he Ninth Circuit court of appeals upheld an illegal immigrant’s conviction for his illegal re-entry into the US who claimed a Google Earth Satellite image was hearsay.
Paciano Lizarraga-Tirado was attempting to cross the US-Mexico border when he was taken into custody by the US border patrol. At trial, Lizarraga-Tirado asserted that he was still in Mexico when arrested. Border Patrol agents testified they arrested him north of the border and recorded the coordinates of the arrest with a GPS device.
The government introduced a Google Earth satellite image with a digital “tack” labeled with the GPS coordinates of the arrest site at trial. Lizarraga-Tirado’s counsel objected to the use of the image on hearsay grounds. The district court overruled the objection and admitted the image.
Lizarraga-Tirado appealed his conviction, asserting that the Google image and “tack” were hearsay.
The Ninth Circuit ruled that the Google satellite image, much like a photograph, “merely depicts a scene as it existed at a particular time.” The satellite image is permissible because, like a photograph, “it makes no assertion” and is not hearsay.
The tack identifying the GPS coordinates presented a more difficult question to the court because labeled markers do make clear assertions as to what the tack is marking exists on the map and on land. The tack, if placed and labeled manually with a name or GPS coordinates by a person, would present a case of classic hearsay.
In the Google Earth satellite image, the tack was not placed manually, but is a function of the Google Earth program that allows for a person to input GPS coordinates but cannot control where the tack is being placed. Because the Google Earth program automatically places the tack on the location of the coordinates, it is a machine statement and is not hearsay.
The court also tested the coordinates on the Google Earth program and determined that the tack is placed on the same location as seen in the satellite image admitted as evidence.
The court acknowledged that machine statements can present evidentiary concerns that can be addressed by rules of authentication; however Lizarraga-Tirado did not raise any authentication objections, so the hearsay objection was properly overruled and his conviction confirmed.
The case is U.S. v. Lizarraga-Tirado, case no. 13-10530, in the U.S. Court of Appeals for the Ninth Circuit.
