FROM THE COURT OF APPEALS OF VIRGINIA
The opinion of the court was delivered by: Senior Justice Elizabeth B. Lacy
Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and Carrico, Russell and Lacy, S.JJ.
OPINION BY SENIOR JUSTICE ELIZABETH B. LACY
In this appeal we consider whether the admission of certain eyewitness testimony constituted reversible error.
Beginning in November 2007, Fairfax County police officers investigated a series of sexual assaults that had similar characteristics. Fairfax County Police Detective Erik Stallings obtained the identities of registered sex offenders who lived and worked in the vicinity of the assaults. David Lee Foltz,
Jr. was among the sex offenders identified.
In early January 2008, retired Fairfax County Police Detective James Kraut heard about the assaults and contacted Lieutenant Brenda Akre, supervisor of the Fairfax Police Department sex crimes unit. Kraut told Akre that the recent assaults sounded "amazingly like" the modus operandi of an individual he had investigated in 1990. Kraut could not recall the individual's name, but described the assaults and stated that the person had been convicted and imprisoned in 1990. Akre conferred with another active duty senior detective about the past assaults who told her the person Kraut had investigated was Foltz. Akre relayed this information to Stallings.
Stallings then reviewed Foltz' parole record, driving record and the department's investigative management system, which provided detailed information about Foltz' prior crimes that were similar to the assaults under investigation. The detective also requested an update from the sex offender registry on Foltz' employment status and his current schedule. This information revealed that Foltz was attending probation-related meetings in the vicinity of and at the times of the assaults under investigation. The information also showed that assaults had occurred in the vicinity of Foltz' work and home.
Stallings asked for and obtained approval from Akre for surveillance assistance by means of a global positioning system ("GPS") device. The police attached the GPS device to the bumper of Foltz' employer-owned work van on February 1, 2008, while the van was parked on a public street outside Foltz' house.
The police first accessed the data from the GPS device on February 5, 2008. That data showed that Foltz had been driving in and out of residential neighborhoods. Stallings requested assistance to conduct physical surveillance of Foltz, but assisting officers were not available. That evening, Stallings responded to a call reporting another assault similar to those he was investigating. When the officers reviewed the GPS data later that night it showed that at the time of the February 5 assault the van Foltz was driving was "a block or two away" from the assault.
The police initiated physical surveillance of Foltz around 4:00 p.m. on the afternoon of February 6. The officers first observed Foltz as he left his house, driving his personal vehicle. After approximately three hours of surveillance, two of the officers saw Foltz get out of his vehicle and follow a woman walking down a sidewalk in the City of Falls Church. The officers followed Foltz and saw him grab the woman and quickly pull her under a large evergreen tree. The officers intervened to rescue the woman and, after a struggle, arrested Foltz. The Fairfax officers contacted the Falls Church Police Department, which then took custody of Foltz.
Foltz was indicted for violation of Code § 18.2-48, abduction with intent to defile, and Code § 18.2-67.5:3, commission of a subsequent violent sexual assault. Prior to trial, Foltz filed a motion to suppress the testimony of the officers regarding their surveillance of Foltz on the evening of the attack. Foltz argued that the police officers, without first obtaining a search warrant, unlawfully installed the GPS device on his vehicle and unlawfully tracked his movements through use of the device and, therefore, under Warlick v. Commonwealth, 215 Va. 263, 208 S.E.2d 746 (1974), the officers' testimony was subject to the exclusionary rule because it was "fruit of the poisonous tree" of an unlawful search in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Constitution of Virginia.
The trial court denied the motion, holding that the use of the GPS device did not violate the federal or state constitutions. The trial court limited the officers' testimony to the events they observed on the evening of the assault and the jury was ...