February 20, 2014 Top Story

Admission of GPS Evidence Signals Brave New World

Eighth Circuit affirms ruling taking judicial notice of GPS technology

Kelso L. Anderson

Because of its apparent intrinsic accuracy, Global Positioning System (GPS) technology may obviate the need for expert testimony in cases in which a disputed fact concerns the location of a person or a vehicle at a particular time. United States v. Brooks. The ruling from the U.S. Court of Appeals for the Eighth Circuit signals a judicial embrace of GPS technology as inherently reliable and raises potential constitutional concerns.

Bank Robbery

In Brooks, the defendant entered a local credit union in Des Moines, Iowa, with a firearm and demanded money from a teller. The teller gave the defendant about $5900 in an envelope but also secreted a GPS tracking device in the stack of bills. Several surveillance cameras in the credit union captured the defendant leaving. After the defendant exited the credit union, a witness saw a man fitting the defendant’s description enter a car and drive away.

Soon thereafter, the credit union’s security company—3SI Security Systems (3SI)—working with local police, began tracking the GPS that the teller had concealed in the envelope. The device’s signal was lost for about five minutes before it was reacquired. Once reacquired, the signal indicated that the GPS traveled east before stopping about three miles from the credit union. Around the same time, police received a complaint from a witness that her van was stolen.

Police soon located the van and apprehended a man fitting the defendant’s description. Police recovered over $5300 from the man’s clothing and a handgun from the van. In a car parked about three miles from the credit union, police also located the GPS and items of clothing resembling those worn by the robber captured on the credit union’s surveillance camera.

Judicial Notice of GPS Technology

The defendant was charged with robbery, among other crimes. In pretrial motions before the U.S. District Court for the Southern District of Iowa, the defendant sought to suppress all the evidence against him, including admission of the GPS and tracking reports generated by 3SI.

At the defendant’s prodding, the district court considered but refused to apply the evidentiary rule on expert testimony, Federal Rule of Evidence 702, to resolve the issue of the admissibility of the GPS and the relevant tracking reports. Instead, the district court, pursuant to Federal Rule of Evidence 201, took judicial notice of the accuracy and reliability of GPS technology and concluded that the tracking reports were business records under Federal Rule of Evidence 803(6). The district court also concluded that a senior 3SI account executive with more than eighteen years of experience was a proper lay witness to establish the foundation as to the accuracy of the GPS.

A jury eventually convicted the defendant of robbery and other crimes. The defendant appealed to the Eighth Circuit. Reasoning that the district court did not abuse its discretion in admitting the GPS and the tracking reports, the Eighth Circuit affirmed the district court’s evidentiary rulings without qualification. The Eighth Circuit also cited numerous cases that “generally have assumed the [GPS] technology’s accuracy.”

Dangerous Precedent

“This case sets a dangerous precedent,” warns Erek L. Barron, Bethesda, MD, cochair of the ABA Section of Litigation’s Criminal Litigation Committee. “When society gets so comfortable with technology that judges are willing to take judicial notice of it, hardly anything will be subject to challenge,” Barron explains. Relying on the 3SI executive’s statement that tall buildings or tunnels could block the GPS’s transmission, the Eighth Circuit also affirmed the district court’s ruling rejecting the defendant’s argument that the five-minute lapse in the GPS’s transmission was evidence of its malfunction.

Taking judicial notice of GPS technology raises other issues, according to ABA Section of Litigation leaders. “I don’t think taking judicial notice of the reliability of a device, even if proper, resolves all the issues in using the device and the reports,” urges Sonia E. O’Donnell, Miami, FL, cochair of the Section of Litigation’s Appellate Practice Committee. “The device can be reliable and its use can violate the Fourth and/or Sixth Amendments.”

Because of the negative implications of accepting GPS technology as inherently reliable evidence, some Section leaders believe a limited reading of Brooks is proper. “Outside of this very narrow context, the use of GPS tracking has and will continue to raise serious Fourth Amendment concerns,” says Harout J. Samra, Miami, FL, cochair of the Section’s Technology for the Litigator Committee. Even when the motive in secreting a device is to detect crime, courts remain sensitive to the Fourth Amendment concerns raised by the use of technology, Samra urges, citing U.S. v. Katzin, a case rejecting the warrantless use of GPS technology.

“Counsel in a civil case involving GPS technology, especially one where the parties can bring significant expert resources to bear, should be prepared to address not only the overall accuracy of GPS technology, but the accuracy of the particular device(s) used in the situation. The latter may provide the most fertile ground for attacking GPS-based evidence,” says Ian H. Fisher, Chicago, IL, cochair of the Section’s Trial Evidence Committee.

Kelso L. Anderson is a contributing editor for Litigation News.

Keywords: GPS, judicial notice, business records, Federal Rule of Evidence 702, Federal Rule of Evidence 201

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