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Mark A.


July 17, 2017


Assistant Fargo City Attorney
505 Broadway St. N., Ste. 206
Fargo, ND 58102

Re: Proposed Discipline, Officer David Boelke, Complaint 2017-04

Our File No.: 027632.17056

Dear Ms. Morris:

Enclosed is the responsive letter and attachments provided to Chief David Todd. Thank you for
your agreement to allow us to supplement our response after we have been provided the records
we have requested. I am hopeful that your advice and guidance will bring this matter to a fair,
proper, and prompt resolution. As always, I remain fully willing to discuss the matter or provide
you any additional information that will assist you in providing proper legal advice to the City and
its Department leaders.

Mark A. Friese

cc: Officer David Boelke
Grant Benjamin, President, NDFOP

OGEL 218 NP Avenue I PO Box 1389 I Fargo, ND 58107-1389

Phone: 701.237.6983 I Fax: 701.237.0847 I Toll Free: 800.677.5024

Law Firm Fargo Bismarck Moorhead Minneapolis Grand Forks

Mark A. Friese

July 17, 2017


Fargo Police Department
222 4111 Street North
Fargo, ND 58102

Re: Proposed Discipline, Officer David Boelke, Complaint 2017-04

Our File No.: 027632.17056

Dear Chief Todd:

I represent Officer David Boelke. I write to request that you categorically reject the proposed
discipline resulting from complaint 2017-04. Off. Boelke requests that you immediately reinstate
him to his position, directing provision of supervision and accommodation without further punitive
action beyond a letter of reprimand for missing court. Consideration of the entire circumstances
warrants categorical rejection of the recommendations of Lt. Ahlfeldt and D.C. Renner.


This complaint originated when Off. Boelke self-reported missing a court appearance. Thereafter,
D.C. Renner unilaterally directed a detailed inquiry into Off. Boelke's work performance. Renner
has longstanding personal animus toward Off. Boelke. See Attachment 1. Renner did not direct
inquiry into Off. Boelke's supervisors for failure to identify work performance issues, but instead
singled out Off. Boelke. Renner was fully aware of his actions and how they would impact Off.
Boelke's condition, known to Renner and the Department. See Attachment 7. Following multiple
written submissions and successive, accusatory, and repetitive interviews, Ahlfeldt and Renner
recommend a letter of reprimand for missing court, a 15-day suspension for poor work
performance and "acting in a disrespectful manner," and termination based on a false conclusion
that Off. Boelke "was not being truthful with Sgt. Crane during the investigation." Because your
subordinate supervisors are mistaken in their assessment of the facts and the law, you should
categorically reject their recommendations. Because your subordinate supervisors have
systematically violated policy, you should direct independent inquiry into their actions. Consistent
with your policies, because the allegations in part occurred more than six months ago, and because
the complaints are vindictive and retaliatory in nature, you should decline consideration until
independent inquiry is complete.


Attached to this letter are the following documents:

218 NP Avenue I PO Box 1389 I Fargo. ND 58107-1389

VOGEL Phone: 701.237.6983 I Fax: 701.237.0847 I Toll Free: 800.677.5024

Law Firm Fargo Bismarck Moorhead Minneapolis Grand Forks

Chief David Todd
July 17, 2017
Page 2

1. Background and history of relationship between Off. Boelke and D.C. Renner;

2. Polygraph Examination Report (noting Dave Boelke truthfully answered that he had
in fact responded to calls for services at issue);

3. Nathan J. Buchok, Plotting a Course for GPS Evidence, 28 Quinnipiac L. Rev. 1019

4. Beck, Magana, and Imwinkelried, The Use of Global Position System (GPS) and
Cell Tower Evidence to Establish a Person's Location. Part I, Crim Law Bulletin,
Vol. 49, Iss. 1 (2013);

5. Report of Investigation dated June 14, 2017 (outlining reports of dispatchers in

which emergency vehicle icons on GPS maps are depicted in locations which are
contrary to their actual location);

6. Report of Investigation dated June 17, 2017 (outlining interviews with several
CAD/GPS users, noting substantial ongoing problems with the systems);

7. Report of Investigation dated June 19, 2017 (outlining interview with Dr. Jay

8. Report of Investigation dated June 27, 2017 with attachments (outlining interview of
Off. Chad Moen);

9. Report of Investigation dated June 28, 2017 (outlining interview of WFPD Sgt.
Jason Anderson);

10. Report of Investigation dated July 5, 2017 (outlining interview of dispatcher Corey

11. Personal apology letter of David Boelke;

12. Toxic Police Leadership Article (noting importance of holding supervisors

accountable for toxic leadership traits).

Dave Boelke is a 15-year veteran officer, who began employment with the FPD on May 8, 2002.
During his entire career, he has been assigned to patrol, and at various times during his career with
additional duties on the Bomb Squad and Honor Guard, and as a police training officer, New
World subject matter expert, and crime scene investigator. Dave is married to Heidi, a
homemaker, and they have two children, ages 9 and 10.
Chief David Todd
July 17, 2017
Page 3

Dave has prior discipline for missing court or extra duty assignments, and has received counseling
forms to assist in improving work performance. He recently received a reprimand letter for a
"sustained" complaint for discourtesy for a complaint which alleged a threat.

Dave has received a number of positive performance evaluations, accolades for pos1t1ve
contributions to the Department, and compliments from citizens, including two this summer from
pipeline protesters who were otherwise generally critical of law enforcement. Except for leave
with pay during the pendency of this investigation, he has never been suspended for allegations of

In 2013, as a result of alcoholism, Dave underwent inpatient treatment at Prairie St. John's.
Coupled with alcoholism, Dave has received substantial ongoing treatment for anxiety and
depression, largely attributable to stress, trauma, and influences of his work and his respective
conditions. Following relapse in 2014, Dave completed intensive outpatient treatment at First Step
Recovery, and has been abstinent from alcohol, resulting in well-sustained remission.

During Dave's struggles in 2014, you took great personal interest in providing assistance,
including meeting with Dave and Heidi at their home. You will recall that during that meeting,
Dave disclosed an urgent need for reassignment outside patrol. Notwithstanding your assurances
to the contrary, he has remained assigned to patrol to the present day.


A letter of reprimand is warranted for missing court. The recommendation for termination must be
rejected. Work performance issues should be addressed though supervision rather than
suspension, and the incredible recommendation of a 15-day suspension is neither warranted nor
consistent with Department progressive disciplinary standards. Dave should be returned to full
duty without delay and without suspension.

I. Missing Court

Dave received notice to appear to testify in Municipal Court related to a $20 noncriminal traffic
citation that he issued to a driver. Dave missed court, self-reported the incident, and thereafter
personally went to the municipal court, apologizing to the judge and prosecution staff. Dave failed
to calendar the court date. After receiving notice, he affixed it to his locker door as a reminder to
calendar the date. He believes the notice enantly fell off his locker door, and fell out of view. The
mistake was Dave's, and he agrees that a letter of reprimand is warranted. This is understandably
a recurrent issue with multiple officers in a busy Department, and as a result, your Department is
apparently implementing a program to provide computer scheduling assistance for all officers.
Chief David Todd
July 17, 2017

II. Mistaken claim of "lying" and misapprehension of Giglio and its progeny.

Crane, Ahlfeldt, and Renner misapprehend the facts, reach conclusions unsuppmied by the
evidence, and misapprehend the meaning of Giglio v. United States, 405 U.S. 150 (1972) and its

A. Dave Boelke did not lie

During the repeated and repetitious interviews, Dave repeatedly and consistently recounted his
recollection of the underlying incidents. In several instances, Dave recalled and acknowledged
that he did not respond to the scene, or did not speak in person to the complainant.

Notably, Crane conducted a detailed review of calls for services, pulling dozens of calls over a
yearlong period. More notably, Dave remembered specific details of each of the calls for service
and recounted those details consistently and with specificity. In the process, Dave admitted that he
did not respond to the scene in numerous instances, not only the three at issue. Accordingly, it
defies credulity to conclude that Dave would "lie" by recounting that he responded to calls when
he did not.

With no advance warning (i.e., no notice, no opportunity to prepare, and no opportunity to respond
with contrary evidence), during a third interview, Crane interrogated Dave with putative
"evidence" that Dave was "lying" about responding to three calls for service. The "evidence" is:
1.) limited GPS data which does not show Dave's patrol car at the complainants' addresses; and 2.)
a single complainant's inability to recollect speaking with Dave.

Contrarily, Dave specifically recalls speaking to the single complainant at issue. Further, he
specifically recalls responding to all three of the locations at issue. Further, Dave subjected
himself to a polygraph examination exploring the precise issue of his truthfulness regarding the
three calls at issue. See Polygraph Examination Report, Attachment 2. During the polygraph
examination, Dave truthfully stated "yes" when asked about responding to the three calls. His
responses revealed no deception, or in layman's terms, he passed the lie detector test. Compare id.
("The statistical probability that David Boelke's test data were produced by a deceptive person was
less than 1/10 111 of 1 percent ... or about 1 chance in 1000") with Attachment 10 (noting the
current CAD and GPS systems function properly only about 75% of the time).

The present polygraph operator, Rolland Rust, is a former longtime Fargo Police Officer and
investigator. He is likely the region's most experienced polygrapher, and has an exceptional
reputation for fair, comprehensive, and accurate polygraph examinations. His judgment,
objectivity, and professionalism are beyond reproach. His historical examinations have solved
countless serious crimes, resulted in the hiring of dozens of current and former Fargo police
officers, and have resulted in exclusion of others. Ironically, many of those involved in the current
investigation were hired only after successfully completing a polygraph examination administered
by Rollie.
Chief David Todd
July 17, 2017
Page 5

The science of polygraphy had been subjected to vigorous scientific testing, and the science has
been deeply analyzed by those in the fields of polygraphy and psychophysiology. Id. at 1358-59.
See United States v. Crumby, 895 F.Supp. 1354, 1359 (D. Ariz. 1995). Additionally, the "known
e1Tor rates for the science of polygraphy are remarkably low." Id. at 1359-60. Of note, it is twice
as likely that an innocent truthful subject will incorrectly be deemed deceptive about not
committing an act than that a guilty deceptive person incorrectly is deemed truthful about not
committing the act. The error rate for tests depicting truthful subjects is only five percent, while
the error rate for tests depicting deceptive subjects is ten percent. Id. at 1360. More simply, like
here, polygraph examinations are far more accurate when the examination depicts a truthful
subject rather than a deceptive subject. Id. at 1365.

The North Dakota civil and criminal courts have recognized the science of polygraphy, admitting
polygraph results and testimony in a number of reported cases. See State v. Y odsnukis, 281
N.W.2d 255, 259-60 (N.D. 1979) (permitting consideration of a polygraph examination in a
criminal case) (citing State v. Olmstead, 261 N.W.2d 880 (N.D. 1978)); .. See Shulze v. Satran,
368 N.W.2d 531, 533 (N.D. 1985) (recognizing utility of polygraph testing and evidence in parole
and prison disciplinary proceedings); Varnson v. Satran, 368 N.W.2d 533, 538 (N.D. 1985); and
State v. Weatherspoon, 1998 ND 148, ii 8, 583 N.W.2d 391.

Dave Boelke did not lie, and the polygraph examination results prove it. In urging termination for
a lie that is not a lie, Ahlfeldt writes:

when confronted with evidence that he was not being truthful with Sgt. Crane during
the investigation, [Dave] continued to tell his version of the events which did not
match the evidence Sgt. Crane had produced. Because of this instance within the
complaint investigation, Officer Boelke will have to be placed on the Brady/Giglio
list for our department with the designation of dishonesty.

(emphasis added). Ahlfeldt is wrong on multiple levels. First, Crane produced nothing; instead,
he ambushed Dave with the putative evidence, and then directed IT personnel to withhold it when
Dave sought to inquire. Secondly, Dave did not lie. Ahlfeldt and Renner's reliance on GPS
"evidence" which was never disclosed, for which notice was not provided, which is contrary to
scientifically proven polygraph evidence, and which is of dubious efficacy is wholly improper.
Dovetailing Ahlfeldt's letter, Renner's contrived, conclusory, and edified analysis is flatly
offensive. See Renner Letter (June 6, 2017) ("It is clear during this investigation that Officer
Boelke did not tell Sgt, [sic.] Crane the truth when providing answers ... It is also clear to me that
Officer Boelke fabricated a number of lies when providing an explanation for the questions he
was asked"). Dave did not lie, and you should reject the recommendation for termination based on
an unfounded claim of dishonesty.
Chief David Todd
July 17, 2017
Page 6

B. Improper reliance on GPS data

Relying on incomplete and inaccurate GPS data is inconsistent with professional standards and
shows lack of objectivity. Refusal to investigate or consider the systemic problems or Dave's
explanations about recurrent system problems equally shows lack of objectivity. Your
subordinates directing the withholding of data relied upon in making their decision is more than
lack of objectivity, it is wrong. Interviews of police officers, dispatchers, fire officials, and others
associated with the New World CAD system demonstrate longstanding systemic problems. See
Attachments 5-10. Dave, himself, has served on committees used for implementation and
operation of the CAD system. He has working knowledge and served on the "build team" for the
current system. He is designated as a New World subject matter expert on the mobile system. He
attempted to explain irregularities with the GPS system to Crane, but Crane refused to listen or
inquire. From interviews of current police, fire, and dispatch personnel, recurrent error and
irregularity reports include:

1. Regular system outages;

2. CAD displaying squad cars as stationary when not;

3. Login problems;

4. Inability to interface remote terminals and in-car systems;

5. Inaccurate location data which is rectified by logging out and signing back in;

6. Repeated calls and reports to IT regarding system problems;

7. Software upgrades which render certain functions inoperable;

8. Squad car icons not displaying on a map;

9. "Ghosting" of squad car and fire apparatus icons;

10. Inability to fill out reports on the system;

11. The system refusing to accept inputted information;

12. Lack of communication between GPS components; and

13. Others.

Fearing reprisals, many of those most familiar with system errors declined to be identified by
name. Inexplicably, Crane directed IT personnel to withhold the data upon which Ahlfeldt and
Renner rendered a decision. The reports provided to you in support of the disciplinary
recommendation are completely devoid of interview reports, analysis, or inquiry into system
Chief David Todd
July 17, 2017
Page 7

deficiencies and irregularities. One regular system user says the system is reliable about 75% of
the time. See Attachment 10.

A OPS "system requires the seamless integration of numerous advanced components, all of which
are subject to glitches, wear and tear, and outright failure. These potential weaknesses can
combine with unpredictable environmental conditions that can enhance GPS signal error." See
Attachment 4. Issues of OPS data reliability are twofold: 1.) susceptibility "to inaccuracies based
on flaws inherent in the technology itself;" and 2.) "concerns about reliability [based upon] the
vulnerability of the technology to intentional tampering." See Attachment 3 at pg. 3. Cited OPS
irregularities from governmental studies include:

1. Signal interference

2. Atmospheric conditions called scintillation;

3. Inaccuracies caused by ionosphere and troposphere delays;

4. Multipath errors;

5. Interference from other electronic devices;

6. Mechanical glitches;

7. Programming errors; and

8. Others

Id. at 4-5.

Map inaccuracies arise from a variety of causes including "the process of overlying OPS
coordinates onto maps." Id. at 6. Two additional questions arise: "is the map an accurate
depiction of the real world and were the points accurately plotted onto that map?" Id. These
points are particularly true with respect to OPS data regarding the call and response to Buena Vista
trailer park. If the OPS map data is coITect, why is the call icon represented at 9th Avenue Circle

Generally, "OPS technology has a margin of error of ten to twenty meters." Id. at 14. This margin
can be larger based on environmental or intentional interference. Id. Seeking to terminate Dave
because his patrol car icon does not appear at the precise address for three calls to which he
responded wholly fails to account for the margin of error and proven inaccuracies of OPS data.

Even in recent weeks, inexplicable New World OPS iITegularities persist. See Attachment 8.
Those who daily work the existing system report a 75% accuracy rate. See Attachment 10.
Chief David Todd
July 17, 2017
Page 8

The GPS "evidence" is unreliable, inaccurate, defective, and highly disputed. The GPS "evidence"
is contrary to Dave's recollection of the events, and is wholly rebutted by the tested, proven, and
scientifically accurate and reliable polygraph examination results.

C. Setting an unprecedented standard

Embracing Ahlfeldt and Renner' s fanciful and disputed conclusion that Dave lied is
unprecedented. It would necessitate termination of multiple officers. It would require immediate
investigation into a multitude of instances. Adopting the recommendation of your subordinates
would send a message that officers must conform their testimony and reports to the desires of
supervisors, rather than their own independent recollection and observations. In fashioning their
termination recommendation, your subordinates rely on disputed GPS data, and a single
complainant's lack of recollection (i.e., she does not recall speaking with Dave at her residence-
but Dave recalls it specifically). In its simplest form, the evidence is dubious, doubtful, and
disputed. It is wrong. Under the standard advanced by your subordinates, recommending
supervisors will arbitrarily choose one account over the other, and those believing the alternate
account will be deemed liars.

In the summer of 2012, one of your officers repeatedly assured me that he would not contact a
client of mine directly, but would instead submit all inquiry of her to me. My client was highly
emotional and exceedingly fragile after having experienced the death of the child of family friend
while the child was in my client's care. While in my office, the officer twice assured me that he
would refrain from direct contact. He acknowledged receiving a letter from me directing
coordination of contact through me. Despite those promises, within a few weeks thereafter, the
officer initiated direct contact, attempting repeatedly to interrogate my client and to get her to
forfeit her right to counsel. I was so offended by the blatant misrepresentations that I wrote to the
officer directly. In response, then Deputy Chief Claus contacted me, attempting to justify the
dishonesty as an investigative necessity. The lying officer was never punished, never investigated,
and never placed on a Giglio list. I ask, is lying to an attorney an exception to your Department's
Giglio policy? In his letter, Ahlfeldt says, "We trust that if you are asked an honest question, we
get an honest answer." I remain perplexed that your Department demands honesty, but only in
certain circumstances, and only to ce1iain people.

A couple weeks ago, in a case in which I represent the driver, an officer emailed an administrative
hearing officer regarding his unavailability to appear at an administrative hearing. In response, the
hearing officer contacted the officer's supervisor, Sgt. Gnoinsky. Thereafter, the hearing officer
sent an email to the parties and the officer, stating that the hearing would proceed as scheduled
based on the printed schedule and Gnoinsky's statements conflicting with the officer's email.
Stated differently, the hearing officer wrongly disbelieved the officer. Under the standard
advanced here, that officer (or Gnoinsky if his account is preferred) should be on the Department's
Giglio list.
Chief David Todd
July 17, 2017
Page 9

Within the last several weeks, at an administrative hearing while under oath, one of your officers
repeatedly and adamantly testified that he had handcuffed my client after she placed her hands
behind her back. When confronted with evidence that the arrestee was never handcuffed, the
officer recanted. I do not question the officer's motives-he simply had a mistaken recollection.
But, under the standard advanced by your subordinates here, he should be on a Giglio list. This is
one of literally hundreds of similar examples that occur every year. No officer can remember with
exacting detail each and every circumstance of the numerous encounters he faces.

Daily, as a permissible investigative technique, your officers lie to suspects. Under the standards
advanced by your subordinates, those lying officers apparently must be placed on your
Depmiment's Giglio list.

One of your officers was deemed incredible by a duly-elected district court judge. His testimony
was rejected, and the judge specifically concluded his testimony was not credible. Appmently
some exception exists to your policy, because that officer appears on the Giglio list with an
"Addendum," noting your agency's disagreement with the judicial determination. If Ahlfeldt is
right (i.e., appearing on the list renders an officer incredible and unworthy of continued
employment) is there an exception for cases where your Depmiment disagrees with ajudge? Why
is a similar exception not advanced here?

In virtually every criminal or civil case, witnesses testify contrary to one another regarding the
facts. I have routinely witnesses Fargo police officers testify contrary to one another during
criminal and administrative hearings and trials. It happens in virtually every case. If you accept
the recommendation of Renner and Ahlfeldt, the standard to stay off the ubiquitous FPD Giglio list
will be "do supervisors collectively want to credit my account, or do they want to credit another
officer's account?"

To conclude that Dave's consistent account of the underlying incidents was a lie, your
subordinates necessarily but incorrectly concluded 1.) the information was material; 2.) Dave was
not simply mistaken; and 3.) Dave intended to mislead. The truth shows otherwise. As noted,
Dave repeatedly acknowledged numerous incidents in which he did not respond to the scene.
Dave passed a polygraph examination, proving the veracity of his statements. Dave specifically
recalls the incidents, and has a positive m~mory of personal contact with a single complaining
witness who con-espondingly has no recollection of the contact. Dave's recollection is accurate
and truthful, as proven by his polygraph examination. In fifteen years as an officer, Dave has
testified countless times. His veracity and truthfulness have never been questioned.

Should you choose to ignore the polygraph results, and should you choose to credit the
complaining witnesses' absence of recollection and the disputed GPS data, the message to your
subordinates will be alarming. Dave has 15 years of dedicated service, loyalty, and commitment to
the Department. He repeatedly and honestly stated his truthful account-a point noted by Ahlfeldt
describing the consistent recounting of "his version of the events." The fact that there are different
"versions" by no means supports the conclusion that Dave was lying. Mistaken testimony is not
Chief David Todd
July 17, 2017
Page 10

"false." See e.g., Mills v. Scully, 826 F.2d 1192, 1195-96 (2d Cir.1987); United States v.
Milikowsky, 896 F.Supp. 1285, 1297-98 (D.Conn.1994). Should you adopt the misplaced
recommendation of your subordinate supervisors, officers within your Department will believe
they must be forced to modify their independent recollection of events to fit the contrived version
sought by their supervisors. Your employees and the City they serve deserve better.

D. Under any interpretation, the facts do not constitute a Giglio violation

Like their misapprehension of the facts, your subordinates misapprehend Giglio and its progeny.
A "Giglio" issue requires prosecutors to disclose credibility issues of government witnesses. See
Giglio v. United States, 405 U.S. 150 (1972). The application of Giglio has been clarified in
United States v. Agurs, 427 U.S. 97 (1976) and Kyles v. Whitley, 514 U.S. 419 (1995). In simple
terms, prosecutors are required to disclose "impeachment evidence" (i.e., evidence which has a
bearing on an officer's honesty and credibility).

"Accurate statements do not violate the Giglio rule." Smith v. Secretary, Dept. of Coffections, 572
F.3d 1327, 1335 (11th Cir. 2009); see also, United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.
1989). Dave truthfully, completely, and accurately recounted all three instances at issue. His
veracity is proven by his polygraph examination results. His recollection was clear and
unmistaken, and his answers were consistent, honest, and the truth.

For sake of argument, even if Dave's recollection is mistaken, his responses do not implicate
Giglio. See Buari v. Kirkpatrick, 753 F. Supp. 2d 282, 294-96 (S.D.N.Y. 2010) (addressing
"mistaken" testimony). In Burai, the court held there is a significant distinction between
"mistaken-rather than perjured-testimony." Citing Mills v. Scully, 826 F.2d 1192, 1195-96 (2d
Cir. 1987), the court held "mistaken testimony is not even 'false' for purposes of determining
whether the government was constitutionally required to 'correct' it. A Giglio violation requires
knowingly presenting false or misleading testimony. Rhodes v. Secretarty, Dep't of Corrections,
2010 WL 3819358, at *6 (M.D. Fla. Sept. 30, 2010). "Merely because a witness errs or is
mistaken in his testimony of course does not mean that the witness has given false or perjured
testimony." Id. (citing United States v. Bailey, 123 F.3d 1381, 1395-1396 (11th Cir.1997)
("Instead of showing pe1jury, we conclude that Bailey has demonstrated nothing more than a
memory lapse, unintentional eiTor, or oversight by Agent Hudson.")); Maharaj v. State, 778 So.2d
944, 956 (Fla.2000); United States v. Michael, 17 F.3d 1383, 1385 (11th Cir.1994) ("It is entirely
plausible that Agent Dyer's recollection of what transpired at the IHOP was incorrect. We refuse to
impute knowledge of falsity to the prosecutor where a key government witness' testimony is in
conflict with another's statement or testimony."); and United States v. Lochmondy, 890 F.2d 817,
822 (6th Cir.1989). Dave did not lie, and your subordinates are wrong in alleging his account of
the incident implicates Giglio.
Chief David Todd
July 17, 2017
Page 11

III. Work performance issues

Ahlfeldt recommends a 15-day suspension and a performance plan for work performance issues.
In formulating his recommendation, Ahlfeldt predicates his recommendation on a disputed "poor
attitude" and acting in a "disrespectful manner" with Crane. Renner, in a conclusory response,
combines all of the allegations and suggests termination, stating "It is my opinion that Officer
Boelke has accepted no responsibility for his actions." Renner's opinion is understandable
because he apparently did not listen to the interview recordings. Further, Renner's misplaced
opinion is understandable because Crane failed to outline the multiple times Dave acknowledged
his shortcomings in the multiple interviews. More importantly, the following facts significantly
negate the recommendations of both Ahlfeldt and Renner:

1. No citizen complained;

2. Dave received positive performance evaluations m the years preceding the

underlying incidents;

3. Had Dave's performance been delinquent, his sergeants, lieutenants, and chain of
command is equally deficient for failure to supervise, failure to train, and failure to

4. Dave's circumstances and conditions, and triggers, were widely known but ignored
or even exploited by Departmental command staff;

5. The investigation materials provided to you wholly fail to consider the attendant

6. Your subordinates directed IT to withhold information from Dave so Dave could not

7. Successive interviews were set up to ambush Dave;

8. Dave has applied for over 5 different assignments, and notwithstanding positive
interviews with sworn and civilian interviewers, and high scores overall, has still
been denied reassignment;

9. Dave had repeatedly told you, Crane, and others about unfair targeting of him by

10. A 15-day suspension for "work performance" issues which were never raised except
in the context of a directed inquiry is wholly inconsistent with Departmental
progressive discipline standards and undermines the obligations of first line
Chief David Todd
July 17, 2017
Page 12

11. The complaint was a fishing expedition, expanding well past the six-month
limitation for complaints which may be undertaken without your approval;

12. Dave has repeatedly told his supervisors, including Ahlfeldt, about the need for
reassignment outside patrol;

13. No complaint of dishonesty was ever filed, no complaint form was completed, Dave
was never provided notice or an opportunity to respond, and when he sought
materials relevant to the allegations against him, he was told Crane directed
withholding of the information. By all objective accounts, he was ambushed.

Dave has struggled with alcoholism, anxiety, and depression. Despite struggles, with substantial
support of his wife and friends, and with ongoing treatment effmts, his alcoholism is in well-
sustained remission. During his struggles, you and Ahlfeldt met with Dave and Heidi in their
home. You provided assurances of help and support. Dave confided in you, advising you that
patrol duties were contributing to his conditions, and you assured him you would assist in seeking
reassignment. Years later, he remains on patrol.

Your subordinates have routinely engaged in conduct toward Dave, and that conduct is known to
trigger poor performance, anxiety, and potential for relapse. Paiticularly, command and
supervisory officers have regularly provided assurances of additional training, only to withdraw
the assurances. Dr. Phillippi reports that the Department was warned of triggers, but ignored them.
See Attachment 7.

This investigation was initiated by Renner-not Dave's supervisors, and not because of a citizen
complaint. Renner has personal animus toward Dave, and the two have known one another long
before either were employed by the Department. See Attachment 1.

No reasonable person would believe Dave was being discomteous or disrespectful when he asked
Crane, "Are you listening?" Ahlfeldt recommends his suspension based on claimed discourtesy,
but fails to note that no complaint of discourtesy was made. Dave was never given an opportunity
to explain the circumstances of his inquiry. The context and framework was never considered.
The question arose in the final interview, after Crane ambushed Dave with claims of dishonesty.
You have undoubtedly listened to the recording. Crane treated Dave unprofessionally,
interrogating him as if he were a criminal. Crane repeatedly asked the same question, attempting
to get Dave to conform his response to a false narrative. Dave repeatedly provided the same
answer, and Crane persisted. I was personally present, and had the same question as Dave-it
seemed obvious Crane was not listening, but instead, was intent on trying to convince Dave to
change his story. If Crane is truly a neutral fact finder, why did he treat Dave in such a manner?
Why did he repeatedly ask the same question and refuse to listen to the answer? Why did he hide
the claimed GPS data and spring it on Dave during the interview? Why did he refuse to listen to
and document Dave's explanations? Why did he not provide prior recordings before successive
Chief David Todd
July 17, 2017
Page 13

interviews as required by policy? Why did he not outline the scope and purpose of the successive
interviews as required by policy?

Dave and Crane started employment with the Department at the same time, and attended the
academy together. Both have communicated candidly and openly throughout their careers. If
Crane was offended by frank and open questions, his sensitivities are an insufficient basis to
discipline Dave. Like the Ahlfeldt/Renner theory that officers should conform their own
independent recollection to match the narrative they desire, the notion that officers should "give
up" when providing consistent answers is misplaced.

Crane's investigation is wholly inadequate to address the attendant circumstances. Over a

yearlong period, 36 specific calls for service (out of hundreds) were used to support the
disciplinary recommendation. Policy requires your approval for investigation of complaints of
claimed misconduct occurring more than six months ago. There is no evidence that you approved
Renner and Crane's plan to circumvent that policy limitation. Crane did not evaluate or address
the hundreds of exemplary calls handled by Dave. He did not investigate, address, or even
consider the volume and priority of calls on the dates involving the 36 incidents. Crane was told of
the animus that Renner has directed toward Dave, but his report to you is completely devoid of
inquiry into that animus. Simply, he did not place the circumstances in context. Adding insult to
injury, neither Ahlfeldt nor Renner considered any of the attendant circumstances in formulating
their respective recommendations. The reports contain no interviews of supervisors or
commanders who provided oversight during the relevant time period. The one-sidedness of this
"investigation" is obvious. Chief, you have received result-oriented recommendations, based on a
result-oriented investigation, originated contrary to policy and at the direction and under the
supervision of a complainant who now asks you to terminate Dave.

Dave repeatedly admitted and continues to admit that he could have handled many of his calls with
greater professionalism and attention to detail. He admits that being "burnt out" contributed to the
present circumstances. But the circumstances today are really no different than the circumstances
years ago when you assured Dave that he would receive a duty assignment other than patrol.
Coupled with trauma suffered by your entire Department, there is fault to share.

Your Department has changed profoundly. The murder of a police officer affects everyone, but
the wounds are undoubtedly deepest with rank and file officers. Jason and Dave were going into
business together-the night Jason was killed, he signed a contract to work with Dave in his
vending business. Dave trained Jason. The two were close friends at and outside of work. Those
circumstances have contributed to Dave's anxiety, depression, and lack of extraordinary attention
to routine service calls. As Dave noted in his interviews, it is frustrating when he cannot "fix"
citizens concerns. Unfortunately, petty property damage, hit-and-run incidents with no evidence,
and scores of routine matters go unsolved. Dave explains those circumstances to citizens, and
explains that he consciously tries to treat citizens as he would expect his family to be treated. He
admittedly can do better. We all can.
Chief David Todd
July 17, 2017
Page 14

IV. Procedural and Due Process Issues

The investigation and recommendations you have received are replete with violations of your
policies. Dave received absolutely no advance notice, and no formal complaint was filed alleging
discourtesy to Crane or dishonesty in the investigation. Yet again, Dave was investigated for a
claimed policy violation but punishment is sought for an alternative reason. I urge you to review
this entire investigation in conjunction with existing policies.

Consistency in discipline is critical. At the heart of this investigation is a claim that Dave failed to
investigate and report potential violations of law, like vandalism, hit-and-run accidents or disputed
claims of a "missing person." Yet in a widely-known departmental incident involving allegations
of theft and dishonesty between command and supervisory officers, no complaint was initiated, no
discipline resulted, and officers were told to "let it go." Dave faces termination based on a claim
of dishonesty, yet command and supervisory officers in that incident indisputably committed
dishonest acts with impunity. Dave faces termination for claimed dishonesty, yet one of your
subordinates stole from another, lied about it, and was neither disciplined nor placed on the Giglio

Likewise, consistency in application and interpretation of your Department's Giglio and

disciplinary policies is essential. An officer found incredible by a duly-elected judicial officer
maintains his employment, while Dave faces termination under circumstances in which he
repeatedly told the truth and proved it with a polygraph.

Dave's underlying conditions and circumstances, your assurances of providing help and assistance,
and your subordinates' actions in pressing triggers-knowing it would cause relapse and work
performance issues-are considerable.

I acknowledge the policy violations and legal claims for failure to supervise, workplace
negligence, toxic supervision, and related issues are far from fully developed. For now, I ask you
to consider:

1. Policy 1010.5 provides supervisors "shall ensure that all complaints are documented
on a complaint form," and that all accompanying documentation be provided with
the complaint. No complaint alleging dishonesty was ever completed; no complaint
alleging discourtesy (asking Crane if he was listening) was ever filed. MDC
messaging has never been provided to Dave. Crane directed IT staff to refuse to
provide information Dave requested to prepare his defense.

2. Policy 1010.3.2(c) provides complaints must be forwarded promptly, but not later
than 72 hours after initiation.

3. Policy 1010.3.2(g) provides "the department will not accept or receive a personnel
complaint from any person, to include a department employee" for a variety of
circumstances unless "specifically approved by the Chief of Police." Included in
Chief David Todd
July 17, 2017
Page 15

prohibited complaints are complaints "alleging an employee's misconduct occurred

six (6) months or more prior to the department receiving the complaint." Also
prohibited without authorization are complaints "retaliatory in nature between
department personnel."

4. Policy 1010.3.2(g) further provides that in instances of allegations of retaliatory

complaints, the investigation "will deal with the entire scope of the grievances
between the employees involved." Notably, during the pendency of this
investigation, a separate complaint was investigated, alleging Dave threatened
Renner. During multiple interviews addressing multiple issues, and for years
leading up to the present allegations, it was widely known that Dave has
experienced retaliation, animus, and singling out by Renner. Crane completely
ignored his obligation to address the issues collectively, and he fully refused to
investigate Renner's motives. As the complainant, Renner had no business directing
the investigation and then making a recommendation for termination at its
conclusion. Appearances of impropriety abound.

5. Policy 1010.6.2 governs conduct during interviews. According to subdivision (e),

"Prior to any interview, an employee should be informed of the nature of the
investigation." Crane and Renner subjected Dave to successive interviews,
ambushing him in the final interview with repetitive accusatory questions, and
without advising him in advance of the nature of the investigation. In fact, no
complaint, no notice, and no evidence were provided. According to subdivision (i),
employees should not be subjected to offensive or threatening language. According
to subdivision U), "If the employee has been previously interviewed, a copy of the
[earlier] recorded interview should be provided to the employee prior to any
subsequent interview." Here, again, your staff repeatedly failed to follow policy.

6. Policy 1010.6.4 states "In the event new or otherwise information regarding a
personnel complaint is discovered after the complaint has received a final
disposition, the Chief of Police may order the complaint investigation re-opened,
after which the context of the complaint and disposition may be subject to change."
Much like you reviewed subsequent information in the incident in which a judge
found one of your officers incredible, Dave respectfully asks you to reject the
proposed disciplinary recommendation based on the evidence he has provided to

There is ample cause for you to reject the proposed disciplinary action, including the due process
and policy violations of which this investigation is replete.
Chief David Todd
July 17, 2017
Page 16


Dave Boelke is a 15-year veteran police officer who has struggled personally and professionally.
Dave and Heidi reached out to you for help, welcomed you into their home, confided in you, and
embraced your assurances of assistance. Instead of assistance, Dave became the subject of a
result-oriented investigation in which his character has been assailed even though he repeatedly
and consistently told the truth. Defamation is a serious matter, and you must stop it from

While your command staff expects you to support their recommendations, your subordinates
expect and deserve fair, consistent, honest, and caring assessments of claims of misconduct. If you
choose to adopt the recommendation of Ahlfeldt and Renner, the message you will send to your
officers and community will resonate. Trust, confidence, respect, and loyalty are undermined by
disparate use of disciplinary processes. On Dave's behalf, I urge you to consider all of the
attendant circumstances, Dave's consistent and truthful responses, Dave's history and reputation
for honesty, Dave's personal and professional circumstances, the procedural history and
compliance with policy provisions, and your superseding obligations to your entire Department
rather than the personal agenda of subordinate supervisors.

The disciplinary recommendation should be categorically rejected. Dave should be promptly

returned to full duty with supervisory oversight and guidance. Promised accommodation should
be provided. The citizens of Fargo have made a significant investment to train, equip, and obtain
experience for this veteran officer. Dave, your Department, and the citizens of Fargo are best
served by expeditious reinstatement.

Mark A. Friese

cc: David Boelke
Nancy, Morris, Asst. Fargo City Attorney
Grant Benjamin, President, NDFOP

# Description

1. Background and history of relationship between Off. Boelke and D.C. Renner;

2. Polygraph Examination Repmt (noting Dave Boelke truthfully answered that he had in fact responded
to calls for services at issue);

3. Nathan J. Buchok, Plotting a Course for GPS Evidence, 28 Quinnipiac L. Rev. 1019 (2010);

4. Beck, Magana, and hnwinkeliied, The Use of Global Position System (GPS) and Cell Tower Evidence
to Establish a Person' s Location. Prut I, Crim Law Bulletin, Vol. 49, Iss. 1 (2013);

5. Report of Investigation dated June 14, 2017 (outlining reports of dispatchers in which emergency
vehicle icons on GPS maps are depicted in locations which are contrary to their actual location);

6. Repo11 of Investigation dated June 17, 2017 (outlining interviews with several CAD/GPS users, noting
substantial ongoing problems with the systems);

7. Report oflnvestigation dated June 19, 2017 (outlining interview with Dr. Jay Phillippi);

8. Report oflnvestigation dated June 27, 2017 with attachments (outlining interview of Off. Chad Moen);

9. Report of Investigation dated Jw1e 28, 2017 (outlining interview of WFPD Sgt. Jason Anderson);

10. Repo1i oflnvestigation dated July 5, 20 17 (outlining interview of dispatcher Corey Olson);

11. Personal apology letter of David Boelke;

12. Toxic Police Leadership Article (noting importance of holding supervisors accountable for toxic
leadership traits).

Renner/Boelke History

I've known Ross Renner since approximately 1990 when he was a police officer in my hometown
Wahpeton ND. As I grew older my brother became a Richland County corrections officer and worked
closely with Renner. Often we would see each other while hunting, archery events and I knew him
through my older brother.

In 1999 while I was attending Alexandria Technical College for and A.A.S degree in Law Enforcement my
brother gave me a Glock .40 cal pistol and a level 3 holster he said he got from Ross Rennerfor my
upcoming graduation the next year. After graduation I had to give this level 3 pistol holder back to my
brother to get back to Ross Renner and it was my understanding it still belonged to or was being lent to
the Fargo Police Department and they needed it back. I did return the holster and never heard about it

When I was hired with the Fargo Police Department 5/8/2002 Renner was working as a Sgt on the then
power shift and I was in field training. In approximately 2008 I moved to Day shift and Renner was Sgt.
going to new rank of Lt. I showed interest in joining the bomb squad because I knew Larry Heuer was
soon to be retiring from the squad, and Renner would be taking over the SWAT team from Pat Clause.

In approximately February 20111 was able to join the bomb squad. I was slated for HDS school 2012 but
held back by Renner and my Lt. at the time Gene Anderson because of what they said performance
issues. I again was signed up to attend HOS School in 2013 and was told I could not attend at that time.
This is the year I had a complete breakdown, went to Prairie St. Johns inpatient treatment for substance

I completed treatment, counseling, all department requirements and had the promise of Gene Anderson
that I would be reinstated back to the bomb squad. Anderson retired then Lt. Mitchell became my boss
fulfilled Andersons promise, and I again registered for HDS school.

After approximately 6 months Mitchell and Renner removed me from HDS school registration and
removed me from the bomb squad completely because of my pattern of using my earned sick leave and

Again I relapsed into alcoholism, went to treatment after appealing to Dave Todd, completing all
treatment and department requirements again, reinstated back to bomb squad Sept 2016.

I spoke to Renner about what has been happening with me and bomb squad and he claims not to
remember what happened with Mitchell.

This year Travis Moser (well known close friends of Renner) became my Sgt. out of nowhere what I had
been doing on calls, in patrol, etc ... was not good enough as it was under Sgt. Pallas and again bomb
squad was threatened to be taken away. I am scheduled for the fourth time to attend HDS and leave
August 2017.
I have begged to be assigned out of patrol into another lateral position and denied. I put in for SRO
twice, Cultural Liaison, Narcotics, and Investigations, talked out of putting in for crime prevention by Lt.
Lynk at the t ime, Airport security, and street crimes.

When I would speak to. Renner why the decision always came to him and the answer was not he would
say I wasn't right for the spot even though I would do well on interviews and police and citizens on
interview boards chose me.

Renner would say I need to wait a bit longer and spoke about a friend of his that used to work in
Wahpeton that now is having alcohol problems and in and out of treatment (Darcy?)

I do feel he doesn't trust me now almost 2.5 years of sobriety and continued counseling.

Before my treatment in 2014 at First step recovery Dave Todd and Bill Ahlfeldt came to my house
offered to drive me to Heseltine for treatment and I said I could not afford the $40,000 out of pocket
and was taken to First step. While in my living room Todd and Ahlfeldt (my Lt.) promised to do
whatever it took to get and keep me healthy and sober, they promised to do whatever it took to
reassign me out of patrol because I identified that I was over stressed and burnt out. Like I said earlier I
put in for at least 6 different positions and also created a position on paper that would handle all
equipment for the department. I have been denied all of my applications and position I created.

I have over and over told by Ahlfeldt and Renner I'm burnt out need a change want to stay with
department and am ignored or told we can speak on a different day. Then get counseling on my
performance. I have been set up for failure for years now and am slowly wearing out.

I asked the chief to lunch and wanted to know why I am black balled and dead-ended, he said his door
was open and referred me back to my chain of command, Ahlfeldt, Renner, Moser.

The chief must have told Renner I was inquiring and Renner informed Moser. Moser confronted me and
was telling other colleagues I was complaining and now all this. Aside from the recommendation of
termination I spelled all this out to Stefonowicz what was happening how they were setting me up for
failure, going to take bomb squad away or cancel my school, and it all came true.

I've tried on several occasions to speak with Renner and "make up" I know one of ou r conversation
behind closed doors went poo rly and he took what I said about the department, our call for service, the
reality of my day to day work load personally and was offended . He told other supervisors that I told
him he was stupid, unaware and was out of touch. Which was not my intent of the conversation.
I ~
Lafayette Confi dential
. . Instrument' Lafayette Instrument Company
Polygraph Examination Report

Personal Information Photo

Name: David Boelke

Date of Birth: 05/08/1978 Age: 39
Social Security: Driver's License: ND
Address: 4752 Arbor Court S
Fargo ND

Exam Information Fingerprint

Exam Location: Vogel Law Firm, Fargo

Exam Date: 6/14/2017 10:30 AM
Case#: PF170614128
Examiner: Rolland Rust

Section 1: Purpose of Examination

The main issue under consideration for the polygraph examination was whether or not the examinee was telling the truth
to the pertinent questions listed under Section 3 of this report.

Section 2: Pre-Test Interview

On 6/14/2017, David Boelke arrived and voluntarily submitted to a polygraph examination .

The examinee was fully advised that the entire examination would be recorded using both audio and video. In the opinion
of the examiner, David Boelke was suitable for polygraph testing.

In this phase this examiner met with David and his attorney to discuss the relevant issues of this exam .

David said that he is being terminated from the Fargo Police Department for not responding or taking calls that he was
dispatched on. The department also alleges that he lied to them regarding those calls.

There were three dispatched calls that came into question. One was a dispatched call last February where a complainant
said that she had found a spent casing in her driveway. Another was an accident he was dispatched on in December of
last year. In both of these above calls David alleges that he did stop at the complainant's address and talk to them.

The department alleges that the GPS on the dates in question indicated that he did not stop at the complainant's address
or contact he complainants. David does question the accuracy of the GPS. The department originally was going to
suspend him for fifteen days, however due to the alleged lying, have now terminated him.

At the conclusion of the pre-test phase of the polygraph examination, the examiner discussed and thoroughly reviewed all
the test questions with the examinee. The purpose of this detailed review is to provide the examinee an opportunity to
ensure he completely understands the questions before the onset of the testing phase of the examination.

Section 3: In-Test Phase

Case#: PF170614128 Confidential Page 1of2

Lafayette Confidential
lnstrumenf Lafayette Instrument Company
Polygraph Examination Report

A Lafayette computerized polygraph system, model LX4000 was used for the collection of polygraph tests (test data).
This instrument makes a continuous recording of autonomic responses associated with respiration, electrodermal activity,
and cardiovascular functioning. The instrument also includes sensors designed to record peripheral behavior activity and
cooperation during the examination. A functionality check prior to the examination confirmed the instrument was ih proper
working order.

The following pertinent questions were asked during the polygraph examination.

R1: Regarding that call of a spent casing last February 17th. did you personally stop and talk to the complainant?
R2: Regarding that call on an accident last December 17th. did you talk to the complainant on the phone and
respond to the scene ? Yes
R3: Regarding the three calls in question, have you truthfully reported your actions regarding those calls? Yes

Section 4: Result

It is the opinion of this examiner David Boelke w as being truthful during testing.

Global analysis of the physiological data revealed that it was of sufficient interpretable quality to complete a standardized
numerical analysis of the test results. Analysis was performed using the following techniques:

Tec hnique Result

Empirical Scoring System No Significant Resp onses
OSS3 No Significant Res ponses

Analysis of David Boelke's test data usi ng a computerized statistical algorithm, the Objective Scoring System, version 3,
resulted in statistically significant scores indicative of no decept ion to the investigation target questions. The statistical
probability that Dayid Boelke's test data were produced by a deceptive person was less than 1110 h of 1 percent (p-value
<.0013) or about 1 chance in 1000.

Section 5: Post-Test Interview

During the post-test phase of the exam , David Boelke was informed of the test results.

Rolland Rust
Polygraph Examiner

Case#: PF170614128 Confidential Page 2 of 2

Lafayette Instrument Company
Empirical Scoring System
Raymond Nelson and Ma rk Handler (2010; 2012)

Examinee David Boelke

Resu lt No Decepteon ~ ndicatedl
Odds-ratio 17to1 Odds of truth
Prior odds: 1to1

Technique Event Specific (single issue)

Decision rule Two-stage rules (Senter ru les)

- --
Questio ns

Regarding that call of a spent casing last February 17th .. did you personally stop and talk to the complainant? (Y)
R2 Regarding that call on a accident last December 17th., did you talk to the complainant on the phone and respond to the scene? (Y)

R3 Regarding the three calls in question, have you truthfully reported your actions regarding those calls? (Y)

Test Details Question Scores

I -
,___ Decision Alpha (1 tailed) I Cu tscore s
PF Name PF170614128 David Boelke Vogel Question
NSR .050 5
Series# 1 R1 No Deception Indicated SR .050 -4
Exam Date 6/14/2017 R2 No Deception Indicated Bonferroni corrected alpha .01 7 -7
Examiner Rolland Rust R3 No Deception Indicated Use Bonferroni correction TRUE
Report Date
- 6/14/2017

Interpretation Summary
- ---
Data were scored using the Empirical Scoring System (ESS), and evidence-based, standardized, ESS Scores
and norm-referenced protocol for test data analysis. The grand total score of 5 equals or exceeds Series 1c 1iart 2
the cut-score of 5 for truthful classifications. The level of statistical significance is calculated at p - R1 R2 R3 I
.040, which is equal to or less than the required alpha boundary (a .05). Normative data indicate P1/P2 0 0 0
that only small proportion (4.0%) of deceptive persons are expected to produce a similar truthful EDA 0 -2 -2
test score. These results support the conclusion that there is NO DECEPTION INDICATED by the Cardio 0 0 0
physiological responses to the relevant stimulus questions during this examination. PLE -1 0 0

Series 1 Chart 3
I R1 I R2 R3
P1/P2 I 0 0 0
EDA 0 I 2 2
Cardio -1 1 0 0
EJ..E -1 I -1 n
Criterion Accuracy
---- - ----- - --- - --- -- ---
Event-specific examinations with alpha = .05 for deceptive classifications
-- -
and alpha = .05 for I I
Series 1 Chart 4
R1 R2 R3
truthful classifications can be expected to produce a false-positive error rate for which the the 95% P1/P2 0 0 0
confidence interval is from .007 to .093, with an expected confidence interval of .007 to .093 for IEDA 2 I 0 2
false-negative errors when interpreted with an assumption of non-independent criterion variance Cardio 1 1 1
(calculated using binomial approximation to standard normal distribution using a nominal sample PLE I 0 0 0
space of 100 cases). The 95% confidence interval for unweighted mean decision accuracy is .907
to .993. Series 1 Chart 5
I R1 R2 R3 I
P1/P2 0 0 I 0
EDA 0 2 I -2
References Cardio 1 1 0
American Polygraph Association (2011). Meta-analytic survey of criterion accuracy of validated polygraph PIF 0 n 0
techniques. Polygraph, 40(4), 196-305. [Electronic version) Retrieved August 20, 2012, from
Nelson, R., Handler, M., Shaw, P., Gougler, M., Blalock, B., Russell, C .. Cushman, B. & Oelrich. M. I
(2011). Using the Empirical Scoring System. Polygraph. 40. 67-78. I
Nelson, R. & Handler. M. (2012). Using Normative Reference Data with Diagnostic Exams and the
Empirical Scoring System. APA Magazine. 45(3). 61 -69.

Nelson, R. & Handler. M. (2010). Empirical Scoring System. Lafayette Instrument Company. Sub-Totals
Grand Total
1 I
L.XSoftware Version: 11 .6.2

28 Quinuipiac L. Rev. 1019

Quinnipiac Law Review


Nathan J. Buchok1

Copyright (c) 2010 Law Review Association of the Quinnipiac University School of Law; Nathan J. Buchok


I. rntroduction

Court adjourns after a New York man is convicted of murder} Outside the court room, the prosecutor "[t]hank[s] God" for
the Global Positioning System (GPS) tracking device placed on the defendant's vehicle, as the evidence it provided led to the
conviction. 2 The damning GPS evidence was not gathered by police, but rather given to them by the defendant's wife--the
same wife who had recently discovered that her husband was cheating on her and was filing for divorce.; This is just one
example of the many instances where GPS evidence has played a crucial role in litigation. In light of the weight given to this
evidence, the legal community must ask: ls this evidence reliable enough for trial, and can it be adequately authenticated?
This Note will address this and other questions, providing a survey and critique of the courts' treatment of GPS evidence
under the Federal Rules of Evidence (FRE).

GPS is a series of satellites that broadcasts information that allows a user of a OPS-enabled device to determine the device's
location anywhere on earth: With increasing frequency, law enforcement agencies throughout the country are deploying GPS
technology to investigate crimes. In addition to using GPS as an investigatory tool, prosecutors have begun to use GPS data
as substantive evidence at trial. Employers are also using GPS data taken from devices on compa11y vehicles in
employment-related litigation. The increasing use of this new technology in the courtroom has compelling implications in
both constitutional and evidentiary contexts.

*J 020 This Note will examine the use of GPS in the evidentiary context and discuss the neatment of this evidence under the
FRE. First, this Note will briefly describe the evolution ofGPS technology, explain how GPS-enabled devices obtain location
information, and examine the technological aspects of how authorities collect that information and present it in cou1t. The
second section of this Note will discuss the two main reliability concerns raised by the use of GPS: reliability flaws inherent
in the technology itself and the vulnerability of GPS systems to intentional tampering by third parties. The third section of
this Note wilJ provide a brief overview of recent cases involving GPS evidence in order to develop the context in which GPS
evidence is generally used.

The final section of this Note will analyze how courts have treated GPS evidence under the FRE. This section will examine
the extent to which expert testimony should be required under FRE 702 to establish the reliability of GPS technology and
what testimony is or should be required to authenticate a particular proffer of GPS evidence under FRE 901. Next, this
section will analyze the plausible, but unlikely, argument that GPS evidence should be considered hearsay under FRE 801
and 802. Finally, this section will examine what courts consider the "best" GPS evidence under FRE 1002 and when GPS
evidence is relevant under FRE 402.

This Note will ultimately conclude, as have most cou1ts, that GPS teclmology, as a whole, is reliable enough for use at trial.
In light of the vulnerabilities and inaccuracies in the technology that can result in false or misleading GPS evidence, however,
'.ES Tt../\ , 2011 Thomson Reuters No cJa1m to original U.S Government Works

this Note will stress the need for prudent application of the rules of evidence by a technologically literate judiciary in order to
ensure that only properly gathered and validly authenticated OPS evidence is used a trial.

*1021 II. Background

A. What is GPS?

OPS is a navigational system consisting of a series of satellites, called a constellation, which are continuously orbiting earth.3
ln 1978, the United States Military launched the first generation of OPS satellites into space.G The OPS constellation
cuITently in use consists of a series of at least twenty-four satellites, which did not become fully operational until 1995.7
These satellites broadcast information to GPS receivers on earth, which use the information to pinpoint their locations.

GPS satellites broadcast two types of data. 9 The first type of data is encrypted and can only be accessed by the United States
Military. 10 The second type of data is unencrypted and is accessible for use in civilian applications. 11 In 1983, President
Ronald Reagan issued a directive mandating that civilian band GPS signals be available to the world free of charge. 11
Although available to the public, the OPS system was designed so that civilian users can not obtain the same level of
accuracy as the military. 13

Devices such as car navigation systems, OPS tracking devices, or other GPS teclmology contain a "OPS receiver."'" As the
name implies, a GPS receiver receives the information that the GPS satellites broadcast. 15 The device then uses this
information to ascertain its location on the earth, relative to the GPS satellites. 16 In order to detennine its location on earth
accurately, a GPS receiver needs to receive signals from a minimum of three satellites; however, four is preferred." A GPS
receiver receives three types of information sent by "'1022 the GPS satellite: pseudorandom code; ephemeris data; and
almanac data. Pseudorandom code is simply information that identifies the satellite so that the receiver recognizes which
satellite is sending the data. 19 Ephemeris data contains information about the status of the satellite as well as the time and
date. 20 Almanac data provides information about the orbital path of the satellite sending the data, as well as the other satellites
in the constellation. 21 This information tells the receiver where along its orbital path the satellite will be at any time
throughout the day.n

By calculating how long it takes the signal containing this information to reach the GPS receiver, the receiver can calculate
how far away it is from that satellite.n For example, a GPS receiver would receive information broadcast from satellite X,
telling it satellite X' s location. By detennining how long it took for that information to reach it, the receiver can then
detennine its distance from satellite X. 1~ The receiver then knows it is located somewhere along the edge of an imaginary
sphere that has satellite X as its center and a radius equal to the distance between the receiver and satellite X.ll The OPS
receiver then creates similar calculations based on infonnation from either two or three other satellites, calculating its
distance along similar spheres with radii equal to the distance between the GPS receiver and each of those satellites.16 The
point where each of these spheres intersect is the location of the GPS receiver.17 To obtain a full location--one consisting of
latitude, longitude, time, and altitude--the receiver must communicate with four satellites.28 Because altitude is generally
known without the aid of a satellite, however, a receiver can still calculate a location by communicating with only tluee

After determining its position relative to the satellites, the receiver * 1023 then creates a location fix.3 A location fix is a
recording of the receiver' s location at a ce11ain point in time. 31 A series of fixes, called a track, can then be plotted over a
period oftime to show where the GPS receiver travelled over that time span.32 The longitudinal and latitudinal locations of
the GPS can then be plotted onto corresponding locations on a map, thereby showing where the GPS receiver has travelled.;3

B. How GPS Data is Gathered and Used as Evidence

GPS evidence is generally obtained through one of two methods. First, law enforcement officials, or other interested parties,3'
can obtain location information from a GPS enabled tracking device which they have intentionally placed onto a vehicle or
other item. Second, law enforcement officials can seize GPS information from devices already in possession of the individuaJ
being tracked, such as a cellular phone or a GPS navigation system.

W ESTLAV. 201 7 Thomson Reuters No claim to original US Government Works. 2


GPS tracking devices come in a variety of forms and sophistication levels and can be as small as a deck of cards and cost as
little as $200.35 Most of these devices have either a magnet or some sort of adhesive backing in order to attach the device to
the item one wishes to track. 36 The two most common forms of GPS tracking devices are " data loggers" and "data pushers.""
Data-logging GPS tracking devices contain a GPS *1024 receiver and an internal memo1y card. 38 When the data-logging
tracking device is turned on, it records GPS data tracks onto the device's internal memo1y.1 ' In order to dete1mine where the
tracking device has travelled, an individual must first retrieve it from the item onto which it was attached.'0 Once retrieved,
the device is then connected to a computer and the data is uploaded from the device' s internal memory. 1 Data from the
tracking device' s memory can then be overlaid onto a map to show where the GPS device traveled and when.

In contrast to data loggers, data-pusher tracking devices allow tracking in real time.'1 These devices contain a transmitter as
well as a GPS receiver.'; Depending on the model, these devices receive GPS data and then transmit that data to central
databases using cellular signals, satellite modem technology, or radio waves. By broadcasting the data as it is received, these
devices allow monitoring of the device's movements as they happen.

In addition to tracking individuals using inconspicuously placed GPS tracking devices, police, or other parties, can also track
the location of an individual using devices many people already carry with them. The use of cellular phone technology has
become widespread in today' s society. As of December 2009, 285.6 million Americans subscribe to wireless service plans,
roughly 9 J% of the U.S. population.'5 Furthermore, most new vehicles purchased today come with GPS technology in
navigation systems or OnStar systems. By using the GPS technology inside most of these devices, law enforcement and
other interested parties are able to track tl1e location of the devices without the user's knowledge.'<-

In 1997, the FCC passed regulations requiring wireless service providers to implement technology that would allow the
provider to determine the location of a cellular phone within several hundred feet.' 7 * 1025 This program, called Enhanced
9 ll, was intended to allow emergency service providers to locate t'he origin of 911 calls made on cellular phones in order to
effectively respond to emergencies.'~ This technology now allows cellular service providers to track the location of cell
phones in two different ways.~ 9 First, many new cell phones have GPS devices built into to the handsets themselves, which
can then be tracked by the cellular provider. 50 Second, in cell phones not equipped with GPS, service providers can
triangulate the position of the cell phone based on the signal ' s location relative to cellular towers.51 As could be expected,
soon after the development of this technology, law enforcement began to subpoena cellular service providers to track the
movements of suspects' cellular phones. 52

Wireless carriers also provide services allowing individual customers to track movements of cellular phones. Verizon
Wireless provides a " Chaperone" service that will alert parents if their cbjld's GPS-enabled cellular phone travels outside a
designated perimeter set up by the parents. 53 Similarly, a company called AccuTracking has developed software that users can
download onto any GPS enabled cellular pbone.s.. This software allows the company to track the movements of the
Customers can then access the company's website to download a data set showing where the phone has travelled or even
watch the movements of the phone in real time. 56

OnStar is a vehicle assistance system that comes standard on most new General Motors vehicles. 57 The OoStar system uses
GPS and cellular technology to connect the vehicle to the OnStar center.~ At the OnStat center, advisors can use GPS
technology to determine the location of the vehicle and send help if it is in an accident. 59 Advisors can also provide drivers
with a variety of other features ranging from *1 026 turn-by-turn directions to vehicle systems diagnostics. 60 Law enforcement
officials can subpoena OnStar service providers to provide GPS data about a car' s location much in the same way they can
subpoena cellular phone service providers.

Although GPS-enabled devices have become increasingly common, the average user is likely unaware that these devices can
be used to track their movements. Due to this naivety, GPS is very attractive to law enforcement as a low cost and low risk
method of tracking individuals without their knowledge. In light of the increased reliance on GPS technology in the legal
community, it is important to consider the reliability of the information GPS technology produces.

Ill. The Reliability of CPS Data

Although GPS technology has found its way into many aspects of daily life, it does not necessarily follow that evidence

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gathered by this technology is infallible. Issues concerning the reliability of GPS data are twofold. First, GPS data is
susceptible to inaccuracies based on flaws inherent in the technology itself. Second, concerns about the reliabi lity of GPS
data arise from the vulnerability of the technology to intentional tampering. This section will discuss the technological
aspects of how each of these problems arise.

A. Issues with the General Accuracy of GPS Technology

As discussed in the first section of this Note, GPS receivers need to communicate with satellites in order to operate properly.61
In order to communicate with these satellites effectively, GPS receivers need "an unobstructed view of the sky."61 Receivers
need an unobstructed view of the sky because the signals sent from a GPS satellite are relatively weak63 and travel by line of
sight; meaning the signal will pass through clouds or glass but not through buildings, mountains, or other solid structures.6'
Therefore, GPS receivers can lose signals and operate 1<1027 improperly in heavily wooded areas or around tall buildings.65
The accuracy of a GPS device depends on the type of device; high-end devices provide more accurate results than low-end
devices. Most OPS receivers, however, are accurate to ten-to-twenty meters on average, provided they are functioning
properly and have a clear view of the sky.66 When the GPS system was first introduced, the United States Government
selectively limited OPS accuracy to about 100 meters by intentionally inse11ing e1Tors into the civilian signal. 67 l'he
government inserted this limitation to prevent the use of accurate OPS signals by the nation's adversaries. 68 Although this
program, called Selective Availability, was eliminated in May 2000, the government retains the power to limit the accuracy
of civilian GPS in times of crisis.M

ln 200 I, a study conducted on behalf of the United States Department of Transpo1tation examined, among other things,
inaccuracies in GPS due to its susceptibility to signal interference.70 Due to the weak signal of OPS satellites, conditions in
the atmosphere may cause an interference known as scintillation.71 Scintillation occurs when the ionosphere, a layer of the
earth's atmosphere, refracts GPS signals.72 Scintillation can cause additional range e1Tors of up to twenty meters during solar
events such as flares. 11 This sort of error only occurs in lower-end, single frequency receivers, however, and can be corrected
in high-end, dual frequency receivers.N

Additionally, most common GPS receivers are susceptible to inaccuracies caused by ionosphere and troposphere delays,
wh ich occur when the GPS satellite signal slows as it passes through the earth's atmosphere. 75 OPS receivers are also
susceptible to signal multipath errors, which occur when the GPS signal is reflected off buildings or* 1028 other large objects
before reaching the receiver_76 These multipath errors increase the time it takes for the signal to reach the receiver. 77 Because
the receiver determines its location based on the amount of time It takes for a signal to reach it, these time delays create errors
in the receiver's calculations, causing it to record its location as farther from the satellite than it actually is.78

Another factor that can affect the accuracy of a GPS receiver's readout is poor satellite geometry. 79 A GPS receiver gathers
the most accurate information when the satellites it receives information from are located at wide angles relative to each
other. 80 If the receiver locks onto satellites that are located at smaller angles relative to each other, a less accurate signal can
result. 81

Interference from other electronic devices located near the receiver can also result in inaccuracies in OPS devices. Signals
transmitted from radios (RF frequency), broadcast television antennas, VHF communication devices, radar devices, and other
elechonic devices can interfere with GPS receivers, causing small inaccuracies in the data.~ Due to this interference, GPS
devices may have difficulties maintaining accurate data readouts when located in busy city areas, where a large number of
other elechonic devices are operating.~i

Furthermore, GPS devices are complex electronic instruments that require the interaction of many different components in
order to work properly. Like all complex electronic instruments, individual OPS devices are susceptible to any number of
mechanical glitches, which may cause that paiticular device to malfunction. For example, a glitch in the GPS tracking device
used by police to track Scott Peterson in the well-known 2003 mttrder investigation caused the device to report the speed of
Peterson's automobile as 38,000 mph.u This glitch was the result of a programming e1Tor in the device's internal computer
that caused it to accidently round-up a longitudinal coordinate.~ This caused *1029 the device to report that the vehicle had

instantaneously traveled a degree of longitude. 86 When the device calculated the vehicle's speed by analyzing tl1e distance
traveled over time, the i1Tegularity became apparent.

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The glitch in the Peterson device caused a mistake that was immediately apparent--obviously no vehicle could travel 38,000
mph. Once the mistake was discovered, the prosecution 's expert was able to explain the error and mathematically correct it. 87
One could easily imagine a situation, however, where a malfunctioning device could cause inaccuracies that would not be as
readily apparent. Without prudent application of evidentiary safeguards, there is a very real chance that such an inaccuracy
could go unnoticed and evidence from a malfunctioning GPS device might find its way into the courtroom.

Recently, technological advancements have increased the accuracy of GPS. One of the more significant advancement in GPS
technology is the Wide Area Augmentation System (W AAS). 88 WAAS is a functioning, but still developing, system of
ground stations and satellites that provide G PS signal corrections, increasing the accuracy of WAAS-enabled devices to
better than three meters, ninety-five percent of the time. 89 The Federal Aviation Administration and the Department of
Transportation developed the WAAS system in order to make GPS accurate enough for use in airline flight approaches." The
WAAS system consists of approximately twenty-five reference stations situated throughout the United States.91 The exact
location coordinates of each of these stations is fixed.n Due to thfa, the stations are able to monitor the location information
received from the GPS satellites, compare it to the station's fixed location, and correct for any inaccuracies in that
information. 93 Two master stations located on each coast gather this * 1030 correction information from all of the reference
stations.9' Two geostationary9 5 satellites broadcast the correction information to all WAAS-enabled GPS receivers. 96

The United States Coast Guard also operates a GPS augmentation system similar to WAAS called the Differential Global
Positioning System (DGPS).97 Like WAAS, DGPS uses a series of fixed-location broadcast centers to receive GPS signals
and calculate con-ection information. 9 ~ Receivers equipped to receive these DGPS signals have a typical accuracy range of
one-to-three meters. 99 The main difference between DGPS and WAAS is that DGPS broadcasts signals directly from the
receiving stations using a radio-frequency transmission, whereas WAAS broadcasts correction information via satellite.'IXI

B. Vulnerability of GPS Data to Intentional Tampering

In addition to issues with the general accuracy of the technology, several recent studies have shown that GPS data is also
vulnerable to intentional tampering. The first method used to disrupt GPS devices is called "jamming."'' Jamming is a
method that can be deployed to prevent a GPS device from communicating with sate llites, thereby rendering the device
useless. mi Jamming involves the use of a device to emit " radio frequency energy of sufficient power and with the proper
characteristics to prevent [GPS] receivers in the target area from tracking GPS signals.'" 03 A device sufficient to jam GPS
receivers can be created for a relatively low cost, and "can be built by people with basic technical competence from readily
available commercial components and publicly available information."w' Jamming devices can also cause a GPS receiver to
report inaccurate data immediately before it loses contact with the satellite and ceases to report any data at all.105 Studies
* 1031 have shown that jamming can cause GPS receivers to record data with inaccuracies of up to I 000 feet prior to losing
contact with satellites. 106 Because a jamming attack ultimately renders a GPS device inoperable, the risk of jamming causing
inaccuracies in GPS evidence is low. Rather, a jamming attack would result in a lack of any usable GPS evidence at all.

A more disconcerting method of tampering with GPS evidence is called "spoofing." '0 ' Spoofing is particularly troublesome
because the user of the spoofed GPS device is likely unaware that the device is repo1ting falsified data. Spoofing a GPS
receiver requires the use of a device that transmits a signal very similar or identical to the type of signal sent by a GPS
satellite. 108 By broadcasting the false signal at a slightly higher power than the actual GPS signal, a spoofing device causes the
GPS receiver to lock onto the false signals and ignore the actual satellite signal as noise or interference.' 09 The GPS receiver
appears to be operating normally and recording reliable data, but the " spoofer" is actually controlling the GPS receiver' s
perceived location in time and space. 110 Researchers at the University of New South Wales recently conducted an experiment
to test the effects of a spoofing attack on several commercially available GPS tracking devices. 111 The research revealed that,
when located in the proximity of the spoofing device, all three of the tracking devices tested reported false positions.' 12

The United States Department of Transportation has proposed several counte1measures to spoofing attacks.'" A team of
researchers from Comell and Virginia Tech Universities, however, has found a way around all but one of the spoofing
countermeasures.'" The only countermeasure that researchers were unable to circumvent was encryption of GPS signals. 115
Given that only military GPS signals are cmTently encrypted, the researchers concluded that all civilian GPS receivers are
vulnerable to spoofing even if the Department of* 1032 Transportation' s proposed counte1measures were utilized.116 T he one
factor cutting against the concern of spoofed GPS evidence finding its way into the cou1troom is the relative high cost of
spoofing technology." 7
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Perhaps the most troubling manner with which OPS data can be falsified is by simply altering the records of the GPS hacking
device after they have been recorded. While other methods of falsifying GPS data require the use of sophisticated devices,
altering GPS data records can be done with a personal computer and basic technological knowledge. 11 As discussed
previously, most GPS tracking devices record data onto an internal memory device or transmit that data to another device
where it is monitored and recorded. 11? Once recorded, the data is essentially the same as any other data saved on a computer
and can be altered. 120 Recently, researchers at the University ofNew South Wales conducted an experiment to detennine how
vulnerable various GPS tracking devices were to this method oftampering.'2 1 In this study, res.earchers tested four models of
commercially available GPS tracking devices. 122 Two of the devices saved data onto internal memory, one of the devices
saved data onto a PC Card, which allowed it to interface with a Personal Data Assistant, and the final device transmitted data
in real time using cellular technology. 123 The researchers placed these GPS devices in a car and recorded the movements of
the vehicle along a specified route.m After recording the data, the researchers attempted to edit the information to create a
false route. 125

*1033 The two tracking devices that did not contain internal memory chips recorded data in National Marine Electronics
Association (NMEA) format, which is a type of code that can only be read by electronic devices and would be unintelligible
to the human viewer. 126 Using readjly available software programs, however, the researchers were able to translate the data
into a readable format, alter the positions, speeds, and times the device recorded, and then translate the data back into NMEA
format.'21 After the alteration, the data the device actually recorded was indistinguishable from the data that the researchers
had fabricated. 128 In fact, the researchers were able to make it appear on the GPS readout that the test vehicle had travelled to
a false location and remained there for thirty minutes. 129

Researchers discovered that the devices with internal memories were slightly more difficult to alter because once the data
was extracted from the device and displayed on a computer, it was in a "read-only" format. 130 Altering the data of these
devices was possible, however, by reprogramming the data on the memory chip itself prior to uploading it onto a computer. 13 '
The researchers hypothesized that a "technically savvy person with basic electronics skills" could perform this type of
reprogramming. m The researchers also proposed a more simplistic method of fabricating this data: by purchasing a second
tracking device of the same variety as the one to be altered and exchanging the memory cards after logging a fabricated route
onto the purchased device. m

Unlike jamming or spoofing, altering the data a GPS device records required the researchers to have physical contact with the
tracking device. Due to this, it may be more difficult for a meddlesome interloper to tamper with GPS data in this manner.
When law enforcement officers place a GPS device on a suspect' s vehicle or person, however, they are generally unable to
observe what is happening to the device throughout the duration of the tracking. This is especially true with data-logging
devices, as law enforcement presumably has no contact with the device until it is retrieved from the vehicle days, weeks, or
even months later. If a suspect or another interested party became * 1034 aware of the existence of the device during this time,
they would have ample opportunity to tamper with the data.

C. Map Inaccuracies and Huma n E rror in the Preparation of GPS Evidence

Assuming that that the data gathered by the GPS device is reliable, another potential source of inaccuracies i11 GPS evidence
arises from the process ofoverlaying GPS coordinates onto maps. Even if a GPS device is functioning properly and recording
accurate location fixes, those location fixes still need to be overlaid onto a map before the information has any real
evidentiary weight. Simply informing jurors that the GPS device was located at a certain degree of longitude and latitude at a
certain time will likely have little persuasive value. Rather, those degrees of longitude and latitude need to be related to their
corTesponding locations on a map in order to adequately effectuate their evidentiary purpose. This process, therefore, raises
two more accuracy issues: is the map an accurate depiction of the real world and were the points accurately plotted onto that

The accuracy of a particular map depends on how and when it was created. The United States Geological Survey (VSGS), an
agency of the Department of the Interior, has issued national standards for the accuracy ofmaps.u These standards apply to
all maps that are created by federal agencies such as the USGS.m Given that these are nationally accepted standards, the
accuracy of any map that meets these standards is not likely to be disputed.

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It does not follow, however, that the accuracy of any map is indisputable. The internet-based mapping company "MapQuest"
explicitly states that their materials "may include technical inaccuracies" and disclaim any liability for those inaccuracies. 136
Similarly, the internet-mapping company "Google Maps" also notifies users that they " make no representations or warranties
regarding the accuracy or completeness of any content."m Admittedly, these statements seem to * l 035 be more a reflection
of a cautious legal depa1tment rather than the maps' true accuracy. m Nonetheless, the disclaimers highlight tbe point that the
accuracy of the map is an issue that will depend on the source of that map.

Provided ttie GPS data and the map are accurate, the reliability of the evidence still depends on whether the location fixes be
accurately plotted onto the map. Given that GPS fixes consist of specific points of longitude and latitude that can easily be
matched up to c01Tesponding points of longitude and latitude on a map, accuracy at this stage of the process should be easy to
establish. Nonetheless, the proponent of GPS evidence should be required to show that proper procedures were followed
when transferring the GPS location fixes onto the map.

Overall, the accuracy of the maps and the processes by which GPS data is overlaid onto those maps is not likely to raise any
major reliability issues. Furthermore, any reliability issues can generally be remedied by using a more accurate map and
ensuring proper procedure is followed when plotting the location fixes onto the map. Despite this, the potential for these
inaccuracies to occur bears noting and should be kept in mind when this evidence is used in the courtroom.

lV. GPS Evidence in Context

Despite these potential reliability concerns, GPS evidence has become increasingly common in a variety of legal contexts.
Due to law enforcement's increasing use of GPS technology in the investigation of crimes, GPS evidence has begun to play a
prominent role in criminal trials. Although arguably more prominently used in the criminal contex1, GPS evidence has also
played a role in civil cases. This section will examine how GPS evidence has been used in recent criminal and civil
controversies and fu1ther develop the role that this evidence has come to play in the legal field.

The trial of Scott Peterson for the murder of his wife and unborn * 1036 child grabbed headlines of newspapers around the
nation, but the case was a landmark for another reason--it was the first time the California courts ruled on the admissibility of
GPS evidenceY9 Police investigating the death of Peterson's wife attached several tracking devices to Peterson's vehicles. 1 0
Data from these tracking devices showed Peterson travelling to a marina near where the bodies of the victims later washed
ashore.Hi The court ruled that this evidence was reliable and admissible despite glitches that caused the GPS devices to record
the speed of Peterson's vehicle at 38,000 mph. 1' 2

GPS aJso played an important role in the conviction of a Washington man for the murder of his nine-year old daughter." 3
After reporting his daughter missing under suspicious circumstances, police began to suspect that William Jackson had
played a role in his daughter's disappearance." After placing a GPS tracking device on Jackson 's truck, police tracked
Jackson's vehicle to a wooded area where they ultimately found the body of his missing daughter. 1s The Washington
Appellate Court affirmed the trial court's decision to allow the use of GPS evidence at trial and upheld Jackson 's conviction
for first-degree murder.

Police-monitored GPS tracking devices are not the only source of GPS evidence that has been used in criminal cases. Data
seized from the personal GPS navigation system in a Chicago man's spo1ts utility vehicle ultimately led to his arrest for the
murder of his parents, sister, and brother-in-law.u 7 Prosecutors used the data from the GPS navigation system in Eric
Hanson's SUV to establish his whereabouts the morning after his family members were killed. 1' 8 This evidence proved to be
crucial in convicting Hanson of the murders." 9

In the case discussed in the introduction of this Note, GPS evidence * 1037 played a crucial role in the arrest of a New York
man for the murder of his babysitter. 150 Police arrested George Ford after evidence obtained from a GPS tracking device
contradicted his alibi. 1' 1 Originally, Ford told police that he had accidently run over twelve-year old Shyanne Somers when he
took ber down a rural road to show her some horses. 132 Evidence obtained from a GPS tracking device, however, revealed that
he mjght have driven Somers down other roads and spent more than d1ree hours with her behind an abandoned building.m
This case is pa1ticularly interesting because the GPS tracking device was not placed on Ford's vehicle by police but rather by
his wife after she became suspicious of his behavior and believed he was having an affair. 1H

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GPS evidence has been used not only in the prosecution of criminal charges but in the defense of them as well. Shaun
Malone, a teenage driver from California, received a speeding ticket when police radar detected his vehicle travelling 62 mph
in a 45 mph zone.' 55 At the time, the police said that Malone was speeding; however, a GPS tracking device installed in
Malone's vehicle recorded that he was actually driving the speed limit. 1SG Malone's parents had installed the device in
Malone' s vehicle to monitor his driving habits and encourage safe driving. 157 Although the ticket was only $190, the case
went to trial and became a battle of experts over which technology was more reliable: G PS or radar. 15~

Authorities have also used GPS tracking devices extensively to monitor sex offenders and parolees. 1Yi This use of the
technology has lead to the introduction ofGPS evidence as the basis for convicting offenders for parole violations. Recently,
charges were brought against a paroled sex offender in Soud1bury, Connecticut after his GPS ankle monitor reported that he
was out of his yard for fifteen minutes, a *1038 violation of his parole agreement. 1w The charges were later dropped after
authorities discovered that the G PS had been malfunctioning and the paroled offender had never actually left the yard. 16 1

GPS evidence is also playing an important role in civil litigation. Blake Smith brought a suit for wrongful termination against
Pacific Bell Telephone Company when he was terminated after his service truck was stolen.'62 Smith asserted that his vehicle
was stolen when he dropped his keys while removing some equipment from the back of the van. 161 The GPS monitoring
system in Blake's vehicle, however, indicated that the truck was idling at the time of the theft.'~ Pacific Bell te1minated
Blake for failing to safeguard company assets and lying about the location of his keys at the time of the d1eft:. 165

Another area of civil law where GPS data may play an important role is divorce proceedings. Although there is no reported
case law involving GPS evidence in divorce litigation, it is certainly plausible that this evidence could be used in such
proceedings to support allegations of adultery or other improprieties. As evidenced by the Ford case discussed earlier,
suspicious spouses have used GPS tracking to monitor the movements of the other spouse when an affair was suspected. 1Ci6 As
GPS technology becomes more common, the use of this evidence in the context of divorce is likely to become more common
as well.

These cases provide a brief overview of some of the many instances where GPS evidence has been an integral part of legal
proceedings, both in the civil and criminal context. As with all technology, GPS will likely become cheaper, easier to use,
and more common in the coming years. As the popularity of this technology increases, so will the frequency of its use in the
courtroom. How this evidence is treated under the FRE and the ease with which it is allowed into courtroom will be a
significant factor in determining the continued viability of this technology in legal context.

*1039 V. GPS Evidence Under the Federa l Rules of Evidence

A. R ule 702: Is GPS Technology R elia ble Enough for Trial?

Whether GPS evidence is accurate and reliable enough for use at trial depends on two main factors: the reliability of the
technology as a whole and the accuracy of the information gathered by a particular device. The proper method of establishing
or refuting the reliability of GPS technology as a whole is by means of FRE 702 or more specifically, a Daubert hearing. 167

Before admitting expert scientific testimony, FRE 702 requires that the court determine whether "(I) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to d1e facts of the case." 16ll When d1ere is a question about the reliability of the
scientific evidence upon which an expert's testimony is based, federal courts apply the standard set f01th by the Supreme
Cou1t in Daubert v. Merrell Dow Pharmaceuticals. 169 Under Daubert, courts consider "the 'validity' or 'reliability' of the
evidence in question, its degree of 'fit' to the facts and issues in the case, and the risks or dangers that the evidence will
confuse the issues or mislead the jury ...." 170

In Daubert, the Supreme Court outlined several factors that bear on the reliability of scientific evidence: (I ) whether the
scientific technique or theory has been tested; (2) whether the technique has been peer reviewed; (3) what the known en-or
rate for the science is; (4) whether or not standards or controls exist; and (5) whether the technology has been generally
accepted in the scientific community-11 1 The Cou1t noted, however, that these factors are not dispositive, and evidence need
not meet all of them to be admissible. 172 ln 2000, FRE 702 was amended to incorporate the Daubert standard.m

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Prior to Daubert, the admissibility of expert scientific evidence was * 1040 governed by the standard set forth in Frye v.
United States. m Under the Frye test, scientific evidence was only admjssible if it was "sufficiently established to have gained
general acceptance" in the scientific community. 11s While the Frye standard is no longer applied in federal courts, about
one-third of state courts still follow a version of the Frye rule.'76

The question of where GPS evidence stands under the Daube1t standard is not entirely clear, as there is little case law
specifically on point. An examination of GPS technology under the Daubert reliability factors,_ however, leads to the
conclusion that courts would likely find GPS evidence admissible.

First, GPS technology has been tested to a substantial extent. As previously discussed, GPS technology has been in existence
since the late 1970s and has become increasingly common in the past decade. GPS technology is used on a regular basis in a
wide variety of navigational applications. Numerous law enforcement agencies, the United States Govenunent, 177 the
maritime industry, and millions of citizens use GPS on a daily basis. In light of this, the proponent of GPS evidence would
have little difficulty providing sufficient evidence to establish that GPS technology has been tested.

Second, there is little doubt as to whether GPS technology has been adequately peer-reviewed. A brief search of a database of
peer-reviewed journals reveals over 900 scholarly articles on the subject of GPS technology.m While some of these peer
reviews have been critical of the reliability of GPS technology, the sheer volume of commenta1y on the technology likely
means this prong of the Daubert factors weighs in favor of admissibility.

Whether or not the third Daube1t factor weighs in favor or admitting GPS evidence will likely depend on the purpose for
which the evidence is offered. GPS technology has a generally accepted e1Tor rate *1041 often to twenty meters. This can
increase depending on many of the factors discussed in Patt Ill of this Note or decrease depending on whether the pa1ticular
GPS device was equipped with DPGS 119 or WAAS 180 receiving technology. This margin of etTor may be more or less
consequential depending on the purpose for which the proponent is offering the evidence; the more precise the location the
proponent is trying to show, the more relevant the margin of error will be. GPS's error rate of ten to twenty meters on
average, however, is most likely not large enough to deem the evidence inadmissible, especial ly if the other Daubert factors
weigh in favor of admissibility.

The fou rth Daubert factor is also likely to weigh in favor of admissibility, given that GPS technology is subject to clear
standards and controls. GPS satellites are extensively monitored and maintained by the United States Air Force and the data
they transmit is subject to ascertainable standards. xi By statute, the Secretary of Defense is requ ired to coordinate with the
Secretary of Transportation to ensure that the GPS system meets certain perfonnance requirements. " 2 The fact that up until
recently pa1t of enacting those control standards meant intentionally inserting errors in the data transmitted to civi lian
receivers may be cause for concem.m Overall, however, GPS technology is subject adequate standards and controls to satisfy
this element of Daubert.

Finally, there is little argument to be made that GPS technology has not received wide acceptance in the scientific
community. The pervasive use of this technology previously discussed in this Note would clearly suppmt an inference that
the technology has been generally accepted in both the scientific community as well as the general population.

While there are no federal cases directly discussing GPS under the Daubert standard,'8 i the Texas Appe!Jate Cowt has found
GPS *1042 admissible after applying a Daubert-like standard.m The standard applied by Texas courts requires scientific
evidence meet three criteria: "(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be
valid; and (c) the technique must have been properly applied on the occasion in question." 186 In Brown v. State, 137 the Texas
Appellate Cou1t, applying this standard, upheld the trial court's decision to admit GPS evidence.'" The cowt fmmd that there
was "clear and convincing evidence" that GPS was reliable. 189 The GPS evidence in Brown was taken from a device
maintained by the defendant' s employer in order to track fleet vehicles. 190 The prosecution's expert testified that the
"acceptance of (GPS technology' s] reliability is analogous to that of an electronic calculator." 191 Although this analogy may
not have been appropriate, the court nonetheless deemed the expett qualified to testify and affirmed the admission of the GPS
evidence. '"1

Several states that apply the F1ye rule have addressed the issue of GPS evidence and have found it admissible. In Medina v.

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State,'93 the Florida Appellate Court approved of the trial court's decision to allow the admission of GPS evidence over the
defendant's Frye objection. 191 The coutt agreed that "GPS tracking technology [was] not new or novel and has long been
accepted within in the scientific community as reliabJe" and was therefore not subject to a Frye In Still v. State, 1\IO
the Florida Appellate Coutt acknowledged that GPS technology was "commonplace" and had "been generally accepted and
used for years." 197

The California State Court has also admitted GPS evidence under the Frye standard. ln the trial of Scott Peterson, defense
counsel argued *1043 that GPS evidence should be excluded under the Frye standard,m which had been adopted by the
California Supreme Court.'" The California Superior Court, however, found the GPS evidence sufficiently reliable and
deemed it admissible.200 This was the first time California courts ruled on the admissibility of GPS evidence.101

In light of the fact that commentators believe that Daubert is the more flexible standard,12 the fact that courts have found GPS
admissible under Frye likely supports the conclusion that it is admissible under Daube1t as well. Simply because evidence
may be admissible under Daube1t, however, does not render issues regarding the reliability of the technology irrelevant. As
the Supreme Court recognized in Daubert: "Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are tbe traditional and appropriate means of attacking shaky but admissible evidence." 203
Therefore, the reliability issues concerning GPS technology are more likely to be relevant to the weight given to GPS
evidence rather than its admissibility.

B. Authenticating GPS Evidence Und er FRE 901

The second main reliability concern with GPS evidence is the technology's vulnerability to intentional tampering.1 " To
safeguard against this potential reliability concern, the court should require proponents of GPS evidence to establish that the
evidence has not been tampered with in order to authenticate it under FRE 901 .

FRE 90 I provides in relevant part that "(t]he requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent
claims." 205 Therefore, to satisfy the requirements of FRE 901 , a proponent of GPS evidence must demonstrate that the
evidence is what he claims--i.e., an accurate *1044 depiction of where the GPS device travelled. In order for GPS evidence to
be an accurate depiction of where the GPS device actually travelled, proponents must establish that the device has not been
tampered with or tainted by any of the aforementioned vulnerability concerns. 106

Where the proffered evidence is susceptible t-0 tampering, as is the case with GPS evidence, proponents are generally
required to establish a "chain of custody" in order to authenticate the evidence. 201 The chain-of-custody rule has been
described as "a variation of the principle that real evidence must be authenticated prior to its admission into evidence ....
[T]he ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is
improbable that the original item had been exchanged . .. or otherwise tampered with.mOll To establish a chain of custody,
proponents are nonnally required to:
call[] each of the persons who had custody of the item from the time of the relevant event until trial and offer[]
testimony showing (1) when they took custody and from whom, (2) the precautions they took to preserve the
item, (3) the item was not changed ... while they had it, and (4) when they relinquished custody and to
whom. 209

Proponents do not need to "eliminate all possibi lity of alteration or tampering, but normally a showing of reasonable
safeguards is required.mrn Several federal cou11s, such as the Eighth Circuit, have required proponents to demonstrate a
'"reasonable probability' that no tampering occurred.m11 Establishing a proper chain of custody is of paramount importance
with GPS evidence given the vulnerabilities of GPS devices to tampering. As demonstrated by the research of Muhammad
Usman lqbal and Samsung Lim as well as the Volpe Institute, GPS evidence can be tampered with in a variety ways, and
with relative ease. 212 Furthermore, fabricated GPS evidence can be *1045 indistinguishable from genuine GPS evidence.m
Given these vulnerabilities, FRE 901 , and the chain-of-custody rule in pa1ticular, must be diligently applied to prevent
fabricated or altered GPS evidence from making its way into the courtroom.

Authentication of GPS evidence taken from tracking devices installed and monitored by law enforcement agencies will likely

2017 Thomson Reuters No claim to original U S Government Works IO


be less problematic than authentication of GPS evidence seized from items aJready in possession of the party. ln order to
authenticate evidence from law-enforcement-monitored GPS devices, proponents will have to call the party who supervised
the installation and monitoring of the device to establish a chain of custody and demonstrate that there was a "reasonable
probability" that the device was not tampered with.

GPS evidence, however, presents issues that are unique from other types of scientific evidence typically gathered by law
enforcement. Other forms of scientific evidence, such as DNA or fingerprint evidence, are generally gathered under the close
supervision of presumptively disinterested and properly qualified parties and in accordance with specific methodologies. 214 It
is closely monitored throughout the process of analysis until it is ultimately presented at trial. As such, there is a level of
accountability and nustworthiness associated with these more traditional types of scientific evidence. Proponents are able to
provide, through testimony, a reliable accounting of how the evidence was handled from the time it was gathered until it
reached trial--thus establishing a complete chain of custody.

The same cannot be said about OPS evidence. Even in situations where appropriate authorities have placed a device it is out
of the control of those authorities while it is gathering evidence. Thus, during the period GPS evidence is gathered, it is not
subject to the same safeguards and oversight as other forms of evidence. As such, it is difficult to establish that the evidence
was not tampered with during the gathering stage. Furthermore, given the findings of Iqbal and Lim, analysis of the evidence
that is ultimately gathered will do little to ensure that it has not been fabricated. 215

Establishing the authenticity of OPS evidence also depends on the type of GPS device used by law enforcement. lf evidence
was gathered *1046 using a data-pushing OPS device, then the device was constantly sending information about its location
to law enforcement. 216 Law enforcement is therefore able to continue communicating with the GPS device (to a ce1tain
degree) while it is attached to the suspect's vehicle or person. In such a case, testimony from a police officer who monitored
the device stating that he observed no irregularities or disruptions in the information the device sent might be sufficient to
establish its autJ1enticity. Simply proving a device was continually sending information, however, is not the same as p roving
the device was not tampered with.

Authenticating evidence from data-logging devices, on the other hand, will be more difficult. As opposed to data-pushing
devices, data-logging devices save information about their location in an internal memory card. 217 In order to access that
information, law enforcement agencies must retrieve the device and download the data.H 8 The law enforcement agency that
planted the device essentially has no contact with it from the time it is placed on the item to be tracked until the time the
device is retrieved and the data is downloaded.

Due to the unique characteristics of how GPS evidence is gathered, establishing a complete chain of custody--i.e., from the
time device was placed until the time the evidence is presented at trial--is difficult, if not impossible. Instead, the chain of
custody will have gaps where no one can verify with certainty exactly what was happening to the device. Gaps in a chain of
custody, however, do not necessarily result in the exclusion of evidence. Serious gaps in a chain of custody may create
enough doubt to require exclusion, but normally, a break in the chain is not fatal to admissibility. 219 Rather, a relatively minor
break in the chain of custody goes to the weight of the Therefore, provided proponents are able to demonstrate
sufficiently that the OPS device was not tampered with, the fact that officers cannot account for the device for the complete
duration of its monitoring will not be fatal to admissibility.

When GPS evidence is seized from a device that was already in the possession of the individual being tracked, authenticating
the evidence may be even more difficult depending on the circumstances and the type of device. A particularly troubling
example of the need to authenticate *1047 adequately this type of GPS evidence can be seen in the Ford case discussed
previously. 22 1 The Ford case involved the use of GPS evidence retrieved from a tracking device placed on the defendant's
vehicle by a suspicious spouse.122 Thus, there was both motive and ample oppo1tunity to tamper with the GPS device and
falsify the information it gathered. In cases such as Ford, where authorities seized the evidence from a device in possession of
the suspect, there is an increased potential that the GPS device has been tampered with in order to frame or exonerate the
accused. As the Iqbal and Lim study established, this type of commercially available nacking device can be tampered with
relatively easily and without detection. 223 The need to authenticate this data before it is used as substantive proof of the
defendant's whereabouts is therefore extremely impo1tant

dbviously, the extent to which the proponent of GPS evidence has to demonstrate that the evidence has not been tampered

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with will vary depending on circumstances of each case. In situations where there is little reason to question the validity of
the data, a proponent should not be overly burdened with the requirement that she assuage all fears about possible tampering,
no matter]1ow unrealistic.m It is imp9rtant, however, that the courts are keenly aware of the potential vulnerabilities ofGPS
evidence to intentional tampering and require adequate authentication of the evidence as the situation deems necessary.

C. GPS Evidence as Hearsay?

When data gathered from GPS devices is offered at trial as substantive proof of a party' s whereabouts, a reasonable argument
could be made that this evidence shouJd be excluded as hearsay. Rule 80I(c) of the FRE defines hearsay as "a statement,
other than one made by the declarant while testifying at the trial or hea1ing, offered in evidence to prove the truth of the
matter asserted."m Rule 801 (a) defines a statement as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if
it is intended by the person as an assertion."226 Rule 801(b) *1048 defines a declarant as "a person who makes a statement."227
Simply put, "hearsay is an out-of-court statement offered [at LTial] to prove [the trnth of] the matter asse1ted,"m Does this
definition of hearsay encompass GPS evidence of a pa1ty's location?

As discussed previously, a GPS tracking device receives various types of infonuation from several satellites.m The device
then uses this infom1ation to calculate its location. 230 Once the device determines its location, it makes a notation of that
location as well as the time, and then either sends that information to a database or stores it in an internal memory card.m
Essentially, each of these notations could be considered out-of-court "statements" about the device's location at certain
periods of time. These "statements" are then offered at trial to prove the truth of the matter they asse11--i.e., the ind ividual
was actually at those locations at those times.m Therefore, it seems plausible that this evidence would be hearsay. The
feasibility of this hearsay characterization, however, requires courts to consider GPS location fixes "statements" and GPS
devices "declarants," an argument that courts are unlikely to accept.

Whether or not courts will consider evidence from an electronic device hearsay depends on the original source of the
information. Generally, courts consider a data compilation or computer printout hearsay if tbe original source of the
information it contains was an out-of-court statement by a human declarant. 233 Therefore, if the electronic information in
question is merely an electron ic recording of data gathered and entered into the computer by a human declarant, courts will
generally consider it hearsay.m Although this type of electronic infonnation is usually treated as hearsay, it is often
admissible under an exception to the hearsay rule, most commonly FRE 803(8) public *1049 recordsm or FRE 803(6)
business records.n"

In contrast, courts have generally treated computer generated evidence that was created completely through mechanical
processes as non-hearsay. In United States v. Washington,m a DUI case out of the Fou1tb Circuit, the defendant chaJlenged
the admissibility of data generated by a forensic Jab's diagnostic equipment.238 The evidence in question consisted of a
printout depicting the amounts of alcohol and drugs in the defendant's bloodstream. 239 The printout was created when lab
technicians inserted the defendant's blood-sample into a chromatograph machine, which analyzed the sample using
ChemStation software.i"' The court denied the hearsay objection stating that "the raw data generated by the machines (did]
not constitute 'statements,' and the machines [were] not 'declarants."'m The court acknowledged that " [o]nly a person may
be a declarant and make a statement. Accordingly, 'nothing "said" by a machine ... is hearsay."'m

The dissent disagreed, however, reasoning that "[t]he test results ... were produced with the assistance and input of the
teclu1icians" and were therefore the hearsay statements of those technicians. 243 The dissent asserted that computer-generated
infonnation could only be considered non-hearsay if it was ''produced without any human assistance or input.m~

The Tenth Circuit also addressed the issue of computer-generated hearsay and reached a similar result.m United States v.
Hamilton 2~ 6 dealt with the prosecution of an individual for possessing child pornography and posting these images on the
Tnternet.m The defendant made a hearsay objection to the admission of the images posted on the *1050 website, which
contained computer-generated "header" infonnation. 2' 8 When a user posted an image, the computer automatically created a
"header" that listed infom1ation regarding the person who posted the photo, including the date of the posting and the poster's
screen name and IP address. 249 The court reasoned that because "the header information was generated instantaneously by the
computer without the assistance or input of a person," it was outside the definition of hearsay under FRE 801 (c).15

Federal case law addressing the hearsay implications of GPS evidence is limited, but one federal district court has
2017 Thornson Reuters No claim to original U S Governrnenl Works . 12

recognized, at least implicitly, GPS evidence as hearsay. ln United States v. Wood,251 the District Court for the Western
District of New York affirmed the admission of GPS evidence under the business records exception to the hearsay rule.m In
Wood, the defendant objected to the admission of GPS records from the tracking device installed o.n his company-owned
vehicle.m Wood's employer, TruckDepot, tracked all of its fleet vehicles using GPS technology.rn The comi's ruling on the
defendant's motion for a new trial did not directly discuss whether GPS should be considered hearsay. Rather, the opinion
focused on whether the prosecution's witness had properly laid the foundation for the admission of the GPS records under
FRE 803(6).m In order for FRE 803(6) to apply, however, the court must have considered the GPS evidence hearsay. Thus,
the Wqod decision arguably stands for the proposition that GPS evidence is hearsay. Although the hearsay distinction was
not relevant in Wood (the GPS records were admissible either way), one could imagine situations where the proffered GPS
evidence was not "kept in the course of a regularly conducted business activity." 256 fn such a case, FRE 803(6) would not
apply and the issue of whether GPS evidence is hearsay becomes important.

With the exception of the rather ambiguous Wood decision, federal courts have not yet explicitly ruled on whether GPS
evidence should be considered hearsay, however, parties have objected on hearsay grounds. *1051 In United States v.
Bennett,257 the defendant raised a hearsay objection to the introduction of GPS evidence from the navigation system in his
boat. 2i 3 On appeal, both parties briefed the issue of whether GPS evidence could be considered hearsay.259 The defense argued
that the GPS tracks were "statements" regarding the defendant's whereabouts and thus should be excluded as hearsay.100 The
prosecution's argument was in line with the reasoning of the Tenth and Fourth Circuits: a declarant must be a person, not a
machine. 261 The court never reached the hearsay issue, however, and instead reversed on other grounds.162

At least one state court has directly addressed the issue of GPS evidence as hearsay and ruled that "maps and logs generated
by .. _ GPS are not hearsay and are admissible.m63 In Commonwealth v. Thissell, 261 the defendant argued that records taken
from a GPS monitoring bracelet26s were hearsay and should not have been admitted at his probation revocation hearing. 266 The
Massachusetts Appellate Cowt affirmed the admission of the GPS evidence, holding that ..GPS documents consisting of
maps and logs are not hearsay." 267 Ln dicta, the court also noted that even if tbe records were hearsay, they would have been
admissible under the Massachusetts version of the business records exception. 21>lS

In sum, while there is a theoretical argument that GPS evidence should be treated as hearsay, it is not likely that courts will
do so. G PS evidence most I ikely falls within tl1e category of electronic evidence that is completely mechanically created. The
information the GPS device receives is mechanically generated and broadcast by a satellite. The information that is in turn
generated by the GPS device is the result of *1052 that device's own internal calculations based on the information it
receives. In light of this, it is likely that even the strict definition of non-hearsay adopted by tbe dissent in United States v.
Washington would encompass GPS evidence.1 9 Unlike the chromatograph machine in Washington, a GPS device does not
require the "assistance or input" of humans in order to get its calculations, rather it does so based entirely on infom1ation sent
to it by another machine.110 Therefore, despite the plausible theoretical argwnent that GPS evidence is hearsay, the fact that
GPS evidence is generated almost solely from mechanical processes, absent human input, likely places this evidence outside
FRE 801(c)'s definition of hearsay.

D. T he Best GPS Evidence: FRE 1002

FRE 1002, commonly refe1Ted to as the "best evidence rule," provides: "To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act
of Congress." 271 A writing or recording, as defined by the FRE, includes "letters, words, or numbers, or their equivalent, set
down by ... mechanical or electronic recording." 211 An ;original" of data that is stored in a "computer or similar device"
includes "any printout or other output readable by sight, shown to reflect the data accurately.m 73

Generally, FRE 1002 should not be much of an obstacle to the admission of GPS evidence. Nonetheless, at least one court
has found GPS evidence inadmissible based on a failure to meet the requirements of FRE I 002. In United States v. Bennett,
the Ninth Circuit Court of Appeals deemed testimony about GPS evidence, absent actual documentation of that evidence,
inadmissible under FRE 1002.2"

Vincent Bennett was arrested for smuggling large quantities of marijuana from Mexico to California via boat.m In order to
support the importation charge, the prosecution offered testimony from a U.S. customs officer stating that the GPS navigation
system on Bennett's boat *1053 indicated he had travelled from Mexico that day. 276 Customs officers never took possession
' ES i LA 11 2017 Thomson Reuters No claim to original U S Government Works 13

of the GPS, however, and the only evidence offered was lhe officer's testimony.177 Although neither party briefed the best
evidence issues,278 the appellate court ultimately ruled that admitting the OPS testimony, absent a printout of the data, violated
fRE I 002.119

Although Bennett serves as a reminder that OPS evidence, like all evidence, is subject tbe best evidence rule, it does not
necessarily address any FRE I 002 issues that are unique to G PS evidence. Only offering testimony about the contents of a
writing, recording, or photograph, when it would have been possible simply to show the original document at trial, will
almost alway~ contravene FRE I 002. This is so regardless of what that evidence is, be it t~e recording of a GPS device, a
photograph, or a document.llS0 In this way, the FRE I 002 issues in Bennett were neither unique to GPS technology nor
difficult to overcome. Nonetheless, Bennett begs the question: What type ofGPS evidence is needed to satisfy FRE 1002?

As discussed previously, most GPS tracking devices simply record location fixes, which consist of longitudinal and
latitudinal coordinates over time. m Therefore, the most original evidence taken from a tracking device is a printout of all the
location fixes the GPS device recorded. ln order to increase the evidentiary value of this information, proponents will likely
overlay these location fixes onto maps to provide the jury with a practical understanding of what the location fixes mean.

An exhibit displaying location fixes overlaid onto a map is technically the same evidence as a printout showing numerical
locations: it shows the same information just in a different manner. Nonetheless, a prudent application of FRE I 002 should
require the proponent provide the most original form of the information. Therefore, if the pa1ticular GPS device only
recorded numerical location fixes, then FRE l 002 should require a proponent to offer a printout of those location fixes into
evidence. A proponent, wishing to add to the probative value of this evidence, could, and likely will, introduce exhibits
displaying these *1054 location fixes over a map as well. Nevertheless, comts should require an original printout from the

If a proponent has expended the resources to gather and present GPS evidence, producing an original printout of locations
fixes will not be difficult. Moreover, offering GPS evidence in both forms appears to be the generally accepted manner with
which proponents have presented GPS evidence.m Furthermore, requiring an original printout also helps ensure that no errors
were made in the process of transferring the location fixes from the printout onto the map.

E. GPS and Relevancy Under FRE 402

In any case where the location of an individual is a fact of consequence, evidence which tends to show that individual's
location is relevant.m It does not necessarily follow, however, that GPS evidence of an individual's location will always be
relevant. FRE 402 provides that relevant evidence is generally admissible and irrelevant evidence is inadmissible.235 FRE 401
defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence."286

Therefore, in order for GPS evidence to be admissible, two main requirements must be met. First, the party's location must
be a "fact of consequence." Second, the GPS evidence of the party's location must make it "more probable or Jess probable"
that the party was actually in that location. Assuming that location is a fact of consequence,2~ whether or not GPS evidence

makes that fact more or less probable will depend on how the GPS data's margin of error relates to the unique *1055
circumstances oftbe case.

GPS technology has a margin of e1TOr of ten to twenty meters on average.288 This margin of error can be smaller if GPS
teclu1ology is augmented by WAAS or DGPS, or larger if the GPS has been affected by any environmental or intentional
interfere nce.wi Therefore, the relevancy of GPS evidence depends on how precise of a location the proponent needs to

For example, if the fact of consequence is that the suspect was on the north side of the street rather than the south side, GPS
evidence of the defendant's location is likely i1Televant. A ten to twenty meter margin of en-or means GPS evidence is too
imprecise to make it more or less probable that the defendant was on a pa11icular side of the street. Conversely, if the fact of
consequence is merely that the defendant was located near the area of the street, then, despite the margin of error, GPS
evidence of the defendant's location would be relevant.

''.;ST-A\:' 20'17 Thomson Reuters No claim to ori9inal U.S Government Works 14


Certainly, in the vast majority of situations, GPS evidence will be relevant despite the margin of error. Nevertheless, in some
situations where GPS is commonly used, such as parolee or sex offender monitoring, the margin of error can have serious
implications. In these contexts, authorities use GPS to ensure parolees remain in or out of specific areas as determined by the
conditions of their parole. For example, the parole terms of sex offenders commonly require that they remain a certain
distance away from schools, playgrounds, or other areas. 2' A ten to twenty meter margin of e1Tor could mean the difference
between a parolee who broke the law and one who came close to the prohibited border but remained on the side of legality.

The case of David Pollitt discussed earlier in this Note exemplifies this point. Authorities initially charged Pollitt, a convicted
sex offender, with violating his parole based on evidence from his GPS monitoring device showing he had left his yard for
fifteen minutes. 1~ 1 The charges were later dropped when it became clear that the GPS device had simply been
malfunctioning. 292 Thus, in situations such as the Pollitt case, where guilt or innocence can turn on matter of a few meters,
GPS evidence may be irrelevant.

In this way, the size of the margin of e1rnr will have direct bearing * 1056 on the relevancy of GPS evidence in many
circumstances. In situations where precise locations are required, establishing relevancy will require demonstrating that the
margin of error is within an acceptable range. Educating the fact finder about how various interferences can increase GPS's
margin of e1rnr is therefore of tantamount importance.

VI. Conclusion

Overall, it appears that GPS evidence is gaining a strong foothold in American jurisprudence. The attractiveness of this
evidence is understandable, as it provides an inexpensive and inconspicuous method of establishing a party's whereabouts.
Despite its increasing popularity, GPS technology is not without flaws. Evidence gathered from GPS devices presents
reliability concerns due to both flaws in the technology as a whole, as well as the vulnerability of the technology to
intentional tampering. 29;

The Federal Rules of Evidence provide various safeguards to ensure that only reliable evidence is admitted at trial, and
careful application of these rules to GPS evidence is vital to ensure the fair administration of justice. FRE 702 and the
standards set forth in Daubert govern the suitability of technology for tl1e courtroom.19; Despite the potential flaws in GPS
technology discussed -in this Note, it appears that this technology satisfies the FRE 702 standards for admjssibility.

The vuJnerability concerns associated with GPS evidence are addressed through proper authentication under FRE 901. Proper
authentication of GPS evidence is of the utmost importance due to its manner of collection and its vulnerability to tampering.
Unlike most scientific evidence, GPS evidence is gathered outside the supervision of the party gathering it. 295 This fact,
coupled with vulnerability of GPS to tampering and the difficulty indentifying fabricated data after the fact, makes
establishing a valid chain of custody imperative when authenticating GPS evidence.

Another method of vetting untrustworthy evidence under the rules is the general exclusion of hearsay under FRE 801 and
802. Although in theory there is an argument that GPS evidence is hearsay, and it has been objected to on these grounds, it is
ultimately unlikely that court' s will *1057 treat GPS evidence as such.

In an effort to obtain the most reliable evidence at trial, the Federal Rules, under FRE 1002, require a proponent to provide
the best evidence of the fact they seek to prove. While GPS evidence does not present any FRE 1002 issues that are unique to
the technology, case law reveals that this is another area that could potentially hinder the admission of GPS evidence. Clear
rules outlining what form of GPS evidence is required to satisfy FRE 1002 are lacking. Logic, however, dictates that a
proponent must provide an original printout of the raw data and, if they so choose, an exhibit of this data plotted onto a map.

The final area where GPS's reliability issues intersect with the rules is under FRE 402. Although it would seem that GPS
evidence would be relevant in any situation where a pa1ty' s location is a fact of consequence, the margin of e1TOr associated
with GPS may bring this evidence outside the realm of relevancy in situations where precise locations are needed. Therefore,
it is essential that the courts understand how various factors affect the teclmology's margin of e1TOr to ensure that GPS
technology is not admitted in situations where it is i1Televant.

Ultimately, it seems that GPS technology will continue to be admitted under the Federal Rules of Evidence and play an

i\O:S l 'J.... @ 2017 Thomson Reuters. No claim to original U.S Government Works. 15

important role the judicial system. Stringent application of the evidentiary safeguards provided in the Federal Rules is of
utmost importance, however, to ensure that only accurate and reliable GPS data is used at trial. Unlike other scientific
evidence, GPS technology is used in everyday life by a vast majority of the population. As such, there may be a greater
temptation to accept the evidence as reliable and a potential for a less than diligent application of the safeguards provided by
the FRE. As this Note demonstrates, however, it is imperative that practitioners as well as the judiciary fully understand the
reliability concerns associated with this technology and apply the FRE with proper attentiveness to prevent the permeation of
unreliable GPS evidence into the courtroom.


Piscataway Man Found Gui lty of Murdering Babysitter in N.Y., Star-Ledger, (Newark, NJ). Feb. 20, 2009, at 24 [hereinafter
Piscataway Man).

Id. (internal quotations omitted).

Id. As the prosecuting District Attorney Joseph McBride put it: "Thank God for Mrs. Ford because when she gave us that GPS it
told us where he was and what be djd and proved that there was no accident there and that ii was a homicide. Id. (internal
quotations omitted).

There has been a wealth of controversy and legal commentary surrounding the use of GPS technology and the Fourth AmendmenL
Currently, the States arc divided on the issue of whether GPS tracking by law enforcement constitutes a search requiring a warrant,
and the Supreme Court has not yet ruled on the matter. This Note will not address the constitutional implications of GPS tracking.
It will focus instead on the cvidentiary issues associated with using OPS evidence at trial, as this topic has received less attention.
For an in-depth commentary on the constitutional aspects of OPS tracking, see Renee McDonald Hutchins, Tied Up in Knotts?
GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409 (2007); John S. Ganz. Comment, It's Already Public: Why
Federal Officers Should Not Need Warrants to Use OPS Vehicle Tracking Devices, 95 J. Crim. L. & Criminology 1325 (2005);
April A. Otterberg, Note, GPS Tracking Technology: The Case for Revisiting Knolls and Shifting the Supreme Court's Theory of
the Public Space Under the Fourth Amendment, 46 B.C. L. Rev. 66 1 (2005); Ramya Shah, Recent Development, From Beepers to
OPS: Can the Fourth Amendment Keep up with Electronic Tracking Technology?, 2009 U. IU. J.L. Tech. & Pol'y 281.

Smithsonian National Air and Space Museum, How Does OPS Work?, hllp:// (last visited Aug. 5,
20 10).

Smithsonian National Air and Space Museum, The GPS Revolution-OPS: A New Constellation., (last visited Aug. 5, 2010).


Smithsonian National Air and Space Museum, supra note 5.

9 Hutchins, supra note 4, at 415.



Smithsonian National Air and Space Museum, supra note 6.

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Smithsonian National Air and Space Museum, supra note 5.



Smithsonian National Air and Space Museum, GPS in More Detail--GPS: A New Constellation. (last visited Aug. 5, 20 I0).

Garmin, Whal is GPS?, (last visited Aug. 5, 2010).




Garmin, supra note 18.

Smithsonian National Air and Space Museum, supra note 5.




Smithsonian National Air and Space Museum, supra note 5.

Transcript of Pre-Trial Evidentiary Hearing at 2, People v. Peterson, No. I056770 (Cal. Super. Ct.. Sept. 13, 2004).


David A. Schumann, Tracking Evidence with OPS Technology, Wis. Law., May 2004, at 9, I0.




WESTLr\V\ 2017 Thomson Reuters. No claim to oriqmal US Government Works. 17


Although GPS tracking devices are mosl prominently used by law enforcement agencies. such devices are available to civilians
and have become a useful tool for suspicious spouses and concerned parents. See Tom Grace, Baby Sitter's Death a Murder, Daily
Star (Cooperstown, N. Y .). Aug. 16, 2007. http:// I.html (discussing the
use of OPS data from a tracking device placed on the suspect ' s truck by his wife when she suspected he was having an affair); L.A.
Carter, Teen Tries OPS Defense to Fight Speeding Ticket, Press Democrat (Santa Rosa, Cal.), Jul. 12, 2008,
http://www.pressdemocratcom/article/20080712/NEWS/807120355 (discussing the USC or OPS data obtained from a device
placed on a teen 's car by his parents in order to monitor his driving habits).

For pricing and photographs of a typical OPS tracking device, sec GPS Tracking Key, (last visited
Aug. 5, 20 I 0).


How OPS Tracking Works, (last visited Aug. 5, 20 10).




How GPS Tracking Works. supra note 37.




CTI A-The Wireless Association. Wireless Quick racls. http:// I0323 (last visited Aug,. 5r

Ellen Nakashima, Cellphone Tracking Powers on Request, Wash. Post, Nov. 23, 2007. at A I .

Aaron Futch & Christine Soares, Enhanced 911 Technology and Privacy Concerns: How Has the Balance Changed Since
September 11?, 2001 Duke L. & Tech. Rev. 38, 38.


Id. at4 I.


VVESTLAW 2017 Thof'l1son Reuters. No claim to oriainal US Government Works.


Futch & Soares, supra note 4 7, at 41.

Nakashima, supra note 46.


AccuTracking--PAQ, (last visited Aug. 5, 20 10).

For a detailed description of how this technology works, see id.


OnStar By GM: Install OnStar System, Get Computerized Driving Directions, (last
visited Aug. 5, 20 10).

OnStar By GM: OnStar Technology, Global Positioning and GPS Maps, (last
visited Aug. 5, 2010).



See supra Part II.A.

Smithsonian National Air and Space Museum, supra note 5.

The power from OPS transmitters is about twenty-seven Wat1s, which is tbe strength of a weak light bu lb. Andrew Dempster, How
Vulnerable is GPS?, Position, Dec. 2005-Jan. 2006, at 64, 64-67. The information broadcast by the satellite has 10 travel almost
20,000 km. Id.

Garmin, supra note 18.


Smithsonian National Air and Space Museum, supra note 5.


Garmin, supra note 18.

Hutchins, supra note 4, at 415 n.25.

John A Volpe Nat' ) Transp. Sys. Ctr., U.S. Dep' t of Transp., Vulnerability Assessment of the Transportation Infrastructure

'r. L 1 L1...- 2017 Thomson Reuters. No claim to oriainal U.S. Gov.ernment \f\/orks. 19

Relying on The Global Positioning System 25 (2001 ).



Id. Solar flares are "sudden, catastrophic outbursts of incredible energy'' from the Sun, that ''flood the Solar System with intense
radiation ...."Kenneth R. Lang, Sun, Earth and Sky 137 (2d ed. 2006).

John A. Volpe Nat'l Transp. Sys. Ctr., supra note 70, at 25.

Garmin, supra note 18.




Garmin, supra note 18.



John A Volpe Nat' I Transp. Sys. Ctr., supra note 70, at 26.

See Transcript of Pre-Trial Evidenliary Hearing, supra note 28, at 6 (prosecution's GPS expert acknowledging difficulty with the
tracking device when localed in the Markel Street area of San Francisco).

Id. at 4.

Id. at5.

The distances between degrees of longitude vary depending on location. At the equator, the distance between each degree of
longitude is approximately sixty-nine miles. National Atlas, Latitude and Longitude,
hltp:f/ (last visited Aug. 5, 2010). Degrees of longitude arc furthest apart al
the equator and gel closer together the closer one is to the North or South Pole, where the degrees converge. Id.

Transcript of Pre-Trial Evidentiary Hearing, supra note 28, at 5.

Garmin, What is WAAS?, http:!/www8.garmin.corn/aboutGPS/waas.html (last visited Aug. 5, 20 I 0).

WE~LAY.. 2017 Thomson Reuter$ No cla1rn to orig111al U S. Government Works. :20





Garmin, supra note 88.



A geostationary satellite is a satellite that has a fixed location over the equator. Id.

Garmin, supra note 88.

United States Coast Guard Navigation Center, DGPS General Information, http://\v\
(last visited Aug. 5, 2010).



Garmin, supra note 88; United States Coast Guard Navigation Center, supra note 97.

John A. Volpe Nari Transp. Sys. Ctr., supra note 70, at 30.



Id. at 31.

John A. Volpe Nat' I Transp. Sys. Ctr., supra note 70, at 3 1.


Muhammad Usman Iqbal & Samsung Lim, Legal and Ethical Implications of GPS Vulnerabilities. 3 J . Jnt'I Com. L. & Tech. 178,
182 (2008).


'/\'E5TLAW 201 i Tl1omson Reuters. No claim to onqinal U S Government Works 21



Eric Bland, GPS ' Spoofing' Could Threaten National Security, Discovery News, Oct. 2, 2008. news/2008/ I 0/02/gps-spooIi ng.h tmI.

Iqbal & Lim, supra note 107, at 183.


John A. Volpe Nan Transp. Sys. Ctr., supra note 70, at 39.

Bland, supra note 110.

ll S


Id. The researchers from Virginia Tech and Cornell estimate that the cost total cost of developing their spooling device at one
million dollars, including manufacturing costs. Bland, supra note 110. T he researchers noted, however, that the hardware alone
would only cost $1000. Id. Moreover, after research and development, "'it only took two part-time students about a week of work
each to build the spooler.'" Id. Researchers expect that with time " lt]hc cost of hardware. and the expertise necessary lo build the
next spoofor will drop quickly." Id.

Iqbal & Lim, supra note 107, at 181.

See supra Part 11.B.

Schumann, supra note 30, at 11 ("After downloading to a computer, tracks are no different than any other data file--lhey can be
manipulated (like a sound recording). corrupted. or accidentally erased.").

Iqbal & Lim, supra note 107. at 181.




Iqbal & Lim, supra note 107, at 182.



WESTLA~. 2017 Thomson Reuters. No claim to origmal U.S Government Works. 22



Iqbal & Lim, supra note I 07, al 182.

no Id.



Iqbal & Lim. supra note I 07, al 182.

United States Geological Survey. Map Accuracy Standards, http:// 17 199.html (last visited
Aug. 5, 20 I 0). The United States Bureau of the Budget issued the Standards in 1941 and issued a revised version in 1947.


MapQuesL Tenns of Use, terms-of-use (last visited Aug. 5, 2010).

Google Maps, Terms and Conditions, us/hclp/tcrms_maps.html (last visited Aug. 5, 2010).

Interestingly, however, at least one trial court has precluded the use of a MapQuest-generatcd map after finding that the MapQuest
disclaimer deemed the map " unreliable... Stale v. Brown, I So. 3d 504, 505 (La. Ct. App. 2008). The Louisiana Appellate Court
ultimately held that precluding the map without allowing counsel the opportunity to lay a foundation constituted harmless error. Id.
at 507. Despite the appellate court's holding, the trial court's decision nonetheless serves as a reminder that map accuracy should
not be overlooked by litigants when preparing evidence for trial.

Stacy Finz, Groundbreaking Ruling in the Peterson Trial: Tracking Device Evidence can be Presented, S.F. Chron., Feb. 18, 2004,
at All.



Id.; Transcript of Pre-Trial Evidentiary Hearing, supra note 28, at 4.

See State v. Jackson, 46 P.3d 257 (Wash. Ct App. 2002), affd, 76 P.3d 257 (Wash. 2003).

Td. at 260-61.

ld. at 261-62.

146 ld. at 273.

W E5.!Lrur'/ 2017 Thomson Reuters No claim to onainal U S Government Wor k~ .


Mitch Stacy, Portable GPS Units Establish Defendant's Whereabouts. Help Prosecutors Win Convictions, N.Y. Times, Aug. 28,
2008, at Al.



Police Use GPS Data in NY Girl' s Slaying, USA Today, Aug. 17. 2007,




Police Use OPS Data in NY Girl 's Slaying, supra note 150.

Carter, supra note 34.




For a discussion of the constitutional implications of using GPS tracking devices to track sex offenders, see Megan A . Janicki.
Note, Better Seen Than Herded: Residency Restrictions and Global Positioning System Tracking Laws for Sex Offenders, 16 B.U.
Pub. Int. L.J. 285 (2007).

Charges Dropped for Pollitt, New Haven Reg., Sept. 14, 200&.
http://\V\vw .newha venregister. com/articles/2008/09/ 14/news/a3-rap ist. rpl.


Smith v. Pac. Bell Tel. Co., No. 1:07cv l 756 OWW DLB, 2008 WL 544913, at *I (E.D. Cal. Feb. 25, 2008).




WE~i LA .'. 2017 Thomson Reuters. No clatm to original U. S. Government Works 24

PLOTTING A C OURSE FOR GPS EVIDENCE, 28 Quinnipiac l. Rev. 101 9

Police Use OPS Data in NY Girl' s Slaying, supra note 150.

Daubert v. Merrell Dow Phann., Inc., 509 U.S. 579 {1993); Fed. R. Evid. 702.

Fed. R. Evid. 702.

169 509 U.S. 579 (1993).

Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 7.17, at 652 (3d ed. 2003).

Daubert., 509 U.S. at 593-94: see also Fed. R. Evid. 702 advisory committee' s note.

Daubert., 509 U.S. at 594; see also Mueller & Kirkpatrick, supra note 170, 7.17, at 653-54 ("'The Court in Daubert cited these
considerations as exemplary rather than exhaustive, and many other factors are clearly useful, from time to time.").

Fed. R. vid. 702 advisory committee's note.

293 F. 1013 (D.C. Cir. 1923).

Id. at 1014.

As of 2007, twenty-eight states follow Daubert or a similar standard, and seventeen states follow Frye or a similar standard.
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules 630 n.8 (6th ed. 2008).

The prevalent use of OPS technology by the United States Government is relevant to show that the basic technology has been
tested, but it is important to keep in mind that the United States Government uses a different and more accurate signal than civilian
GPS. See supra Part II.

178 A search on the scholarly journal database "Academic OneFile" for articles on the subject of 'Global Positioning System" results
in 971 articles on the subject that were published in academic journals.

United States Coast Guard Navigation Center, supra note 97.

Garmin, supra note 88.

Smithsonian National Air and Space Museum. supra note 5.

10 u.s.c. 2281 (2006).

Smithsonian National Air and Space Museum, supra note 5.

In United States v. Exousia, Inc., No. A04-289 MJ (JDR), 2005 WL 3116643 (D. Ala. Nov. 18, 2005), the Alaska District Court
allowed the use of OPS evidence to establish national parks' boundaries. ln passing, the court noted: 'The GPS points were
determined using a Trimble GPS. I accept this evidence as reliable and trustworthy for determining the distance from the hunting

~~E STl AW 2011 Thomson Reuters No claim to original U S Government Works 25


camp lo the Noatak River.' Id. at *4. The court did not engage in any discussion of the Daubert standard or FRE 706, most likely
due to the fact neither party appears to have objected to the reliability of OPS evidence. Id.

Brown v. State, 163 S.W.3d 8 l8 (Tex. App. 2005); see also Mueller & Kirkpatrick, supra note 176, at 630 n.8 (listing Texas as a
stale that applies a standard equivalent to Daubert).

Brown, 163 S. W.3d at 823 (internal quotations omitted).

163 S.W.3d 818 (Tex. App. 2005).

Id. at 825.


Id. at 820.

Brown, 163 S.W.3d at 824.

ld. at 824-25.

920 So. 2d 136 (Fla. Dist CL App. 2006).

Id. at 138.


917 So. 2d 250 (Fla. Dist. Ct. App. 2005).

Id. at252.

See BriefofDefendant, People v. Peterson, No. 1056770 (Cal. Super. Oct. 20, 2003).

People v. Kelly, 549 P.2d 1240 (Cal. 1976) (adopting the standard set forth in Frye v. United States. 293 F. 1.013 (D.C. Cir. 1923)).

Finz, supra note.139.


Daube1t v. Merrell Dow Pliarms., 509 U.S. 579, 594 ( 1993) (recognizing that the inquiry is a flexible one); see also, Mueller &
Kirkpatrick, supra note 176, at 629.

Daubert, 509 U.S. al 596.

w ES-1 LA 20 17 Thomson Reuters No claim to oriq1nal U S Government Work$ 26


See supra Part III.

Fed. R. Evid. 901(a).

See supra Part 111.B.

The requirement of establishing a chain of custody is not specifically mentioned in the Federal Rules of Evidence "but FRE 901 (b)
(I), often in combination with FRE 90 1 (b) (4). embraces the technique." Mueller & Kirkpatrick, supra note 170, 9.5, at I 004.

United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982) (emphasis added).

Mueller & Kirkpatrick, supra note 170, 9.5, at 1004.

Id. at I 004-05 (footnote omitted).

Id. at 1005 (citing United States v. Jones, 687 F.2d 1265, 1267 (8th Cir. 1982)).

John A. Volpe Nat' I Transp. Sys. Ctr., supra note 70; Iqbal & Lim supra note 107.

Iqbal & Lim, supra note I 07, at 182 (demonstrating that researchers were unable to differentiate between validly gathered GPS
evidence and fabricated evidence).

Mueller & Kirkpatrick, supra note 170, 9.5, at I 005 ("Where the item has been in !he custody of a government official, the
proponent is aided by a presumption that public officers have discharged their responsibilities with due care.").

Iqbal & Lim. supra note I 07, at 182.

How GPS Tracking Works, supra note 37.



Mueller & Kirkpatrick, supra note 170, 9.5, al 1004.


Police Usa GPS Data in NY Girl' s Slaying, supra note 150.


Iqbal & Lim, supra note l 07, at 182 .

.'VES'TL....'l!"I 2017 Thomson Reuters. No claim to or191nal U S Government WoJks. ..,-

"- r
PLOTTING A COURSE FOR GPS EVIDENCE, 28 Quinnipiac l. Rev. 1019

See, e.g., United States v. Brown, 136 F.3d 1176, 1182 (7th Cir. 1998) ("Merely raising the possibility (however hypothetical) oJ
tampering is not sufficient to render evidence inadmissible.").

Fed. R. Evid. 801(c).

Fed. R. Evid. 801(a).

Fed. R. Evid. 801(b).

Mueller & Kirkpatrick, supra note 176, at I05.

See supra Pai1 II.

See supra Part 11.

See supra Part II.

The evidence actually shows that the OPS device was at the specific location. See supra Part II. As a practical matter, however, the
evidence is offered to prove that the individual whom the device was tracking was al that location.

Sec, e.g., United States v. Moon, 513 F.3d 527, 544 (6th Cir. 2008) (holding that computer generated records tracking the sale of
prescription drugs are hearsay, information was compiled by a human); United States v. Lopez-Moreno, 420 F.3d 420, 436 (5th
Cir. 2005) (finding that a computer printout indicating the dale individuals were deported was hearsay because the data was
originally entered by a human).

Sec, e.g., Moon, 513 F.3d at 544; Lopez-Moreno, 420 F.3d at 436.

See Lopez-Moreno, 420 F.3d at 436 (electronic hearsay admissible under FRE 803(8) public records exception).

See Moon, 546 F.3d at 544 (electronic hearsay admissible under FRE 803(6) as a business record).

498 F.3d 2.25 (4th Cir. 2007).

2 38
Id. at 229-30.

Id. at 230.

Td. at 228.

Washington, 498 F.3d at 231 ,

Id. (omission in original) (quoting Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 380, at 65 (2d ed. 1994)).

WES"T LA~ ~ 2017 Thomson Reuters No claim to onainal U S Government Works 28


Id. at 232 (Michael J. dissenting).

Id. at 233.

United States v. Hamilton, 413 F.3d I 138 (10th Cir. 2005).

413 P.3d 1138 (10th Cir. 2005).

Id. at 1142.



Hamilton, 413 F.3d at 1142.

No. 08-CR-92A, 2009 WL 2157128 (W.D.N.Y. July 15, 2009),

Id. at *4; Fed. R. Evid. 803(6).

Wood, 2009 WL 2157128, at *I.

Id. at *2.

zss Id.

Id. (quoting Fed. R. Evid. 803(6)).

363 f.3d 947 (9th Cir. 2004).

Id. at 952.

Brief of Appellant at 42-48, Bennett, 363 F.3d 947 (No. 02-50442): Brief of Appellee at 38-44. Bennett, 363 F.3d 947 (No.

Briefor Appellant, supra note 259, at 46.

Brief of Appellee, supra note 259. at 39.

Bennett, 363 F.3d at 953 (fi nding that the GPS device violated FRE 1002).

Commonwealth v. Thissell, 910 N.E.2d 943, 946 (Mass. App. Ct. 2009).

WESTLA\fj @ 2017 Thomson Reuters No claim to orioinal U.S Government Works_ 29


9 10 N.E.2d 943 (Mass. App. CL 2009).

The defendant was requ ired to wear a GPS monitoring device as a condition of his probation. See id. at 944.

Id. at 945.

Id. at 946.

ThisseU, 910 N.E.2d at 946. A line of Massachusetts precedent held that records maintained by the probation otlice could be
admitted under the business records exception. ld. (citing Fu1tado v. Fu1tado, 402 N.E.2d 1024 (Mass. 1980) and Commonwealth
v. Savageau, 678 N.E.2d 1193 (Mass. App. Cl. 1997)).

United States v. Washington, 498 F.3d. 225, 232 (4th Cir. 2007) (Michael J, dissenting).


Fed. R. Evid. 1002.

Fed. R. Evid. 100 1(1).

Fed. R. Evid. 1001(3).

United States v. Bennett, 363 F.3d 947, 953 (2004).

Id. at 949.

The GPS navigation system on Benneus boat contained a "backtrack" option that displayed where the boat had travelled that day.
Id. at 952.


See Brief of Appellant, supra note 259; Brief of Appellee, supra note 259.

Bennett, 363 F.3d at 953.

The evidence must be of such nature that ii is subject to FRE I 002--i.e., "a writing. recording. or photograph.'. Fed. R. Evid. 1002.

See supra Part 11.

Presenting GPS evidence in both these forms is not likely to be considered "needless presentation of cumulative evidence" which
would be barred by FRE 403. Fed. R . Evid. 403. Each form of the evidence serves a unique and particularly probative role. A
printout shows the most original form of the evidence produced by the GPS device, and a map exhibit explains that printout to the

'N:STLAV\ ( 20 17 Thomson Reuters No claim to original U S Government Works 30


jurors in a visually cognizable manner. In this way, each form of the evidence is uniquely relevant.

See Brown v. State, 163 S.W.3d 818, 824 (Tex. App. 2005) (state offered GPS evidence in the form of a spreadsheet depicting
longitude and latitude coordinates as well as a map over which those coordinates were plotted).

Fed. R. Evid. 401: Feel R. Evid. 402.

Fed. R. Evid. 402.

Fed. R. Evid. 401.

Whether or not a defendant's location is a fact of consequence is something that will be decided based on the unique circumstance
of the case. Given tbat the determination of this factor is not related GPS technology, it will not be discussed in this Note.

Smithsonian National Air and Space Museum, supra note 5.

See supra Part III.

See, e.g., Charges Dropped for Pollitt, supra note 160.



Sec supra Part III.

Daubert v. Merrell DowPharm., 509 U.S. 579 (1993); Fed. R. Evid. 702.

See supra Part Il.B.

1.D. Quinnipiac University School of Law, 2010. B.A. University of Connecticut, 2007. The author would like to thank Professor
Neal Fcigenson for his invaluable assistance in the creation of this Note. The author would also like to thank Allomcy David A.
Schumann for his insightful comments on an earlier draft of this Note. For more information on many ofthe issues discussed in
this Note as well as other emerging legal issues associated with GPS Evidence, see Attorney Schumann's blog: OPS Evidence


End of l>oc11111cnt (() 2017 Th()mson Reuters. No claim 10 origi nal U.S. Government

, . ~S l \Vi. 2017 Thomson Reuters. No claim to original U S Government Works. 31

The Use of Global Position System (GPS) and Cell Tower... , 49 No. 1 Crim. Law ...

49 No. l C rim. Law Bulletin ART 7

Criminal Law Bulletin Winter 2013

Volume 49, Issue I
Criminal Law BulJetin
James Beck, Christopher Magana, a11d Edward J. Jmwillkel rietf

T he Use of Global Position System (GPS) and Cell Tower Evidence to Establish A Person 's Location- Part I

When the government charges the accused with the commission of a crime, the government must ordinarily prove the
accused's location at the time of the commission of the alleged actus reus- the accused's latitude, longitude, and altitude. Of
course, there are exceptions to that generalization. For example, if the government alleges that the accused is vicariously
responsible for an accomplice's commission of the actus reus, the govemment need not establish the accused's location when
the accomplice perpetrates the criminal act. (Even, in that situation, though, the government will need to prove the location of
the accomplice.) However, in most cases, the govemment must prove where the accused was when the actus reus occu1Ted.

ln order to do so, the government can rely on non-scientific testimony. Thus, the government could call a percipient witness
to the actus reus to testify that he or she saw the accused commit the act or at least that the accused was present when the act
occurred. However, in a large number of cases, the government turns to scientific testimony. In the notorious prosecution of
Scott Pederson in California, the prosecution presented testimony derived from the global positioning system (GPS). 1 In a
2012 investigation into the deaths of !wo University of Southern California graduate students, the police relied on cell tower
evidence. 2

In the past, the prosecution has resorted to other types of scientific evidence to establish the accused' s location. By way of
example, the prosecution has employed both DNN and fingerprint' evidence to show that the accused had visited the crime
scene. Although fingerprint evidence and DNA testimony are the former and current "gold standards'' in scientific
testimony/ in one respect they are inferior to GPS and cell tower evidence. Standing alone, neither the presence of the
accused's DNA nor that of his or her fingerprints at the crime scene proves that the accused was at that s ite when the offense
occurred. DNA can be very durable, 6 and the accused may have left his or her ONA at the scene either well before or long
after the commission of the actus reus. The same problem arises with respect to fingerprint evidence, since in most cases a
fingerprint analyst cannot "date" the impression found at the crime scene.7 The fingerprint analyst cannot determine when the
accused deposited the impression.

From the prosecution's perspective, the beauty of GPS and cell tower evidence is that such testimony can establish both that
the accused visited a particular s ite and that the accused did so at a particular time. Hence, even in cases in which the
prosecution has other incriminating lay and scientific testimony, the prosecution may offer GPS or cell tower evidence. The
question that arises is whether such evidence is reliable enough to pass muster under the pa1ticular jwisdiction's standard
governing the introduction of expert testimony-for example, either the traditional Flye general acceptance test1' or the now
dominant Daubert validation test. 9

The purpose of these two articles is to address that question. The first aiticle examines GPS evidence while the second article
scrutinizes cell tower evidence. Both articles begin by describing the underlying science. Each article then critically evaluates
the question of whether, given the current state of the empirical data, the c.ou1ts should admit testimony based on the expe1t
technique. There are obvious differences between the two techniques. For example, although GPA ev idence relies on a signal
sent from a satellite to a receiver, cell tower evidence depends on a signal sent from the cell phone to a cell tower. While this
article concludes that as a general proposition GPS evidence qualifies as admissible testimony, the second article in this
series will argue that courts have been far too lax in assessing the admissibility of cell tower evidence.

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The Use of Global Position System (GPS) and Cell Tower ..., 49 No. 1 Crim. Law...

The Global Positioning System ("GPS") has become commonplace in modern American society. We have them in our cars
and on our phones. Mobile GPS devices regularly utilize the system to provide direction-finding and map suppott. GPS
technology is so widespread that many of us simply assume the validity and accuracy of GPS technology for detennining
location. GPS technology arguably enjoys the " infallibility" aura that sometimes surrounds "proven" scientific techniques
such as DNA typing.

Global Positioning systems have alre~dy been successfully put to myriad uses. For insta,nce, GPA provides location and
guidance for our military forces at home and abroad, allows for remote tracking of GPS-enabled devices, and gives
directional and map assistance to both ordinary citizens and common ca1Tiers such as airlines. In particular, the potential uses
of GPS technology for law enforcement purposes are vast. For instance, it is a common release condition for parolees that
they wear GPS tracking anklets to ensure that they remain in authorized locations.' 0 Police also utilize GPS tracking devices
to assist investigations into crimes such as drug trafficking or prostitution. 11

In the future, the most significant use of GPS technology in cornt will likely be to provide evidence of an accused's location
at a given time. Such evidence will be widely available due to the proliferation of GPS receivers among citizens. Receivers
can be either stationary, like those mounted in the cockpits of boats or planes, or mobile, like the portable navigation devices
in cars or those incorporated into mobile phones. The growth of GPS-capability in mobile phones is likely to dramatically
expand the forensic use of GPS data in criminal trials. 11 As previously stated, unless the prosecution is alleging that the
accused is vicariously responsible for a third patty's commission of the actus reus, in most criminal trials the accused' s
location at the time of the criminal act is a critical issue. Accurate location evidence can prove or disprove an alibi defense,
and GPS technology can furnish powerful, persuasive evidence on that issue.

Many GPS tracking devices automatically maintain electronic records of their use which can later be retrieved by law
enforcement investigators. Vendors have developed a number of software applications to assist investigators in retrieving
forensic evidence from GPS devices. One application, " Device Seizure," marketed by Paraben Corporation, pulls device
settings, maps, waypoints, tracks, and routes from the GPS device. 1> In addition to saving this information, " Device Seizure"
can create a *.GPS file incorporating all the point data from the waypoints, tracks, and routes. Jn tum, that data can be used to
display all recorded points in Google Ea1th to gain a map perspective of the locations where the GPS device has been taken
over a given chronology.u Similar software programs such as " Blackthorn" and " TomTology" are available to data-mine
GPS devices to gather historical location data and generate time-keyed maps.'5

Although these software programs must be validated in their own right as a condition precedent to introducing their data in
court, the more fundamental validation issue is the question of the validity of the GPS technology itself. If the GPS location
determination in the device's memory is inaccurate, the historical map will likewise be inaccurate. To illuminate the accuracy
issue, Parts II and Ill of this article describe the history and science underlying GPS technology.


Ever since the deployment of satellites became feasible in the 1950s, civilian and military agencies have actively pursued a
p lan to use satellites to assist in position determination and navigation. At the Department of Defense' s urging, research and
development of such a system began in the early 1970s. The original, limited purpose of the system was to provide American
military forces and its allies with a means to navigate worldwide without depending on ground-based navigation aids. ln
addition to providing navigation assistance to ground units, aircraft, and ships, the system has been adapted to guide "smart''
missile systems. 16

Although the initial estimate was that only l 7 satellites would be required to provide coverage for the entire Earth, the
Pentagon eventually decided that 24 satellites were needed to ensure sufficient redundancy against failures or gaps in
coverage. Today, there are 29 total GPS satellites in orbit-24 active and five " spares.'" The first satellite, of an early design
designated Phase 1, Block I, launched in 1978. Nine other Block l satellites were deployed prior to an upgrade in satellite
design to a new version designated "Block 11." The 24u satellite was launched in 1994 and completed the functional coverage
system that is still in place today. By that time, the system had cost an estimated $ 14 billion to develop and deploy.'7

Newer satellites are constantly being designed and placed into orbit. Currently, the system consists of29 Block II, Block llA,
and Block llR satellites. The newer satellites have upgraded atomic clock capabilities and can function for longer periods
',. _s 1-,1.. 2017 Thomson Reuters. No claim to original U.S. Government Works . 2
The Use of Global Position System (GPS) and Cell Tower... , 49 No. 1 Crim. Law...

without ground based support. Newer satellite versions also include features which enhance civilian use of the system. 1s

Civilian use of the GPS system has expanded dramatically over the past 30 years. A Rand Corporation study in the 1990s
estimated that the civilian uses of the technology exceed military use by a ratio of eight to one. 19 This expanded use of the
system by civilians prompted President Clinton to end the intentional degradation of the GPS signal (known as "Selective
Availability" ) in 2000.


There are three components to the current GPS system: the "control segment," the " space segment," and the "user segment.'1
When operating properly together, these segments can provide accurate position and coordinate information.

Tile Space Segment

The "space segmenf' consists of 24 satellites and five spares in geosynchronous orbit ( 10,900 miles altitude above the
surface of the Earth). These satellites are in circular orbits along 6 distinct planes. Each satellite completes a full Earth orbit
once every 12 hours. The spacing of these satellites was designed to allow for a receiver on the ground to acquire signals
from at least five satellites rrom anywhere on the surface of the ea11h. 20

Tile Control Segm e11t

The " control segment" includes a series of ground-based monitoring stations and antennae that maintain constant contact
with the satellites. These ground stations provide data and instructions to the satellites to correct potential signal and
navigational errors and ensure the accuracy of the information that the satellites transmit to Earth. The ground stations also
monitor the condition and status of the satellites and furnish coverage data to the public. 21

Tile User Segment

The "user segmenf' refers to the individual receivers that acquire the transmission signals from the satellites and use them to
caJculate a position. There are numerous types of receivers. Some receivers account for potential en-ors more accurately tJ1an
others. In pa1ticular, some reql!ire manual input of certain variables before they can calculate position-that is, the device's
latitude, longitude, and altitude. Typically, manual input receivers demand either selection of2D or 3D position or the input
of data for the altitude, latitude, or longitude variable. However, all the devices use the same basic process to compute

To compute location, GPS technology employs a very basic and fundamental physics equation: Distance (D) = Velocity (V)
* Time (T)-the same basic equation that underpins cell tower evidence, as we shall see in the second article in this series,
The equation is nearly as old as algebra itself and forms the backbone of modern physics. The tluee key values are velocity,
time, and distance in the equation; knowing any two, you can compute the third. Hence, according to the equation, if you
know an object's velocity and the time it has traveled, the distance that object has travelled can be calculated exactly.n

To obtain reliable data for the time variable, every GPS satellite contains a rnbidium atomic clock that is kept precisely
calibrated by the monitoring ground stations. These clocks calculate the exact time aboard the satellite down to less than a
nanosecond (that is, one billionth of a second). The satellite then transmits signals to the ground that contain these exact times
along with identifying signature information indicating which satellite is transmitting the data.2' A receiver on the ground
picks up these signals and records the precise instant (again, down to a nanosecond) that the signal has been received. The
receiver then compares the time indicated by the signal to its own internal clocks. 23 The difference between these times is
used to calculate the precise distance between the receiver and the satellite because the velocity is also known. 26 As
previously stated, when two of the elements of the basic formula-here velocity and time-are known, the formula will yield
the third, namely, distance. The receiver performs this calculation for every satellite signal that it acquires and thereby
determines the distances between itself and every satellite in range.

To illustrate this process with an oversimplified example, assume that the satellite transmits a signal stating "It is 10:03 AM"
to the ground. This signal travels at the speed of light until it is picked up by a receiver. At the exact moment the receiver
acquires the signal, the receiver checks its own internal clock, which, for the sake of this example, reads " 10:04 AM." A

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The Use of Global Position System (GPS) and Cell Tower... , 49 No. 1 Crim. Law, ..

computer inside the receiver detennines that the difference between the time indicated by the signal and its internal clock is
one minute. The computer knows that the signal it bas received has been travelling at the speed of light for one minute. These
two values, time and velocity, will be plugged into the equation to yield the third value, an exact distance between the
rece iver and the satellite of 17,987,547,480 meters. Of course, in actuality, the signal from geosynchronous orbit will reach
ea1th' s surface much faster-in a small fraction ofa second.

This process operates a bit differently in real life because the clocks inside the receivers are not as accurate as the atomic
clocks aboard the satellites. This time inaccuracy could potentially translate to a large enor because a discrepancy of just a
few nanoseconds can significantly affect the distance calculation. To account for the inaccuracy of the clock carried within
the receiver, the receivers perform calculations which generate a "pseudo-range" to the satellite.17

What is a " pseudo-range" ? Every satellite transmits a distinct code as well as its time readings to the ground. These codes
both identify the satellite and allow receivers to generate "pseudo-ranges" by comparing the received codes to identical codes
stored within the receiver' s computer. 28 The receiver can calculate how long it took for the signal to travel between the
satellite and itself by shifting its own generated copy of the sate llite's unique signal, and then comparing this shift with the
receiver's internal clock. 29 By comparing the time difference between the two, and multiplying that time by the speed of light,
the receiver can determine the distance to the satellite. 30 This process is repeated for every satellite signal that the receiver
acquires. These range calculations are known as " pseudo-ranges" (or "false ranges") because the receiver's clock is not fully
synchronized with the satellite's clocks! ' Pseudo-ranges are subject to a number of error sources which will be discussed

A simplified example illustrates the theory behind the use of pseudo-ranges. Imagine that the GPS signal is a song being
broadcast by a radio station several miles from your home. The receiver is a record player in your home; the receiver is
playing the same song. lfyou turned the radio on, the radio would not synch perfectly with the song on your record player;
but if you slowed down the turntable, the songs can be precisely matched. Measuring precisely the amount you had to slow
down the record would enable you to calculate how long ago the song was broadcast by the radio station. Similarly, a
receiver's pseudo~range synch with a GPS signal allows the receiver' s computer to calculate the time it has taken the signal
to travel !Tom the sate llite to the receiver. Because pseudo-range calculations con-ect for inaccurate time, setting an incorrect
time into a receiver will not affect the receiver' s ability to provide an accurate distance.

After a receiver bas calculated an accurate distance to one satellite, the computer knows only that the receiver is located at
some point on a sphere with the satellite at its center. The distance between the satellite and the receiver is the radius of the
sphere. This sphere intersects the earth in a circle or ellipse many hundreds of miles in diameter. Thus, a calculation based on
the distance between the receiver and one satellite does not yield a complete, accurate positional fix for the receiver.
Consequently, the receiver must acquire signals from additional satellites.12

Ifa receiver acquires signals from two satellites, the receiver' s computer can significantly narrow down its possible location.
However, even then the receiver cannot eliminate all possible false location readings. It is only after three satellites have been
acquired and distances to those satellites have been calculated that the receiver can eliminate most of the false positives. With
three satellites, a receiver can calculate a two-dimensional location-a determination of latitude and longitude which still
does not account properly for altitude. Some receivers correct for this inaccuracy by allowing manual input of data for the
altitude or elevation variable. Although these receivers can theoretically provide high accuracy, they are subject to user error
that can introduce significant locational inaccuracy.3l

After four satellites have been acquired and distances from the coJTesponding satellites have been calculated, the receiver can
provide a three dimensional location that accounts for latitude, longitude, and elevation. The receiver' s receipt of the signal
from the fourth satellite provides the final time correction factor that the receiver needs to perfect its ranging calculations.
With four satellites, a receiver has all it needs to calculate a tluee-dimensional location-latitude, longitude, and altitude.,.


lt is undeniable that GPS is a highly advanced technology. However, it is not perfect (because there is no such thing as a
perfect technology). The operation of the system requires the seamless integration of numerous advanced components, all of
which are subject to glitches, wear and tear, and outright failure. These potential weaknesses can combine with unpredictable
environmental conditions that can enhance GPS signal error. ln order to reach the receiver, every GPS signal must travel
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11,000 m iles through the earth' s magnetic fiefd , the ionosphere, water vapor in the trophosphere, buildings, walls, and
electromagnetic fields on the ground. Each of these factors can degrade the signal and cause positional inaccuracy. This Pali
will address the most significant sources of en-or in GPS computation.

A. Se/ect;ve Availability
A number of e1TOrs can creep into the GPS position calculation, but one serious inefficiency was intentionally introduced by
the government. Known as Selective Availability, this purposeful "dithering" of position data was intended to limit the utility
of the system to non-military or non-gove1:nment users. 35 Dithering .GPS signals took away potential strategic military
advantages from enemies who might attempt to make use of the systern. 36 Authorized government users were given access to
codes that eliminated the Selective Availability e1Tors. 11 When active, Selective Availability increased GPS positional e1Tor
from roughly 30 meters to 100 meters! " This is an accuracy degradation of two orders of magnitude.

The rapid growth of civilian usage of GPS led to increased pressure on the government to eliminate the Selective Availability
error. On May 1, 2000, President Clinton announced that use of Selective Availability would be discontinued. 3? The President
noted that "the decision to discontinue SA [i.e., Selective Availability] is the latest measure in an on-going effort to make
GPS more responsive to civil and commercial users world-wide.'"'0 As predicted, setting the Selective Availability error to
zero improved accuracy rates almost instantaneously; as indicated in Appendix A, within hours of the discontinuation
horizontal and vertical erTor dropped from highs of over 150 meters to highs of five meters.

Although Selective Availability is no longer a significant factor in GPS locational enor, Selective Availability could be
turned on again at any time without prior notice. The government has stated that it has no intention to re-activate the dithering
capability, but some of the satellites currently in orbit still have Selective Availability potential. To calm civilian concerns
about futu re activation of Selective Availability, President Bush announced in 2007 that ''this degradation capability ... will
no longer be present in GPS-lll satellites (the latest generation of GPS satellite).'-"' To date, the government has stood by its
word and has not re-activated Selective Availability during the wars in Afghanistan and lraq.' 2

B. System am/ E11viro11111e11tal Errors

While Selective Availability deliberately degraded GPS position locations, other factors can result in accidental degradation.
A number of other, non-coITectable e1TOrs can affect the accuracy of a GPS location calculation. These en-ors have been the
subject of significant study and testing. The government regularly commissions studies on the accuracy of GPS systems and
capabilities. The Federal Aviation Commission publishes quaiterly reports that detail GPS error and effectiveness. The most
recent of these reports, ~'Report Number 76," covers the period of October through December 2011.' 3 This report documents
the operational effectiveness of GPS service and isolates eITor rates occun-ing from various systemic/environmental factors .

The repo1t contains the analysis performed on data collected at 28 Wide Area Augmentation System (WAAS) Reference
Stations- part of the " control segment." Wide Area Augme11tation is the most accurate GPS system. The study evaluated
" POOP Availability, NANU Summary and Evaluation, Service AvailabiJity, Position and Range Accuracy and Solar Storm
Effects on GPS SPS perfomrnnce."" Calculating the horizontal and vertical position error values allowed the FAA to verify
compliance with the accuracy standards that the government has prescribed for the GPS system. The " User Range Error"45
was calculated for each satellite from 24-hour accuracy values computed by using data collected at 6 sites: Boston, Honolulu,
Los Angeles, Miami, San Juan and Juneau. This data was collected in numerous one-second samples.'6 Although the study
generally confirmed the accuracy of the system, the study noted the existence ofa number of factors that can introduce errors
in a GPS positional fix. Some of the key factors come into play in the space segment, and other major factors relate to the
user segment.

I. T he Space Segment-Satellite C lock Errors

As previously stated, the space segment includes the satellites and their onboard equipment. One problem that can affect the
accuracy of a position calculation is what is known as " satellite clock e1Tor." This expression refers to errors introduced due
to slight discrepancies between the atomic clocks onboard the broadcasting satellites." Even very slight time discrepancies
can translate into significant distance miscalculations on the ground. In order to reduce these errors, ground stations
constantly monitor d1e satellites and con-ect any time discrepancies that are discovered. However, the monitoring is never
perfect; "clock drift" is a constant phenomenon in each satellite's clock. The error associated with satellite clock drift ranges

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from 1.5 to 3.6 meters.'' The average satellite clock discrepancy is 12 nano-seconds.'!l

2. T he Space Segment-Orbital Error

The satellites in the space segment are in orbit. Another potential problem in the GPS system is kn.own as "orbital error" or
"orbital ephemeris." This error pe1tains to the altitude, position, and speed of the satellite. Satellite orbits vary due to
gravitational pull and solar pressure fluctuations. 5" Like clock etTors, orbit e1Tors are monitored and corrected by the Master
ContTol Station. Again, however, complete cotTection is impossible. The error associated with orbital fluctuations is generally
less than 1 meter. 51

3. The Space Segment- Precision Dilution of percentage

While the prior two factors concern the individual satellites in the space system, another consideration is the satellite's
position relative to the other satellites in the system.52 Ell'or caused by the first two factors can be compounded by a poor
Precision Dilution of Percentage ("POOP"). For that matter, poor POOP can amplify the effect of otber types of
environmental problems such as the ionospheric and tropospheric errors that we shall soon discuss. Satellite position
geometry can affect the quality of GPS signals and accuracy of the receiver triangulation calculation. 53 Dilution of Precision
(DOP) reflects each satellite's position relative to the other satellites accessed by a receiver. POOP is the DOP value used
most commonly in GPS to determine the overall quality of a receiver's position and the data collected by the receiver.~
POOP is the calculated likelihood of position en-or based on the present position of the satellites being tracked, including
horizontal and ve1tical errors. The FAA's most recent study defined POOP as "the magnifying effect on GPS position error
induced by mapping GPS range e1Tors into position within the specified coordinate system through the geometry of the
position solution .... [T]he DOP varies as a function of satellite positions relative to user position."ss

In the best satellite configuration for optimum receiver positioning, one satellite is directly above the receiver, and three or
more satellites are equally spaced around the horizon. 56 Poor satellite geometry can result when all acquired satellites are
spaced low on the horizon and there is no satellite directly above the receiver. 57 Similarly, if all satellites acquired by a
receiver are bunched closely together in one quadrant of the sk")', poor triangulation measurements (and a high POOP) can
result. 58 Topography on the ground also affects satellite geometry. The calculations by a receiver inside a vehicle, near tall
buildings, under dense canopy, or in mountainous tenain can be affected by blocked signals.59 GPS receivers require clear
line of sight to every satellite being acquired. A poor POOP can significantly increase error rates. 00

A GPS receiver is programmed to choose a satellite configuration which yields a low POOP. However, many recervers are
designed to always provide a position-even a poor position- regardless of satellite geometry. The rationale for this design
feature is that any GPS position information provided by the receiver is better than no position information at all. The same
programming decision also explains why certain GPS receivers provide a 2D (two-dimensional) position even when that
position may be off by a considerable distance on the ground.

PDOP is rated on a scale from I to l 0, with one being the best satellite geometry and I 0 being the worst. POOP is regularly
tracked and updated by the FAA. Appendix B includes a map of the worst global POOP values for the period covered by the
most recent GPS study. The U.S. Government has committed to maintaining a POOP of less than 6 for 98 percent of the
globe.''1 High POOP can contribute to positional error greater than I 00 meters, but a typical PDOP will result in inaccuracies
of around 15 meters. 62 A PDOP of greater than eight is generally viewed as untrustworthy.

4. T he Signal's Journey from the Space System to the User System: Ionospheric Interfe rence
The signals from the satellites in the space system must travel downward to the receiver on the earth's surface. In making that
journey, the signal initially passes through the ionosphere. The ionosphere Is the layer of the atmosphere from 50 to 500
kilometers altitude that consists primarily of ionized air. Ionospheric interference causes the GPS satellite radio signals to
refract as they pass through the earth's atmosphere-as a consequence, the signals slow down or speed up. 63 This
phenomenon, known as "dispersion." results in inaccurate position measurements by GPS receivers on the ground. 6' The
lower the satellite is to the horizon, the greater this inaccuracy will be because the signal must pass through more of the
ionosphere to reach the receiver. Even though the satellite signals contain correction information for ionospheric interference,
it can remove only about half of the possible 70 nanoseconds of delay, leaving the potential for a ten meter horizontal error
on the ground. 65 GPS receivers attempt to "average" the amount of signal speed reduction caused by the atmosphere when

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they calculate a position fix. However, the averaging technique works only to a point. Errnr due to inonospheric interference
typically yields a 5 to 7 meter inaccuracy.66

5. The Signal's Journey from t he Space System to the User System: T ropospheric In terfere nce
After traveling through the ionosphere, the signal next enters the troposphere. The troposphere is the lower layer of the
earth's atmosphere (below 13 kilometers) that experiences the changes in temperature, pressure, and humidity associated with
weather changes. GPS enors are largely due to water vapor in this layer of the atmosphere."' This effect is more localized and
quickly changing than ionospheric effects, making it more difficult to compensate for.6X Tropospheric interference has a fairly
insignificant impact on GPS calculations, causing inconsistency between 0.5 and 0.7 meters.c.9 However, a heavy storm
system may magnify these effects, as well as make it difficult for a receiver to lock onto the signal from a satellite.

6. T he User Segment -Receiver Noise

Ultimately, the GPS signal from the space system reaches the receiver in the user system. En-or from "receiver noise" is
attributable to the alteration of GPS signals as they pass through electromagnetic fields generated by the receiver device.10
Any other electromagnetic field near the receiver device can simi larly degrade the signal. These fields can originate from
nearby electronics or even the human body.11 Electromagnetic fields tend to distort radio waves. This affects the travel time of
the GPS signals before they can be processed by the receiver. Remote antennae can decrease this noise. This en-or cannot be
cotTected by the G PS receiver and typically results in an error of between 0.3 and 1.5 meters.11

7. The User Segment-Multipath Errors

The receivers in the user system are not the only objects on the earth's surface that the GPS signal might strike. Multipath
interference is caused by reflected radio signals from surfaces near the GPS receiver. These surfaces can either interfere with
or be mistaken for tlte true signal that should follow a direct, unintenupted path from a satellite to the receiver.1l The
interference occms when the receiver mistakes a "ghost" signal for a true signal. Multipath error is difficult to detect, and
sometimes impossible for the user to avoid or for the receiver to conect. Common sources of multipath include car bodies,
buildings, power lines, and water.'; The effects of multipath interference are most severe in dense cityscape because of the
proximity of buildings, cars, powerlines, and ot11er metallic objects.75 These effects are typically less problematic in a moving
vehicle because the false signals will quickly diverge and be discarded as possible solutions. Nevertheless, multipath enors
can account for inaccurate measurements between 0.6 to l 2 meters. 76

8. The User Segment -Human Error

The receivers in the user system are employed by fallible human beings. User mistakes account for most GPS errors.
Incorrect datum and typographic errors when inputting coordinates into a GPS receiver can result in en-ors of a kilometer or
more. As previously stated, some GPS receivers require the manual input of elevation data, or latitude and longitude. 77
Mistakes when entering this data can dramatically increase locational error. Fu1ther, unknowingly relying on a 20 position
iustead of a 30 position can result in substantial errors on the ground.18 A GPS receiver has no way to identify and correcting
user mistakes. These errors can result in locational errors of greater than 1 kilometer.1

As we shall see in Part V, even positing the general validity of the GPS technique, this error can warrant the exclusion of
GPS evidence. It is important, therefore, for any challenging attorney to know which type of receiver was used to generate
the GPS location. If the specific receiver required any manual input, dwing pretrial discovery the attorney should probe for
any indications of potential human error. As we shall see in Part V, under restyled Federal Rule of Evidence 702(d) the lack
of evidence demonstrati11g the corTect input of data can lead to the exclusion of the GPS evidence.

C. Combined E rror Rate

Excluding user enor, the Global Positioning System's systemic and environmental errors yield positional flaws that fluctuate
between 9 and 15 meters (because these etTors are cumulative in nature). In turn, these errors might be increased by a high
POOP to reach an inconsistency of up to 30 meters. 80 The most recent study performed by the FAA found that the maximum
range error recorded by the study was 26.6 meters.' This range falls within the government's GPS guidance standards that
call for reducing range enors to fewer than 30 meters with a 99% confidence Jevel.~ Similar ell'or rates were recorded for

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prior quarterly studies. 8) However, these studies do not account for potential user errors and cannot predict accuracy in all
environments. In Part V, the admissibility ofGPS evidence will be evaluated under Daubert.


A. Ill general
Before a federal judge may admit scientific testimony over objection, the proponent of the evidence must satisfy Daubert by
validating the underlying theoty or technique. According to Daubert, in perfonning this analysis, the trial judge should
consider several factors, inter alia: (1) whether the theory or technique is falsifiable, refutable, and testable; (2) whether the
technique has been subject to peer review and publication; (3) whether there is a known or potential error rate; (4) whethe1
there are recognized maintenance standards and controls regulating its proper operation; and (5) whether the theory and
technique are generally accepted by the relevant scientific community."' How does each of these factors apply to the use of
GPS technology to determine the receiver's location?

With respect to the first factor, GPS technology is both testable and falsifiable. Any receiver can be placed at a "known"
location to calculate a "GPS location," and the accuracy of its results can be evaluated. It does not even require a trained
scientist to conduct such research. An attorney challenging the validity of a GPS fix could evaluate the challenged receiver in
a similar area under similar conditions.85 A wealth of studies have performed precisely this type of testing and evaluation. As
previously mentioned, the FAA conducts quarterly studies on the accuracy of GPS positional calculations. The most recent
study referenced above is the 76"' such study.

Now consider the second factor. The numerous studies performed by the FAA and other contractors establish that G PS
technology has been subject to peer review and publication.

With respect to the third factor, the 76 FAA studies have consistently documented low positional error rates although the
studies acknowledge potential problem areas with the tecbnology.86 Numerous academic publications have scrutinized the
theories behind GPS and identified potential sources of error. A number of national universities offer advanced courses
focused on GPS, its uses, and its future potential."1

Both FAA studies and academic researchers have calculated the error rate for GPS calculations. These en-or rates are
explicitly recognized in government studies, and researchers have independently verified these error margins in separate
studies."* As noted above, the error rates are relative ly small in most instances. The major exception is potential user error. ff
user error is not a factor (because the receiver is fully automated and provides only 30 position), the size of the likely
locational error is probably too small to bar the evidence. The magnitude of the error is more appropriately relevant to the
weight of the evidence.

Like the prior three factors, the fourth factor cuts in favor of admissibility. The government has announced detailed, explicit
standards for the operation and control for the GPS system. These standards are contained in publicly distributed
"Performance Standard" documents. The standards are continually updated and provide data to users concerning the currently
maintained levels of GPS perforrnance.''1 The manufacturers of individual receivers, although of many different varieties and
designs, also provide operating instructions to users.

With respect to the fifth and jlnal factor, GPS is generally accepted as reliable and accurate by the relevant scientific
communities. The equation that forms the backbone of the technology is axiomatic in mathematics and physics. GPS units
are used extensively in the military,?O marine,91 and aviation industri.es92 for navigation. The successful application of this
technology for over 30 years has demonstrated reliability and proven the validity of the theories underlying GPS technology.
It is difficult to find a single contratian scientist who claims that the GPS theory is wrong or distorted. The continued
effectiveness of the technology has quieted claims ofdissent.

In short, even a rigorous Daubert analysis leads to the conclusion that the use of GPS technology to determine a receiver's
position- latitude, longitude, and altitude-generally passes muster. The bottom line is that the available empirical data
demonstrate that in the vast majority of cases, the use of GPS technology will enable the expert to accurately determine the
receiver' s position, tl1at is, the receiver' s latitude, longitude, and altitude at the time of the signal. In short, this use of GPS
systems qualifies as re liable "scientific ... knowledge" under restyled Federal Rule of Evidence 702.
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B. Fetlera/ Rule of Evitle11ce 702(t/)

However, even that bottom line conclusion does not dictate the admission of GPS evidence in every case. The most
promising basis for exclusion in a given case may be restyled Federal Rule of Evidence 702(d), which permits an expert to
testify to their scientific opinions only if "the expert has reliably applied the principles and methods to the facts of the case."
By the express terms of the rule, this is a foundational requirement and goes to the admissibility, not merely the weight, of
the evidence in federal court. If a receiver requires user input to render its final location calculation, the proponent must
demonstrate that coITect inputs were in fact entered. This is particularly true in the GPS context because the impact of user
related error can be exceedingly large (more than a kilometer).

Because most receivers requiring user inputs do not themselves record or otherwise document whether the inputs were
co1Tect, the burden of satisfying Rule 702(d) can be a significant challenge for a proponent to meet. Potentially, the proponent
might employ a combination of "habit" evidence under Federal Rule 406 and documentation that might admitted under by
Federal Rule 803(5)(past recollection recorded),, 803(6) (business entry), or 803(8) (official record). However, if those types
of evidence are unavailable and the human user cannot recall the occasion when he or she input the information, Rule 702(d)
might prove to be an insuperable barrier to the introduction of GPS evidence.

The relatively unchallenged science behind GPS and the extensive, successful reliance on the technology during the past 30
years justify its admissibility in court. Without a doubt, there are potential errors inherent in GPS position calculation. Many
of these e1Tors cannot be eliminated. However, most GPS errors are too small to pose an admissibility hurdle under Daubert.
The government constantly tests the GPS system and consistently reports a nominal e!1'or rate of less than 30 meters.
Admittedly, this effor could raise significant problems about the weight of the evidence in a trial over a crime occurring in an
apa1tment building. However, in the typical case an en-or of that modest size should cut only to the weight of the evidence,
not its admissibility as scientific evidence.

GPS evidence generated by receivers requiring manual input is more vulnerable to admissibility attacks than evidence from
their automated counterparts. User error can be significant, and Rule 702(d) makes it clear that the proponent has the burden
of establishing that the theory has been "reliably applied" to the facts of the case. In the end, however, the science suppo1ting
GPS is widely accepted as sound-not infallible, but sound. lt is ce1tainly sound enough to run the gauntlet of Daubert and
Rule 702(a) in the vast majority of cases.93

Wcstlaw. 2013 Thomson Reuters. No Claim to Orig. U.S. Gov!. Works.


James Beck J.D., 2012, University of California, Davis School of Law; Law Clerk, the Honorable Johnnie B.
Rawlinson, United States Court of Appeals for the Ninth Circuit, Las Vegas, Nevada.
Christopher Magana J.D., 2012, University of California, Davis School of Law, Associate, Morrison & Forester, San
Francisco, California.
Edward J. lmwinkelricd Professor of Law, University of California, Davis; coauthor, Paul C. Giannelli & Edward J.
lmwinkelried, Scientific Evidence (5'" ed. forthcoming). This is the first of two articles based largely on the seminar
papers that Messrs. Beck and Magana submitted In Professor lmwinkelried's Spring 2012 Sciemilic Evidence seminar
at the University of California, Davis School of Law.

Gerald Uelman, Motions FYI: Bill of Particulars, Retrial, Media and Evidentiary Issues, 27 Champion 44, 44-45 (Dec.
2003) (discussing the motions in the Pederson case).
Joel Rubin & Lisa Girion, Ballistics, Cellphones Led Cops to Shooting Suspects, Sacramento Bee, May 20, 2012, at
J\4; Slain USC Student' s Cellphone Signal Led to Suspected Killers. L.A. Times, May 19. 2012, avai lable al
http:!/lat irnesb logs. in-use-students-eel Iphone-sign-led-to-a Ilcged-ki Ilcrs-lapd-says. ht rn I.

Andre A. Moenssens, Carol E. Henderson & Sharon G. Portwood, Scientific Evidence in Civil and Criminal Cases, ch.

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17 (5th ed. 2007) [hereinafter Moenssens, Henderson & Portwood].

Mocnsscns, Henderson & Portwood, supra note 3, ch. 10.

Michael Lynch, Simon A. Cole, Ruth McNally & Kathleen Jordan, The Truth Machine: The Contentious I listory of
DNA Fingerprinting 256, 291, 302--03, 344 (2008).
1 Paul C. Giannelli & Edward J. lmwinkclried, Scientific Evidence 18.01 , at 4 (4th ed. 2007) [hereinafter 1 Giannelli
& lmwinkelried].

1 Giannelli & lmwinkelricd, supra note 6, 16.08.

Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923) (rejected by, State v. Walstad, 119 Wis. 2d 483, 351
N.W.2d 469 (1984)) and (rejected by, State v. Brown, 297 Or. 404, 687 P.2d 75 1 (1984)) and (rejected by, Nelson v.
State, 628 A.2d 69 (Del. 1993)) and (rejected by, State v. Alberico, 116 N.M. 156, 86 1 P.2d 192 ( 1993)) and (rejected
by, State v. Moore, 268 Mont. 20, 885 P.2d 457 (1994)) and (rejected by, State v. Faught, 127 Idaho 873, 908 P.2d
566 (1995)) and (rejected by, People v. Shreck, 22 P.3d 68, 90 A.L.R.5th 765 (Colo. 2001 )).

Daubert v. Merrell Dow Pharmaceuticals, lnc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200,
Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 (1993). Most states now follow
some variation or the Daubert test. I Giannelli & lmwinkclried, supra note 6, 1.14.
See, e.g., State v. Peppers, 202 N.C. App. 374, 690 S.E.2d 770 (20 10), review denied, 364 N.C. 439, 702 S.E.2d 793
(20 I 0) (state statute authorizing lifetime satellite monitoring of registered sex offenders did not violate Due Process or
Cruel and Unusual Punishment Clauses).
Placing such tracking devices on cars was found to constitute a "s<:;arch" within tltc meaning of the Fourth Amendment
by t he Supreme Court in U.S. v. Jones, 132 S. Ct. 945, 18 1 L. Ed. 2d 911 (20 12). Compare U.S. v. Baez, 2012 WL
2914318 (D. Mass. 2012) (refusing to apply the exclusionary rule to a pre-Jones warrantless attachment of a GPS
tracking device). with U.S. v. Orti7.., 2012 WL 2951391 (E.D. Pa. 2012) (refusing to apply the exclusionary rule)."
See Chad Strawn, Expanding the Potential for OPS Evidence Acquisition, 3 Small Scale Digital Device Forensics J. I
(2009) (hereinafter Strawnl See also G lorvigen v. Cirrus Design Corp., 816 N.W.2d 572. Prod. Liab. Rep. (CCH) P
18890 (Minn. 2012) (a case involving an aircraft. with an advanced GPS system).
Strawn, supra note 12, at 5.
Strawn, supra note 12. at 5.
Strawn, supra note 12, at 5.
Scott Pace, The Global Positioning System: Assessing National Policy 237 (1995) [hereinafter Pace].
Pace. supra note 16, al 217- 19.
Pace, supra note 16, at 238-40.
Pace, supra note 16, at xv.
Pace, supra note 16, at 218.
Pace, supra note I 6, at 222.
Pace, su pra note 16, at 223-24.
Pace, supra note 16, al 220.
Pace, supra note 16, at 220.
This is not precisely true, but for conceptual sake assume it is. The aciual process will be explained shortly.

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Velocity is the speed of light "c," which is equivalent to 299, 792,458 meters per second in a vacuum. This velocity can
change based on the medium light is travelling through. The fluctuation in speed as light travels through the
atmosphere, although mostly predictable, can be a source of error in GPS calculations.
See Pace, supra note 16, at 220.

Pace, supra note 16, at 220.

Pace, supra note 16, at 220.

Pace, supra note I 6, at 220.
11 Pace, supra note 16, at 220.
Elliott D. Kaplan, Understanding GPS Principles and Applications 21 (I 996) [hereinafter Kaplan].
Kaplan, supra note 32, at 21.
Kaplan, supra note 32, at 21 ; Pace, supra note 16, at 220.
Pratap Misra, Global Positioning System: Signals, Measurements, and Performance 37(2011) [hereinatler Misra).
Fans of the movie, " Independence Day," may recall that in that movie, the alien invaders used the satellite system
against the earthlings.
Misra. supra note 35, at 37.
Misra, supra note 35, at 37.
See Statement by the President Regarding the United Slates Decision to Stop Degrading Global Positioning System
Accuracy, White House Office of the Press Secretary, May 1, 2000 [hereinafter President's Statement].
President's Statement, supra note 39.
Sec Statement by the Press Secretary, White House Office of the Press Secretary, Sept. 18, 2007 [hereinafter Press
Secretary's Statement].
See GNSS Frequently Asked Questions: GPS, Federal Aviation Administration, Aug. 24, 2010, available at
Global Positioning System (GPS) Standard Positioning Service (SPS) Performance Analysis Report, Report # 76, Jan.
31, 2012, available at [hereinafter Performance Report].
Performance Report, supra note 43.
This term refers to the combined locational error rates arising from environmental or systemic factors.
Performance Report, supra note 43, at 2.
Aeronautics and Space Engineering Board, National Resource Council, The Global Positioning System: A Shared
National Asset 68 ( 1995) Q1ereinafter ASEB Report].
ASEB Report, supra note47.
Perfo1mance Report, supra note 43, at 24.
Kaplan, supra note 32, al 304--05.
ASEB Report, supra note 47, at 68.
Pace, supra note 16, at 220; Kaplan, supra note 32, at 301.
v.'EST ~ 1,V-, 2017 Tl1omson Reuters. No clatm to original U.S Go,ernment Works 11
The Use of Global Position System (GPS) and Cell Tower... , 49 No. 1 Crim. Law ...

Kaplan, supra note 32, al 322.
Kaplan, supra note 32, at 322.
Performance Report, supra note 43, at 12.
Kaplan, supra note 32, at 322-28.
Kaplan, supra note 32, al 322-28.
Kaplan, supra note 32, at 322-28.
Michael N. DeMers, Fundamentals of Geographic Information Systems 146-47 ( 1997); Odewald & Boucher, Where
In the World and What: An Introduction lo Global Positioning Systems 14 (1997) [hereinafter Odewald).
Odewald, supra note 59, at 14.
Global Positioning System Standard Posilioning Service Performance Standard, Office of the Secretary of Defense,
Oct 4, 2001 , at 13.
P.L.N. Raju, Fundamentals of GPS, in Satellite Remote Sensing and GIS Applications in Agricultural Meteorology
147 (2003).

Kaplan, supra note 32, at 308; B. Ho!Tman-WellenhofC GPS: Theory and Practice 99 (2001) [hcreinafler
Hoffman-Wcllcnhoff, supra note 63, at 99.
ASEB Report, supra note 47, at 68.
ASEB Report, supra note 47, at 68; Performance Report, supra note 43, at 31 .
Hoffman-Wellenhoff, supra note 63, al 106.
Hoffman-Wellenhoff, supra note 63. al 106.
ASEB Report, supra note 47. at 68.
70 Kaplan, supra note 32, al 319.
Kaplan, supra note 32, at 319.
ASEB Report, supra note 47, at 68.
Kaplan, supra note 32, at 319: Hoffman-Wellenhoff, supra note 63, at I25.
Hoffman-Wellenhoff, supra note 63, at 125.
Hoffman-Wcllenhoff, supra note 63, at 125.
ASEB Report, supra note 47, at 68.
National lnteragency Incident Management System, Basic Land Navigation 5.4 (2007) [hereinafter Basic Land
Basic Land Navigation, supra note 77, at 5.4.
ASEB Repot1, supra note 47, at 68.
Ahmed El-Rabbany, Introduction to GPS: The Global Positioning System 61 (2003) (the calculation requires that you
, ,F.~TLAW 2017 Thomson Reuters. No clajm to onglnal U.S Governmect Worl<s. 12
The Use of Global Position System (GPS) and Cell Tower..., 49 No. 1 Crim. Law...

multiply the error rate by the HOOP (horizontal dilution of precision) times two (or the POOP)).

Performance Report, supra note 43, at 2.

Global Positioning System Standard Positioning Service Performance Standard, Office of the Secretary of Defense 22,
Sept. 2008.
See, e.g., Global Positioning System (GPS) Standard Positioning Service (SPS) Performance Analysis Report, Report
# 72, Jan. 31, available at (maximum positional error was 21 meters).
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d
1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep. 20979 ( 1993).
Some conditions, such as the extant ionospheric interference or POOP during the challenged acquisition. cannot be
precisely simulated.
Performance Report, supra note 43. at 12.
For example, the University of California. Berkeley, offers a course entitled Introduction to Global Positioning
Systems, and Advanced OPS.
See, e.g., Richard B. Langley, Dilution of Precision, GPS World, May, 1999. available at (i n which the error rates due
high POOP are calculated by means ofa computer model).
See, e.g., Global Positioning System Standard Positioning Service Pcrfonnance Standard, Office of the Secretary of
Defense., Oct. 4, 2001.
The military uses this technology not only to guide its forces, but also to guide its smart missiles. Pace, supra note 16.
at 237.

Such use is reflected by the Coast Guard' s commitment to provide mariners with up to date GPS navigational
assistance (Coast Guard OPS navigation website: and is reflected in case law. See
National-Ben Franklin Ins. Co. of Illinois v. Levemier, 280 F. Supp. 2d 851 , 2003 A.M.C. 1461 (E.D. Wis. 2003)
(OPS used in maritime navigation); Tullos v. Cal Dive Intern., Inc., 188 F. Supp. 2d 709, 711- 12 (S.D. Tex. 2002)
(GPS generated navigational data used in seafaring ships).
Sec, e.g., How wilJ the Large-Scale Introduction of OPS into General Aviation Cockpits Affect The Liabilities that
Face Pilots and the Fl ight Instructors who Train them?, 62 J. AIR L. & COM. 725 (1997) (article on the introduction
ofGPS units into aviation cockpits).
Note. P lotting a Course for GPS Evidence, 28 Quinnipiac L. Rev. I 0 I 9 (20 I 0).

t.. 11<1 ol Ooc111111!11t ;i; 20 I 7 Thomson Reuters. Nn c lu im to orig inal U .S. Government

WEE/Tl 2017 Thomson Reuters No claim to onqmal U S Government Works 13

Reports of Investigation: David Boelke

Chuck Anderson Investigations

519 Appletree Lane

l\1oorhead,l\1N 56560



Subject: New Supplement to David Boelke File

Date: June 14, 2017
Requested by: Attorney Mark Friese of Vogel Law Firm


PI Anderson travels to Red River Dispatch to follow up questions concerning the GPS squad car
tracking system and the significance of icons.


On 6/14/2017, PI Anderson traveled to the Red River Dispatch and met with Amanda G lasoe,
phone: 70 1-451-7686.

PI Anderson advised Amanda that PI Anderson was working on the case file of David Boelke and
wanted to understand some of the icons on the GPS system.

Amanda stated that the squad car was representative of the squad assigned to each patrol officer and
would have a corresponding Jetter and number identifying the officer. The telephone icon
represents the location of the call and if the map was to be zoomed in, the phone should represent
the exact address of the caller.

The icon for the phone remains displayed until the call is cleared, at which time the phone icon

During the conversation with Amanda, another dispatcher by the name of Cheryl came out and
joined in the conversation.

During that conversation, PI Anderson was questioning Amanda and Cheryl if they ever
experienced a ghosting or a squad car being someplace else on the map but in reality was at a
different location not identified on the GPS system.
Cheryl stated that on 6/ 14/2017 in the morning she had the eA.rperience of that type of incident where
one of the Fargo fire trucks' GPS system did not function properly and the map showed the fire
truck at one location when, in reality, it was at a different location. Cheryl stated that there was
communication with the fire truck advising dispatch to keep track of them and they were aware of
the issue with the GPS system.

Cheryl believed that the glitch in the system was due to some malfunction of the MDU in the

PI Anderson questioned if that has ever happened with squad cars. Cheryl stated she did not know
and has not paid attention or noticed that type of issue.

End of report.

Investigation an d Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations

Report of Investigation : David Boelke

Chuck Anderson Investigations

519 Appletree Lane

MoorheadJ MN 56560



Subject: David Boelke

Date: June 17, 2017
Requested by: Attorney Mark Friese of Vogel Law Firm


Pl Anderson has interviewed individuals who have information concerning the functioning of the
GPS/computer/One World system that the Fargo Po lice Department and Red River Dispatch utilize.
Most persons interviewed stated a desire to remain anonymous due to a concern . These persons all
have direct knowledge and utilize the system while performing their job.

It appears based upon their information that there is situations where the GPS system may not always
provide up to date information and may not identify the units' location due to some system glitch.


On June 16, 2017, Pl Anderson interviewed a person who has direct knowledge of the computer GPS
dispatching system for the Red River Valley Dispatch and Fargo Police Department.

Pl Anderson interviewed this person, who wished to remain anonymous. This person identified their
qualifications and has direct knowledge of issues concerning the computer system and GPS system.

For the f:>Urpose of this interview, Pl Anderson will refer to this individual as Cl One, cooperating

Cl One advised that there have been multiple issues that have presented themselves during the tracking
of squad cars and primarily will be genera l knowledge amongst all dispatchers.

The information that had been provided identifies the problem with the GPS system and when an office
is in a situation where the squad car is stationary and the officer utilizes a different computer.

Cl One has actually noticed that the issue has happened and stated it is frequent. The issue is the GPS
screen in dispatch would show the squad car stationary. However, the information identifies later that
the officer is in a different position and is moving.

l l Page
Report of Investigation: David Boelke

The cooperating individual does not know the cause of the glitch in the system, but it does happen with
some frequency.

This problem has been noticed in 2016 ~rnd 2017.

Cl One stated that the officer would have to sign back in and then the problem seems to resolve the

Agents Note: This information is consistent with what was provided to Pl Anderson on June 15, 2017
when Pl Anderson was at dispatch and spoke to Cheryl, who identified that issue happening with a Fargo
Fire Department vehicle.

Pl Anderson received a call back from Cl One. Cl One advised that after the conversation with Pl
Anderson, they had spoken to other individuals who work in the Cl three area and those individua ls
confirmed Cl One's information that they also have experienced the problem with the squad cars not
necessarily being shown on the map in its true location, rather being stationed at a previous location.

Interview of Cl Two.

On June 17, 2017, Pl Anderson interviewed a second cooperating individua l, who wil l be referred to as Cl

Cl Two states that they are aware that there have been issues with One World and the computer
system. There have been ongoing issues since the installation of the new system. There have been
problems, which officers utilizing the system would have to call to IT to have the problem resolved. Cl
Two stated the problems still exist and do happen.

There are problems when the computer system is working and will shut down and people will not know
t hat the system has shut down unt il they attempt to process something on the system and it continues
to flash a screen without providing information.

Interview Cl three

Pl Anderson spoke to Cl three on June 17, 2017.

Cl three was questioned as to any experiences with One World GPS or a computer system that has been
problematic. Cl three advised that there are times where the computer doesn't always work and has
seen the GPS system not working. He/she stated at times the icon for the officer squad location would
not show up on a map.

Cl three stated that he/she believes that when that issue is going on there is a pink icon that shows the
last location of the squad. That would be prior to losing the location.

Cl three was questioned as to the ghosting issue and whether a squad car could be stationary on the
map, but in reality be in a different location. Cl three stated he/she does not know if that has happened
or not.

2 1 P age
Report of Investigation: David Boelke

Cl three advised that he/she has searched for persons on a map and if they are, for example. At the
station it will show that they are not on the map.

Cl three stated the computers still have glitches, but does not know about any location glitches.

Cl three advised that he/she has experienced problems with filling out reports and the system not
accepting the information.

Cl three was questioned about his experience as to checking into a computer at a substation and then
returning to the squad car, will it show location? Cl three was not sure as to what is shown at that point,
but states that when you enter the squad car, the icon will tell you that the computer is disconnected
and if you hit the refresh button it will re-register and sign back in.

Cl three stated there have been occasions where he has observed t hat the icon for the vehicle has not
been shown on the map, but then he/she will re-register and then it will show up.

Cl three stated he/she is not sure what the server or the other systems monitoring this information
would see at that time.

Cl three stated he/she has seen situations where the squad car does not show up on a map.

Interview of Angie M yers Oelfke

Pl Anderson interviewed Angie Myers Oelfke, 701-200-9253. Angie advised that she was a dispatcher
and had last week submitted her resignation.

Angie stated that she had experienced some issues concerning squad cars being at a stationary position,
such as the station, but in fact were moving. Angie stated that on some calls they wondered by the
officer was not responding, but in fact they were. Angie believes the issue is related to the computer
and t he fact that they were not logged in.

Angie said it is her understanding that if the person does not log into the mobile system they will not see
the squad car moving.

Angie stated that the computer and GPS system have to both be functioning for the screen to project
the proper moving of the squad cars.

Interview of Cl four

Pl Anderson interviewed an individual who wished to not be identified and will be referred to as Cl Four.
This individual had knowledge of the system that was utilized by Fargo Police Dispatch. This individual
stated that it is their belief that the GPS system may not function at times if the computer and the GPS
system are not communicating. Some of the fixes would be a reboot or if the connection was physically

This individual stated that their role in this information was not necessarily connected where this
individual would have knowledge of individua l problems experiences by law enforcement dispatch or IT.

3I Page
Report of Investigation: David Boelke

This individual stated that it is possible that if the computer is not communicating with the GPS that it
would appear a squad car is stationary, however it is in fact moving and the movement would not be
tracked until the GPS system is connected back with the computer.

End of report.

Investigation and Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations

41 Page
Reports of Investigation: David Boelke

Chuck Anderson Investigations

519 Appletree Lane

l\1oorhead, l\1N 56560



Subject: Report for David Boelke File

Date: June 19~ 20 17
Requested by: Attorney Mark Friese of Vogel Law Firm


PI Anderson was requested by Attorney Mark Friese to conduct interviews to obtain information
pertinent to the David Boelke investigation.


On 6/19/2017, PI Anderson traveled to the Fargo Veteran's Administration Hospital and met with
Psychologist Jay Phillippi.

Jay Phillippi had been identified as the eval uator for David Boelke on behalf of the Fargo Police
when there were issues and conducted a fitness evaluation.

Upon meeting with Jay Phillippi, PI Anderson discussed the issues concerning David Boelke.

Jay Phillippi stated that he has performed two fitness evaluations: one in 2013 and one recently.

Jay Phillippi stated that he did create a document outlining his assessment, evaluation and
recommendations to the Fargo Police. Jay stated that the Fargo Police own the reports and they
would have to release the documents to the attorney.

Jay stated that he became involved on the first occasion back in 2013 after David Boelke had self-
checked himself in for alcohol use disorder. Jay stated that his evaluation did identify some issues
that were the trigger for the alcohol abuse disorder.

Jay stated that he was aware that David Boelke had been assigned to the bomb squad and that the
department had taken that assignment away from him. Jay indicated David had enjoyed that
assignment and that removal triggered anxiety, depression and other problems. The end result of the
problems resulted in David Boelke abusing alcohol.

Jay Phillippi stated that Boelke then took care of his alcohol problem through inpatient/outpatient
and other treatment modes.

Jay Phillippi stated that after his first fitness review he warned both Dave and the Fargo Police
Department of his alcohol use disorder and the trigger being the problem of being demoralized by
losing job assignments.

Jay Phillippi stated that he advised the Fargo Police about the monitoring of David Boelke,
especially if the assignments were to be taken away, they needed to watch for issues that would be
identifiers that he is relapsing.

Jay Phillippi stated that the identifiers include poor job pe1formance, irritability> oppositional
behavior and isolation.

Jay Phillippi stated that he later learned during the second job fitness review that the Fargo Police
had removed David from the bomb squad after giving it back to him for a period of time. Jay stated
that the Fargo Police were warned about these problems and stated that triggered a relapse.

After receiving treatment, Fargo Police put David Boelke back on the bomb squad. Then the new
issue was David Boelke going to bomb school scheduled for 20 17.

Jay Phillippi stated that he also warned David Boelke about him having to distance himself from the
bomb squad issue because it is a trigger for relapse.

Jay Phillippi stated that the second job fitness evaluation took place and indicated that he was
acutely in distress and was on the brink of relapse. Jay stated that David Boelke was healthy but
was at risk.

Phillippi advised the Fargo Police that if these issues continue, David Boelke will be at risk for

Jay Phillippi identified David Boelke as being in a protected class - alcohol use disorder.

Jay Phillippi stated that the bomb squad issue is central to the David Boelke problem and indicated
that the Fargo Police never really addressed that issue and cat~gorized the bomb squad as the carrot
that the police department continued to dangle in front of David Boelke.

Jay Phillippi agreed with the statement that the Fargo Police Department should have done more to
prevent this problem to get to the point it is now at and presently dealing with.

Jay Phillippi stated that the risk factors that he had outlined are in his reports that he made known to
the Fargo Police to Chief Dave Todd and to Chief Terness.

Phillippi stated that if David Boelke starts displaying these issues, the Department needs to
intervene. This again included poor job performance, irritability, oppositional behavior and

Phillippi stated that the persons in the Fargo Police Department should have been aware, especially
those who supervised David Boelke, and should have reacted more quickly to prevent this problem
from escalating.

Phillippi stated he did tell the Police Department that David Boelke is not mentally ill and has no
other disorders.

Phillippi stated that he had a conversation with Ross Renner about the last evaluation. Phillippi
stated that he advised Renner of the situation and Renner did not ask any follow-up questions, such
as how to prevent this problem from reoccurring.

Phillippi again stated he did articulate in his report the triggers that the Department should be aware
of and keep watch for.

Pl Anderson described the investigation into Dave Boelke's job performance and the calls for
service that where investigated and how David Boelke responded.

PI Anderson discussed that David Boelke was challenged by PI Anderson about the three calls for
service that have been identified as truthfulness issues and described to Jay Phillippi how David
Boelke was adamant that he in fact said that he did not lie and that he recalls doing those actions as
he described in the investigation.

P1 Anderson also advised Phillippi that there were other ca1Is for service that David Boelke admitted
that he did not travel to the location and discussed the issue as to why David would answer that way
on some calls and not on others. PI Anderson questioned why David Boelke would answer those
questions differently, especially knowing that the answer would cause issues if not accurate.

Phillippi advised that David Boelke's statements may have been the result of an inaccurate memory

PI Anderson then asked Phillippi if he thought David Boelke would lie to protect his job, Phillippi
said that he did not believe so.

End of report.

Investigation and Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations

Reports of Investigation: David Boelke

Chuck Anderson Investigations

519 Appletree Lane

l\'1oorhead,l\1N 56560



Subject: New Supplemental Report for David Boelke File

Date: June 27, 2017
Requested by: Attorney Mark Friese of Vogel Law Firm


PI Anderson was requested by Attorney Mark Friese to contact Dave Boelke concerning new


On 6/27/201 7 PI Anderson contacted Dave Boelke. Dave advised that a coworker, officer Chad
Moen, phone number 701-730-8884, had stopped by his residence to talk to him.

Dave Boelke stated that upon leaving and getting into his squad car, Chad Moen had observed the
computer screen was not functioning properly.

Chad Moen's computer was making a display where it showed his squad car but did not display any
other squads working at the time.

Dave Boelke advised that he took photographs which will be incorporated with this report.

Dave Boelke observed the computer being refreshed by hitting F12 and no other squads working
were displayed on the screen.

Boelke also observed that the filter was removed and it showed a strange mobile unit that they did
not recognize the call number. That unit was located up north.

Dave Boelke advised that the computer screen also did not show any other of the local law
enforcement agency's squad cars that were working at the time.
Dave Boelke also observed that the main computer screen was frozen at 12:10 p.m. when in fact the
time was 1:30 p.m.

The photographs that were included do show the results - 16 calls retmned from dispatch at
12: 10:26. The other photographs are of the mapping GPS system. The unit number of this squad
screen on the top left is D243.

PI Anderson contacted Chad Moen and asked him questions concerning his observation of the
computer screen.

Chad advised that he had observed problems with the squad car computer system. He stated the
computer system was not working properly at the time the photographs were taken by David

Chad Moen stated that when he was visiting with Dave Boelke and looked at his squad screen it
displayed only his squad and no one else on the screen. Chad Moen believes there were
approximately 12 other units working at the time.

Chad advised that there was also an how- difference reflected on the screen versus the real time.

Chad believes that he may have been kicked off the system for some unknown reason.

Chad stated that had he driven off and not realized he had been kicked off, he may have experienced
his squad remaining stationary on the GPS screen. However, he would have been moving.

Chad Moen stated he does believe that the computer system was not working properly at the time
and does not know the reason why.


Photographs of the computer screen.


Ongoing investigation.

End of report.

Investigation and Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations

Reports of Investigation: David Boelke

Chuck Anderson Investigations

519 Appletree Lane

Moorhead, MN 56560



Subject: New Supplemental Report for David Boelke File

Date: June 28, 2017
Requested by: Attorney Mark Friese of Vogel Law Firm


PI Anderson was requested to contact Officer Jason Anderson of the West Fargo Police Department,
telephone 701-799-8880.D avid Boelke had received information that he had knowledge of the New
World and GPS system issues.


On 6/28/2017, PI Anderson contacted Jason Anderson. Jason Anderson advised that he is a

supervisor at the West Fargo Police Department.

Jason said that he had been speaking to Officer David Boelke of the Fargo Police Department and
dwing the conversation advised that he also has experienced computer glitches with the GPS system
and New World system.

Jason advised that he has observed issues that occur off and on with the GPS/New World system
and described the problem as the vehicle is not being depicted on the mapping screen. Jason does
not know what causes the issue.

Jason stated that he has experienced where the squad car unit is depicted on the screen but later he
knows that the officer is in that squad car is still active and working, however, the unit is not
depicted on the screen.

Jason stated that these issues do happen off and on.

Jason advised that he has also experienced situations where the squad car is observed at a location
on the screen but, in reality, is somewhere else.
Jason indicated that he has had other police officers advise him that they have experienced similar
situations with their system.

While speaking to Jason Anderson, be asked a Lieutenant about these issues.

Jason relayed that they have sent numerous tickets to IT about these problems. The Lieutenant
identified the problem as a GPS issue. He identified the department that handles these problems as
the Fargo IT.


Based upon this information and other information acquired from Fargo Police officers, Red River
Dispatch personnel and IT personnel, it appears that problems do happen and is associated with One
World and the GPS system. These problems may have been the reason that David Boelke's squad
was not identified as being in the area as David maintained.

A request for the tickets and other communications with IT from the area departments that utilize
this system should be obtained to verify this issue.

End of report.

Investigation and Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations
2953206. I

Reports oflnvestigation: David Boelke

Chuck Anderson Investigations

519 Appletree Lane

Moorhead, MN 56560



Subject: New Supplemental Report for David Boelke File

Date: July 5, 2017
Requested by: Attorney Mark Friese of Vogel Law Firm


PI Anderson has been requested to investigate the issues concerning the dispatch OPS system and
the computer glitches that have been identified by various witnesses.


On 7/5/2017 PI Anderson received a call from dispatch officer Corey Olson. Corey advised that he
has been a dispatcher for several years and advised that he is aware that the OPS mapping system
they utilize at dispatch is not always accmate.

Corey advised that the squads shown on the map are sometimes in a completely different area than
where the officer in reality is.

Corey said that they will sometimes check the squad car icon and the icon shows a speed that is
inconsistent with what is actually going on.

Corey advised that there are times where the squad appears to be stationary but, in fact, is in a
different area.

Corey stated he would not bet money on the system. Corey believes the system is not completely

Corey has been aware that there are squad car issues in West Fargo, including two squads that do
not show up at all on tbe system.

When questioned as to the reliability of the OPS mapping system, Corey estimated it probably is
75% accurate.
Corey said he will check with the officers as to their location to ensure that be has the correct

Corey was aware that recently the Dilworth squad cars were not showing up at aU and sometimes
showing up in a different location than where they actually were.

Corey said he attempts to make sure that the location on the map is the same as where the officer is
at. Corey will clarify the location of the squads to be sure.

Corey advised that the discrepancy on the map can be up to several blocks or more than what the
squad cars actually are.

Corey indicated that some agencies such as West Fargo Police have asked dispatch to keep track of
these issues so they can deal with them.

Corey is not aware of what the cause of the glitch is- whether it's the computer, the software or the

Corey advised that Fargo PD also has the same problems and advised that he has worked on all the
various dispatch consoles and has observed the san1e issues on all of the different consoles.

Corey stated that they have been advised not to use the map but instead use the information where
the officers call out their traffic stop because the system is not necessarily accurate.

Agents Note: PI Anderson has interviewed other individuals from Red River dispatch and other
agencies, the information identified concerning the GPS mapping system is consistent, identifying
problems/glitches that provide erroneous information.

End of report.

Investigation and Report Prepared by

Chuck Anderson,
Chuck Anderson Investigations

I apologize. My actions caused many hours of work, hardship, and bad feelings. I did not do my job to
the best of my ability, and my personal issues got in the way of my duty to the department and the
community in some of the calls for service I went on in 2016/beginning 2017. I feel burnt out on patrol
and backed into a dead end. I let that affect how I dealt with calls and the professionalism I used to take
such great pride in. I'm sorry.

I ask you give me the chance to rekindle the drive, spirit and enthusiasm I once had for patrol work at
. the Fargo Police Department, or better, an assignment with the Department outside of patrol. I
understand that many more officers work harder and deserve a chance at something new.

I plan on continuing my counseling, meeting with mentors and sponsors, and accepting my family's help
to keep me on track and focused on my performance.

Please consider my side of this. Please look at the evidence we provided to you . Please reconsider the
recommendation you've been given. I do not and did not lie. Also please consider the totality of the
circumstances regarding my 15-year career, my extra assignments, my ongoing support for you and your
position, and how I've been treated for the past ten years.

My faith, my family, my reputation, and my job are far too important to me. I am the sole source of
income for my family. I would not risk my family's ability to have income and health insurance over
something insignificant-like whether I later went by the scene of particular calls for service when I
already admitted I did not respond in the first instance. And, when I repeatedly admitted I didn't
respond to the scene of other calls.

Chief, I'm not perfect, and in fact far from it. At my lowest, I have accepted responsibility, admitted my
mistakes, and reached out for help. I have been an open book with you and your subordinate staff,
even when it has been embarrassing to do so. Even though I have failings, I have shown knowledge,
loyalty and responsibility in my position through the years and I continue to learn take steps to better
myself in all aspects of my being.

Yours Truly,

Dave Boelke
Toxic Police Leadership
() /arch1ve/toxic-oolice-leadership/

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In her book Toxic Leaders: When Organizations Go Bad, Marcia Whicker describes toxic leaders as "maladjusted,
malcontent, and often malevolent, even malicious. They glory in turf protection, fighting, and controlling rather than
uplifting followers.'' A toxic police leader is maladjusted to the police context that values service to others over self;
malcontented possibly because of a perceived slight experienced at some point in their career; often malevolent
stemming from a pervasive disregard for the welfare of their subordinates; and surreptitiously malicious toward
superiors who represent authority, while observably malicious toward peers and subordinates who are viewed as
potential competitors. Toxic leaders specialize in demoralizing and humiliating subordinates in public.

We might well ask why world-class police organizations would put up with such behavior. One alibi stems from their
ability to kiss up the chain of command while kicking down. Toxic police leaders always seem to have well-prepared
presentations ready for their superiors and are ever ready to accept tasks without regard for the impact on their
subordinates. Because they lead using fear, subordinates respond quickly to their direction. But they comply without

Toxic leaders are seen by many their subordinates and others in the police organization as arrogant, self-serving,
inflexible and petty. Word among police officers spreads fast and they'll go out of their way to avoid the toxic leader.

A chief-level officer in a large police agency once asked, "How do you know a leader in your organization is toxic?"
We suggested that he observe how the patrol bid fills in. T he last supervisors to get officers to voluntarily sign up for
their sectors are often the ones being avoided by police officers because they display toxic tendencies. Patrol
officers are not likely to voluntarily select the sector of a supervisor that displays these characteristics:

1. An apparent lack of concern for the well being of subordinates.

2. A personality or interpersonal technique that negatively affects organizational climate.
3. A conviction by subordinates that the leader is motivated primarily by self-interest.

It is not one specific behavior that deems one toxic; it is the cumulative effect of de-motivational behavior on unit
morale and climate over time that tells the tale.

When asked whether they have toxic leaders in their organizations police officers from many different police
organizations and at varying levels respond with a resounding affirmative. After repeating that question in dozens of
seminars we have anecdotal information that suggests toxic leaders are ubiquitous in police organizations.

It can be demoralizing when toxic leaders continue to get promoted to levels of increasing responsibility. In a recent
coaching course for newly promoted police supervisors, a police sergeant stated, "We all know who the bad leaders
are, but the police department sticks that person away in a bureau out of sight where the bad leader can spend all
his time studying for the next promotion exam. The bad leader scores high on the promotion exam, gets promoted
and is released back on the troops to exact revenge. Once they screw up again and/or destroy the careers of good,
hard-working officers, they are placed back into a bureau to study for the next promotion exam."

This newly promoted police supervisor's statements must have resonated with the other 40 newly promoted police
supervisors from varying police agencies in the room because everyone was shaking their heads in agreement and
raising their hands for the chance to tell their toxic leader story.

Assignment changes and promotion provide the avenue that toxic police leaders use to go from one place to
another within the police organization spreading their poison. Police officers who have to work with or for a toxic
leader are relegated to waiting them out because it is only a matter of time before the toxic leader is removed,
placed into another assignment or promoted.

This can have devastating effects on police officers and police organizational culture. Toxic leaders leave in their
wake an environment devoid of purpose, motivation, and commitment. In short, toxic police leaders deny police
organizations and individual police officers true leadership.

Some suggest that exposing toxic police leaders for what they are would go a long way to solving the problem.
Unfortunately, tools like multi-rater leader assessments, climate assessments and employee surveys are not
commonly used in police organizations. The argument stems from a questionable belief that these "business tools"
do not work or translate well to police organizations .

A tool like a 360-degree feedback instrument would provide some insight into toxic police leadership, but according
to Dr. Howard Prince, Brigadier General U.S. Army (Ret.) and Director of the LBJ School's Center for Ethical
Leadership, there is not a validated 360-degree feedback tool available specifically for law enforcement. Perhaps
toxic leadership is so prevalent in police organizations because the organizational culture enables and sustains it.

In their book Toxic Workplace! Managing Toxic Personalities and Their Systems of Power, Mitchell Kusy and
Elizabeth Hollaway suggest that toxic leaders can only thrive in toxic cultures. Promoting and moving toxic leaders
around the organization might be an inappropriate organizational response that serves to enable them.

Another troubling explanation for the existence of toxic police leadership is the possibility that toxic behavior is
tolerated, if not encouraged, by leaders at the top of police organizations. Police executives lose credibility when
they claim to be advocates of healthy police cultures yet fail to take action against toxic police leaders. Leaders at
the top of the organization often mistake short-term mission accomplishment for good leadership. It is possible to
run even a good organization into the ground if attention is not paid to the long-term health and welfare of its

Leaders who serve at the executive level in police organizations may be the only ones that have the power and
authority to counter toxic leadership. Subordinates are not generally in position to address the problem of toxic
leaders because toxic leaders are characteristically unconcerned about them and immune to influence from below.
Lynne F. McClure, author of Risky Business: Managing Violence in the Workplace, explains why toxicity goes
without remedy: "The biggest single reason is because [the behavior is] tolerated." McClure, an expert on managing
high-risk behaviors, believes that if an organization has toxic managers, it is because the culture enables it-
knowingly or unknowingly-through nothing more than apathy.

Police organizations can take steps to minimize the number of toxic leaders in their organizations by fostering a
shared vision of what good leadership is and is not. Possible antidotes to toxic leadership include:

Put a label to the problem (toxic leadership) and talk about it openly.
Develop and select with an eye to leadership style, not simply technical skills and short-term effectiveness.
Hold supervisors responsible for the leadership style of their subordinates.
Implement climate assessments and 360-degree multi-faceted evaluations as developmental tools.
Have the hard discussions with subordinates who display toxic tendencies and promptly address behaviors
that are not in keeping with the values of the organization.

Roy E. Alston, PhD, is a Lieutenant of Police with the Dallas Police Department in Dallas, TX. Before joining the
Dallas Police Department in 2003 he served in combat with the 82d Airborne Division at Fort Bragg, NC as a Fire
Support Officer and held leadership positions at Montgomery Ward's, PepsiCo/a, Target, and Verizon Wireless. He
is an adjunct professor for Collin County Community College Police Academy and The Institute for Law Enforcement
Administration in Plano, TX. He received his BS in Leadership Studies from the United States Military Academy at
West Point in 1989, his MBA from Indiana Wesleyan University in 2003, and his doctorate in Applied Management
and Decision Sciences with a specialization in Leadership and Organizational Change from Walden University in
2010. He is happiest when working with those who are interested in leadership, and leadership development. He
welcomes inquiries at 214-578-9426 or by electronic mail at

Colonel George Reed, U.S. Army Retired is a faculty member in the School of Leadership and Education Sciences
at the Unjversfty of San Diego. Before joining the faculty in 2007 he served for 27 years as a military police officer
including six as the Director of of Command and Leadership Studies at the U.S. Army War College. While on active
duty he served at the United States Disciplinary Barracks, a maximum security prison, and was the second in
command of a criminal investigation laboratory. He commanded some of the Military Police Corps' elite units
including the 82d Military Police Company and the 1Oth Military Police Battalion at Fort Bragg, North Carolina. He is
happiest when working with those who are interested in leadership and leader development. He welcomes inquiries
at 619-940-4102 or by electronic mail at

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