Let’s say you want to prove that your spouse is having an affair.  But you don’t want to pay a registered private investigator to do the legwork.  And you don’t want to do all of the legwork on your own.  So you place an electronic tracking device on your spouse’s car to help do most of the work for you.  Can you do this in Virginia?

Virginia Code § 18.2-60.5 states in part:

“A. Any person who installs or places an electronic tracking device through intentionally deceptive means and without consent, or causes an electronic tracking device to be installed or placed through intentionally deceptive means and without consent, and uses such device to track the location of any person is guilty of a Class 3 misdemeanor.

1. The provisions of this section shall not apply to the installation, placement, or use of an electronic tracking device by:
2. A law-enforcement officer, judicial officer, probation or parole officer, or employee of the Department of Corrections when any such person is engaged in the lawful performance of official duties and in accordance with other state or federal law;
3. The parent or legal guardian of a minor when tracking (i) the minor or (ii) any person authorized by the parent or legal guardian as a caretaker of the minor at any time when the minor is under the person’s sole care;
4. A legally authorized representative of an incapacitated adult, as defined in § 18.2-369;
5. The owner of fleet vehicles, when tracking such vehicles;
6. An electronic communications provider to the extent that such installation, placement, or use is disclosed in the provider’s terms of use, privacy policy, or similar document made available to the customer; or
7. A registered private investigator, as defined in § 9.1-138, who is regulated in accordance with § 9.1-139 and is acting in the normal course of his business and with the consent of the owner of the property upon which the electronic tracking device is installed and placed. However, such exception shall not apply if the private investigator is working on behalf of a client who is subject to a protective order under § 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-279.1, 19.2-152.8, 19.2-152.9, 19.2-152.10, or subsection B of § 20-103, or if the private investigator knows or should reasonably know that the client seeks the private investigator’s services to aid in the commission of a crime.”

Under this scheme, the Fairfax County Circuit Court recently faced the following issue of first impression in Virginia v. Blacker, Case No. MI-2016-802: “Is it illegal for one parent to surreptitiously place an electronic tracking device on a vehicle owned by and driven by the other parent, where the vehicle is periodically used to transport the child of the parents?”

Long story short, Judge Bellows said that it was illegal for the defendant in that case to surreptitiously place an electronic tracking device under such circumstances despite the defendant’s argument that he was tracking the child to prevent the child’s removal from the state and/or to prove that the mother was not respecting his right of first refusal under their custody order.  Simply put, the court didn’t buy the defendant’s argument that he wasn’t really tracking the child’s mother.  Indeed, it said that if he truly wanted to track the child specifically, he could have used various narrower means to do so, including placing an electronic tracking device on his vehicle, bike, backpack, sneaker laces, or coat pockets.  Moreover, the court noted if the legislature wanted to create a massive exception to the crime of illegal electronic tracking for vehicles used to transport children, whether periodically or regularly, it would have said so.  Instead, the legislature chose narrow exceptions, none of which applied to the defendant’s conduct.  All in all, the court’s decision is well-reasoned, thus putting a damper on all those future defendants hoping to use the child as an excuse in these situations.