JOURNAL OF LAW RICHMOND VOLUME 14 WINTER 2011 NUMBER 3 AND THE PUBLIC INTEREST ARTICLES

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1 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST VOLUME 14 WINTER 2011 NUMBER 3 ARTICLES COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER-ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES... Joshua A. Engel PROTECTING THE IVORY TOWER: SENSIBLE SECURITY OR INVASION OF PRIVACY?... Stephen D. Lichtenstein AUTOMOBILE CONSENT SEARCHES: THE DRIVER S OPTIONS IN A LOSE-LOSE SITUATION... Arthur J. Park COMMENTS JUDICIAL GATEKEEPING AND THE SEVENTH AMENDMENT: HOW DAUBERT INFRINGES ON THE CONSTITUTIONAL RIGHT TO A CIVIL JURY TRIAL... Brandon L. Boxler THE UNAVOIDABLE ECCLESIASTICAL COLLISION IN VIRGINIA... Isaac A. McBeth & Jennifer R. Sykes

2 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST VOLUME EDITORIAL BOARD SHEILA MOHEB Editor-in-Chief MICHAEL PUGLISI Managing Editor M.R. ROWE Recruitment Editor JILLIAN MALIZIO Executive Editor GREGORY ENGLE Publications Editor CARTER KEENEY General Assembly Editor Lead Articles Editors LAUREN C. CAMPBELL DAVID TAIT Notes and Comments Editor PAUL KOSHETAR Symposium Editor KYLE MATYKOWSKI Manuscripts Editors CHRISTOPHER STEELE PARI ASHKANI Senior Staff SHLAWNA SIKOCHI Associate Editors RYAN FOREMAN MARY GARBER RACHEL REYNOLDS Staff NNENNAYA ANYIWO HILLARY BROWN DAVID CRUMPLAR ERIKA ENCINAS KELSEY FARBOTKO TRACY HALLMANN MEGAN HAZLETT ELIZABETH JAMERSON CHRISTOPHER JONES CARLON MATTHEWS TYLER RHODES EMILY SEALY AMY WEISS

3 INFORMATION ABOUT THE RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST The Richmond Journal of Law and the Public Interest is published quarterly by the University of Richmond: T.C. Williams School of Law. Questions, comments, and suggestions regarding the content of the Journal are welcomed at: University of Richmond School of Law 28 Westhampton Way University of Richmond, VA (804) EDITORIAL POLICY: The Richmond Journal of Law and the Public Interest seeks to preserve the author s writing style when editing articles selected for publication. As part of the ongoing relationship between the Journal and its authors, each author is given the opportunity to review his or her article prior to its publication. SUBMISSIONS: The Journal invites the submission of unsolicited articles, essays, comments, and notes throughout the year on a variety of topics. Manuscripts should include the author s biographical information either in text or in an accompanying résumé or curriculum vitae. Manuscripts submitted in a printed format will not be returned unless specifically requested and accompanied with proper postage. Manuscripts may be sent in printed form to Richmond Journal of Law and the Public Interest at the above address or by electronic mail at rjolpi@richmond.edu. SUBSCRIPTIONS: Subscription inquiries may be addressed to the Journal s Managing Editor at the address listed above. COPYRIGHT: All articles copyright 2011 by the Richmond Journal of Law and the Public Interest, unless noted otherwise. Articles herein may be duplicated for classroom use, provided that (1) each copy is distributed at or below xxvi

4 2011] xxvii cost, (2) the Journal is notified of such use, (3) proper notice of copyright is affixed to each copy, and (4) the author and Journal are identified on each copy. CITATIONS: The text and citations of the Journal conform to The Bluebook: A Uniform System of Citation (18th ed. 2006). Cite as: RICH. J.L. & PUB. INT.

5 2011] FACULTY LIST xxviii UNIVERSITY OF RICHMOND T.C. WILLIAMS SCHOOL OF LAW ADMINISTRATION Edward L. Ayers, B.A., M.A., Ph.D... President of the University of Richmond John G. Douglass, B.A., J.D... Dean, Professor of Law M. Denise Melton Carl, B.A., J.D. Director and Associate Dean of Career Services Timothy L. Coggins, B.A., M.S., J.D... Associate Dean, Library and Information Services, Professor of Law Kristine M. Henderson, B.A., J.D...Associate Dean for Student and Administrative Services Corrina Barrett Lain... Associate Dean for Faculty Development, Professor of Law Michelle Rahman... Associate Dean for Admissions Roberta Oster Sachs... Associate Dean for External Relations W. Clark Williams, Jr., B.A., J.D... Associate Dean for Academic Affairs, Professor of Law FACULTY Azizah Y. al-hibri, B.A., J.D., Ph.D... Professor of Law Margaret I. Bacigal, B.A., J.D...Clinical Professor of Law; Administrative Director, Clinical Placement Program Ronald J. Bacigal, B.S., LL.B... Professor of Law W. Wade Berryhill, B.S., J.D., LL.M.... Professor Emeritus of Law W. Hamilton Bryson, B.A., LL.B., LL.M., Ph.D... Blackstone Professor of Law The Hon. Senior Justice Harry L. Carrico, B.A., J.D., LL.D... Visiting Professor of Law and Civic Engagement John Carroll, B.S., J.D., LL.M.... Assistant Clinical Professor of Law; Director of the Intellectual Property and Transactional Law Clinic Tara L. Casey, B.A., J.D... Director, Harry L. Carrico Center for Pro Bono Service Henry L. Chambers, B.A., J.D... Professor of Law Christopher A. Cotropia, B.S., J.D... Professor of Law Joel B. Eisen, B.S., J.D... Professor of Law Tamar Schwartz Eisen, B.A., J.D... Assistant Professor of Lawyering Skills; Director of Lawyering Skills I & II David G. Epstein, B.A., LL.B, LL.M... Allen Professor of Law Jessica M. Erickson, B.A., J.D... Associate Professor of Law

6 2011] FACULTY LIST xxix William O. Fisher, A.B., J.D., M.P.P... Assistant Professor of Law David Frisch, B.S., J.D., LL.M... Professor of Law James Gibson, B.A., J.D... Professor of Law; Director, Intellectual Property Institute Meredith Johnson Harbach, B.A., J.D.... Assistant Professor of Law Mary L. Heen, B.A., M.A.T., J.D., LL.M... Professor of Law Ann C. Hodges, B.S., M.A., J.D... Professor of Law Melanie C. Holloway, B.A., J.D... Visiting Assistant Professor of Law; Director, Lawyering Skills IV J. Rodney Johnson, B.A., J.D., LL.M... Professor of Emeritus of Law John P. Jones, B.A., J.D., LL.M... Professor of Law Timothy M. Kaine, B.A., J.D... Senior Distinguished Lecturer on Law and Leadership Marci Kelly, B.A., J.D., LL.M... Visiting Assistant Professor of Law The Hon. Justice Elizabeth B. Lacy, B.A., J.D., LL.M... John Marshall Professor of Judicial Studies Dale S. Margolin, B.A., J.D... Assistant Clinical Professor of Law; Director, Jeanette Lipman Family Law Clinic Shari Motro, B.A., J.D... Associate Professor of Law Daniel T. Murphy, B.A., J.D., LL.M... Professor of Law; Director, International Studies Kristen Jakobsen Osenga, B.S.E., M.S., J.D... Associate Professor of Law John R. Pagan, A.B., M.Litt., J.D., D.Phil... University Professor of Law John F. Preis, B.S., J.D... Associate Professor of Law Emmeline Paulette Reeves, B.A., J.D... Associate Professor of Law for Academic Support Kimberly J. Robinson, B.A., J.D... Professor of Law Mark Rubin, B.A., J.D... A.L. Philpott Adjunct Professor of Law Noah M. Sachs, B.A., M.P.A., J.D... Associate Professor of Law; Director, Robert R. Merhige, Jr. Center for Environmental Studies Graham B. Strong, B.A., J.D., LL.M... Visiting Professor of Law Jonathan K. Stubbs, B.A., B.A., J.D., LL.M., M.T.S... Professor of Law Peter N. Swisher, B.A., M.A., J.D... Professor of Law Mary Kelly Tate, B.A., J.D... Director, Richmond Institute for Actual Innocence Paul M. Thompson, B.A., J.D.... Adjunct Professor of Law; Director of Special Projects Carl W. Tobias, B.A., LL.B... Williams Professor of Law Adrienne E. Volenik, B.A., J.D...Clinical Professor of Law; Director, Disabilities Law Clinic; Acting Director of the National Center for Family Law Margaret Ann B. Walker, B.A., J.D... Visiting Assistant Professor for Academic Success Program Kevin C. Walsh, A.B., M.A., J.D.... Assistant Professor of Law

7 xxx RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST [Vol. XIV:401 ADJUNCT FACULTY Hugh E. Aaron, B.S., M.H.A., J.D... Adjunct Associate Professor of Law John Adams, B.A., J.D... Adjunct Assistant Professor of Law Farhad Aghdami, B.A., J.D., LL.M... Adjunct Assistant Professor of Law The Hon. Michael Allen, B.A., M.A., J.D... Adjunct Professor of Law Edward D. Barnes, B.A., J.D... Adjunct Professor of Law William J. Benos, LL.B., J.D... Adjunct Professor of Law Robert W. Best, B.A., J.D... Adjunct Assistant Professor of Law J. Edward Betts, A.B., J.D., LL.M... Adjunct Assistant Professor of Law Thomas O. Bondurant, Jr., B.A., J.D... Adjunct Associate Professor of Law Claudia Brand, J.D... Adjunct Assistant Professor of Law The Hon. Lynn S. Brice, B.A., M.S.W., J.D... Adjunct Professor of Law Ann T. Burks, B.A., M.A., J.D... Adjunct Assistant Professor of Law Craig M. Burshem, B.S., J.D... Adjunct Assistant Professor of Law Jack W. Burtch, Jr., B.A., J.D... Adjunct Professor of Law Sean Byrne, B.A., J.D... Adjunct Associate Professor of Law Claire G. Cardwell, B.A., J.D... Adjunct Professor of Law John Carroll, B.S., J.D., LL.M... Adjunct Assistant Professor of Law Michael P. Chiffolo, B.A., J.D... Adjunct Assistant Professor of Law Christopher J. Collins, B.A., J.D... Adjunct Professor of Law Nancy D. Cook, B.S., J.D... Adjunct Associate Professor of Law James C. Cosby, B.A., J.D... Adjunct Professor of Law Ashley T. Davis, B.A., J.D... Adjunct Assistant Professor of Law Marla G. Decker, B.A., J.D... Adjunct Professor of Law Duane A. Deskevich, B.A., J.D... Adjunct Assistant Professor of Law William J. Dinkin, B.A., J.D... Adjunct Associate Professor of Law Morna Ellis, M.Ed., J.D... Adjunct Assistant Professor of Law Andrea S. Erard, B.A., J.D... Adjunct Associate Professor of Law Stephen M. Faraci, Sr., B.A., J.D... Adjunct Assistant Professor of Law Bennett J. Fidlow, B.F.A., M.F.A., J.D... Adjunct Assistant Professor of Law Hayden D. Fisher, B.A., J.D... Adjunct Assistant Professor of Law Jacqueline M. Ford, B.A., J.D... Adjunct Assistant Professor of Law Matthew P. Geary, B.S., J.D... Adjunct Assistant Professor of Law Frederick R. Gerson, B.A., J.D... Adjunct Assistant Professor of Law John Gibney, Jr., B.A., J.D... Adjunct Assistant Professor of Law Michael Gill, B.A., J.D... Adjunct Assistant Professor of Law Paul G. Gill, B.A., J.D... Adjunct Associate Professor of Law Michael L. Goodman, B.A., J.D... Adjunct Professor of Law Carolyn V. Grady, B.A., J.D... Adjunct Professor of Law Timothy H. Guare, B.A., J.D... Adjunct Associate Professor of Law Steven M. Haas, B.A., J.D... Adjunct Assistant Professor of Law Sarah J. Hallock, B.A., J.D... Adjunct Assistant Professor of Law Patrick R. Hanes, B.A., J.D... Adjunct Assistant Professor of Law Lynn Hanley, B.A., M.A., J.D... Adjunct Assistant Professor of Law The Hon. Leroy R. Hassell, B.A., J.D... Adjunct Professor of Law

8 2011] FACULTY LIST xxxi Robert W. Hawkins, B.A., LL.B., J.D... Adjunct Assistant Professor of Law Samuel W. Hixon, B.S., LL.B... Adjunct Assistant Professor of Law Michael N. Herring, B.A., J.D... Adjunct Associate Professor of Law Robert L. Hodges, B.A., J.D... Adjunct Professor of Law Melissa Hoy, B.A., J.D... Adjunct Assistant Professor of Law The Hon. Henry E. Hudson, B.A., J.D... Adjunct Professor of Law John Iezzi, B.A., C.P.A... Adjunct Associate Professor of Law Vernon E. Inge, B.A., J.D... Adjunct Associate Professor of Law John C. Ivins, Jr., B.A., J.D... Adjunct Associate Professor of Law Herndon Jeffreys, III, B.A., J.D... Adjunct Associate Professor of Law Caroline G. Jennings, B.A., J.D... Adjunct Assistant Professor of Law David J. Johnson, B.A., J.D... Adjunct Assistant Professor of Law Christina Jones, B.S., J.D... Adjunct Assistant Professor of Law Jessica S. Jones, B.A., M.L.S., J.D... Adjunct Associate Professor of Law Phyllis C. Katz, B.A., M.A., J.D... Adjunct Assistant Professor of Law Katherine Murray Kelley, B.A., J.D... Adjunct Assistant Professor of Law Laura W. Khatcheressian, B.A., J.D... Adjunct Assistant Professor of Law Jodi E. Lemacks, B.A., J.D... Adjunct Associate Professor of Law Bethany G. Lukitsch, B.S., J.D... Adjunct Assistant Professor of Law Kimberly M. Magee, B.A., J.D... Adjunct Assistant Professor of Law Mary E. Maguire, B.A., J.D... Adjunct Assistant Professor of Law Courtney M. Malveaux, B.A., M.A., J.D... Adjunct Assistant Professor of Law Bruce Matson, B.A., J.D... Adjunct Associate Professor of Law Steven C. McCallum, B.A., J.D... Adjunct Assistant Professor of Law James M. McCauley, B.A., J.D... Adjunct Associate Professor of Law Kathleen McCauley, B.A., J.D... Adjunct Associate Professor of Law Patricia C. McCullagh, B.S., J.D... Adjunct Assistant Professor of Law Perry W. Miles, B.A., J.D... Adjunct Associate Professor of Law Stephen Miller, B.A., J.D... Adjunct Associate Professor of Law Dale G. Mullen, B.S., J.D... Adjunct Assistant Professor of Law Nancy V. Oglesby, B.A., J.D... Adjunct Assistant Professor of Law Victoria Pearson, B.A., J.D... Adjunct Assistant Professor of Law James Phillips, B.A., J.D., Ph.D... Adjunct Professor of Law Cortland Putbrese, B.A., J.D... Adjunct Assistant Professor of Law Geetha Ravindra, B.A., J.D... Adjunct Assistant Professor of Law John V. Robinson, B.A., B.L., J.D... Adjunct Associate Professor of Law The Hon. Frederick G. Rockwell, III, B.A., J.D... Adjunct Professor of Law Thomas P. Rohman, B.B.A., J.D... Adjunct Professor of Law Randy B. Rowlett, B.A., J.D... Adjunct Assistant Professor of Law Doron Samuel-Siegel, B.A., J.D... Adjunct AssistantProfessor of Law Connelia Savage, B.S., J.D... Adjunct Assistant Professor of Law Debra Schneider, B.A., J.D... Adjunct Assistant Professor of Law Cullen Seitzer, B.A., J.D... Adjunct Associate Professor of Law Patricia M. Sherron, B.A., J.D., M.P.A... Adjunct Professor of Law The Hon. Beverly W. Snukals, B.A., J.D... Adjunct Professor of Law James M. Snyder, B.A., J.D... Adjunct Assistant Professor of Law John Thomas, B.A., J.D... Adjunct Associate Professor of Law

9 xxxii RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST [Vol. XIV:401 Brent M. Timberlake, B.A., J.D... Adjunct Assistant Professor of Law John T. Tucker, B.S., J.D... Adjunct Professor of Law Robert J. Wagner, B.A., J.D... Adjunct Associate Professor of Law Kristin P. Walinski, B.A., J.D... Adjunct Assistant Professor of Law John R. Walk, B.A., J.D... Adjunct Professor of Law Michelle Welch, B.A., J.D... Adjunct Assistant Professor of Law Thomas M. Wolf, B.A., J.D... Adjunct Associate Professor of Law Jodi E. Lemacks, B.A., J.D.... Adjunct Associate Professor of Law Bethany G. Lukitsch, B.S., J.D... Adjunct Assistant Professor of Law Kimberly M. Magee, B.A., J.D.... Adjunct Assistant Professor of Law Mary E. Maguire, B.A., J.D.... Adjunct Assistant Professor of Law Courtney M. Malveaux, B.A., M.A., J.D.... Adjunct Assistant Professor of Law Cameron S. Matheson, B.A., J.D.... Adjunct Assistant Professor of Law Bruce Matson, B.A., J.D.... Adjunct Associate Professor of Law Steven C. McCallum, B.A., J.D.... Adjunct Assistant Professor of Law James M. McCauley, B.A., J.D.... Adjunct Associate Professor of Law Kathleen McCauley, B.A., J.D.... Adjunct Associate Professor of Law Patricia C. McCullagh, B.S., J.D.... Adjunct Assistant Professor of Law Steven R. McCullough, B.A., J.D.... Adjunct Associate Professor of Law Gary L. McDowell, B.A., M.A., A.M., Ph.D.... Tyler Hanes Interdisciplinary Professor in Leadership Studies Charles G. Meyer, III, B.A., M.Phil., J.D.... Adjunct Associate Professor of Law Perry W. Miles, B.S., J.D.... Adjunct Associate Professor of Law Stephen Miller, B.A., J.D.... Adjunct Associate Professor of Law Dale G. Mullen, B.S., J.D.... Adjunct Assistant Professor of Law Nancy V. Oglesby, B.A., J.D.... Adjunct Assistant Professor of Law Victoria Pearson, B.A., J.D.... Adjunct Assistant Professor of Law James Phillips, B.A., J.D., Ph.D.... Adjunct Professor of Law Cortland Putbrese, B.A., J.D.... Adjunct Assistant Professor of Law Geetha Ravindra, B.A., J.D.... Adjunct Assistant Professor of Law C. Jay Robbins, IV, B.A., M.A., J.D Adjunct Assistant Professor of Law John V. Robinson, B.A., B.L., J.D.... Adjunct Associate Professor of Law The Hon. Frederick G. Rockwell, III, B.A., J.D.... Adjunct Professor of Law Thomas P. Rohman, B.B.A., J.D.... Adjunct Professor of Law Randy B. Rowlett, B.A., J.D.... Adjunct Assistant Professor of Law Mark Rubin, B.A., J.D... Adjunct Professor of Law Cornelia Savage, B.S., J.D.... Adjunct Assistant Professor of Law Debra Schneider, B.A., J.D.... Adjunct Assistant Professor of Law Cullen Seltzer, B.A., J.D.... Adjunct Associate Professor of Law Reginald Skinner, B.A., J.D., M.P.A.... Adjunct Assistant Professor of Law Steven W. Smith, B.A., J.D.... Adjunct Assistant Professor of Law The Hon. Beverly W. Snukals, B.A., J.D.... Adjunct Professor of Law James M. Snyder, B.A., J.D.... Adjunct Assistant Professor of Law Alexander L. Taylor, Jr., B.A., J.D.... Adjunct Professor of Law John Thomas, B.A., J.D... Adjunct Associate Professor of Law Paul M. Thompson, B.A., J.D.... Adjunct Professor of Law

10 2011] FACULTY LIST xxxiii William Thro, B.A., M.A., J.D.... Adjunct Assistant Professor of Law Brent M. Timberlake, B.A., J.D.... Adjunct Assistant Professor of Law John T. Tucker, B.S., J.D.... Adjunct Professor of Law Robert J. Wagner, B.A., J.D.... Adjunct Associate Professor of Law Kristin P. Walinski, B.A., J.D.... Adjunct Assistant Professor of Law John R. Walk, B.A., J.D.... Adjunct Professor of Law Margaret A. Walker, B.A., J.D.... Visiting Assistant Professor for Academic Success Michelle Welch, B.A., J.D.... Adjunct Assistant Professor of Law Brian L. Whisler, B.A., J.D.... Adjunct Assistant Professor of Law Thomas M. Wolf, B.A., J.D.... Adjunct Associate Professor of Law LIBRARY FACULTY AND STAFF Paul M. Birch, B.A., M.A., J.D...Computer Services Librarian Suzanne B. Corriell, B.A., J.D., M.L.I.S... Head Reference and Research Services Librarian Heather Hamilton, B.A., M.L.S, J.D... Reference and Research Librarian Amy L. O Connor, B.A., M.LS... Technical Services and Digital Resources Librarian Joyce Manna Janto, B.S., M.L.S., J.D... Deputy Director of Law Library Sally H. Wambold, B.A., M.S.L.S... Technical Services Librarian Gail F. Zwirner, B.A., M.S.L.S... Head, Library Access Services

11 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST VOLUME 14 WINTER 2011 NUMBER 3 ARTICLES COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER-ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES Joshua A. Engel PROTECTING THE IVORY TOWER: SENSIBLE SECURITY OR INVASION OF PRIVACY? Stephen D. Lichtenstein AUTOMOBILE CONSENT SEARCHES: THE DRIVER S OPTIONS IN A LOSE-LOSE SITUATION Arthur J. Park xxxiv

12 2011] xxxv COMMENTS JUDICIAL GATEKEEPING AND THE SEVENTH AMENDMENT: HOW DAUBERT INFRINGES ON THE CONSTITUTIONAL RIGHT TO A CIVIL JURY TRIAL Brandon L. Boxler THE UNAVOIDABLE ECCLESIASTICAL COLLISION IN VIRGINIA Isaac A. McBeth Jennifer R. Sykes

13 LETTER FROM THE EDITOR Dear Readers: The Richmond Journal of Law and the Public Interest is proud to present our third issue of Volume XIV. Viewed through the lens of today s cultural climate, the legal scholarship presented in this quarterly issue examines the profound effects of modern social conditions on individual liberties under Bill of Rights. Courts Re-Examine the Application of Goldfinger-Era Electronic Tracking Cases to Law Enforcement Use of GPS Tracking Devices, written by Joshua A. Engel, examines how rapid advancements in technology continue to affect an individual s reasonable expectations of privacy and, consequently, constitutionally-protected interests. In the absence of Supreme Court precedent, federal and state courts continue to have divergent opinions on whether law enforcement officials must obtain a warrant before placing a GPS device on a private vehicle. Accordingly, Engel presents conflicting judicial treatment of the warrantless use of GPS tracking devices, in light of the Fourth Amendment s prohibition against unreasonable searches, and forecasts how future courts will interpret this area of the law. In his article, Protecting the Ivory Tower: Sensible Security or Invasion of Privacy?, Professor Stephen D. Lichtenstein chronicles recent episodes of campus violence in analyzing how existing statutory and regulatory security measures do not adequately protect students and faculty. However, Lichtenstein further examines the use of electronic surveillance and campus monitoring policies, and thus, he advocates for the implementation of preventative, yet minimally invasive, security precautions in order to ensure a safe educational environment without infringing on individual privacy rights. xxxvi

14 In Automobile Consent Searches: The Driver s Options in a Lose-Lose Situation, Arthur J. Park provides an informative account of the legal context surrounding consent searches of automobile in hopes of addressing some of the pragmatic concerns of the motoring public. From the initial basis for a stop and subsequent citation to canine drug sniffs and the potential for arrest, this article discusses relevant case law protecting the driver s Fourth Amendment right when probing police officers seek to search a vehicle. In Judicial Gatekeeping and the Seventh Amendment: How Daubert Infringes On the Constitutional Right to a Civil Jury Trial, Brandon Boxler argues that the U.S. Supreme Court decision allows a judiciary gatekeeping role that offends the civil litigant s right to trial by jury. Specifically, Boxer contends that while the increased complexity of modern litigation calls for effective judicial management of conflicting expert testimony, Daubert hearings violate the Seventh Amendment by stripping the jury of its factfinding power to determine the validity and credibility of the evidence. Boxler concludes by proposing alternative legal reforms that address the same concerns of Daubert without infringing upon the jury s constitutionally protected fact-finding power. Finally, in their comment, The Unavoidable Ecclesiastical Collision in Virginia, Isaac A. McBeth and Jennifer R. Sykes explore the constitutional implications of church property litigation when courts are forced to handle property disputes arising from internal schisms within the church. In particular, McBeth and Sykes discuss Virginia s recent ecclesiastical crisis which arose after internal disputes concerning ordainment of homosexual ministers, whereupon several local parishes attempted to separate themselves from the Protestant Episcopal Church in the Diocese of Virginia while retaining possession of their congregational property. Against the backdrop of U.S. Supreme Court precedent, McBeth and Sykes argue that Virginia s statutory scheme for resolving church property disputes does not operate in a constitutional manner due to its excessive entanglement with the Free Exercise Clause and the Establishment Clause of the First Amendment. xxxvii

15 We hope that the aforementioned articles and comments offer an intellectually stimulating and informative collection of works, as we look forward to providing you with our forthcoming issues. Sincerely, Sheila Moheb Editor-in-Chief xxxviii

16 ARTICLES COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER- ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES. Joshua A. Engel * ABSTRACT GPS tracking devices have become inexpensive, small, and can easily be attached to a vehicle quickly. Law enforcement is increasingly using these devices to track the exact location of a suspect s vehicle over a long period of time. In most instances, relying on Supreme Court cases from the early 1980 s, law enforcement has not sought a warrant before using these devices. This paper examines how courts have attempted to apply Supreme Court precedents based on primitive tracking devices to modern GPS tracking devices. These precedents established that the use of electronic tracking devices on vehicles did not constitute a search and, accordingly, did not implicate the Fourth Amendment because people do not have a reasonable privacy interest in the movement of their vehicles when traveling on a public roadway. Until recently, federal courts have, on the basis on these decisions, almost universally upheld the use of GPS tracking devices. In contrast, state courts have been more reluctant to follow these Supreme Court precedents. A recent decision by the D.C. Circuit Court should cause future courts to re-examine the application of the prior Supreme Court precedents. In this decision, the federal court recognized that people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time. The paper concludes that the approach taken by the D.C. Circuit is most consistent with the Supreme Court s Fourth Amendment jurisprudence, because sustained and long-term surveillance of a targeted individual unrelated to any particular criminal action violates a reasonable expectation of privacy. * J.D., cum laude, Harvard University Law School, 1995, B.A., magna cum laude, University of Pennsylvania, Vice President and General Counsel, the Lycurgus Group. Full biographical information is available at 401

17 402 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST [Vol. XIV:401 Q: You ll be using this Aston Martin DB with modifications. Now, pay attention, please... Here s a nice little transmitting device, called a homer. You prime it by pressing that back like this. You see? The smaller model is now standard field issue, to be fitted into the heel of your shoe. Its larger brother is magnetic. Right. It ll be concealed in the car you re trailing while you keep out of sight. Reception on the dashboard here. Audiovisual range a hundred and fifty miles. Bond: Ingenious, and useful too. Allow a man to stop off for a quick one en route. Q: It has not been perfected out of years of patient research entirely for that purpose... 1 INTRODUCTION In Goldfinger, Q Branch supplies James Bond with two homing devices. 2 These devices have a range of about 150 miles and allow Bond to follow Auric Goldfinger s car from England to Switzerland. 3 After attaching the magnetic device to Goldfinger s Rolls Royce, Bond could follow its movements in his specially modified Aston Martin DB5 by accessing the display hidden behind the speaker vent. 4 The Goldfinger Bond would certainly be impressed by the advanced tracking technology available to law enforcement today. Modern devices are inexpensive, as small as the palm of a hand, can easily be attached to vehicles, and have a long battery life. 5 Not only can law enforcement officials record where a vehicle has been, but they can also access a vehicle s precise location in real-time through the Internet on maps and satellite images. 6 The devices also can set up virtual fences and notify an 1. GOLDFINGER (Eon Productions 1964). 2. See James Bond Multimedia, Goldfinger Gadgets, (last visited Aug. 22, 2010); Universal Exports, Goldfinger Gadgets, (last visited Aug. 22, 2010). 3. See Goldfinger Gadgets, supra note See id. 5. See, e.g., Kate Bolduan, Is GPS a high-tech crime-fighting tool or Big Brother?, CNN.COM, Aug. 18, 2008, ( The technology is easy to use and the devices are hard to detect. All police have to do is attach a GPS receiver to a suspect's car and they easily go along for the ride online, tracking the individual's exact location in real time from their computer. ). 6. See id.

18 2011] GOLDFINGER-ERA TRACKING 403 officer automatically when a vehicle enters or leaves a specified location. 7 A recent article in a law enforcement magazine noted, GPS technology is at the core of many of the hottest emerging law enforcement technologies. 8 There is no doubt modern GPS tracking devices are useful to law enforcement. These devices permit law enforcement to follow vehicles in real-time and store data on time, position, and speed for later analysis. 9 Such information has helped to solve serious crimes. 10 In 2008, for example, the Los Angeles Times described how the Los Angeles County 7. Cf. Jenna Kincade, GPS Tracking Devices for Children, GPS Tracking Resource, (last visited Mar. 3, 2010) (GPS technology allows parents to set parameters and have a virtual fence. If the child goes outside those preset parameters an alarm is sent to the parent device immediately letting [the parent] know where [the] child is. ). Some examples of commercially available device include: the PT-200, sold by Rocky Mountain Tracking, Inc., provides real-time tracking for a purchase price of $600. Rocky Mountain Tracking, Inc., PT-200, (last visited Aug. 22, 2010). The device is only 3.31" x 1.75" x 1", and the company claims that the device retains its accuracy, even inside containers and buildings that would normally affect whether or not the GPS data were reliable. Rain and heavy weather also have little effect on the accuracy of the GPS data. Id. Additionally, Trackingtheworld, Inc., sells a completely self-contained real-time tracking system, ideal for covert applications, which logs data including location, time, and speed for up to twenty days, and allows police officer to view real-time data on any desktop or laptop PC. Tracking the World, Inc., WT Pro, (last visited Aug. 22, 2010). Finally, Brickhouse Security s Livewire FastTrac Covert GPS device permits alert notifications via text message or , while allowing law enforcement officers to access the device s GPS Location from anywhere in the world and watch its movement in real-time. [Police] can even zoom in on the map for the exact street location and speed, accurate up to 8 inches and 1/4 mph. Brickhouse Security, Livewire FastTrac Covert GPS 120-day kit, (last visited Aug. 22, 2010). 8. Kurt Smith, GPS Technology in Policing: Ride the Wave to Make Better Decisions, 46 POLICE CHIEF 4 (2009), available at The Electronic Communications Privacy Act contains no restrictions on the ability of law enforcement install and monitor a tracking device. See 18 U.S.C (2010). One court observed that [t]he only limit on such devices is the Fourth Amendment. In re Application of the United States for an Order Authorizing Installation and Use of a Pen Register, 402 F. Supp. 2d 597, 604 (D. Md. 2005). Furthermore, law enforcement officials must obtain a court order to obtain real-time and historical location tracking information from personal cell phones. See Adam Koppel, Note, Warranting a Warrant: Fourth Amendment Concerns Raised by Law Enforcement s Warrantless Use of GPS and Cellular Phone Tracking, 64 U. MIAMI L. REV. 1061, & n.160 (2010) (collecting cases). The Federal Government has taken the position that it may be able to request information from cell phone based GPS device through a court order under 18 U.S.C. 2703(d) (2010). See In re Application of the United States for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304, 311 (3rd Cir. 2010). 10. See infra notes and accompanying text.

19 404 RICHMOND JOURNAL OF LAW AND THE PUBLIC INTEREST [Vol. XIV:401 Sheriff s Office tracked a robbery suspect after planting a GPS unit in his car. 11 Similarly, the Washington Post reported police using GPS tracking technology to crack a string of assaults on women in northern Virginia. 12 This paper will focus on recent significant developments in the law surrounding the warrantless use of tracking devices as technology has advanced from the primitive beeper-type device featured in Goldfinger to the more potent, modern GPS device. Part I will discuss the Supreme Court s treatment of the warrantless use of tracking devices. The Supreme Court has, on two occasions, considered the use of electronic tracking devices. 13 However, the Court has not considered whether law enforcement must obtain a warrant before placing a GPS device on a private vehicle. Part II will discuss focus on federal and state court applications of Supreme Court precedent. While technology has advanced, lower courts seeking guidance from the Supreme Court are forced to rely on decisions interpreting what was cutting edge in the 1960s. Federal courts have, on the basis on the Supreme Court decisions discussed in Part I, almost universally upheld the use of GPS tracking devices. In contrast, state courts have been more reluctant to follow such precedent. Part III will examine a recent decision by the D.C. Circuit Court in which the court appeared to depart from prior Supreme Court and federal decisions. Finally, Part IV will attempt to predict how future courts will examine the warrantless use of GPS tracking devices. I. THE SUPREME COURT S TREATMENT OF GOLDFINGER-TYPE HOMING DEVICES United States v. Knotts and United States v. Karo are the two United States Supreme Court cases to have addressed Fourth Amendment implications of police use of electronic tracking devices. 11. Carol J. Williams, Watch out for the snitch sitting on your dashboard; A GPS unit tells you where to go. It also tells investigators where you've been, L.A. TIMES, Nov. 25, 2008, at B Police Turn to Secret Weapon: GPS Device, WASH. POST, Aug. 13, 2008, available at At the time, one officer was quoted describing the technology as a very new investigative tool. Id. Police in Ohio also reported using GPS tracking technology to find the perpetrators of a string of burglaries, even catching one burglary in the act. GPS tracking of car without warrant contested, Columbus Dispatch, Jan, 21, 2011, available at United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984).

20 2011] GOLDFINGER-ERA TRACKING 405 A. Starting Point: The Katz Reasonable Expectation of Privacy Test The Fourth Amendment prohibits unreasonable searches without a warrant. Accordingly, the use of GPS tracking devices implicates the Fourth Amendment only if such use constitutes a search. A search is deemed to have occurred when an expectation of privacy that society is prepared to consider reasonable is infringed. 14 In Katz v. United States, the Supreme Court held that the warrantless wiretapping of conversations in a phone booth violates the Fourth Amendment. 15 In doing so, the Court shifted from a property-based analysis of the Fourth Amendment to a privacy-based analysis. 16 The Court initiated an inquiry that examined not how, but whether, the government has violated an individual s reasonable expectation of privacy. 17 In his concurrence, Justice Harlan explained that the relevant inquiry under the Fourth Amendment has two parts: first, whether the person has an actual (subjective) expectation of privacy, and second, whether the individual s subjective expectation of privacy is one that society is prepared to recognize as reasonable. 18 This approach is illustrated by Smith v. Maryland, a case in which the Court notes the distinction between a legitimate expectation of privacy in the contents of a telephone call and the lack of an expectation of privacy in the actual phone numbers dialed. 19 B. Knotts and Karo In United States v. Knotts, the defendant and his co-conspirators were suspected of manufacturing methamphetamine. 20 Law enforcement officers contacted the chemical company where the conspirators intended to purchase chemical supplies. 21 With the consent of the chemical company, officers installed a tracking device inside a five-gallon drum of chemicals United States v. Jacobsen, 466 U.S. 109, 113 (1984). 15. Katz v. United States, 389 U.S. 347 (1967). 16. See Olmstead v. United States, 277 U.S. 438, 466 (1928) (examining whether an actual physical invasion of property had occurred). But see Bennett L. Gershman, Privacy Revisited: GPS Tracking as Search and Seizure, 30 PACE L. REV. 927, 964 (2010) ( [T]he Katz test may be inadequate with respect to intrusions into privacy interests that involve highly sophisticated surveillance technology. ). 17. Katz, 389 U.S. at Id. at 361 (1967) (Harlan, J., concurring). 19. Smith v. Maryland, 442 U.S. 735, (1979). 20. United States v. Knotts, 460 U.S. 276, 276 (1983). 21. Id. at Id.