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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...