of appellant's motion to suppress and affirm appellant's conviction for abduction with intent to defile.

Affirmed.