United States v. Lizarraga-Tirado - 789 F.3d 1107 (9th Cir. 2015)

Rule:

The United States Court of Appeals for the Ninth Circuit has held that a photograph is not hearsay because it makes no assertion. Rather, a photograph merely depicts a scene as it existed at a particular time. The same is true of a Google Earth satellite image. Such images are produced by high-resolution imaging satellites, and though the cameras are more powerful, the result is the same: a snapshot of the world as it existed when the satellite passed overhead. Because a satellite image, like a photograph, makes no assertion, it is not hearsay.

Facts:

Defendant was arrested near the United States-Mexico border. He was charged with illegal reentry under 8 U.S.C. § 1326 as a previously removed alien who "entered and was found in the United States." At trial, defendant disputed that he had entered the United States before his arrest. He testified that he was still on the Mexico side of the border, waiting for instructions from a smuggler when he was arrested. Because he was arrested on a dark night in a remote location, he insisted that the arresting Border Patrol agents must have accidentally crossed the border before arresting him. The arresting agents testified that they were very familiar with the area where they arrested defendant and were certain they arrested him north of the border. One of the agents also testified that she contemporaneously recorded the coordinates of defendant's arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image. Google Earth superimposed certain markers and labels onto the images, such as names of towns and locations of borders. Relevant here, it also offered two ways for users to add markers of their own. A user can type GPS coordinates into Google Earth, which would automatically produce a digital "tack" at the appropriate spot on the map, labeled with the coordinates. The defense counsel objected to the satellite image on hearsay grounds. The district court overruled that objection and admitted the image. Defendant was subsequently convicted. Defendant appealed. 

Issue:

Were a Google Earth satellite image and a digital "tack" labeled with GPS coordinates hearsay? 

Answer:

No.

Conclusion:

The court affirmed the defendant's conviction under 8 U.S.C. § 1326, holding that because a Google Earth satellite image, like a photograph, made no assertion, it was not hearsay. The court further held that a tack placed on the satellite image by the Google Earth program and automatically labeled with GPS coordinates without any human intervention was not hearsay. The court, however, noted that machine statements might present evidentiary concerns, including malfunction or tampering; however, such concerns were addressed by rules of authentication, which the defendant did not raise at trial. The court concluded that because the satellite image and track-coordinates pair were not hearsay, their admission did not violate the Confrontation Clause.