Commonwealth v. Mannix Lewis

SUPERIOR COURT

COMMONWEALTH v. MANNIX LEWIS

Docket:

1483CR00586

Dates:

October 23, 2018

Present:

Robert B. Gordon, Justice of the Superior Court

County:

PLYMOUTH

Keywords:

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

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

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]

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[*]

Editor’s Note: A spelling mistake in the original text was corrected in the

heading for convenience purposes.

[1]

The Commonwealth has filed its own Motion to Admit GPS Evidence and Request for

Limiting Instruction, which the Court treats as an Opposition to the Defendant’s

motion.

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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, c. 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

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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 [sic] 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

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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

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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. c. 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

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Defendant has either a

violent character or propensity to crime is strictly forbidden. [2]

SO ORDERED.

Robert B. Gordon, Justice of

the Superior Court

October 23, 2018

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[2]

The Court has reviewed the proposed limiting instruction suggested by the

Commonwealth in its Motion to Admit GPS Evidence, and believes that some

version of this mid-trial charge would be appropriate. The Court invites comment from the Defendant

in this connection.

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