Commercial Litigation and Arbitration

Judicial Notice of Reliability of GPS Evidence — Foundational Testimony from Company Representative — Corroborating Evidence — Tracking Reports as Business Records

United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013):

This case arises out of Robin Brooks's conviction for offenses related to a bank robbery in Des Moines, Iowa.***

On May 13, 2011, a man entered the Tradesman Community Credit Union in Des Moines, Iowa, approached the teller, and handed her a note stating that he had a firearm and directing her to put money in an envelope. Upon reading the note, the teller placed approximately $5,900 inside one of the credit union's envelopes. Along with the money, the teller included a Global Positioning System ("GPS") tracking device that was concealed in a stack of twenty-dollar bills.

Two surveillance cameras from the credit union captured images of the robber.... Both surveillance videos showed that the robber was an African-American man wearing a bright orange hat, white earphones, a dark jacket, a black shirt with a design on the front under the jacket, blue jeans, and white tennis shoes. At trial, the credit union teller identified the individual in the two videos as the robber. Immediately after the robbery, Risha Booker, who lived near the credit union, saw a man matching the description of the robber run up the street from the direction of the credit union to a waiting vehicle. Booker testified that the man was running with one hand holding his midsection near his waistband. Booker also testified that when the wind hit the man, she could see a bulge at his midsection. The man then entered the rear driver's side door of a white, four-door sedan that the witness said resembled an older model Buick. The car immediately drove away.

At about the same time, police and the credit union's security company, 3SI Security Systems ("3SI"), began tracking the GPS device that the teller had placed inside the envelope along with the money. The device was activated at 12:15 p.m.,

Footnote 3.  The GPS device is automatically activated 30-40 seconds after someone picks it up.

and the signal indicated that it initially traveled down Third Street, where Booker saw the individual leave in the white sedan. After traveling south for several blocks, the signal from the GPS device reported that the suspect was heading east through eastern Des Moines. At approximately 12:26 p.m., the GPS device signal was lost for approximately five minutes before the connection was reacquired. The signal then indicated that the device continued moving east before it stopped about two to three miles from the credit union. At about the same time, police received a report from Tonya Haskins that someone had stolen her white van. Haskins, who lived on the east side of Des Moines, testified that on the day of the robbery she went to her van to run an errand and discovered an individual bent down outside the door of the van. The individual offered her $1,000 to allow him to hide in the van. She refused and ran back to her apartment, where she called police. The individual drove away in her van.

Meanwhile, Des Moines Police Officer Chris Curtis was involved in a traffic stop with several other officers when dispatch reported a vehicle theft one block away at East 15th Street and Grand Avenue.  [*1074]  While Officer Curtis was on his way to that location, he heard another radio call describing the stolen van. As Officer Curtis looked down the street ahead of him, he saw a van matching the description and pursued it. Officer Curtis saw the van pull into a parking lot several blocks ahead and parked behind it. As Officer Curtis approached the van with his weapon drawn, a second officer arrived and ran across the parking lot. The van suddenly accelerated, prompting the officers at the scene to fire several shots. The van collided with one of the patrol cars at the scene and stopped moving. The officers removed the driver, who was the only person in the van. The suspect appeared to have been shot, and the officer administering first aid noted that the man was wearing white tennis shoes, blue jeans, and a black shirt with a design on the front. Another officer, Officer David Seybert, asked the suspect his name, and the man replied that his name was "Robin."


C. GPS Evidence 

Brooks next challenges the district court's admission of evidence from the GPS tracking device. He disputes both the overall accuracy and reliability of GPS evidence generally as well as the foundation presented at trial to admit evidence from the specific device in this case.  He also contends that the GPS tracking reports constituted hearsay to which no exception applied and that the admission of the GPS tracking reports and related testimony violated his rights under the Confrontation Clause. We again review the district court's evidentiary rulings for abuse of discretion. Brumfield, 686 F.3d at 962.

Prior to trial, Brooks challenged the overall accuracy and reliability of GPS technology under Federal Rule of Evidence 702 and argued that the Government's lay witness--a 3SI executive--possessed insufficient technical expertise to testify as to the underlying accuracy of GPS technology. The district court ruled that testimony about the general reliability of the underlying technology was unnecessary and took judicial notice of the fact that GPS technology is sufficiently reliable to satisfy Rule 702. The district court also stated that, to the extent Brooks challenged the reliability of the particular GPS device used in his case, such a challenge was better raised as a foundational objection  at trial. Brooks raised such an objection.

First, under Rule 702, a witness who is qualified as an expert may testify in the form of an opinion or otherwise, if the expert possesses scientific, technical, or other specialized knowledge that would assist the trier of fact, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied those principles and methods to the facts of the case. Fed. R. Evid. 702. However, even without expert testimony, Rule 201 permits the court to take judicial notice of "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." We cannot conclude that the district court abused its discretion in taking judicial notice of the accuracy and reliability of GPS technology. 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. See, e.g., United States v. Jones, 565 U.S. ---, 132 S. Ct. 945, 963, 181 L. Ed. 2d 911 (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, 392 U.S. App. D.C. 291 (D.C. Cir. 2012) (discussing how prolonged GPS surveillance can provide 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."). Further, Brooks provides no reason to undermine the district court's conclusion beyond his mere assertion that GPS technology is "relatively new." Courts, however, have addressed the use of GPS technology for more than a decade. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002).

Second, Brooks argues that the Government's witness, a 3SI account executive, lacked sufficient scientific background to lay the proper foundation for the GPS evidence from the particular device used in this case. However, the Government's witness, Mike Boecher, had been a senior account executive with 3SI for eighteen years. He had been trained by the company, he knew how the device worked, and he had demonstrated the device for customers dozens of times. See United States v. Thompson, 393 F. App'x 852, 857-59 (3d Cir. 2010) (holding that the district court did not err in allowing a 3SI account executive who was trained in, experienced in, and had verified the functioning of GPS devices to provide lay testimony concerning the operation of the GPS device used in that case). Further, other evidence corroborated the accuracy of this GPS tracking device. The device was activated near the credit union just seconds after the robbery. The signal indicated that it then moved to the apartment parking lot where physical evidence and Haskins's testimony place Brooks at the time he allegedly stole the white van. Then, the signal reported that the device traveled along the same route where Officer Curtis saw the stolen van. Finally, police tracked the device and recovered it from inside a stack of money from the credit union at the same parking lot where they found Brooks. Brooks points to the brief lapse in the device's transmission  as evidence of malfunction. However, as Boecher testified, objects such as tall buildings or tunnels could temporarily block the signal. Thus, we conclude that the district court did not abuse its discretion in concluding that the foundation laid in this case was sufficient.

Brooks also argues that the GPS tracking reports are inadmissible hearsay. The district court, however, did not abuse its discretion in overruling Brooks's hearsay objection as the GPS tracking reports fell under the business records exception.   See Fed. R. Evid. 803(6). In this case, Boecher testified that as part of 3SI's regular course of business, when one of its customers activates a 3SI GPS device, the company routinely keeps the GPS data on the company server. Therefore, the court properly admitted the GPS evidence under the business records exception. See United States v. Wood, No. 08-CR-92A, 2009 U.S. Dist. LEXIS 60335, 2009 WL 2157128, at *4 (W.D.N.Y. July 15, 2009) (holding that GPS records satisfied the requirements of the business records exception).

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