In United States v. Brooks, issued on May 28, 2013, the Eighth Circuit affirmed the district court’s admission of evidence from a GPS tracking device at Brooks’ trial for offenses related to a bank robbery. The case highlights some creative – if ultimately unsuccessful – challenges to technologically-advanced investigative techniques.
The device had been concealed in a stack of $20 bills handed by the bank teller to the robber. Police officers connected Brooks to the robbery in part due to tracking information provided by the security company monitoring the GPS device. The defense challenged the GPS evidence on a number of grounds.
First, the defense disputed the overall accuracy and reliability of GPS evidence generally. The Circuit concluded that the district court did not abuse its discretion in taking judicial notice of the accuracy and reliability of GPS technology, noting that “[c]ommercial GPS units are widely available, and most modern cell phones have GPS tracking capabilities.” In addition, courts “routinely rely on GPS technology to supervise individuals on probation or supervised release.”
Second, Brooks argued the government’s foundation witness at trial – an executive at the security company that monitored the GPS device – lacked sufficient scientific background. The Circuit found no error in admitting the executive’s lay testimony, where he “had been trained by the company, knew how the device worked, and he had demonstrated the device for customers dozens of times.” Moreover, other evidence corroborated the accuracy of this GPS tracking device, including the fact that it had been activated near the bank seconds after the robbery, sent signals along a route where Brooks drove a stolen van, and was recovered from the parking lot where Brooks was found.
Third, Brooks argued that the GPS tracking reports were inadmissible hearsay. The Circuit affirmed the district court’s conclusion that the GPS tracking reports fell under the business records exception, where the security company routinely keeps the GPS data on the company server when one of its customers activates a GPS device.
Finally, the Circuit rejected Brooks’ argument that the admission of the GPS tracking reports violated his rights under the Confrontation Clause. Following the Supreme Court’s decision in Bullcoming v. New Mexico, certain business records may still run afoul of the Confrontation Clause if they are testimonial in nature, which requires that the records were “created . . . for the purpose of establishing or proving some fact at trial.” Here, “the GPS evidence was generated by the credit union’s security company for the purpose of locating a robber and recovering stolen money.” While the GPS records were ultimately used to link Brooks to the bank robbery, they were not created for this purpose.”