November 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ERIC PITTMAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-07-00635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 6, 2009
Before Judges Carchman and Parrillo.
In this 18-count drug and weapons prosecution of defendant Eric Pittman, we granted the State's motion for leave to appeal from the December 11, 2008 order of the Law Division excluding Global Positioning System (GPS)*fn1 evidence and from its October 3, 2008 order denying the State's motions for reconsideration and to reopen the matter to call an expert witness from the device's manufacturer, Orion Electronics (Orion). Specifically, the State sought to introduce evidence of the location of defendant's Yukon motor vehicle, on which a GPS unit had been installed pursuant to court order, to show that the Yukon traveled to the vicinity of an apartment in Edison where guns, drugs, and drug paraphernalia were later seized pursuant to a search warrant. No independent surveillance corroborated defendant's location and travel on the day in question. Following a two-day N.J.R.E. 104 hearing, the court barred testimony about the longitudinal and latitudinal coordinates of the Yukon, finding that the State did not satisfy its threshold burden of establishing an adequate foundation for this scientific evidence. The court later denied the State's motion for reconsideration and to reopen the matter. We now affirm.
Some background is in order. Defendant challenged the GPS evidence as early as June 4, 2007, when counsel formally objected to its introduction at trial. In response, on June 20, 2007, the State moved for its admission, arguing that expert testimony was not required because of the general acceptance of GPS technology:
Sergeant Palfy will testify factually about the installation of the instrument in this case. He will also testify factually about the coordinates recorded by the GPS. The GPS evidence in this case is analogous to using a breathalyzer machine to obtain a suspect's BAC.
The State submits that Sergeant Palfy is not being called upon to testify as an expert to render an opinion as to the reliability or general acceptance of the GPS. The State submits that the reliability or general acceptance of the GPS has already been established for reasons set forth above. Sergeant Palfy is not being called to render an opinion as to the recorded GPS coordinates. He is factually testifying to the data recorded by the GPS. Sergeant Palfy will testify as to the factual results of the GPS, not expert interpretations of the results.
At a November 8, 2007 pretrial conference, the court itself suggested the need for an expert witness from the manufacturer of the device at issue. In follow-up correspondence on November 12, 2007, defense counsel requested information about the particular GPS device used in this case, including data about how the device was installed, maintained, and operated; how the data was generated, including the significance of the data logs provided by the State; and the operator's ability and qualifications to operate the device. Lastly, defendant requested an expert opinion as to the scientific reliability of the GPS device used in this case.
The State countered with a January 3, 2008 response from its fact witness, Sergeant Christopher Palfy, who identified the Orion device for the first time. He advised that the Orion device was placed on the Yukon vehicle on June 19, 2005, and removed sometime after June 30, 2005, and that the GPS information was downloaded onto a CD. In general terms, Palfy explained how the device worked, that he had received training from Orion, and that the device was placed on the vehicle in accordance with the manufacturer's directions. However, no information regarding the manufacturer (i.e., brochure or instruction manual) was provided.*fn2 In a subsequent submission of January 18, 2008, the State reiterated its position that an expert from Orion was not necessary for admission of the GPS evidence, because the device's technology has been generally accepted as scientifically reliable.
The issue having been joined, the court conducted a two-day N.J.R.E. 104 hearing. On the first day, February 21, 2008, the State produced Keith McDonald, an engineer involved in the development of GPS technology since its inception. McDonald testified about GPS technology in general, how it works, and its general acceptance in the scientific community. His basis for finding GPS technology reliable is the "redundancy of signals." On cross-examination, however, McDonald admitted that his opinion as to the GPS system's accuracy presupposes that the receiver is working correctly. He further explained that a receiver that does not have a clear view to orbiting satellites could have "significantly degraded performance"; that large buildings, ponds and lakes can affect the device's signal; and that proper operation of the receiver's microprocessor impacts the reliability of the device.
Significantly, McDonald did not offer an opinion on the actual device used in this case, stating that the manufacturer would be in the best position to testify as to the firmware and software in this particular GPS system. Such manufacturer-specific variations include whether the received has a "self-check" application to periodically determine if it is functioning properly; the type of "firmware" the receiver uses, which can have an effect on how the device's data is stored; the kind of "software" used by the particular receiver; how the particular receiver was calibrated for accuracy; and the receiver's memory capacity and its download-capabilities. As to many of these differences, McDonald stated that there were no government or industry regulations setting minimum standards.
At the conclusion of the first day of hearing, the State sought a protective order pursuant to N.J.R.E. 515, arguing that it did not anticipate that the location and the specifics of the GPS device would be an issue. Although the judge ultimately issued an order precluding defendant from learning the location of the device or from inspecting it, he nevertheless reminded the prosecution:
[The State has] always known that [the defense] had a problem with the equipment and how it was installed, how it was used, whether it was used properly. That's always been known. I mean that goes back to conversations we had here in open court months back. It goes to conversations we had in chambers. It goes to the letter that's written by counsel as of December. So that's consistently been an issue.
Before recessing for the day, the State acknowledged: "Well, there is an issue that I think . . . has been planted about whether the State in order to meet its burden has to call someone from the manufacturer." When the court replied, "Absolutely," the State responded, "And I don't want to walk out of this courtroom without knowing what I need to do. I don't think the State needs to do that." In other words, the State maintained its position that the GPS device is a self-proving instrument not requiring expert proof to demonstrate its proper working order. The court then paraphrased defendant's objection:
It seems that the defense position is not to object to the use of GPS system information if - if we can verify as in State versus Harte [395 N.J. Super. 162 (Law Div. 2006)] we can verify the actual instrument, Orion instrument used that it's a valid method of gathering, of positioning and time information so that it can be processed[.]
The N.J.R.E. 104 hearing resumed seven-and-one-half months later on October 1, 2008. At the outset of the second day of the hearing, the judge framed the issue:
Because I characterized it, the whole issue in this whole trial is the fact that the State intends to produce information about the GPS . . . and the GPS alone, not any observation by the police that's coordinated with the GPS observation. That's the problem in this case. Absent that piece of information this case would have already been tried because all you had to was deal with the detective who says the GPS told me that the defendant was at X location. I went to X location and there he was.
The problem in this case is that the State intends to rely strictly on the GPS saying that the vehicle was at X location. That's why I have to make the determination as to its admissibility.
The State then presented Sergeant Palfy, who was trained by Orion, as a fact witness. Palfy testified that he covertly installed an Orion receiver in defendant's Yukon pursuant to court order, that before and after installation he tested the unit, and that accurate information was transmitted to a computer display.
As to the latter, the court pointed out an inherent limitation on the defense's ability to cross-examine the witness:
Well, I think the defense points out a strong point. This is all assuming that [Sgt. Palfy] is following the directions that Orion gave him on how to do this. There is no way to cross-examine that because they've never - they don't even have the handbook, let alone a witness from Orion to figure out what are the instructions when you do this.
Later in his testimony, Palfy attempted to use a demonstrative map showing points or "dots" being plotted, purporting to represent defendant's path of travel. Responding to defendant's objection, the judge recognized the problem, noting that, "the whole thing that is being presently portrayed is dependent totally on Orion and their product."
The defense voiced another objection on the basis that the maps had not been authenticated and, in addition, were not consistent with logs (printouts) showing the Yukon in motion while an eyewitness observed defendant parking his car and exiting the vehicle. Recognizing the discrepancy, the judge noted:
Until - until we get somebody, an expert to explain the Orion program, I'll call it a program because I don't know what they call it, but the program, there is information that is presented on these maps that is not explained. For example, all of the dots. The only dot that's actually explained is the one that's observed by the independent witness. The officers who came in and said that map reflects where I saw the vehicle. But to introduce the rest of the information that's on the map, you could certainly say, yes, it was for example, June 24th, and yes, it was around 7:59 p.m. that I made the observation. But the rest of the - can certainly say I've been a police officer in Franklin Township for twenty odd years and I know the streets. But as far as the rest of the GPS locations which are reflected in the dots, we don't have a valid explanation. Which I know effects the State's case because I know that the intent is to show that the GPS - and I am calling them dots because I don't know what else to call them, but the GPS dots.
But we don't have any explanation how those dots got there or the course of travel. So, in essence the maps based on the other independent information, the witnesses, if the maps are merely offered to show the street locations and spot where the independent witness observed the defendant in his vehicle, certainly legitimate. But for the rest of it, if it's intended to offer this was his course of travel, I don't have sufficient information because there appears to be conflicting information in what appears to be other discovery that was sent by the State reflecting that the vehicle was, in fact, moving somewhere between three and twenty miles an hour at the same time that the officer - independent officer is saying I saw it parked at that location. So I don't have an explanation for that.
After the State rested with no further proofs, the judge ruled the GPS evidence inadmissible for want of expert foundation.
The State then filed a motion for reconsideration, seeking to reopen the matter so as to finally produce an expert from Orion to fill in the perceived gaps in Sergeant Palfy's testimony. The court fully considered the application and after hearing arguments on December 5, 2008, rejected the relief requested, concluding that while it was satisfied the GPS system was an appropriate technology in general, "the question came down to this particular system, the Orion system . . . that was installed by the county prosecutor's office in the defendant's vehicle. Whether or not this system was an appropriate method of calculating one's position in the world." The court further explained:
So unlike walking over to Radio Shack and buying a GPS system and pulling out the brochure that goes with it that tells you about the product, basically the State was indicating that along with their confidentiality about where the device was actually installed claimed a confidentiality with regard to the working mechanisms of the Orion system which had been a complaint from the defense all along.
Citing the standard governing motions for reconsideration, the court reasoned that the State:
has not indicated that the Court overlooked any evidence or controlling decisions that would reverse that Order. I think it is fair to say that the State took the position that the testimony of Sgt. Palfy would be sufficient in order to introduce the GPS information, chose a tact and followed that tact. Unfortunately for the State it didn't lead to the result that they were hoping for.
Certainly I can say that the State considered on more than one occasion calling an expert from the Orion system to verify the information. But, on the other hand I've repeatedly had the State take the position that the defense is not entitled to this confidential corporate information about the Orion system.
Further citing prejudice to defendant from any additional delay, the court concluded:
But it has taken us a considerable period of time for us to get to the end of 2008, and we are yet to list the case for trial. There is prejudice from a delay in the prosecution of this matter. Now, we are about three years into this case or two and a half anyway.
As I am pointing out this all could have been taken care of years ago, at least one year ago, it could have been taken [care] of, but even at this date, we have no idea what the proffer is with regard to who from Orion is going to come to testify.
I've given . . . many opportunities and many requests, so to speak, that you explain this thing, but a tack was chosen to State [sic] . . . But a tack was chosen and followed through. I don't see any valid reason to -to continue this yet again.
We agree and affirm substantially for the reasons stated by Judge Coleman in his oral opinions of October 1, 2008, and December 5, 2008. We add only the following comments.
Generally, "the results of scientific tests are admissible at a criminal trial only when they are shown to have 'sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth.'" Romano v. Kimmelman, 96 N.J. 66, 80 (1984) (quoting State v. Hurd, 86 N.J. 525, 536 (1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967))). In Romano, the Court required the State to show that the breathalyzer machine was properly calibrated in order for the results to be admissible at trial. Romano, supra, 96 N.J. at 66. In this regard, "[t]rial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be." State v. Nesbitt, 185 N.J. 504, 514 (2006). Here, the trial judge decided that expert testimony, beyond that of McDonald, who attested only to the acceptance of GPS technology in general, was essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in this case. We agree.
A common reason for rejecting computerized evidence is lack of a sufficient foundation to show the accuracy and trustworthiness of the evidence. See 14 Am. Jur. 2d Proof of Facts § 17 (1977). Where a challenge is lodged, a court requires the party offering the computer information to provide a foundation therefor sufficient to warrant a finding that such information is trustworthy, and allows the opposing party the opportunity to inquire into the accuracy of the computer and input procedures used. United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir. 1969). In reversing the conviction of a marijuana smuggler whose boat, used to import the contraband from the Mexican border to the United States, was equipped with a GPS device, the Ninth Circuit Court of Appeals in United States v. Bennett, 363 F.3d 947 (9th Cir.), cert. denied, 543 U.S. 950, 125 S.Ct. 363, 160 L.Ed. 2d 268 (2004), noted that in addition to failing to produce the GPS or its output for trial, the government did not establish that the defendant's GPS information was necessarily accurate or that the GPS itself worked properly. Id. at 954 n. 7.
The challenged evidence in our case suffers from the same deficiencies, as found by the trial judge. As noted by the Court of Appeals, "malfunctioning GPS devices are not unknown to this court." Ibid. (citing United States v. McIver, 186 F.3d 1119, 1123 (9th Cir. 1999), cert. denied, 528 U.S. 1177, 120 S.Ct. 1210, 145 L.Ed. 2d 1111 (2000)).
The State's belated effort to reopen the N.J.R.E. 104 hearing nine months after commencement of the proceeding and seventeen months after the issue was raised is simply too little, too late. The State declined many requests and opportunities to present the expert proof deemed necessary by the court to close the gaps identified in McDonald's and Palfy's testimonies. Moreover, when the State finally relented after the close of evidence and resolution of the issue, it failed to make an offer of proof to assure the court that its expressed concerns would be satisfied by the proposed testimony. R. 1:7-3. Of course, without an offer of proof, "it is virtually impossible for the appellate court in reviewing the case to determine whether the exclusion had a prejudicial effect . . . ." Duffy v. Bill, 32 N.J. 278, 294 (1960).