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Commonwealth v. Lewis

Superior Court of Massachusetts, Plymouth

October 23, 2018

COMMONWEALTH
v.
Mannix LEWIS

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO EXCUDE NON-EXPERT TESTIMONY CONCERNING GPS MONITORING AND TRACKING

          Robert B. Gordon, Justice of the Superior Court

          Defendant Mannix Lewis has moved in limine for an order excluding evidence and testimony pertaining to Mr. Lewis’s GPS device and its monitoring and tracking of his physical positions on the date and at the time of the crime. The gravamen of the Defendant’s motion is the charge that GPS technology has not achieved a sufficient level acceptance and reliability to allow for the admission of its data into evidence. The Defendant seeks a Daubert/Lanigan hearing to address this issue. In the alternative, and wholly apart from the putative unreliability of the technology, the Defendant submits that there is no genuine dispute as to his physical position in the area of Main and Shepard Streets on May 1, 2014. Thus, it is argued, GPS evidence is needlessly cumulative, and trial references to Mr. Lewis’s wearing of the device will unfairly prejudice him by inviting jury speculation as to the prior bad acts that gave rise to it.[1]

         It is the Court’s conclusion that the reliability of GPS technology is today so broadly accepted in the scientific and legal community that no Daubert/Lanigan hearing is necessary to establish the admissibility of its position data in this case. In Commonwealth v. Thissell, 457 Mass. 191 (2010), the Supreme Judicial Court considered whether GPS-based records of a defendant’s movements were sufficiently reliable to serve as the basis for a probation revocation. The records at issue were activity reports showing the defendant’s time-specified location within particular exclusion zones, and were introduced at hearing through a probation officer who was not an "expert" in GPS technology. Id. at 193-95. The probation officer simply testified that the GPS apparatus transmits a signal to a satellite, and that a central monitoring center is on this basis able to pinpoint a probationer’s location. Id. at 193. Addressing a due process challenge to the admissibility of the records, the SJC declared: "To the extent they rely on GPS technology, that technology is widely used and acknowledged as a reliable indicator of time and location data." Reinforcing this conclusion, the undersigned observes that GPS technology has been specifically approved by the Legislature for use in monitoring certain criminal offenders who are sentenced to probation or subject to parole, see, e.g., Mass. G.L. c. 265, § 47, a fact the Thissell Court itself took note of in its ruling. Id. at 198 n.15. See also State v. Brown, 2018 WL 4101065, at *5 (S.C. 2018) (citing Thissell and stating, "we acknowledge that the reliability or operation of GPS technology in general is not genuinely disputed," but noting that GPS records must still be authenticated for accuracy).

         The First Circuit Court of Appeals has similarly held that expert testimony is not required to validate GPS evidence. In United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012), cert. denied, 569 U.S. 936 (2013), GPS data was introduced at trial and explained through the testimony of a lay witness from U.S. Customs (Durand). Durand retrieved and analyzed coordinates information in connection with a drug trafficking case in which a GPS device was aboard a boat that had conducted an alleged transfer of narcotics. Id. at 608. The defendant objected "that the government did not establish the accuracy or reliability of the processes employed by the GPS itself or the Garmin and Google Earth software." Id. at 608. The defendant likewise argued that, due to the specialized and technical nature of the GPS evidence, an expert witness was needed to authenticate it. Id. The First Circuit disagreed:

"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 Durand, someone knowledgeable, trained, and experienced in analyzing GPS devices, was sufficient to authenticate the the GPS data and software generated evidence."

Id. at 612-613.

         Other courts confronting GPS evidence have reached the same conclusion. In United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013), for example, the Eighth Circuit Court of Appeals held that it was proper for a trial judge to take judicial notice of the reliability of GPS technology to satisfy the requirements of Fed.R.Evid. 702. The district court had denied the defendant’s motion for a Daubert hearing to challenge the "reliability, accuracy, and underlying soundness of the science" behind GPS evidence, see United States v. Brooks, 2012 WL 12895351, at *4 (S.D. Iowa) (noting "the nearly universal acceptance by other courts of the reliability of this technology"), and the Court of Appeals affirmed. The Court wrote:

"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."

Id. at 1078. See also United States v. Matthews, 250 F.Supp.3d 806, 818-19 (D. Colo. 2017) (denying defense motion for Daubert hearing on witness’s qualifications to testify concerning GPS data from defendant’s ankle bracelet, concluding that any challenge to the accuracy of GPS data was a matter for cross-examination and not an issue of admissibility).

         In this same connection, the Eighth Circuit rejected the contention that it was improper to allow a lay witness, an account executive with the GPS manufacturer, to testify concerning the operation of GPS, given the witness’s training and experience demonstrating the device to customers. Brooks, 715 F.3d at 1078. Accord United States v. Thompson, 393 Fed.Appx. 852, 858 (3d Cir. 2010), cert. denied, 562 U.S. 1262 (2011) (district court properly allowed lay witness to testify as to functioning GPS device).

         The undersigned finds these authorities to be persuasive, and believes the Supreme Judicial Court will take judicial notice of the reliability of GPS technology if and when presented with the issue. The SJC has followed such a course in analogous circumstances. See, e.g., Commonwealth v. Whynaught, 377 Mass. 14, 17 (1979) (taking judicial notice of radar speedometer as accurate and reliable means of measuring velocity); Commonwealth v. LePage, 352 Mass. 403, 419 (1967) (stating that the capacity of trained dogs to follow a human’s trail by scent has long been known). Cf. Commonwealth v. Augustine, 2013 WL 5612574, at *1 n.2 (Mass. Super. Ct.) (noting that parties had agreed trial court could take judicial notice of facts relating to cell site location technology), vacated by Augustine, 467 Mass. 230 (2014). Accordingly, the Court rejects the Daubert/Lanigan challenge the Defendant has brought forward in respect to the GPS location data that the Commonwealth proposes to introduce at trial.

         The Defendant’s alternative argument that introducing GPS evidence would be cumulative (given that Mr. Lewis’s physical location at the time of the crime is not in dispute), and that introducing such evidence would implicitly taint him with unspecified prior bad acts, represents a closer question for the Court. It is true that Mr. Lewis does not intend to present alibi evidence or otherwise contest his presence at the scene of the crime. This would seem to invest GPS data concerning his physical location with limited probative value. That said, the Commonwealth has every right to present a full narrative of how it came to arrest and charge Mr. Lewis with the crimes at issue in this case, particularly in light of the Defendant’s declaration that he intends to present a Bowden defense. For this reason, some amount of cumulative evidence must be tolerated where the prosecution bears the burden of proving the Defendant’s guilt beyond a reasonable doubt.

          As for the speculation about prior bad acts and criminal character that referencing a GPS device arguably invites, the Court is confident that the jury can be provided with a limiting instruction that effectively mitigates this risk. See Mass. G. Evid. § 404(b), at 56 (2018 ed.). In its discretion to balance evidentiary relevance and prejudice, therefore, the Court will not bar the Commonwealth from making reference to data generated by the GPS device Mr. Lewis was wearing at the time of the alleged crime. The Commonwealth will not, however, disclose the specific reasons Mr. Lewis was wearing a GPS; and the jury will be instructed that persons may wear such devices in a broad range of circumstances, and that any GPS-based inference that the Defendant has either a violent character or propensity to crime is strictly forbidden.[2]

         SO ...


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