The Admissibility of Cell Site Location Information in Washington Courts

• Publication year: 2013

Washington Law ReviewVolume 36, No. 3, SPRING 2013

COMMENTS

The Admissibility of Cell Site Location Information in Washington Courts

Ryan W. Dumm(fn*)

I. INTRODUCTION

The date is January 17, 2008. Two hunters, searching for coyotes, stumble across a frozen, shirtless, and lifeless body on a little-used dirt road near Lawton, Iowa, about ten miles east of Sioux City.(fn1) It's the body of Zachary Cooper.(fn2)

Two days earlier, Samuel Wright, Jeremy Williams, Nick Perez, Ray Dukes, and three others gathered in Perez's Sioux City apartment.(fn3) The group decided to purchase some marijuana, and Perez volunteered to contact Zachary Cooper, his source for the drug.(fn4) Cooper was nervous about dealing to these individuals, but he agreed to meet Perez and Williams to discuss the transaction.(fn5) Cooper explained that he “wanted to make sure things go straight,” and “[i]f things boil down wrong . . . he would have to do something to [Williams] and his family”; Williams replied, “[d]ude, don't threaten my . . . family.”(fn6)

Cooper arrived at Perez's apartment around 6:30 or 7:00 p.m., but he never returned home.(fn7) As Cooper entered the apartment, Williams produced a handgun and started punching Cooper in the face.(fn8) Wright and Williams led Cooper into a car, and they coaxed both Dukes and Perez to join them.(fn9) They drove the car into rural Woodbury County, where Wright and Williams forced Cooper to kneel down in front of the car and put his hands on the hood.(fn10) Wright(fn11) manually loaded a .380 caliber handgun and shot Cooper before passing the gun to Williams, who reloaded the weapon, stood over Cooper's body, and shot him a second time.(fn12)

On the way back to Sioux City, Williams stopped for gas at a Kum & Go.(fn13) Surveillance footage captured Williams and Perez inside the store, but the four individuals standing next to Williams's car could not be readily identified.(fn14) At trial, Perez and Dukes identified Wright as one of the individuals in the surveillance images.(fn15) Wright took the stand in his own defense, claiming that although he did stop by Perez's apartment on the evening of January 15, 2008, he left by foot prior to Cooper's arrival and never saw Cooper that evening.(fn16)

Without additional evidence, the jury's determination with respect to Wright's participation in the crime would amount to a credibility assessment-would the jurors believe Perez and Dukes, or would they believe Wright? These credibility assessments are often grounded in a juror's individual valuation of a witness's demeanor.(fn17) And jury determinations of witness credibility, though critical to the jury's ability to weigh evidence and find facts, can be flawed by inherent biases.(fn18) But in Wright, the jury had more information from which to draw conclusions about Wright's whereabouts on the evening in question. Namely, Wright's cell phone received an unanswered text message at 7:07 p.m. on January 15, 2008, and his cell phone records indicated that the communication transmitted through the east sector of a cell tower in Lawton, Iowa.(fn19) Wright received a second text message at 7:16 p.m. that transmitted through the west sector of the same tower.(fn20) While these records only revealed the location of Wright's phone, and not necessarily Wright him-self,(fn21) they substantially undermined Wright's testimony that he stayed in Sioux City after leaving Perez's apartment in order to help a friend move.(fn22) The jury convicted Wright of murder, robbery, and kidnapping in the first degree.(fn23)

As cell site location information becomes more common in criminal investigations such as the one in Wright, advocates and judges face emerging questions about the information's admissibility and potential evidentiary objections. This Comment provides a blueprint to admit cell site location information in Washington state courts that balances the public interest in promoting truth and accountability with the criminal defendant's interest in a fair and impartial trial. Specifically, this Comment concludes that cell site location information is admissible, provided that the State lays an adequate foundation for both the underlying data collection-via expert testimony-and the secondary mapping technology. Programs that illustrate data contained in call records should also be independently verified to establish their accuracy.

For the purposes of this Comment, cell site location information is information maintained by a cellular provider that is used to determine the physical location from which a cell phone sent a communication or at which it received a signal.(fn24) Part II provides an overview of how cellular providers collect location information using either triangulation or satellite positioning technology and an overview of how trial advocates can map the information to demonstrate the approximate location of the person's phone.

This Comment principally explores when and how a party can successfully admit cell cite location information into evidence. Beginning with the threshold inquiry of relevance, Part III examines when cell site location information is relevant and in what circumstances the information, though relevant, could be unfairly prejudicial, cumulative, or confusing. Part IV provides the bulk of the analysis, which centers on the substantive foundation necessary to establish the information's credibility and authenticity. Part V looks at three ancillary issues: hearsay, a criminal defendant's Sixth Amendment confrontation rights, and the introduction of a summary of voluminous records. Finally, Part VI offers a summary of and conclusion to this Comment's analysis.

The legal showing necessary to obtain cell phone records is beyond the scope of this Comment.(fn25) The analysis evaluates the evidentiary obstacles to admitting cell site location information after the records have been lawfully acquired. While this Comment focuses on cell site location information within the context of criminal proceedings, the information could also be used in civil cases. The physical location of a party to a civil dispute would be relevant, for example, when the doctrine of frolic and detour could relieve an employer's liability for the actions of its em-ployee,(fn26) or to provide evidence that the driver of an automobile violated a safety statute in a negligence action.(fn27)

II. BACKGROUND

Wireless communication is firmly entrenched in the daily lives of a large and growing number of Americans. In fact, CTIA-The Wireless Association (CTIA), an international association representing the wireless industry, reports that the number of active, data-capable wireless devices in the United States reached 278.3 million in 2010.(fn28) This number represents roughly 89% of the U.S. population.(fn29) The wireless industry also saw a 16% increase in the use of SMS messages, more commonly known as text messages, between 2010 and 2011.(fn30)

The federal government responded to this increase in wireless communication by requiring cellular providers to provide cell site location information to emergency first responders.(fn31) In the 1990s, 911 operators became increasingly “alarmed they could not determine the location of distressed cell phone callers.”(fn32) For example, a Florida woman was able to dial 911 from her cell phone after her car skidded off the turnpike and into a canal, but rescue emergency personnel could not determine her precise location, and by the time they found her, she had died.(fn33) The Federal Communications Commission (FCC) has since implemented rules requiring wireless service providers to transmit information about a phone's location to public safety answering points in order to improve emergency response times.(fn34) Section A of this Part provides an overview of how cellular providers are able to discern a particular cell phone's location when it sends or receives a communication. Section B describes the modern call detail record, an automatically generated record of location data that advocates can use to illustrate a cell phone's location.

A. Determining a Cell Phone's Location

Cellular providers obtain locating information primarily in two ways: (1) by using Global Positioning System (GPS) technology; or (2) by triangulating the phone's location using either the time difference of arrival or angle of arrival techniques.(fn35)

1. Global Positioning System

The United States Air Force maintains at least twenty-four operational GPS satellites orbiting Earth at any given time.(fn36) These satellites transmit one-way signals to constantly update their position and time in space.(fn37) On the ground, devices equipped with GPS technology receive the signals from the satellites and calculate, based on each satellite's distance to the receiver, the device's position on the globe.(fn38) The accuracy of the GPS device's location varies depending on the type of receiver, but GPS is generally estimated to determine the device's location within ten to twenty meters.(fn39)

GPS data is available only to cell phones “enabled with GPS tech-nology,”(fn40) meaning the cell phone contains a GPS receiver that com municates with the positioning satellites.(fn41) When the cell phone receives signals from at least four satellites, the receiver calculates the phone's location.(fn42) This is the technology that enables real time navigation and turn-by-turn directions.(fn43)

2. Time...