Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Carrico, Russell and Lacy, S.JJ.

DAVID L. FOLTZ, JR.,
s/k/a DAVID LEE FOLTZ, JR.

v.   Record No. 110832              OPINION BY SENIOR JUSTICE
                                        ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA                September 14, 2012

               FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal we consider whether the admission of certain

eyewitness testimony constituted reversible error.

                               Background

      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

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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.

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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 instructed not to speculate about why the officers

were following Foltz.

     At trial, the officers testified that they observed Foltz

driving his own vehicle and stopping in residential areas; that

at one point he got out of the car and was seen walking behind a

female pedestrian; that he drove on to the City of Falls Church

and again exited the car at a Grand Mart store; and that he

drove on and ultimately parked his car and followed another

female pedestrian for approximately four-tenths of a mile.    At

that point, according to the officers, Foltz pulled a mask over

his face, attacked the woman from behind, moved her off the

sidewalk, threw her to the ground under a tree, put his hand

over her mouth and prevented her from getting up.   One officer

testified that Foltz had his hands at the woman’s waistline.



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The officers also testified about their actions in stopping the

attack and subduing Foltz.

     The victim testified that while she was walking on the

sidewalk she was grabbed from behind, dragged under a tree, and

pinned to the ground.    She testified that the attacker covered

her mouth with one of his hands and with his other hand “tried

to unbutton my pants.”    She struggled to “prevent him from doing

it,” bit the hand that was covering her mouth, and started

screaming.   When questioned further, the victim explained that

Foltz’ hand was “[b]elow [her] abdomen.”    At the court’s

direction, the victim stood and pointed to the area on her body

which Foltz touched.    The record reflects that the victim

pointed to the exterior of her pants in the vaginal area.      The

victim also testified that she sustained scratches to her face

and mouth in the attack.

     Evidence of Foltz’ prior rape conviction was presented to

establish the elements of the charged violation of Code § 18.2-

67.5:3, a subsequent sexually violent assault.

     Foltz was convicted by a jury in the Circuit Court of

Arlington County and sentenced to life imprisonment.

     Foltz appealed to the Court of Appeals of Virginia

contending, as relevant here, that the trial court erred by

denying his motion to suppress the testimony of the police

officers.    In a published opinion, a panel of the Court of

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Appeals affirmed Foltz’ conviction, holding that the use of the

GPS tracking device was not an unlawful search or seizure and

therefore the officers’ testimony was not subject to the

exclusionary rule.       Foltz v. Commonwealth, 57 Va. App. 68, 90-

91, 698 S.E.2d 281, 292-93 (2010).

       On rehearing en banc, the Court of Appeals affirmed the

conviction but did not address the constitutionality of the use

of the GPS tracking device, holding instead that the

exclusionary rule would not bar the officers’ testimony because

the assault that the officers observed was a new and distinct

offense from the previously committed crimes that the officers

were investigating.       Foltz v. Commonwealth, 58 Va. App. 107,

117-18, 706 S.E.2d 914, 919-20 (2011). *     The Court of Appeals

held the officers’ observations of the attack on February 6

“were sufficiently attenuated from any argued taint arising from

the placement and use of the GPS device to track the movements

of [Foltz’] assigned work van” and the admission of the

officers’ testimony was not error.       Id. at 118, 706 S.E.2d at

920.       We granted Foltz an appeal.




       *
      Consideration of arguments not made in the court below is
appropriate under the doctrine of the right result for the wrong
reason where additional factual matters are not necessary to
resolve a newly-advanced rationale. Banks v. Commonwealth, 280
Va. 612, 617, 701 S.E.2d 437, 440 (2010)(quoting Perry v.
Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010)).
                                     6
                            Discussion

     In his petition for appeal filed in this Court, Foltz

argued that the Court of Appeals erred in not declaring the

placement and use of the GPS device unconstitutional and in

holding that the officers’ testimony was admissible.   Subsequent

to the filing of the appeal, the United States Supreme Court

decided United States v. Jones, 565 U.S. ___, 132 S.Ct. 945

(2012), holding that the government’s placement of a GPS

tracking device on the bumper of a vehicle and its use of that

device to monitor the vehicle's movements is a “classic

trespassory search” which, in the absence of a valid search

warrant, is a violation of the Fourth Amendment to the United

States Constitution.   Id. at ___, 132 S.Ct. at 949, 954.

Applying Jones to this case means that the installation of the

GPS device on Foltz’ work van and the use of that device to

gather information about Foltz’ movements by the police, without

a valid search warrant, constituted an unconstitutional search.

The issue now before this Court is whether the admission of the

officers’ testimony was error.

     Constitutional error, like other types of error, remains

subject to analysis under the doctrine of harmless error.

Crawford v. Commonwealth, 281 Va. 84, 100, 704 S.E.2d 107, 117

(2011).   Therefore, if the officers’ testimony was the “fruit of

the poisonous tree,” Wong Sun v. United States, 371 U.S. 471,

                                 7
488 (1963), and its admission was error, the error may be

harmless and the conviction sustained if the error was

“ ‘harmless beyond a reasonable doubt.’ ”   Crawford, 281 Va. at

101, 704 S.E.2d at 117 (quoting Chapman v. California, 386 U.S.

18, 24 (1967)).   For the reasons that follow, assuming without

deciding that the admission of the officers’ testimony was

error, we conclude the admission of that testimony was harmless

beyond a reasonable doubt.

     Conviction of the charges in violation of Code § 18.2-48

required proof beyond a reasonable doubt that Foltz, by force

and without legal justification or excuse, transported the

victim with the intent to deprive the victim of her personal

liberty and with the intent to sexually molest her, Crawford,

281 Va. at 102-03, 704 S.E.2d at 118, and that this assault was

subsequent to a previous conviction for a sexually violent

assault, from which Foltz was at liberty, and that the previous

conviction was not part of a common act, transaction or scheme

with this offense.   Code § 18.2-67.5:3.   There was no dispute

that Foltz assaulted the victim, that he had previously been

convicted of rape, and that he was at liberty from that

conviction at the time of the offense at issue here.

     The victim testified unequivocally that she was attacked

from behind by force, that she was dragged to a place off the

sidewalk on which she had been walking, that she was deprived of

                                 8
her liberty because she was pinned on the ground by her

attacker, and that her attacker placed his hand on her pants in

the area of her vagina.   The Commonwealth, at trial and in oral

argument in this Court, pointed to this testimony as proof that

Foltz abducted the victim with intent to defile her.

     There is nothing in the record to suggest that the victim

was not a credible witness.   Her testimony regarding the attack

and Foltz’ intent was clear and specific.   She believed he was

going to “do it.”   She testified and demonstrated that he was

attempting to sexually molest her.   The testimony of the

officers regarding the assault was cumulative of the victim’s

own testimony.   The officers’ testimony regarding Foltz’ conduct

for the hours prior to the assault may have supported the theory

that Foltz was stalking or following female pedestrians, but it

did not extend to indicating the purpose of his stalking –

whether to rob, assault, sexually molest, abduct or engage in

some other activity.   Based on this record, admission of the

officers’ testimony was harmless beyond a reasonable doubt.

     Accordingly, for the reasons stated, we will affirm the

judgment of the Court of Appeals.

                                                            Affirmed.




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