October 20, 2010
Doug Plank, Senior Attorney, National Legal Research Group
Two very recent decisions by the Court of Appeals of Virginia and the U.S. Court of Appeals for the District of Columbia with regard to the use of Global Positioning System ("GPS") tracking devices as surveillance tools by police have once again focused attention on the important issues that are presented in such cases and have highlighted the split of authority with regard to these issues. In Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), reh'g en banc granted, No. 0521‑09‑4, 2010 WL 3743911 (Va. Ct. App. Sept. 23, 2010), the court held that the warrantless and surreptitious placement of a GPS tracking device by police officers on the bumper of the defendant's automobile was not an unconstitutional search or seizure and that the warrantless, week-long use of the device to track the movements of the automobile was itself not a violation of the Fourth Amendment. The opposite result was reached in United States v. Maynard, Nos. 08‑3030, 08‑3034, 2010 WL 3063788 (D.C. Cir. Aug. 6, 2010), which placed greater emphasis on privacy concerns to find that the warrantless use of a GPS device was an unconstitutional search under the Fourth Amendment.
