United States v. Lizarraga-Tirado, No. 13-10530 (9th Cir. 2015)
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Defendant appealed his conviction under 8 U.S.C. 1326 as a previously removed alien who entered and was found in the United States. At issue was whether a Google Earth satellite image and a digital “tack” labeled with GPS coordinates are considered hearsay. The court held that a tack placed by the Google Earth program and automatically labeled with GPS coordinates is not hearsay where the relevant assertion is not made by a person. The court concluded that the real work is done by the computer program itself. The program analyzes
the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion - that the tack is
accurately placed at the labeled GPS coordinates - there is no statement as defined by the hearsay rule. In reaching that conclusion, the court joined other circuits that have held that machine statements are not hearsay. The court noted that machine statements may present evidentiary concerns addressed by the rules of authentication, which defendant did not raise an objection to at trial. Because the satellite image and tack-coordinates pair were not hearsay, their admission also did not violate the Confrontation Clause. The court rejected defendant's remaining claims in a memorandum disposition. Accordingly, the court affirmed the judgment.
Court Description: Criminal Law. The panel affirmed the defendant’s conviction under 8 U.S.C. § 1326 as a previously removed alien who entered and was found in the United States, in a case in which a Border Patrol agent testified that she contemporaneously recorded the coordinates of the defendant’s arrest using a handheld GPS device. The panel held that because a Google Earth satellite image, like a photograph, makes no assertion, it isn’t hearsay. The panel also held that a tack placed on the satellite image by the Google Earth program and automatically labeled with GPS coordinates without any human intervention isn’t hearsay. The panel wrote that machine statements might present evidentiary concerns, including malfunction or tampering, but that such concerns are addressed by rules of authentication, which the defendant didn’t raise at trial. The panel concluded that because the satellite image and track-coordinates pair weren’t hearsay, their admission didn’t violate the Confrontation Clause. The panel rejected the defendant’s other claims in a concurrently filed memorandum disposition. UNITED STATES V. LIZZARAGA-TIRADO 3
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