First Circuit considers authentication of global position system (GPS) device seized from ship and data. In conspiracy to possess with intent to distribute and to import cocaine, there was no plain error in authenticating data from a seized global position system (GPS) device (including the software producing maps showing the ship’s route), in United States v. Espinal-Almeida, _ F.3d _ (1st Cir. Nov. 14, 2012) (Nos. 10-1086, 10-1440, 10-1090, 10-1134)
In conspiracy to possess with intent to distribute and to import cocaine, circuit disagreed with the defense claim that expert testimony was required concerning the process in which the data was generated: “The issues surrounding the processes employed by the GPS and software, and their accuracy, were not so scientifically or technologically grounded that expert testimony was required to authenticate the evidence, and thus the testimony of … someone knowledgeable, trained, and experienced in analyzing GPS devices, was sufficient to authenticate the GPS data and software generated evidence.” (citing United States v. Thompson, 393 F.App'x. 852, 858-59 (3d Cir. 2010) (allowing lay testimony about operation of a GPS device, including authentication of the GPS's data)).
Global Positioning System (GPS) data is now commonly used in vehicles, boats and other devices. The location information is based on a satellite-based navigation system which was originally developed for military application but now is widely used commercially. The First Circuit recently considered that authentication of a seized GPS device and its data at trial.
The case involved a conspiracy to import cocaine by boats. A U.S. Customs and Border Protection Task Force developed an undercover operation to detect the manner in which a substantial amount of cocaine was being distributed from the Dominican Republic to Puerto Rico. After a drug exchange at sea, Coast Guard officers intercepted the boat and seized a GPS, ammunition and other items. After the defendants were apprehended, at trial they claimed that law enforcement seized the wrong boat. A Customs aviation enforcement officer testified that they monitored the boat by air and sea and never lost track of it. Photographs of the boat were introduced. Additionally, the government admitted data from the seized GPS. A Coast Guard officer testified about the seizure of the GPS device from the boat and another officer testified that it was maintained in evidence. Customs forensic scientist Durand testified about retrieving the data and using manufacturer and Google Earth software to analyze the data. The witness:
Durand then pointed out and marked on the map the GPS's track points, which revealed where the GPS (and thus the michera [boat]) was located at various times during the night of the drug exchange. During this testimony the government showed the jury previously admitted photographs of the michera, which were taken from the air by Cancel. The photographs -- which indicated the coordinates of the photographed area and the time the photograph was taken – showed that the photographed boat and the GPS were at similar locations at similar times.Espinal-Almeida, _ F.3d at _. While the defense did not object to the "information inside" the GPS, defense counsel did “object to the analysis that the software performed of the data, i.e. drawing the michera's trajectory.” After the defendants were convicted by the jury, they challenged the authentication of the GPS and GPS data on appeal.
Durand then loaded the GPS's data into the Google Earth software, which resulted in a red line that depicted the michera's course during the night in question. He then plotted on the map the coordinates of the boat Cancel was following and marked these with a white arrow. Again the GPS's coordinates and the coordinates of the photographed boat matched up. Hard copy versions of the marked-up Google Earth maps were admitted into evidence.
The First Circuit concluded the GPS and its data were properly authenticated. The GPS device was authenticated under FRE 901 by the testimony of officers who seized the GPS device from the ship during the interdiction, transferred it to a Coast Guard cutter, and provided a custody receipt form (Customs Form 6051) for seized evidence and serial number. The device was recognized by its "gray front plate" and brand name and serial number. As the circuit summarized:
[T]here is a reasonable likelihood that the GPS was what the government purported it to be. [Officer] Cabán, the first to come into contact with the GPS, identified it based on its appearance and brand. [Officer] Ramos identified the GPS by its serial number, which he had recorded when he received the GPS. The testimony of Cabán and Ramos established how the GPS got from the mothership [boat] to Ramos. The district court did not commit any error, let alone an obvious one, in admitting the GPS.Espinal-Almeida, _ F.3d at _.
The defense also challenged the “data generated by the GPS (the hard copy report and CD) and the software produced analysis of this data” claiming that “the government did not establish the accuracy or reliability of the processes employed by the GPS itself or the Garmin [GPS] and Google Earth software.” Espinal-Almeida, _ F.3d at _. Because these grounds were not raised at trial, the issue was reviewed for plain error under FRE 103(e), and none was found.
The First Circuit concluded that the GPS data was authenticated under FRE 901(b)(9) based on testimony about the “processes employed by the GPS, the Garmin software, and the Google Earth software” used to generate the “elapsed time, the distance traveled, the area covered, and average speed” of the ship in addition to other data. While more evidence could have been offered about the process, the record was sufficient. Customs forensic scientist Durand again:
testified about the process employed by the GPS device itself. He explained that a GPS "contains data concerning the location of the GPS," and that this location is determined by the GPS hooking up with a satellite, with twenty seven such satellites currently revolving around the world. He testified that GPS devices typically capture latitude, longitude, days, hours, height, and altitude. Durand explained that he had analyzed the GPS seized from the michera [boat] and based on pictures he had taken and the existence of corresponding serial numbers he confirmed that the GPS introduced at trial was the GPS he analyzed.Espinal-Almeida, _ F.3d at _. He then explained:
that a GPS produces way points (user stored information), routes (the coming together of way points), and tracks (a series of non-user created data that is the result of the GPS's connection to a satellite, which shows where the GPS is located). Durand added that elapsed time, the distance traveled, the area covered, and average speed is also recorded on the GPS…. Durand testified that he had Garmin software that could analyze the GPS data contained on the disc. At that point, the Garmin software generated map was published to the jury. Durand then explained that when he selected a particular activity log, which itself contained multiple track points from the GPS, a yellow dot was generated on the computerized map. Durand then walked the jury through the GPS's data, charting the michera's path on the map.Espinal-Almeida, _ F.3d at _ (footnote omitted). While more could have been offered concerning the process and functioning of the GPS device, the circuit was “satisfied that the GPS data and software generated evidence were adequately, if not extensively, authenticated.” Espinal-Almeida, _ F.3d at _.
As for the Google Earth software, Durand confirmed that this software could not only show the data from the GPS but also plot additional coordinates.… He testified that one could plot specific coordinates, including pre-programmed ones, with the software, which Durand did as well. He further explained that the software produced a red line that indicated the data from the GPS and the additional coordinates (the photograph coordinates) were indicated with a white arrow.… [H]e explained that commercial GPS devices have an intentional margin of error from five to fifteen meters so that they will not be as accurate as those possessed by the government for national security reasons.
Finally, the circuit disagreed that expert testimony was necessary for authentication of the GPS data:
The issues surrounding the processes employed by the It would have been better practice for the prosecutor to lay such a foundation, but its absence does not mean that the evidence should have been excluded. GPS and software, and their accuracy, were not so scientifically or technologically grounded that expert testimony was required to authenticate the evidence, and thus the testimony of Durand, someone knowledgeable, trained, and experienced in analyzing GPS devices, was sufficient to authenticate the GPS data and software generated evidence.Espinal-Almeida, _ F.3d at _ (footnote omitted; citing United States v. Thompson, 393 F.App'x. 852, 858-59 (3d Cir. 2010) (finding that a lay witness's testimony concerning the operation of a GPS device, including authentication of the GPS's data, was properly allowed by the trial court)).
While more may have been done, including possible expert testimony or further explanation on the processes to obtain the data, the Espinal-Almeida highlights authentication issues for admitting GPS data at trial.