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 
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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 probationrelated 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)).
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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,
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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 
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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.