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Foltz v. Clarke

United States District Court, E.D. Virginia, Richmond Division

August 22, 2014

DAVID L. FOLTZ, JR., Petitioner,
HAROLD W. CLARKE, Respondent.


JOHN A. GIBNEY, Jr., District Judge.

David L. Foltz, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of Arlington, County ("Circuit Court") of abduction with the intent to defile, subsequent offense. In his § 2254 Petition, Foltz argues entitlement to relief based upon the following grounds:

Claim One The unlawful installation of a global positioning system ("GPS") tracking device "inside the rear bumper" of Foltz's vehicle violated his rights under the Fourth Amendment.[1] (Mem. Supp. § 2254 Pet. 2.)

Claim Two The unlawful tracking of Foltz's vehicle by the police using the GPS device violated Foltz's rights under the Fourth Amendment.

Claim Three Foltz's rights under the Fourth Amendment were violated by the admission of the police officers' testimony regarding their tracking and arrest of Foltz because such testimony was the product of the Fourth Amendment violations set forth in Claims Two and Three.

Respondent moves to dismiss the § 2254 Petition. Foltz has responded. (ECF No. 14.) For the reasons explained more fully below, the Court dismisses Foltz's grounds for relief because the Virginia courts provided Foltz with a full and fair opportunity to raise these claims. See Stone v. Powell, 428 U.S. 465, 494 (1976).


A. Investigation and Trial

The Supreme Court of Virginia aptly summarized the facts surrounding the investigation as follows:

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.
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 ...

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