People v. Campbell , 425 P.3d 1163 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 25, 2018
2018COA5
No. 14CA2479, People v. Campbell — Constitutional Law —
Fourth Amendment — Reasonable Expectation of Privacy
A division of the court of appeals considers whether a
defendant has a reasonable expectation of privacy under the United
States and Colorado Constitutions in global positioning system
(GPS) data acquired from a defendant’s ankle monitor. The division
concludes that the defendant did not have a reasonable expectation
of privacy when the GPS data was voluntarily given to law
enforcement officials by the company that owned the ankle monitor.
The division further concludes that the trial court did not err in
admitting the GPS evidence without first conducting a hearing to
assess its reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo.
2001).
The division also rejects the defendant’s contentions that he
was seized and searched in violation of the Fourth Amendment and
that the victim’s in-court identification should have been
suppressed due to an unconstitutionally suggestive out-of-court
identification procedure.
Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA5
Court of Appeals No. 14CA2479
Jefferson County District Court No. 12CR1091
Honorable Philip J. McNulty, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brandon Deshawn Campbell,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TAUBMAN
Furman and Richman, JJ., concur
Announced January 25, 2018
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Brandon Deshawn Campbell, appeals his
judgment of conviction entered on jury verdicts finding him guilty of
two counts of second degree burglary, one count of attempted
second degree burglary, and three counts of criminal mischief. He
contends that the trial court erred in denying his motion to
suppress global positioning system (GPS) location data obtained via
an ankle monitor he wore at the time of his arrest. As a matter of
first impression, we conclude that Campbell did not have a
reasonable expectation of privacy in the GPS data under the United
States or Colorado Constitutions. Because we also perceive no
grounds for reversal with regard to Campbell’s remaining
contentions, we affirm.
I. Background
¶2 In late April 2012, the victim, J.P., called 911 to report an
intruder in his home. He provided the 911 dispatcher with a
description of the intruder and stated that he believed the suspect
had driven away in a white Ford Explorer.
¶3 Officers stopped a white Ford Explorer about ten minutes later
approximately three miles from the victim’s home. Campbell was
the driver and only occupant of the vehicle. Officers searched
1
Campbell and found he was wearing an ankle monitor. A detective
later requested and received the GPS data from the company
owning the ankle monitor. The GPS data revealed that, within the
month before J.P.’s home was broken into, Campbell had been at
the location of two other homes when they were burglarized. The
GPS data also placed Campbell at J.P.’s house at the time of the
break-in. Campbell was convicted of two counts of second degree
burglary, one count of attempted second degree burglary, and three
counts of criminal mischief.
¶4 On appeal, Campbell asserts that the trial court erred by
denying his motions (1) to suppress evidence obtained as a result of
a seizure and subsequent search of his person; (2) to suppress the
GPS data obtained from the ankle monitor; (3) for a hearing to
assess the admissibility of the GPS data; and (4) to suppress J.P.’s
show-up identification. We disagree with all these contentions.
II. Motion to Suppress Fruit of Seizure and Search
¶5 Campbell contends that the trial court erred in denying his
motion to suppress evidence obtained as a result of an illegal
seizure and search of his person. He argues that the officers’ use of
handcuffs and firearms transformed his seizure into an arrest
2
unsupported by probable cause. In the alternative, Campbell
asserts that, even if the officers’ use of force did not constitute an
arrest, the officers nonetheless lacked reasonable suspicion to
conduct an investigative detention. We conclude that the stop and
subsequent search were lawful.
A. Additional Facts
¶6 Officer Dave Smidt responded to J.P.’s 911 call. He was given
the location of the alleged break-in and told that the suspect was a
black male driving “an older model SUV, possibly a white Ford
Explorer.” Less than ten minutes after the victim called 911, Officer
Smidt saw a white Ford Explorer driven by a black man in the area
of the victim’s home. He pursued the vehicle. Officer Smidt
testified that he saw the vehicle turn rapidly without signaling
before it eventually pulled over. He recounted that “it appeared the
car was trying to get away from [him].”
¶7 After the vehicle stopped, Officer Smidt and another officer
who had arrived in a separate car conducted a “felony traffic stop” ―
they drew their weapons and ordered Campbell to exit the car, put
his hands up, walk backwards toward them, and kneel so that he
could be placed in handcuffs. After conducting a pat-down of
3
Campbell, the officers discovered he had an outstanding arrest
warrant. He was then placed in the back of one of the police
vehicles. He later made incriminating statements that he sought to
suppress. Additionally, Campbell sought to suppress evidence of
the officers’ discovery of the ankle monitor during the pat-down
search.
¶8 In a bench ruling on the motion to suppress, the trial court
stated in its findings of fact that Officer Smidt had followed
Campbell for “a number of blocks” during which time “it looked like
the driver was trying to get away from him.” The officer also
observed Campbell commit traffic violations, specifically “failure to
signal a turn” and potentially speeding by going “faster than [was]
prudent in a residential neighborhood.” The trial court concluded
that the officers had reasonable suspicion sufficient to stop
Campbell, and that reasonable suspicion ripened into probable
cause to arrest after J.P. identified Campbell as the intruder in a
one-on-one showup conducted shortly after he was first stopped.
As a result, the trial court denied Campbell’s motion to suppress.
4
B. Standajrd of Review
¶9 In reviewing a ruling on a motion to suppress, we defer to a
trial court’s findings of fact if they are supported by competent
evidence in the record. People v. King, 16 P.3d 807, 812 (Colo.
2001). We review conclusions of law de novo. Id.C. Applicable Law
¶ 10 The United States and Colorado Constitutions protect against
unreasonable searches and seizures. U.S. Const. amends. IV, XIV;
Colo. Const. art. II, § 7. A warrantless arrest is reasonable when an
officer has probable cause to believe that a crime has been or is
being committed. Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Because probable cause is an objective inquiry, an officer’s
subjective intent is irrelevant. See People v. Cherry, 119 P.3d 1081,
1083 (Colo. 2005). Thus, it is irrelevant if the offense that
established probable cause is unrelated to the offense actually
charged by the arresting officer. Id.¶ 11 “If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence,
he may, without violating the Fourth Amendment, arrest the
offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)
5
(holding that officer had probable cause to make custodial arrest
when he observed woman driving without wearing a seatbelt, a
criminal violation under state traffic code); see People v. Triantos, 55
P.3d 131, 134 (Colo. 2002); see also § 16-3-102(1)(b), C.R.S. 2017
(authorizing a peace officer to make an arrest when “[a]ny crime has
been or is being committed by [a] person in his presence”).
¶ 12 In the context of vehicle stops, “the decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred.” Whren v. United
States, 517 U.S. 806, 810 (1996); see also Cherry, 119 P.3d at
1083. Although minor traffic infractions are classified as “civil
matter[s]” under Colorado statute, § 42-4-1701(1), C.R.S. 2017, an
officer may constitutionally stop a driver based on observation of
even a minor traffic infraction. See Cherry, 119 P.3d at 1084
(concluding that officer’s observation of defendant committing two
class B traffic infractions justified stop); see also People v. Chavez-
Barragan, 2016 CO 16, ¶ 10, 365 P.3d 981, 983 (“Suspicion of even
a minor traffic offense can provide the basis for a stop.”); People v.
Altman, 938 P.2d 142, 145 (Colo. 1997) (concluding that “troopers
6
had a reasonable suspicion that criminal activity had occurred or
was occurring” when they observed minor traffic infractions).
D. Analysis
¶ 13 We conclude that the officers constitutionally stopped
Campbell on the basis of traffic violations witnessed by Officer
Smidt. Further, the officers had probable cause to believe Campbell
was committing the felony of vehicular eluding, and therefore
constitutionally arrested and searched him. We can affirm “on
different grounds than those relied upon by the trial court” if those
grounds are supported by “undisputed facts in the record.” People
v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006), as modified on denial
of reh’g (Jan. 16, 2007). Campbell has not disputed Officer Smidt’s
testimony with regard to the observed traffic violations, and does
not assert on appeal that the trial court’s findings of fact on this
point were clearly erroneous.
¶ 14 The parties initially limited their arguments to whether the
officers had reasonable suspicion to stop Campbell, which was the
basis for the trial court’s denial of Campbell’s motion to suppress.
We requested supplemental briefing from both parties on the issue
7
of whether the violations observed by Officer Smidt gave rise to
probable cause to stop and arrest Campbell.
¶ 15 Officer Smidt testified that he observed Campbell turn without
signaling, a class A traffic infraction under Colorado law. See § 42-
4-903(2), (5), C.R.S. 2017. We conclude that Officer Smidt’s
observation of this violation of the traffic code justified the initial
stop, regardless of whether the description communicated by the
dispatcher independently created reasonable suspicion sufficient to
stop the vehicle.
¶ 16 In their supplemental brief, the People further argue that the
officers had probable cause to believe that Campbell was eluding
the officers in violation of section 18-9-116.5(1), C.R.S. 2017, a
class 5 felony. The record supports this contention. In its findings
of fact, the trial court noted that “it looked like the driver was trying
to get away from” the officer because the driver did not stop for
several blocks after the officer first activated his lights and sirens.
We therefore agree that “the facts and information within the
arresting officers’ knowledge [we]re sufficient” to cause them to
believe Campbell was committing the felony of vehicular eluding.
People v. Bustam, 641 P.2d 968, 972 (Colo. 1982).
8
¶ 17 Because the officers had the right to arrest Campbell for
vehicular eluding, they had the right to use reasonable force in
effectuating the arrest, see § 18-1-707(1)(a), C.R.S. 2017, and
conduct a search of Campbell’s person incident to arrest, see
Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). Thus, we conclude
that the trial court did not err in denying Campbell’s motion to
suppress evidence obtained as a result of his seizure and search.
III. Motion to Suppress GPS Data
¶ 18 Campbell asserts that the trial court erred in denying his
motion to suppress the GPS data obtained from the ankle monitor.
As an issue of first impression in Colorado, we conclude that,
because Campbell did not have a reasonable expectation of privacy
in the GPS location data generated by the ankle monitor under the
United States or Colorado Constitutions, the trial court did not err.
A. Additional Facts
¶ 19 When Campbell was arrested, the officers found a monitor on
his ankle, which Campbell said he was wearing at the request of a
private bail bondsman. The officers did not remove the ankle
monitor.
9
¶ 20 After Campbell’s arrest, Detective George McGlynn contacted
the GPS monitoring company, Interstate Monitoring Bureau
Corporation, to request the data generated by the ankle monitor.
Detective McGlynn did not seek a warrant for this GPS data.
Rather, Interstate Monitoring voluntarily provided the information
requested. As explained during trial, the documents provided by
the monitoring company detailed Campbell’s location every five
minutes. The records introduced at trial covered over one month of
Campbell’s whereabouts, totaling 9643 “tracking events” or
five-minute increments. Based on the records, Detective McGlynn
determined that Campbell had been at J.P.’s home, as well as two
other homes when they were burglarized in March and April of
2012.
¶ 21 In its bench ruling, the trial court concluded that Campbell
lacked standing to challenge the allegedly unconstitutional search
of the GPS data. In its findings of fact, the trial court noted that the
ankle monitor had been imposed “as a condition of bond, whether it
[was] court ordered or ordered by the bondsman.” The trial court
reasoned that Campbell was “not asserting his own rights” because,
even if the bondsman might have an expectation of privacy in the
10
records maintained by the monitoring company, Campbell did not.
In light of its conclusion that Campbell lacked standing to contest
the collection of the GPS data, the trial court denied his motion to
suppress.
B. Standard of Review
¶ 22 In reviewing a ruling on a motion to suppress, we defer to a
trial court’s findings of fact if they are supported by competent
evidence in the record. King, 16 P.3d at 812. We review
conclusions of law de novo. Id.
C. Applicable Law
¶ 23 The constitutional protections against unreasonable searches
and seizures are personal. See Alderman v. United States, 394 U.S.
165, 174 (1969) (“Fourth Amendment rights are personal rights
which . . . may not be vicariously asserted.”). To invoke the Fourth
Amendment’s protections, a defendant must show that “the
disputed search and seizure has infringed an interest of the
defendant which the Fourth Amendment was designed to protect.”
Rakas v. Illinois, 439 U.S. 128, 140 (1978).
¶ 24 While often referred to as an issue of standing, the Rakas
Court recognized that this threshold question “belongs more
11
properly under the heading of substantive Fourth Amendment
doctrine than under the heading of standing.” Id.; see also
Rawlings, 448 U.S. at 106 (noting that, after Rakas, the standing
inquiry merged with the substantive question “whether
governmental officials violated any legitimate expectation of privacy”
held by the defendant). Thus, a person has “standing” to challenge
a search “if the defendant maintained a reasonable expectation of
privacy in the place searched.” People v. Galvadon, 103 P.3d 923,
930 (Colo. 2005).
¶ 25 To assess whether a defendant had a reasonable expectation
of privacy in the place searched, we turn to the two-prong test set
forth in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring). People v. Gutierrez, 222 P.3d 925, 932 (Colo. 2009).
Under that test, “[a] defendant must have an actual expectation
that the area or activity subjected to governmental intrusion would
remain free of such intrusion and such an expectation must be one
that ‘society is prepared to recognize as reasonable.’” Galvadon,
103 P.3d at 929 (quoting People v. Oates, 698 P.2d 811, 814 (Colo.
1985)).
12
¶ 26 In a line of cases, the United States Supreme Court has held
that a person has no reasonable expectation of privacy in
information he or she voluntarily discloses to a third party. See
Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v.
Miller, 425 U.S. 435, 443 (1976); Hoffa v. United States, 385 U.S.
293, 302 (1966). Thus, “the Fourth Amendment does not prohibit
the obtaining of information revealed to a third party and conveyed
by him to Government authorities.” Miller, 425 U.S. at 443. This is
true “even if the information is revealed on the assumption that it
will be used only for a limited purpose and the confidence placed in
the third party will not be betrayed.” Id.¶ 27 The Colorado Supreme Court, however, has held that article II,
section 7 of the Colorado Constitution encompasses a “broader
definition of what constitutes a legitimate expectation of privacy
from government intrusion than that of its federal counterpart.”
Galvadon, 103 P.3d at 927. Thus, the Colorado Supreme Court
held that a bank customer had a reasonable expectation of privacy
in his bank records under the Colorado Constitution, despite
Supreme Court precedent that no reasonable expectation of privacy
in such records exists under the Fourth Amendment. Charnes v.
13
DiGiacomo, 200 Colo. 94, 98-100, 612 P.2d 1117, 1119-21 (1980)
(discussing and declining to follow Miller, 425 U.S. 435); cf.
Gutierrez, 222 P.3d at 935 (finding third party doctrine inapplicable
and holding that taxpayers have reasonable expectation of privacy
in income tax returns even when they disclose them to the Internal
Revenue Service, the state department of revenue, and tax
preparers). Similarly, the Colorado Supreme Court has held that
telephone users have a reasonable expectation of privacy in the
numbers they dial, despite the Supreme Court’s holding to the
contrary. People v. Sporleder, 666 P.2d 135, 142 (Colo. 1983)
(discussing and declining to follow Smith, 442 U.S. 735).
D. Analysis
¶ 28 To begin, we address the first prong of Katz, under which a
defendant must have an actual expectation of privacy in the place
searched. Campbell urges that he maintained a subjective
expectation that the GPS data generated by his ankle monitor
would not be exposed or otherwise subjected to “public scrutiny.”
¶ 29 As support for this assertion, he notes that the monitoring
company stored the data “in a web-based secured interface.”
Further, Campbell asserts that, because he wore the ankle monitor
14
at the request of a private bail bondsman, he believed the sole
purpose of the GPS monitoring was to ensure that he did not
abscond from the state and thereby fail to appear in court. He did
not anticipate that the data would be used “to facilitate criminal
investigations.” We assume without deciding that Campbell had an
actual, subjective expectation of privacy in the GPS data. See
Gutierrez, 222 P.3d at 932 (deferring to trial court’s finding that the
defendant had a subjective expectation of privacy in tax returns
where tax preparer kept the records in a secure cabinet).
¶ 30 Nevertheless, we conclude under the second prong of Katz that
any expectation of privacy in the GPS data was not “one that society
is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361(Harlan, J., concurring). Campbell asserts that “other jurisdictions
have held that GPS location data implicates an individual’s privacy
interest.” However, the cases he cites in support of that argument
involved circumstances in which law enforcement agents
surreptitiously installed GPS tracking devices on individuals’
vehicles without obtaining warrants. See, e.g., United States v.
Jones, 565 U.S. 400 (2012). Campbell correctly asserts that those
cases generally acknowledge the “unique attributes of GPS
15
surveillance.” Id. at 415 (Sotomayor, J., concurring). Certainly,
several courts have recognized that long-term GPS monitoring
“generates a precise, comprehensive record of a person’s public
movements that reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations.” Id.¶ 31 However, the cases cited by Campbell do not address the
precise issue here — whether a defendant has a reasonable
expectation of privacy in GPS location data transmitted to and
collected by a third party. Under the Supreme Court precedent,
Campbell had no reasonable expectation of privacy in the GPS data
because he voluntarily disclosed such data to a third party — his
bondsman. Campbell was aware that his bondsman had access to
the GPS location data to ensure that he did not leave the state while
out on bond. In short, Campbell “t[ook] the risk, in revealing his
affairs to another, that the information w[ould] be conveyed by that
person to the Government.” Miller, 425 U.S. at 443. Thus, even if
we assume he subjectively believed his GPS data would remain
private, that expectation was not one society would be prepared to
call reasonable.
16
¶ 32 We reach the same result even under the broader protections
afforded by the Colorado Constitution. In Charnes v. DiGiacomo,
the supreme court distinguished Miller, 425 U.S. 435, by noting
that a bank customer does not truly voluntarily disclose
information about his or her financial transactions because bank
accounts are necessary in modern life and because the customer’s
primary purpose in having a bank account is facilitating the
transfer of funds. 200 Colo. at 99, 612 P.2d at 1121 (discussing
and following Burrows v. Superior Court, 529 P.2d 590 (Cal. 1974)).
In contrast, here, Campbell chose to contract with the private bail
bondsman and knew that the primary purpose of the ankle monitor
was to track and record his location. Further, Campbell could not
reasonably have anticipated that the GPS data would remain “free
from governmental intrusion,” Sporleder, 666 P.2d at 140, when the
bail bondsman could have reported his location to the court had he
absconded in violation of his bond terms.
¶ 33 Accordingly, we conclude that Campbell cannot invoke the
protections of either the Fourth Amendment of the United States
Constitution or article 2, section 7 of the Colorado Constitution
because he had no reasonable expectation of privacy in the GPS
17
data. Thus, the trial court did not err in denying his motion to
suppress.
IV. Admissibility of GPS Data
¶ 34 Campbell next contends that the trial court erred in admitting
the GPS evidence without first holding a hearing to assess its
reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001).
We disagree.
A. Additional Facts
¶ 35 Before trial, Campbell moved for a Shreck hearing on the
admissibility of the GPS records and any expert testimony relating
to that data. Campbell asserted that a hearing was necessary to
assess the reliability of the evidence because Interstate Monitoring
was not obligated to test the ankle monitor devices or ensure their
accuracy, and because GPS technology is “fairly new.”
¶ 36 In denying the motion for the Shreck hearing, the trial court
stated that “GPS has been around for a long time.” The trial court
therefore concluded that “this is not the type of new and novel
scientific evidence” that must be vetted by a pretrial evidentiary
hearing.
18
¶ 37 During trial, Bruce Derrick testified as an expert in GPS
devices and technology. Derrick worked for SecureAlert, the
manufacturer of the ankle monitor Campbell was wearing when
arrested. He testified how GPS devices communicate location data
to a monitoring center, as well as the specific mechanics of the
ankle monitor device. Defense counsel cross-examined Derrick at
length on the accuracy of GPS location data.
B. Standard of Review
¶ 38 We review a trial court’s evidentiary ruling for an abuse of
discretion. People v. Veren, 140 P.3d 131, 136 (Colo. App. 2005). A
trial court abuses its discretion when its ruling is “manifestly
arbitrary, unreasonable, or unfair.” Id.¶ 39 We review any error in denying a Shreck hearing under the
nonconstitutional harmless error standard. People v. Wilson, 2013
COA 75, ¶ 24, 318 P.3d 538, 543. Under this standard, we will
reverse only if the error “substantially influenced the verdict or
affected the fairness of the trial proceedings.” Hagos v. People,
2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715
P.2d 338, 342 (Colo. 1986)).
C. Applicable Law
19
¶ 40 CRE 702 governs the admissibility of scientific evidence as
well as expert testimony. Shreck, 22 P.3d at 77. A trial court’s
determination as to scientific evidence’s admissibility should be
“broad in nature” and flexible, with the ultimate goal of assessing
whether the evidence is relevant and reliable. Id. A trial court
assesses whether scientific evidence and related expert testimony
are admissible by considering whether (1) the scientific principles
underlying the expert’s testimony are reliable; (2) the expert is
qualified to give an opinion on the subject; (3) the testimony will be
helpful to the jury; and (4) the probative value of the testimony is
substantially outweighed by the danger of unfair prejudice. See id.
at 77-79; see also People v. Rector, 248 P.3d 1196, 1200 (Colo.
2011).
¶ 41 Once a party requests that evidence be subjected to a Shreck
analysis, the trial court can, in its discretion, hold an evidentiary
hearing on the matter. Wilson, ¶ 23, 318 P.3d at 543. However, the
trial court is not required to conduct an evidentiary hearing if it
“already has sufficient information to make specific findings under
Shreck.” Id.
20
¶ 42 Concerns about conflicting theories or the reliability of
scientific principles go to the weight of the evidence, not its
admissibility. See Estate of Ford v. Eicher, 250 P.3d 262, 269 (Colo.
2011). Such concerns “are adequately addressed by vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof.” Id. (citing Shreck, 22 P.3d at
78).
D. Analysis
¶ 43 We conclude that the trial court did not abuse its discretion in
denying Campbell’s motion for a pretrial hearing on the
admissibility of the GPS data. GPS technology is prevalent in
modern society and widely regarded as reliable. “Courts routinely
rely on GPS technology to supervise individuals on probation or
supervised release, and, in assessing the Fourth Amendment
constraints associated with GPS tracking, courts generally have
assumed the technology’s accuracy.” United States v. Brooks, 715
F.3d 1069, 1078 (8th Cir. 2013). Indeed, the concurrence in Jones
acknowledged that GPS technology in modern cell phones “permit[s]
more precise tracking” than previous technology allowed. Jones,
565 U.S. at 428 (Alito, J., concurring in the judgment). The
21
overarching concern of any Shreck analysis is the reliability and
relevance of the scientific evidence, and we conclude, like other
courts, that GPS evidence is sufficiently reliable to satisfy CRE 702.
¶ 44 We realize that Colorado’s standard for the admissibility of
scientific evidence differs from the test laid out in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that other
state rules of evidence may differ from CRE 702. Nevertheless, we
find it instructive to consider the admissibility of GPS evidence in
other jurisdictions which have held that GPS evidence is reliable
and, thus, admissible. See Brooks, 715 F.3d at 1078 (affirming
district court’s taking judicial notice of “the accuracy and reliability
of GPS technology,” and thus allowing GPS evidence without expert
testimony); United States v. Mathews, 250 F. Supp. 3d 806, 819 (D.
Colo. 2017) (denying the defendant’s motion for a Daubert hearing
on GPS data and stating that the defendant’s challenge to the
accuracy of the GPS data was “a matter for cross-examination”);
Brown v. State, 163 S.W.3d 818, 824 (Tex. App. 2005) (holding GPS
records sufficiently reliable); see also James Beck et al., The Use of
Global Position System (GPS) and Cell Tower Evidence to Establish a
Person’s Location, 49 No. 1 Crim. L. Bull. art. 7 (Winter 2013) (“The
22
relatively unchallenged science behind GPS and the extensive,
successful reliance on the technology during the past 30 years
justify its admissibility in court.”); cf. United States v. Thompson,
393 F. App’x 852, 859 (3d Cir. 2010) (allowing a lay witness “to
testify concerning the operation of [a] GPS device”).
¶ 45 In any event, here, Derrick was properly qualified to testify as
an expert on GPS technology. Campbell conducted voir dire of
Derrick and thoroughly cross-examined him on the accuracy of GPS
technology generally and the ankle monitor device specifically.
¶ 46 In light of the reliability of GPS evidence, we conclude that the
trial court did not err in denying Campbell’s motion for a pretrial
Shreck hearing.
V. Motion to Suppress Identification
¶ 47 Campbell’s final contention is that the trial court erred in
denying his motion to suppress J.P.’s identification. He asserts
that, because the out-of-court identification procedure was unduly
suggestive and unreliable, admission of J.P.’s in-court identification
violated his constitutional due process rights. We disagree.
23
A. Additional Facts
¶ 48 J.P. encountered Campbell in the stairway of his house. The
victim had just woken up when he heard noises downstairs, and he
was not wearing his contact lenses or eyeglasses. It was
midmorning and the house was well lit. The two men were
approximately ten feet away from each other for one or two seconds
before Campbell ran out of the house. During the 911 call, the
victim described Campbell as a black male, about 5’8” or 5’9” tall,
wearing a dark gray or black hoodie, dark jeans, and white
sneakers.
¶ 49 When officers stopped Campbell’s car, the victim was still on
the line to the 911 dispatcher. The dispatcher told him that officers
had pulled over a vehicle matching the description he had given.
Shortly after the 911 call ended, an officer took the victim to the
location where Campbell had been pulled over.
¶ 50 When the victim got to the scene of Campbell’s arrest, there
were four or five police vehicles, two police motorcycles, and more
than eight police officers present. There were no other people aside
from Campbell and the victim. When the victim was driven to the
24
scene, Campbell was seated in the backseat of a police vehicle in
handcuffs. Campbell was the only black person at the scene.
¶ 51 The victim testified that he “knew almost immediately” that
Campbell had been the man who broke into his home. An officer
told him to “slow down [and] make sure.” After another minute or
so, the victim again positively identified Campbell. The victim was
wearing eyeglasses during the show-up identification, though he
later testified that his uncorrected vision was “not bad” and he
merely preferred to have eyeglasses on.
¶ 52 The trial court found that the show-up procedure utilized by
the officers here was suggestive. However, the trial court
nonetheless denied Campbell’s motion to suppress the out-of-court
identification because it found that the identification was reliable
under the totality of the circumstances.
B. Standard of Review
¶ 53 We review a trial court’s determination on the admissibility of
an identification as a mixed question of fact and law, affording
deference to the findings of fact and reviewing the legal conclusions
de novo. See Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).
25
¶ 54 We review preserved errors of constitutional dimension for
constitutional error, meaning we will reverse unless the People
show that the error was harmless beyond a reasonable doubt.
Hagos, ¶ 11, 288 P.3d at 119.
C. Applicable Law
¶ 55 In considering a challenge to an out-of-court identification, a
court must follow a two-step analysis. Bernal, 44 P.3d at 191.
First, a defendant must prove that the identification procedure was
unduly suggestive. See id. If the defendant shows the procedure
was impermissibly suggestive, the burden then shifts to the People
to show that the identification was nevertheless reliable under the
totality of the circumstances. Id.
¶ 56 Under the second step of this analysis, the court may consider
several factors, including “(1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated by the witness at
the confrontation; and (5) the length of time between the crime and
the confrontation.” Id. at 192. Ultimately, the suggestiveness of the
identification procedure must be balanced against the indicia of
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reliability; provided that there is not a “very substantial likelihood of
irreparable misidentification,” the identification is admissible. Id.;
see also People v. Weller, 679 P.2d 1077, 1083 (Colo. 1984).
D. Analysis
¶ 57 The trial court found, Campbell argues, and the People do not
contest that the show-up procedure utilized here was impermissibly
suggestive. We agree. When the victim arrived at the scene of
Campbell’s arrest, Campbell was handcuffed in the back of a police
vehicle surrounded by officers and he was the only black person
present. Moreover, the dispatcher told the victim that officers had
pulled over a vehicle matching his description. This show-up
procedure was impermissibly suggestive. See generally Weller, 679
P.2d at 1083 (“One-on-one showups are not favored and tend to be
suggestive.”).
¶ 58 Nevertheless, we conclude that the People met their burden of
proving that the identification was reliable despite the suggestive
procedure. With regard to the first factor set forth in Bernal, the
victim had the opportunity to see the intruder for one or two
seconds in a well-lit area while the two men were about ten feet
away from one another. Moreover, the victim testified that,
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although he was not wearing contact lenses or eyeglasses, he felt he
was able to see the intruder sufficiently to later identify him. As for
the second factor, the trial court concluded that the victim was
startled when he encountered the intruder, which heightened his
degree of attention, and we defer to this finding.
¶ 59 The third factor –– the accuracy of the witness’ description ––
weighs less in favor of the People. The victim’s description of the
intruder was somewhat generic, and there were inconsistencies
between the description provided to the 911 dispatcher and
Campbell’s actual appearance. However, looking to the fourth
factor, the victim’s confidence in the identification was high. He
quickly confirmed that Campbell was the intruder once on the
scene, and he later testified that he was ninety-five percent sure his
identification was accurate. He was also “very positive” on the
color, make, and model of the car that he saw driving away from his
home. Finally, the time between the crime and confrontation was
extremely brief. The identification occurred less than an hour after
the victim first saw the intruder.
¶ 60 In sum, especially in light of the strength of the final two
factors, we conclude that the identification was reliable despite the
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suggestiveness of the procedure. We cannot say that, given the
totality of the circumstances, there was a “very substantial
likelihood of irreparable misidentification.” Bernal, 44 P.3d at 192.
As a result, we conclude the trial court did not err in denying the
motion to suppress the identification.
VI. Conclusion
¶ 61 Accordingly, the judgment is affirmed.
JUDGE FURMAN and JUDGE RICHMAN concur.
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