United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)
“Are a Google Earth satellite image and a digital ‘tack’ labeled with GPS coordinates hearsay?” In this case, the Ninth Circuit answered “no.”
In this case, the defendant objected to entry of a Google Earth satellite image containing a digital “tack” and GPS coordinates that the government claimed reflected the location of his arrest. The image was created using GPS coordinates that an officer testified she had recorded at the time of Defendant’s arrest. As the court explained, Google Earth allows users to type in GPS coordinates which automatically produce a digital tack reflecting those coordinates on the map. A user may also place a tack manually, by clicking on the location where they wish the tack to appear. While the record in this case did not reflect whether the tack was automatically or manually placed and labeled, the court indicated that it could “take judicial notice of the fact that the tack was automatically generated by the Google Earth program.”
Considering first the satellite image, the court reasoned that, like a photograph, the satellite image “merely depict[ed] a scene as it existed at a particular time” and made no assertion. Thus, the image was not hearsay.
Turning next to the tack and coordinates, the court noted it was “a more difficult question” where “labeled markers added to a satellite image do make clear assertions.” The court quickly concluded that “[i]f the tack is placed manually and then labeled (with a name or GPS coordinates), it classic hearsay . . . .” However, the court also concluded that “[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn’t hearsay” reasoning that “[t]he hearsay rule applies only to out-of-court statements, and it defines a statement as ‘a person’s oral assertion, written assertion or non-verbal conduct.’” The court explained:
Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed. The real work is done by the computer program itself. The program analyzes the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there’s no statement as defined by the hearsay rule.
Further, although the court acknowledged the possibility that a machine could malfunction or be subject to tampering, it reasoned that “such concerns are addressed by the rules of authentication, not hearsay.”
Defendant’s conviction was affirmed.
A copy of the court’s full opinion is available here.