GPS Data Evidence Issues

Eighth Circuit highlights a host of evidence issues concerning the admissibility of evidence from a Global Positioning System ("GPS") device; the accuracy and reliability of the GPS technolocy was established through judicial notice and lay opinion testimony; statements in the GPS tracking report were nontestimonial under the Confrontation Clause and were admissible as business records, in United States v. Brooks, 715 F.3d 1069 (8th Cir. May 28, 2013) (No. 12-3152)

As Global Positioning System ("GPS") data increases in usage, more evidence questions are raised by the admissibility of this information, as noted in past posts of the Federal Evidence Blog. See, e.g., Authenticating Global Positioning System Device And Data ; Best Evidence Rule Applied To Global Positioning System ("GPS") Content. The Eighth Circuit recently reviewed Confrontation Clause and other admissibility issues.

The case involved a robbery of a credit union. The teller provided about $5,900 in cash along with a concealed a Global Positioning System (“GPS”) tracking device. The GPS device, which was automatically activated, was monitored by a security firm for the credit union. The direction of the GPS device was reported to law enforcement. Ultimately, the device was located in a stolen van along with cash from the credit union and other evidence. The defendant was arrested nearby and charged with bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm trial. Before his trial, he moved to exclude evidence from the GPS device which was denied. After his conviction, on appeal he challenged the admission of GPS evidence.

In affirming the admission of the GPS evidence, the Eighth Ciruict considered a host of issues:

  • Accuracy and Reliability of GPS Technology: The trial court was not required to receive expert testimony under FRE 702 to determine “the overall accuracy and reliability of GPS technology” as other evidence options were available. The trial court “took judicial notice [under FRE 201] of the fact that GPS technology is sufficiently reliable to satisfy Rule 702.” Finally, the circuit noted that the defendant gave no basis to undermine the accuracy or reliability of the GPS data.
  • GPS Availability And Acceptance: The Eighth Circuit noted that courts “have addressed the use of GPS technology for more than a decade.” Further, “Commercial GPS units are widely available, and most modern cell phones have GPS tracking capabilities. Courts routinely rely on GPS technology to supervise individuals on probation or supervised release, and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology’s accuracy.” Brooks, 715 F.3d at 1078 (citing i>, United States v Jones, 565 U.S. _, 132 S.Ct. 945, 963 (2012) (Alito, J., concurring) (noting that newer “smart phones” equipped with GPS devices permit more precise tracking than older devices); United States v. Maynard, 615 F.3d 544, 562-64 (D.C. Cir. 2012) (noting use of GPS surveillance including a detailed record of a person’s movements); In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 533 (D. Md. 2011) (“[C]urrent GPS technology would almost certainly enable law enforcement to locate the subject cellular telephone with a significantly greater degree of accuracy — possibly within ten meters or less.”)).
  • Authentication: A proper foundation for the particular device from which the data was obtained was established through the lay testimony under FRE 701 of a senior account executive from the security company who “knew how the device worked” and “he had demonstrated the device for customers dozens of times.” Brooks, 715 F.3d at 1078 (citing United States v. Thompson, 393 F. App’x 852, 857-59 (3d Cir. 2010) (No. 09-4154) (affirming admission of account executive lay testimony from the same security firm who “was trained in, experienced in, and had verified the functioning of GPS devices”)). The accuracy of the particular GPS device was further corroborated by facts in the case including that the device “was activated near the credit union just seconds after the robbery,” tracked locations connected with the offense, and was recovered with the cash near the area in which the defendant was located. Brooks, 715 F.3d at 1078.
  • Confrontation Clause: The Eighth Circuit rejected the defense claim that the admission of the GPS tracking reports violated the Confrontation Clause. The circuit concluded the tracking reports were not testimonial under the Confrontation Clause as the records were “generated by the credit union’s security company for the purpose of locating a robber and recovering stolen money.” Significantly, while "the reports ultimately were used to link him to the bank robbery, they were not created . . . for the purpose of establishing or proving some fact at trial.” Brooks, 715 F.3d at 1080 (emphasis in original) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (emphasis in original)). Consequently, "the GPS evidence was generated by the credit union’s security company for the purpose of locating a robber and recovering stolen money." Brooks, 715 F.3d at 1080.
  • Business Records: The circuit also considered whether the statements contained in the GPS tracking reports were inadmissible hearsay. The circuit concluded that the business record hearsay exception applied under FRE 803(6). A senior account executive for the security firm providing the GPS device testified about the manner in which the records are created in the “regular course of business.” Specifically, "when one of its customers activates a 3SI GPS device, the company routinely keeps the GPS data on the company server." Brooks, 715 F.3d at 1079 (citing United States v. Wood, No. 08-CR-92A, 2009 WL 2157128, at *4 (W.D.N.Y. July 15, 2009) (concluding GPS records were admissible under the business records exception)).

As the Brooks case notes, the courts have "addressed the use of GPS technology for more than a decade." The decision reviews a series that may arise when GPS evidence is offered. Ultimately, there was no bar to admitting the evidence in the case.

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