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9th Circuit Rules that a Marker Placed by Google Earth Does Not Constitute Hearsay

Posted on July 15th, 2015

The 9th Circuit Court of Appeals recently considered whether a Google Earth satellite image and a digital “tack” obtained by Google Earth with GPS coordinates constitutes hearsay.

In U.S. v. Lizarraga-Tirado, Case No. 13-10530 (9th Cir. Jun. 18, 2015), the 9th Circuit affirmed the conviction of Defendant for his illegal re-entry into the United States. Defendant argued that he was still in Mexico when the government arrested him. The arresting Border Patrol agent testified that she recorded the GPS coordinates at the location of the arrest; based upon these coordinates, the government introduced a Google Earth satellite image of the area. The coordinates, when entered into Google Earth, placed a marker at the location, which was in fact in the United States, not Mexico. Defendant objected to introduction of the satellite image as hearsay, and the trial court overruled the objection. Defendant appealed.

The court held that the Google Earth image itself was not hearsay because the government did not offer it to prove the truth of the matter asserted; rather, it depicted an image of the scene as it existed at the time. Regarding the placement of the marker at the coordinates, the court concluded that because the Google Earth computer system (not a human being) placed the marker based upon the coordinates, the marker labeled with coordinates is not a “statement” for hearsay purposes.

The decision accords with other federal circuits that have already held that machine “statements” are not hearsay, including the Third Circuit in United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003), which held that the header line on a faxed page did not constitute hearsay because the fax machine, not a person, automatically generated it. “[N]othing ‘said’ by a machine,” the court wrote, “is hearsay.” Id.

ILS – Plaintiff Electronic Discovery Experts

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