R.L.G., A JUVENILE v. THE STATE OF FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed June 16, 2021.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-675

Lower Tribunal Nos. J20-657A & J20-658A

________________

R.L.G., a juvenile,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Yery

Marrero, Judge.

Carlos J. Martinez, Public Defender, and James Odell, Assistant Public

Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant

Attorney General, for appellee.

Before LOGUE, LINDSEY, and HENDON, JJ.

LOGUE, J.

This case concerns the evidentiary threshold a party must meet to

admit GPS information generated by a third party.

A juvenile, R.L.G., appeals a finding of indirect criminal contempt for

leaving home in violation of a supervised release order. The evidence

against the juvenile consisted of his probation officer testifying to location

information provided by BI Incorporated, the third-party monitoring company

that supplied and monitored an ankle bracelet worn by the juvenile. The

juvenile asserts the officer’s testimony based on BI’s information was

inadmissible hearsay. Given the limited record before us and the precedent

of this Court and the other district courts, we agree with the juvenile.

In so doing, we acknowledge the State makes an interesting argument.

Hearsay, the State maintains, encompasses only the out-of-court

“statements of persons.” BI’s information, the State argues, is not hearsay

but is instead an out-of-court “statement by a machine.” BI’s information, so

the State’s argument goes, qualifies as a “statement by a machine” because

it was “automatically generated without manual input from any person.” As

the juvenile accurately notes, however, the factual claim underpinning the

State’s argument is “essentially a raw guess by the State because the record

contains no information to what extent the information given to [the probation

officer] by BI was automatically generated.”

2

In this and other ways, the cursory record before us is woefully lacking

the necessary factual support for this Court to consider the State’s argument.

We are not suggesting that the State does not possess evidence that might

support its claim: we are only observing such evidence was never made part

of this record. Consideration of whether and when out-of-court “statements

by machines” are not hearsay must await a case with a record supporting

that argument.

FACTS

The juvenile was placed on home detention with an ankle monitor.

Ultimately, he was issued an order to show cause for indirect criminal

contempt pursuant to Florida Rule of Juvenile Procedure 8.150(b). In

pertinent part, the order was based on his probation officer’s affidavits stating

the juvenile had left home without permission on certain dates and times. 1

As authorized by Rule 8.150(c)(5), the trial court undertook the double

burden of acting as both prosecutor and judge. An assistant state attorney

1

The affidavits also included a violation alleging the juvenile tampered with

his ankle monitor. The trial court, however, expressly declined to base its

finding of contempt on those allegations. In addition, the affidavits also

alleged the juvenile violated the conditions of his supervised release on

March 3, 2021. At the hearing, this violation was established by the testimony

of the probation officer that he visited the home and confirmed the juvenile

was absent. Based on R.L.G.’s concession and our own review of the record,

we affirm this finding of violation.

3

was present but spoke only once to indicate she had no questions. On

examination by the trial judge and without any prior evidentiary foundation,

the probation officer began testifying that the juvenile had left home on

certain dates and times. The juvenile’s attorney raised a hearsay objection,

which the trial court overruled. The trial court granted the juvenile a standing

objection to hearsay.

During direct examination by the trial court, the officer made two

comments that bear on the evidentiary foundation of his testimony. The trial

court asked him twice for the source of his knowledge that the juvenile had

left home. The first time, the probation officer answered, “[i]t’s coming from

the information that’s provided from his device that’s equipped around his

ankle.” The second time, the probation officer answered it is “due to the

monitoring system that tracks him by the points that’s provided by his

device.”

Only on cross-examination after the officer’s testimony was admitted

did the probation officer reveal the monitoring was conducted by a third-party

which he identified simply as “BI,” an apparent reference to BI Incorporated.

In the sole mention of GPS at the hearing, he testified that BI’s system uses

either “Wi-Fi or GPS.” Asked how he received BI’s information, the officer’s

answer was far from clear:

4

QUESTION: So you merely see that someone is not home

by looking at some screen that pops up;

correct?

ANSWER: That and we get an alert that’s sent out also.

QUESTION: So an alert is sent out. Is it coming through a

computer screen to you, a phone, or how does

that come to you?

ANSWER: Through emails. It’s documented in the

system. It shows the alerts, it’s the same

time as the alerts. It shows the whereabouts

when he’s not home.

(emphasis added). The officer’s testimony was inconclusive and

indeterminate in several ways. It is unclear from his testimony if his reference

to “the system” meant BI’s system or the State’s system. It is also unclear if

he meant the system uses “GPS” or whether he meant the system uses

“WiFi.” It is also unclear if the officer meant BI sent its location information

by only email alerts or by both emails and separate electronic alerts in some

manner not further identified. In whatever form they took, BI’s electronic

messages to the officer were not offered into evidence. Nor was the

documentation in the “system” to which he referred. No representative or

records custodian from BI testified.

Two points, however, are clear. First, the location information came

from BI, a third party. Second, the probation officer was never asked and

never said that BI’s location information or messages were “automatically

5

generated without manual input from any person.” No witness testified on

this point, one way or the other. No documentary evidence was admitted on

this point. The trial judge made no finding in this regard. In fact, there was

simply no discussion at trial of this fact that the State asserts for the first time

only on appeal.

The trial court found the juvenile had willfully disobeyed the conditions

of his supervised release based on the probation officer’s testimony and

affidavits, held the juvenile in indirect criminal contempt of court, and

sentenced him to fifteen days in secure detention. This appeal followed.

ANALYSIS

Because indirect criminal contempt is a crime, proof of criminal

contempt must be established beyond a reasonable doubt. Parisi v. Broward

Cnty., 769 So. 2d 359, 364 (Fla. 2000); Vernell v. State ex rel. Gerstein, 212

So. 2d. 11, 13 (Fla. 3d DCA 1968) (“[I]n a proceeding for indirect criminal

contempt the contemnor is presumed to be innocent until proved guilty

beyond a reasonable doubt.”). Moreover, “[i]mpermissible hearsay may not

support a finding of contempt of court.” A.A. v. State, 271 So. 3d 87, 95 (Fla.

3d DCA 2019).

We are reviewing a trial court’s decision to admit evidence over a

hearsay objection. While it is often said that a trial court’s decision whether

6

to admit evidence is reviewed for an abuse of discretion, this is true only

when the decision actually involves an exercise of discretion; a trial court’s

decision whether to admit evidence based upon a purely legal ruling is

reviewed de novo. See, e.g., Dayes v. Werner Enters., Inc., 314 So. 3d 718,

722 (Fla. 3d DCA 2021) (holding a trial court’s interpretation of the evidence

code and applicable case law when deciding whether evidence was hearsay

is subject to de novo review). As our Supreme Court has recently reiterated,

“the question of whether a statement is hearsay is a matter of law and is

subject to de novo review on appeal.” Jackson v. Household Fin. Corp. III,

298 So. 3d 531, 535 (Fla. 2020). Following this binding precedent, we review

the trial court’s decision to overrule the juvenile’s hearsay objection de novo.

The GPS records of third parties have traditionally been treated as

hearsay and thus ordinarily admissible only under the business records

exception to the hearsay rule, a point of law recently affirmed by our sister

district courts. See Laing v. State, 200 So. 3d 166, 167–68 (Fla. 5th DCA

2016) (reversing a revocation of probation based on third-party GPS data

because such “GPS data . . . is definitive hearsay” and “[n]o effort was made

to utilize any exception to the hearsay rule.”); Channell v. State, 200 So. 3d

247, 249 (Fla. 1st DCA 2016) (reversing a revocation of probation because

the third-party GPS data on which it was based was “clearly hearsay” and

7

the State failed to establish the data came within the business records

exception); Edwards v. State, 60 So. 3d 529, 530–31 (Fla. 2d DCA 2011)

(holding third-party GPS data was “clearly hearsay,” and reversing a

revocation of probation based on such evidence when the State failed to

establish it came within the business records exception).

This traditional approach has been recognized by this Court. In Perez

v. State, 980 So. 2d 1126, 1131 (Fla. 3d DCA 2008), for example, we upheld

the admission of cell phone companies' records indicating the times of the

calls, the duration, and the identity and location of the tower receiving and

transmitting the calls under the business records exception to hearsay. See

also City of Miami v. Kho, 290 So. 3d 942, 945 (Fla. 3d DCA 2019) (reversing

a trial court for admitting a photograph from Google Maps in part because

the proponent of its admissibility “did not present any evidence as to the

operating capabilities or condition of the equipment used by Google Maps.

There also was no testimony as to the procedures employed by Google

Maps in taking the photograph”). 2

2

See, e.g., United States v. Brooks, 715 F.3d 1069, 1079 (8th Cir. 2013)

(holding GPS records were properly admitted under the business records

exception where executive of security company testified that “company

routinely keeps the GPS data on the company server”); United States v.

Wood, No. 08-CR-92A, 2009 WL 2157128, at *4 (W.D.N.Y. 2009) (holding

that GPS records were properly admitted as business records after

8

The State did not argue below, or now on appeal, that the evidentiary

foundation necessary to admit BI’s information under the business record

exception was established. Because the State does not address these points

in its brief, we consider these issues conceded.

On appeal, however, the State introduces an argument that it did not

make below. Hearsay, the State maintains, only applies to out-of-court

“statements by persons.” While BI’s location information and messages may

constitute out-of-court statements, the State argues, they were “statements

by machines.” BI’s location information and messages, the State’s argument

continues, were “statements by machines” because they were “automatically

generated without manual input from any person.”

The legal basis for the State’s theory is the growing trend in the law to

recognize that evidence of information from new technologies like GPS

location, DNA matches, facial recognition, and chromatography (used to

detect chemicals in samples) is often generated without human input. As

noted by several commentors, in the brave new world of artificial intelligence,

the finger of accusation is often pointed, not by a human being, but by an

custodian of the GPS records testified that “he obtained custody of those

records and relied upon them in the ordinary course of his business”).

9

algorithm. 3 Moreover, it has already occurred that one out-of-court

“statement by a machine” conflicted with a dueling out-of-court “statement”

by a different machine. 4

These circumstances have given rise to a movement to remove such

out-of-court “statements by machines” from the ambit of the hearsay rule, so

long as the statements were automatically generated without manual input

from any person. When automatically generated, these “statements by

machines” are reviewed for admissibility under a different, not-yet-fully-

defined foundational standard akin to that used to admit expert testimony.

This trend is based on the insight that the central concept informing the

hearsay rule, to ensure testimony is subject to the test of cross-examination,

has little or no application to statements by machines: the algorithm or

machine cannot be “cross-examined” in any traditional sense. 5

3

See, e.g., Brian Sites, Machines Ascendant: Robots and the Rules of

Evidence, 3 Geo. L. Tech. Rev. 1, 5 (2018).

4

See generally Andrea Roth, Machine Testimony, 126 Yale L.J. 1972, 1976

(2017) (“The shift from human- to machine-generated proof has, on the

whole, enhanced accuracy and objectivity in fact finding. But

as machines extend their reach and expertise, to the point where competing

expert systems have reached different ‘opinions’ related to the same

scientific evidence, a new sense of urgency surrounds basic questions about

what machine conveyances are and what problems they pose for the law of

evidence.” (footnotes omitted)).

5

See Sites, supra note 3, at 18.

10

While this issue is interesting, we cannot resolve it based on the record

before us. As the juvenile points out, the State’s entire legal argument is

premised on its claim that BI’s out-of-court location information and

messages were “automatically generated.” Whether or not BI’s information

and messages involved human input is clearly a factual issue. The juvenile

maintains that this factual claim by the State is not supported by the record.

Focusing on this initial issue, the juvenile argues that the State’s claim

in this regard is “essentially a raw guess by the State because the record

contains no information to what extent the information given to [the probation

officer] by BI was automatically generated or required human input or

interpretation.” Having carefully reviewed the record, we are compelled to

agree with the juvenile. Regarding the factual claim underpinning the State’s

argument, the record is inconclusive and indeterminate, at best. We do not

fault the trial court for this absence of evidence to support the State’s

argument because, as we said, the State never raised this argument below.

Because its argument was never made to the trial court, the State must

rely on the “tipsy coachman” doctrine, under which a trial court will be upheld

(but not reversed) based upon new arguments made for the first time on

appeal. Ruiz v. Policlinica Metropolitana, C.A., 260 So. 3d 1081, 1090–91

(Fla. 3d DCA 2018). This Court has already held, however, that the tipsy

11

coachman doctrine does not apply in a case like this one where the record

on appeal does not contain the facts needed to support the new argument.

Id.; see also Fitzsimmons v. State, 935 So. 2d 125, 128 (Fla. 2d DCA 2006)

(refusing to rely on the “tipsy coachman” doctrine to affirm trial court’s

admission of evidence based on the State’s fact-intensive argument not

considered or ruled upon by trial court).

In the absence of any record evidence as to whether BI’s information

and messages involved human input, the trial court’s failure to follow binding

precedent regarding admission of third-party GPS data was reversible error.6

For these reasons, we conclude the State has not met its burden as the

proponent of the admissibility of BI’s location information. Accordingly, we

reverse the contempt findings that were based solely on the probation

officer’s testimony of BI’s information and messages because, in this record,

such testimony comprised inadmissible hearsay.

Affirmed in part; reversed in part.

HENDON, J., concurs.

6

See, e.g., HSBC Bank USA, Nat’l Ass’n v. Buset, 241 So. 3d 882, 887 (Fla.

3d DCA 2018) (noting the trial court erred by failing to follow controlling

precedent, even when a party introduces a new argument challenging the

precedent).

12

R.L.G. v. State,

3D21-675

LINDSEY, J., concurring in part and dissenting in part.

I respectfully dissent and would affirm the trial court’s order finding

R.L.G. in indirect criminal contempt of court because there is competent

substantial evidence in the record to support the trial court’s finding.

The parties agree that resolution of this appeal hinges on whether GPS

alerts are inadmissible hearsay. 7 Indeed, this is the only issue on appeal.

Yet, the majority asserts that “[c]onsideration of whether and when out-of-

court ‘statements by machines’ are not hearsay must await a case with a

record supporting that argument.” Maj. Op. at 3. Instead, the majority frames

the issue on appeal as having to do with “the evidentiary threshold a party

must meet to admit GPS information generated by a third party.” Id. at 2.

But in reversing the trial court, the majority ultimately concludes that

7

See Initial Br. 2 (“Mr. Grant testified that he received ‘information’ from the

GPS ‘device that’s equipped around R.G.’s ankle’ that he left his home

without approval on multiple occasions. The defense objected and asked for

a ‘standing objection’ that the information provided by the monitor was

‘hearsay.’”); Initial Br. 5 (“Because the evidence of the GPS alerts was

inadmissible hearsay, the evidence at the hearing below was sufficient to

sustain only a single contempt finding.”); Answer Br. 7 (“The testimony

regarding alerts that the probation officer received on his monitor was not

hearsay.”); Reply Br. 4 (“Turning to the only issue raised by this appeal,

whether the GPS alerts were inadmissible hearsay, the State argues that the

‘Florida cases on this subject are sparse.’”).

13

the State has not met its burden as the proponent of

the admissibility of BI’s location information.

Accordingly, we reverse the contempt findings that

were based solely on the probation officer’s

testimony of BI’s information and messages

because, in this record, such testimony comprised

inadmissible hearsay.

Id. at 12-13. I respectfully disagree with the premise upon which the majority

necessarily relies for this conclusion: that the alerts generated by the ankle

monitor are hearsay.

The issues and arguments framed by the majority are not the issues

and arguments framed by R.L.G.—the appellant. This appeal is not about

the evidentiary threshold a party must meet to admit GPS information

generated by a third party. It is not about the probation officer’s testimony of

BI’s information and messages. It is not about the sufficiency of the record.

It is about whether GPS alerts are hearsay.

Because GPS alerts are not hearsay, there is no reason to expand our

review of the record to whether a sufficient foundation was laid to admit them

under the business records exception to the hearsay rule or any other

exception. 8 This is so because unless evidence constitutes hearsay,

exceptions to the rule against hearsay are inapplicable.

8

The business records exception provides for the admissibility of the

following:

14

Further, because R.L.G. is the appellant, it is his burden to show error.

See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.

1979) (“In appellate proceedings the decision of a trial court has the

presumption of correctness and the burden is on the appellant to

demonstrate error.”). It is not this Court’s job to find it for him. See Bainter

v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014)

(“‘Basic principles of due process’—to say nothing of professionalism and a

long appellate tradition—‘suggest that courts . . . ought not consider

arguments outside the scope of the briefing process.’” (quoting Powell v.

A memorandum, report, record, or data compilation,

in any form, of acts, events, conditions, opinion, or

diagnosis, made at or near the time by, or from

information transmitted by, a person with knowledge,

if kept in the course of a regularly conducted

business activity and if it was the regular practice of

that business activity to make such memorandum,

report, record, or data compilation, all as shown by

the testimony of the custodian or other qualified

witness, or as shown by a certification or declaration

that complies with paragraph (c) and s. 90.902(11),

unless the sources of information or other

circumstances show lack of trustworthiness. The

term “business” as used in this paragraph includes a

business, institution, association, profession,

occupation, and calling of every kind, whether or not

conducted for profit.

§ 90.803(6)(a), Fla. Stat. (2020).

15

State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013))). R.L.G. has failed to meet

this burden.

I. BACKGROUND

On January 22, 2021, the trial court issued an order directing R.L.G.

not to tamper with or remove the GPS ankle bracelet he had been ordered

to wear. Based on affidavits filed by R.L.G.’s probation officer, Mr. Grant,

alleging violations of supervised release, the trial court ordered R.L.G. to

show cause why he should not be held in indirect criminal contempt.

Following an evidentiary hearing, the trial court entered an order of contempt.

“Generally, ‘[a] judgment of contempt comes to the appellate court clothed

with a presumption of correctness and will not be overturned unless a clear

showing is made that the trial court either abused its discretion or departed

so substantially from the essential requirements of law as to have committed

fundamental error.’” Cancino v. Cancino, 273 So. 3d 122, 126 (Fla. 3d DCA

2019) (quoting DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA

2005)).9 The issue before us is whether there was competent substantial

9

R.L.G. argues that because there was only one instance where Mr. Grant

personally verified the GPS alert by physically going to R.L.G.’s home, there

is only competent substantial evidence to support a single violation of the

lower court’s order directing R.L.G. not to tamper with or remove his

electronic monitor and not to leave his home. R.L.G. commendably

concedes that there is competent substantial evidence to support one

16

evidence to support the trial court’s finding of indirect criminal contempt. See

Pace v. Pace, 295 So. 3d 898, 900 (Fla. 5th DCA 2020) (“A trial court’s

determination that a party is in willful contempt of court must be based upon

competent substantial evidence and is subject to an abuse of discretion

standard of review.”). The record before demonstrates that there was.

At the evidentiary hearing below, the judge asked Mr. Grant “to go

through the times that the youth was not home.” Counsel for R.L.G. raised

a hearsay objection on the basis that he did not know where the information

was coming from:

[Counsel for R.L.G.]: I need to object to hearsay. Is

this --did he -- was he at -- this is hearsay. I don’t

know where this testimony is coming from. And this

is a personal -- and I know this is a speaking

objection. I apologize, but we’re not in front of a jury.

But my objection is hearsay as to where this

information is coming from.

[Judge]: Okay. Mr. Grant, where is this information

coming from?

[Mr. Grant]: It’s coming from the information that’s

provided from the device that’s equipped around

his ankle.

[Judge]: Okay.

[Counsel for R.L.G.]: That’s hearsay, Judge.

instance of R.L.G. violating the court’s prior order, and I concur with the

majority as to that violation.

17

(Emphasis added).

Mr. Grant then proceeded to provide the exact times R.L.G. left home.

Counsel for R.L.G. once again objected to hearsay, without further

elaboration, and requested a standing objection. The trial court judge

acknowledged the standing objection, overruled it, and again asked Mr.

Grant how he knew what time R.L.G. left home:

[Counsel for R.L.G.]: Objection again to hearsay. I

should get – I’m going to have a standing objection

to the prior testimony as hearsay.

[Judge]: Okay. The defense has a standing objection.

I’ll overrule it.

....

[Judge]: Okay. And I know that the Defense will ask

you, but – questions. And there is a – an objection

pending. But can you tell me how you know that?

[Mr. Grant]: Due to the monitoring system that

track[s] him by points that’s provided on his

device[.]

(Emphasis added).

Counsel for R.L.G. cross-examined Mr. Grant and asked several

detailed questions about the alerts generated by the GPS device and the

monitoring system. Mr. Grant explained that he receives an alert on his

screen and, in addition, an email alert is sent at the same time with the

juvenile’s location:

18

Q But it is the actual system that you’re relying on

to get those alerts; Correct?

A That’s correct.

Q So you’d look at something on your screen or

– or on a monitor and gives you an alert; correct?

A Correct

Q Okay. You’re not – as far as the inter – inner

workings of that system and how it was made, you’re

not the person that did that; correct?

A. That’s correct

Q Okay. So you merely see that someone is not

home by looking at some screen that pops up;

correct?

A That, and we – an alert that’s sent out also.

Q Okay. So an alert is sent out to us. Is it coming

through a computer screen to you, a phone, or how

does it come to you?

A Come through emails. It’s documented in

the system. It shows the alerts, it’s at the same

time as the alerts. It shows the whereabouts

when he’s not home.

Q And it’s -- and it’s just based on some other

system sending you these alerts; right?

A That’s correct.

(Emphasis added).

19

Mr. Grant also explained that although he was not the one who

personally created the monitoring system, he received some training as to

its inner workings:

Q And really, you don’t know how the inner

workings operate, other than an alert coming to you

in some form.

A I know a little bit more than that.

Q Tell me.

A How the satellites are used to communicate

with the device, and the device is also programmed

to send out points randomly to the device, and how –

the system used to pinpoint the locations, the

defections, the speed of the youth.

Q And those are all coming from an outside

system from – from you, like a – satellites coming

from somewhere else and [pinging] to your system;

right?

A That’s correct.

In short, R.L.G.’s hearsay objection below was based on not knowing

where the information was coming from. Mr. Grant consistently explained,

both when asked directly by the judge and on cross-examination, that the

GPS alerts he received were generated by the device around R.L.G.’s ankle

20

and the device’s monitoring system. 10 R.L.G. maintains this is hearsay. For

the reasons set forth below, I disagree.

II. ANALYSIS

The rule against hearsay can be traced back to at least the 17th

century. Kenneth S. Broun et al., 2 McCormick On Evidence § 244 (8th ed.

2020). As early as 1668, hearsay was excluded due to lack of any

opportunity to cross-examine the absent declarant, and this remains the

main justification for the exclusion of hearsay today. Id. at § 245. Because

“the benefits of cross-examination animate hearsay theory, . . . certain

situations where cross-examination is impossible or ineffectual may be

categorized as nonhearsay. As long understood with animal responses and

more recently with some machine-generated data, particularly automatically

10

I do not dispute that the proponent of hearsay evidence has “the burden

of supplying a proper predicate to admit this evidence under an exception to

the rule against hearsay.” See Yisrael v. State, 993 So. 2d 952, 956 (Fla.

2008), as revised on denial of reh’g (July 10, 2008). However, everything in

the record indicates that the GPS alerts are not hearsay. Moreover, despite

Mr. Grant’s testimony that he received alerts on his screen, in addition to

emails corroborating the alerts, the majority focuses on the “admissibility of

BI’s location information.” See Maj. Op. at 13. Referring to the GPS alerts

as “BI’s location information” does not change the fact that the alerts were

machine generated. Indeed, Mr. Grant clarified that the emails were sent at

the same time as the on-screen alerts. Yet, the majority finds Mr. Grant's

testimony “inconclusive.” See Maj. Op at 5. In fact, Counsel for R.L.G. had

ample opportunity to cross-examine Mr. Grant and simply failed to establish

sufficient grounds for the hearsay objection.

21

generated measurements and objective data, treating the evidence as

hearsay is inappropriate. Instead, issues under the rubric of expert testimony

and authentication take predominance.” Id. at § 246 (footnotes omitted).11

In Florida, the rule against hearsay is consistent with the age-old

common law reasons for excluding out-of-court statements. Section

90.801(1)(c) defines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.”12 Hearsay, therefore, has two components:

it is (1) an out-of-court statement and (2) offered to prove the truth of the

matter asserted. With respect to the statement component, section

90.801(1)(b) provides that “[a] ‘declarant’ is a person who makes a

11

See also Michael H. Graham, 6 Handbook of Fed. Evid. § 801.1 (9th ed.

2020) (“The hearsay rule is designed to protect against ‘the four testimonial

infirmities of ambiguity, insincerity, faulty perception, and erroneous

memory.’ Laurence H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957,

958 (March 1974). Computer-generated records do not implicate any of

these four ‘infirmities’ when the evidence is not the product of human

intervention. See, e.g., [State v. Armstead, 432 So. 2d 837, 840 (La. 1983)]

(‘With a machine, however, there is no possibility of a conscious

misrepresentation [. . . .]’).”).

12

As with many states, Florida’s hearsay definition is substantively the same

as the definition set forth in the federal rules of evidence. See L.L. v. State,

189 So. 3d 252, 255 (Fla. 3d DCA 2016) (“Where, as here, a Florida

evidentiary rule is patterned after its federal counterpart, ‘federal cases

interpreting comparable provisions are persuasive and routinely looked to for

interpretive guidance.’” (quoting Bank of N.Y. v. Calloway, 157 So. 3d 1064,

1071 n.3 (Fla. 4th DCA 2015))).

22

statement.” As such, hearsay can only come from a person. This is not a

trend; it is blackletter law. See Charles W. Ehrhardt, Fla. Prac., Evidence §

801.2 (2020 ed.) (“[O]nly statements by persons are treated as

hearsay. Evidence not generated by a person, such as a number displayed

on caller ID, is not hearsay and is admissible if not excluded by the other

exclusionary rules.” (emphasis added)); 23 Fla. Jur. 2d Evidence and

Witnesses § 274 (“With regard to hearsay, a declarant is a person who

makes a statement. Only statements made by persons fall within the

definition of hearsay.” (footnotes omitted)); see also 23 C.J.S. Criminal

Procedure and Rights of Accused § 1167 (March 2021 Update) (“A computer

is not a person and thus cannot be a declarant who makes a statement, and

thus, computer self-generated data is not hearsay.”); Graham, supra note 2,

(“[A] statement must be made by a human, not a machine.”); David H. Kaye

et al., The New Wigmore: Expert Evidence § 5.3.6 (3rd ed. 2021) (“Machine-

generated data are, by definition, not themselves hearsay.”); Barbara E.

Bergman et al., 2 Wharton’s Criminal Evidence § 6:1 (15th ed. 2020) (“As

technology advances, the law must follow. One example of this is the

question of whether computer-generated records are hearsay. Because the

records are not generated by humans, they are not ‘statements’ within the

meaning of the hearsay rules.”); David F. Binder, Hearsay Handbook (4th

23

ed. 2020) (“Hearsay is limited to an out-of-court assertion of a person, as

distinguished from a machine.”).

This legal principle, which is recognized nationwide, has been applied

by Florida courts. See, e.g., Wade v. State, 156 So. 3d 1004, 1024 (Fla.

2014) (holding that a US Marshal’s testimony regarding cell phone call

records was not based on hearsay because “phone company call lists are

not out-of-court statements by a declarant”); 13 Gayle v. State, 216 So. 3d

656, 660 (Fla. 4th DCA 2017) (explaining that a computer generated report

that extracted text messages from a cell phone was “not a ‘statement’ made

by a ‘declarant,’ and therefore is not hearsay”); Avilez v. State, 50 So. 3d

1189, 1192 (Fla. 4th DCA 2010) (explaining that a hotel key card report was

not hearsay because it was not generated by a person); Bowe v. State, 785

So. 2d 531, 532 (Fla. 4th DCA 2001) (“[A] detective’s in court testimony about

a caller I.D. and a mobile pager’s numerical display was not hearsay. This

is because neither the pager nor the caller I.D. screen, like a radar or other

similar machine able to give a readout, was a ‘person’ capable of being a

‘declarant’ within the definition of the hearsay rule.” (citation omitted)).

13

Wade cites an Eleventh Circuit Court of Appeals opinion in which the court

“had no difficulty concluding” that Sprint billing records were “the statement

of machines, not statements of persons.” See United States v. Lamons, 532

F.3d 1251, 1264 (11th Cir. 2008).

24

Despite the established requirement that hearsay be a statement by a

human declarant, R.L.G. contends four cases from our sister districts support

his argument that GPS alerts from an electronic monitoring device are

inadmissible hearsay. See Channell v. State, 200 So. 3d 247 (Fla. 1st DCA

2016); Laing v. State, 200 So. 3d 166 (Fla. 5th DCA 2016); Edwards v. State,

60 So. 3d 529 (Fla. 2d DCA 2011); Ruise v. State, 43 So. 3d 885 (Fla. 1st

DCA 2010). 14 While I agree with R.L.G. that this is an issue of first

impression for this Court, I respectfully disagree with his contention that our

sister courts have ruled to the contrary. The cases on which he relies are

distinguishable.

The first in this line of cases is Ruise. There, Appellant argued that

GPS data from his monitoring device was inadmissible hearsay. 43 So. 3d

at 886. The State argued the GPS data was admissible under the business

records hearsay exception. Id. Importantly, unlike here, neither party

addressed whether the GPS data was hearsay in the first place. The First

14

The majority cites Perez v Bell South, 980 So. 2d 1126 (Fla. 3d DCA 2008)

and City of Miami v. Kho, 290 So. 3d 942 (Fla. 3d DCA 2019), neither of

which is on point. The issue in Perez was whether the trial court abused its

discretion in allowing cellular telephone records custodians to testify that

persons who placed cell phone calls would be within a certain distance from

the cell towers identified with those calls. 980 So. 2d at 1131. This Court

held that said testimony was admissible as it constituted general background

information that did not require expert testimony. Id. Kho dealt with the

methods of authenticating photographic evidence. 290 So. 3d at 944-45.

25

District explained that GPS data was “clearly hearsay because it purports to

show Appellant’s locations on June 28, 2009, and it is being offered for the

truth of the matter asserted . . . .” Id. Subsequent cases likewise hold that

GPS data is hearsay when offered to prove the truth of the matter asserted.

Though this is one component of hearsay, these cases do not address the

more pertinent component, which requires an out-of-court statement by a

person.

Moreover, unlike here, the evidence in these cases indicates some

form of human involvement. In Ruise, for instance, the probation officer

printed a report from a database, which the monitoring company compiled

using GPS data from the monitoring device. 43 So. 3d at 887. Similarly, in

Edwards, the probation specialist learned of the GPS alerts from a printed

report from the monitoring company. 60 So. 3d at 530. In Channell, “the

probation officer testified regarding the ‘bracelet gone’ alerts from notes she

had compiled from information received from the monitoring company.” 200

So. 3d at 249 (Fla. 1st DCA 2016) (emphasis added).

The majority cites a handful of cases from other jurisdictions in which

courts have treated GPS data as hearsay that is admissible under the

business records exception to the hearsay rule. As with the cases from our

sister districts, the analysis in these cases is informed by the way in which

26

the parties framed the issue. Often, the parties framed the issue as having

to do with whether or not GPS data is admissible under the business records

exception to the hearsay rule. In none of the cited cases do the parties argue

that GPS data is not hearsay, nor do any of the courts address the hearsay

requirement of a statement by a person. 15 Here, by contrast, the predicate

question of whether GPS data is hearsay is properly before the Court.

Numerous state and federal courts have concluded that GPS data from

a monitoring device is not hearsay. See State v. Kandutsch, 799 N.W.2d

865, 877-79 (Wis. 2011) (holding that a report generated by an electronic

monitoring device defendant was wearing was not hearsay because it was

15

In a recent case from Pennsylvania, which also involved GPS data from a

monitoring device, the parties’ arguments similarly focused on the business

records exception to the hearsay rule. See Commonwealth v. Shields, No.

266 EDA 2018, 2019 WL 3946007, at *10 (Pa. Super. Ct. Aug. 21, 2019).

Recognizing “there is no need to satisfy an exception if the records are not

hearsay in the first place[,]” the court declined to decide the issue, in part,

due to “Appellant’s failure to develop the predicate question . . . i.e., is GPS

data even hearsay . . . .” Id. at *11. Cf. United States v. El Gammal, 831

Fed. Appx. 539, 543 n.7 (2d Cir. 2020) (assuming arguendo that statements

by Facebook that defendant deleted messages at certain days and times

were hearsay because that is how the issue was framed but noting that “the

relevant assertion—the ‘DELETED’ data field—is not made by a person

[and] may thus be more akin to a machine-generated record, which is

unlikely to be considered hearsay”).

27

not the product of human intervention); 16 Commonwealth v. Wallace, 244

A.3d 1261, 1272 (Pa. Super. Ct. 2021) (“[W]e conclude that, as it stands,

GPS data automatically generated by a computer, free from interference by

any person, does not constitute a ‘statement,’ and therefore, cannot qualify

as hearsay.”);17 Haynes v. State, 77572-COA, 2019 WL 6770015, at *1 (Nev.

App. Dec. 11, 2019) (“We conclude the district court did not abuse its

16

Kandutsch quotes the US Department of Justice’s manual for federal

prosecutors, which explicitly mentions computer-generated GPS records as

falling outside the hearsay rules:

Hearsay rules apply to statements made by persons,

not to logs or records that result from computer

processes. Computer-generated records that do not

contain statements of persons therefore do not

implicate the hearsay rules. This principle applies

both to records generated by a computer without the

involvement of a person (e.g., GPS tracking records)

and to computer records that are the result of human

conduct other than assertions (e.g., dialing a phone

number or punching in a PIN at an ATM).

799 N.W.2d at 799 (emphasis added) (quoting Computer Crime &

Intellectual Prop. Section, Criminal Div., U.S. Dep’t of Justice, Searching and

Seizing Computers and Obtaining Electronic Evidence in Criminal

Investigations, 192–94 (3rd ed. 2009)).

17

Based on dictum in Wallace, the majority suggests that Florida’s hearsay

definition would need to be amended in order for non-human generated

statements to be admitted outside of hearsay. As plainly set forth above,

however, Florida’s hearsay definition, like that in Pennsylvania, limits

hearsay to statements by human beings.

28

discretion by admitting the GPS tracking app data because the app made

the relevant assertion and there was no statement as defined by the hearsay

rule.”); People v. Rodriguez, 224 Cal. Rptr. 3d 295, 312-13 (Ct. App. 2017)

(holding that GPS data generated from defendant’s ankle monitor was not

hearsay because it was not a statement of a person); Commonwealth v.

Thissell, 910 N.E.2d 943, 946 (Mass. App. Ct. 2009), aff’d, 457 Mass. 191,

928 N.E.2d 932 (2010) (“It appears to us that the GPS documents consisting

of maps and logs are not hearsay. Hearsay requires a statement, i.e., an oral

or written assertion or . . . nonverbal conduct of a person, if it is intended by

the party as an assertion.” (citations and internal quotation marks omitted));

see also United States v. Murphy, 769 Fed. Appx. 631, 644 (10th Cir. 2019)

(“[N]on-hearsay evidence from the GPS tracking device shows that Mr.

Murphy’s car made 45 visits to the stash location in a 12-day period.”); United

States v. Lizarraga-Tirado, 789 F.3d 1107, 1109 (9th Cir. 2015) (explaining

that a location tack that is automatically placed by Google Earth based on

GPS coordinates is not hearsay because it is not an assertion made by a

person).

Given the definition of hearsay set forth in Florida’s Evidence Code and

Florida case law recognizing the requirement that hearsay must be a

29

statement by a person, I agree with the State’s position in this case that the

GPS alerts generated by R.L.G.’s monitoring device are not hearsay. 18

Finally, although GPS data from a monitoring device is not hearsay

and therefore should not be admitted under the business records hearsay

exception, “[a]uthentication or identification . . . is required as a condition

precedent to its admissibility.” 19 See § 90.901, Fla. Stat. This requirement

18

In his reply brief, R.L.G. raises for the first time the argument that the facts

were insufficient to make a determination whether the alerts were

automatically generated or manually sent by a person. R.L.G. was the

objecting party, and therefore, was required to establish the legal grounds

for his objection below. See Fleitas v. State, 3 So. 3d 351, 355 (Fla. 3d DCA

2008) (“Indeed, proper preservation requires the following three steps from

a party: (1) a timely, contemporaneous objection; (2) a legal ground for the

objection and; (3) ‘[i]n order for an argument to be cognizable on appeal, it

must be the specific contention asserted as legal ground for the objection,

exception, or motion below.’” (quoting Harrell v. State, 894 So. 2d 935, 940

(Fla. 2005)).

19

Hearsay admitted under the business records exception and nonhearsay

electronic evidence both require the proponent to lay a foundation before the

evidence can be admitted. Though some conflate these requirements, they

are distinct. Compare Yisrael, 993 So. 2d at 956 (“To secure admissibility

under [the business records exception], the proponent must show that (1)

the record was made at or near the time of the event; (2) was made by or

from information transmitted by a person with knowledge; (3) was kept in the

ordinary course of a regularly conducted business activity; and (4) that it was

a regular practice of that business to make such a record.”) with State v.

Love, 691 So. 2d 620, 621 (Fla. 5th DCA 1997) (“Section 90.901. . . requires

authentication or identification of evidence as a condition precedent to its

admission as evidence. Prima facie evidence must be introduced in order to

prove that the evidence is authentic. In order to set forth a prima facie case

of authenticity, the proponent of the evidence can utilize both direct and

circumstantial evidence. Evidence may be authenticated by appearance,

30

is “satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Id. Thus, if R.LG. doubted the

reliability of the GPS alerts, he could have challenged their admissibility

pursuant to section 90.901. However, that was not done in this case.

Because the only issue before this court is whether the GPS alerts generated

by a monitoring device are hearsay and not whether they were properly

authenticated pursuant to section 90.901, I would affirm without further

discussion of the authentication issue.

In conclusion, I would hold that the GPS alerts were not hearsay and

were thus properly considered by the trial court, and therefore, there was

competent substantial evidence to support the trial court’s order finding

R.L.G. in indirect criminal contempt. As such, I would affirm.

contents, substance, internal patterns, or other distinctive characteristics

taken in conjunction with the circumstances.”).

31