R.L.G., A JUVENILE,

v.

THE STATE OF FLORIDA,

Third District Court of Appeal State of Florida

Opinion filed June¹⁶, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-675 Lower Tribunal Nos. J20-657A & J20-658A ________________

R.L.G., a juvenile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Yery Marrero, Judge.

Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before LOGUE, LINDSEY, and HENDON, JJ.

LOGUE, J.

2

This case concerns the evidentiary threshold a party must meet to admit GPS information generated by a third party. A juvenile, R.L.G., appeals a finding of indirect criminal contempt for leaving home in violation of a supervised release order. The evidence against the juvenile consisted of his probation officer testifying to location information provided by BI Incorporated, the third-party monitoring company that supplied and monitored an ankle bracelet worn by the juvenile. The juvenile asserts the officer’s testimony based on BI’s information was inadmissible hearsay. Given the limited record before us and the precedent of this Court and the other district courts, we agree with the juvenile. In so doing, we acknowledge the State makes an interesting argument. Hearsay, the State maintains, encompasses only the out-of-court “statements of persons.” BI’s information, the State argues, is not hearsay but is instead an out-of-court “statement by a machine.” BI’s information, so the State’s argument goes, qualifies as a “statement by a machine” because it was “automatically generated without manual input from any person.” As the juvenile accurately notes, however, the factual claim underpinning the State’s argument is “essentially a raw guess by the State because the record contains no information to what extent the information given to [the probation officer] by BI was automatically generated.”

FACTS

The juvenile was placed on home detention with an ankle monitor. Ultimately, he was issued an order to show cause for indirect criminal contempt pursuant to Florida Rule of Juvenile Procedure 8.150(b). In pertinent part, the order was based on his probation officer’s affidavits stating the juvenile had left home without permission on certain dates and times.1 As authorized by Rule 8.150(c)(5), the trial court undertook the double burden of acting as both prosecutor and judge. An assistant state attorney

1 The affidavits also included a violation alleging the juvenile tampered with his ankle monitor. The trial court, however, expressly declined to base its finding of contempt on those allegations. In addition, the affidavits also alleged the juvenile violated the conditions of his supervised release on March³, 2021. At the hearing, this violation was established by the testimony of the probation officer that he visited the home and confirmed the juvenile was absent. Based on R.L.G.’s concession and our own review of the record, we affirm this finding of violation.

ANSWER: That and we get an alert that’s sent out also.

QUESTION: So an alert is sent out. Is it coming through a computer screen to you, a phone, or how does that come to you?

ANSWER: Through emails. It’s documented in the system. It shows the alerts, it’s the same time as the alerts. It shows the whereabouts when he’s not home.

(emphasis added). The officer’s testimony was inconclusive and indeterminate in several ways. It is unclear from his testimony if his reference to “the system” meant BI’s system or the State’s system. It is also unclear if he meant the system uses “GPS” or whether he meant the system uses “WiFi.” It is also unclear if the officer meant BI sent its location information by only email alerts or by both emails and separate electronic alerts in some manner not further identified. In whatever form they took, BI’s electronic messages to the officer were not offered into evidence. Nor was the documentation in the “system” to which he referred. No representative or records custodian from BI testified.

Two points, however, are clear. First, the location information came from BI, a third party. Second, the probation officer was never asked and never said that BI’s location information or messages were “automatically

ANALYSIS

Because indirect criminal contempt is a crime, proof of criminal contempt must be established beyond a reasonable doubt. Parisi v. Broward Cnty., 769 So. 2d 359, 364 (Fla. 2000); Vernell v. State ex rel. Gerstein, 212 So. 2d. 11, 13 (Fla. 3d DCA 1968) (“[I]n a proceeding for indirect criminal contempt the contemnor is presumed to be innocent until proved guilty beyond a reasonable doubt.”). Moreover, “[i]mpermissible hearsay may not support a finding of contempt of court.” A.A. v. State, 271 So. 3d 87, 95 (Fla. 3d DCA 2019). We are reviewing a trial court’s decision to admit evidence over a hearsay objection. While it is often said that a trial court’s decision whether

2 See, e.g., United States v. Brooks, 715 F. 3d 1069, 1079 (8th Cir. 2013) (holding GPS records were properly admitted under the business records exception where executive of security company testified that “company routinely keeps the GPS data on the company server”); United States v. Wood, No. 08-CR-92A, 2009 WL 2157128, at *4 (W.D.N.Y. 2009) (holding that GPS records were properly admitted as business records after

3 See, e.g., Brian Sites, Machines Ascendant: Robots and the Rules of Evidence,³ Geo. L. Tech. Rev. 1, 5 (2018).

4 See generally Andrea Roth, Machine Testimony, 126 Yale L.J. 1972, 1976 (2017) (“The shift from human- to machine-generated proof has, on the whole, enhanced accuracy and objectivity in fact finding. But as machines extend their reach and expertise, to the point where competing expert systems have reached different ‘opinions’ related to the same scientific evidence, a new sense of urgency surrounds basic questions about what machine conveyances are and what problems they pose for the law of evidence.” (footnotes omitted)).

5 See Sites, supra note³, at 18.

6 See, e.g., HSBC Bank USA, Nat’l Ass’n v. Buset, 241 So. 3d 882, 887 (Fla. 3d DCA 2018) (noting the trial court erred by failing to follow controlling precedent, even when a party introduces a new argument challenging the precedent).

13

R.L.G. v. State,

3D21-675

LINDSEY, J., concurring in part and dissenting in part.

I respectfully dissent and would affirm the trial court’s order finding R.L.G. in indirect criminal contempt of court because there is competent substantial evidence in the record to support the trial court’s finding.

The parties agree that resolution of this appeal hinges on whether GPS alerts are inadmissible hearsay.⁷ Indeed, this is the only issue on appeal. Yet, the majority asserts that “[c]onsideration of whether and when out-ofcourt ‘statements by machines’ are not hearsay must await a case with a record supporting that argument.” Maj. Op. at 3. Instead, the majority frames the issue on appeal as having to do with “the evidentiary threshold a party must meet to admit GPS information generated by a third party.” Id. at 2. But in reversing the trial court, the majority ultimately concludes that

7 See Initial Br. 2 (“Mr. Grant testified that he received ‘information’ from the GPS ‘device that’s equipped around R.G.’s ankle’ that he left his home without approval on multiple occasions. The defense objected and asked for a ‘standing objection’ that the information provided by the monitor was ‘hearsay.’”); Initial Br. 5 (“Because the evidence of the GPS alerts was inadmissible hearsay, the evidence at the hearing below was sufficient to sustain only a single contempt finding.”); Answer Br. 7 (“The testimony regarding alerts that the probation officer received on his monitor was not hearsay.”); Reply Br. 4 (“Turning to the only issue raised by this appeal, whether the GPS alerts were inadmissible hearsay, the State argues that the ‘Florida cases on this subject are sparse.’”).

Id. at 12-13. I respectfully disagree with the premise upon which the majority necessarily relies for this conclusion: that the alerts generated by the ankle monitor are hearsay.

The issues and arguments framed by the majority are not the issues and arguments framed by R.L.G.—the appellant. This appeal is not about the evidentiary threshold a party must meet to admit GPS information generated by a third party. It is not about the probation officer’s testimony of BI’s information and messages. It is not about the sufficiency of the record. It is about whether GPS alerts are hearsay.

Because GPS alerts are not hearsay, there is no reason to expand our review of the record to whether a sufficient foundation was laid to admit them under the business records exception to the hearsay rule or any other exception.⁸ This is so because unless evidence constitutes hearsay, exceptions to the rule against hearsay are inapplicable.

8 The business records exception provides for the admissibility of the following:

15

Further, because R.L.G. is the appellant, it is his burden to show error. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”). It is not this Court’s job to find it for him. See Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“‘Basic principles of due process’—to say nothing of professionalism and a long appellate tradition—‘suggest that courts . . . ought not consider arguments outside the scope of the briefing process.’” (quoting Powell v.

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

§ 90.803(6)(a), Fla. Stat. (2020).

I.

BACKGROUND

On January²², 2021, the trial court issued an order directing R.L.G. not to tamper with or remove the GPS ankle bracelet he had been ordered to wear. Based on affidavits filed by R.L.G.’s probation officer, Mr. Grant, alleging violations of supervised release, the trial court ordered R.L.G. to show cause why he should not be held in indirect criminal contempt. Following an evidentiary hearing, the trial court entered an order of contempt. “Generally, ‘[a] judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.’” Cancino v. Cancino, 273 So. 3d 122, 126 (Fla. 3d DCA 2019) (quoting DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005)).⁹ The issue before us is whether there was competent substantial

9 R.L.G. argues that because there was only one instance where Mr. Grant personally verified the GPS alert by physically going to R.L.G.’s home, there is only competent substantial evidence to support a single violation of the lower court’s order directing R.L.G. not to tamper with or remove his electronic monitor and not to leave his home. R.L.G. commendably concedes that there is competent substantial evidence to support one

At the evidentiary hearing below, the judge asked Mr. Grant “to go through the times that the youth was not home.” Counsel for R.L.G. raised a hearsay objection on the basis that he did not know where the information was coming from: [Counsel for R.L.G.]: I need to object to hearsay. Is this --did he -- was he at -- this is hearsay. I don’t know where this testimony is coming from. And this is a personal -- and I know this is a speaking objection. I apologize, but we’re not in front of a jury. But my objection is hearsay as to where this information is coming from.

[Judge]: Okay. Mr. Grant, where is this information coming from?

[Mr. Grant]: It’s coming from the information that’s provided from the device that’s equipped around his ankle.

[Judge]: Okay.

[Counsel for R.L.G.]: That’s hearsay, Judge.

instance of R.L.G. violating the court’s prior order, and I concur with the majority as to that violation.

Mr. Grant then proceeded to provide the exact times R.L.G. left home. Counsel for R.L.G. once again objected to hearsay, without further elaboration, and requested a standing objection. The trial court judge acknowledged the standing objection, overruled it, and again asked Mr. Grant how he knew what time R.L.G. left home: [Counsel for R.L.G.]: Objection again to hearsay. I should get – I’m going to have a standing objection to the prior testimony as hearsay.

[Judge]: Okay. The defense has a standing objection. I’ll overrule it.

. . . .

[Judge]: Okay. And I know that the Defense will ask you, but – questions. And there is a – an objection pending. But can you tell me how you know that?

[Mr. Grant]: Due to the monitoring system that track[s] him by points that’s provided on his device[.] (Emphasis added).

Counsel for R.L.G. cross-examined Mr. Grant and asked several detailed questions about the alerts generated by the GPS device and the monitoring system. Mr. Grant explained that he receives an alert on his screen and, in addition, an email alert is sent at the same time with the juvenile’s location:

A That’s correct.

Q So you’d look at something on your screen or – or on a monitor and gives you an alert; correct?

A Correct

Q Okay. You’re not – as far as the inter – inner workings of that system and how it was made, you’re not the person that did that; correct?

A.

That’s correct

Q Okay. So you merely see that someone is not home by looking at some screen that pops up; correct?

A That, and we – an alert that’s sent out also.

Q Okay. So an alert is sent out to us. Is it coming through a computer screen to you, a phone, or how does it come to you?

A Come through emails. It’s documented in the system. It shows the alerts, it’s at the same time as the alerts. It shows the whereabouts when he’s not home.

Q And it’s -- and it’s just based on some other system sending you these alerts; right?

A That’s correct.

(Emphasis added).

20

Mr. Grant also explained that although he was not the one who personally created the monitoring system, he received some training as to its inner workings: Q And really, you don’t know how the inner workings operate, other than an alert coming to you in some form.

A I know a little bit more than that.

Q Tell me.

A How the satellites are used to communicate with the device, and the device is also programmed to send out points randomly to the device, and how – the system used to pinpoint the locations, the defections, the speed of the youth.

Q And those are all coming from an outside system from – from you, like a – satellites coming from somewhere else and [pinging] to your system; right?

A That’s correct.

In short, R.L.G.’s hearsay objection below was based on not knowing where the information was coming from. Mr. Grant consistently explained, both when asked directly by the judge and on cross-examination, that the GPS alerts he received were generated by the device around R.L.G.’s ankle

II.

ANALYSIS

The rule against hearsay can be traced back to at least the 17th century. Kenneth S. Broun et al., 2 McCormick On Evidence § 244 (8th ed. 2020). As early as 1668, hearsay was excluded due to lack of any opportunity to cross-examine the absent declarant, and this remains the main justification for the exclusion of hearsay today. Id. at § 245. Because “the benefits of cross-examination animate hearsay theory, . . . certain situations where cross-examination is impossible or ineffectual may be categorized as nonhearsay. As long understood with animal responses and more recently with some machine-generated data, particularly automatically

10 I do not dispute that the proponent of hearsay evidence has “the burden of supplying a proper predicate to admit this evidence under an exception to the rule against hearsay.” See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008), as revised on denial of reh’g (July¹⁰, 2008). However, everything in the record indicates that the GPS alerts are not hearsay. Moreover, despite Mr. Grant’s testimony that he received alerts on his screen, in addition to emails corroborating the alerts, the majority focuses on the “admissibility of BI’s location information.” See Maj. Op. at 13. Referring to the GPS alerts as “BI’s location information” does not change the fact that the alerts were machine generated. Indeed, Mr. Grant clarified that the emails were sent at the same time as the on-screen alerts. Yet, the majority finds Mr. Grant&#x²⁷;s testimony “inconclusive.” See Maj. Op at 5. In fact, Counsel for R.L.G. had ample opportunity to cross-examine Mr. Grant and simply failed to establish sufficient grounds for the hearsay objection.

11 See also Michael H. Graham,⁶ Handbook of Fed. Evid. § 801.1 (9th ed. 2020) (“The hearsay rule is designed to protect against ‘the four testimonial infirmities of ambiguity, insincerity, faulty perception, and erroneous memory.’ Laurence H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958 (March 1974). Computer-generated records do not implicate any of these four ‘infirmities’ when the evidence is not the product of human intervention. See, e.g., [State v. Armstead, 432 So. 2d 837, 840 (La. 1983)] (‘With a machine, however, there is no possibility of a conscious misrepresentation [. . . .]’).”).

12 As with many states, Florida’s hearsay definition is substantively the same as the definition set forth in the federal rules of evidence. See L.L. v. State, 189 So. 3d 252, 255 (Fla. 3d DCA 2016) (“Where, as here, a Florida evidentiary rule is patterned after its federal counterpart, ‘federal cases interpreting comparable provisions are persuasive and routinely looked to for interpretive guidance.’” (quoting Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 n.3 (Fla. 4th DCA 2015))).

13 Wade cites an Eleventh Circuit Court of Appeals opinion in which the court “had no difficulty concluding” that Sprint billing records were “the statement of machines, not statements of persons.” See United States v. Lamons, 532 F. 3d 1251, 1264 (11th Cir. 2008).

14 The majority cites Perez v Bell South, 980 So. 2d 1126 (Fla. 3d DCA 2008) and City of Miami v. Kho, 290 So. 3d 942 (Fla. 3d DCA 2019), neither of which is on point. The issue in Perez was whether the trial court abused its discretion in allowing cellular telephone records custodians to testify that persons who placed cell phone calls would be within a certain distance from the cell towers identified with those calls. 980 So. 2d at 1131. This Court held that said testimony was admissible as it constituted general background information that did not require expert testimony. Id. Kho dealt with the methods of authenticating photographic evidence. 290 So. 3d at 944-45.

15 In a recent case from Pennsylvania, which also involved GPS data from a monitoring device, the parties’ arguments similarly focused on the business records exception to the hearsay rule. See Commonwealth v. Shields, No. 266 EDA 2018, 2019 WL 3946007, at *10 (Pa. Super. Ct. Aug.²¹, 2019). Recognizing “there is no need to satisfy an exception if the records are not hearsay in the first place[,]” the court declined to decide the issue, in part, due to “Appellant’s failure to develop the predicate question . . . i.e., is GPS data even hearsay . . . .” Id. at *11. Cf. United States v. El Gammal, 831 Fed. Appx. 539, 543 n.7 (2d Cir. 2020) (assuming arguendo that statements by Facebook that defendant deleted messages at certain days and times were hearsay because that is how the issue was framed but noting that “the relevant assertion—the ‘DELETED’ data field—is not made by a person [and] may thus be more akin to a machine-generated record, which is unlikely to be considered hearsay”).

16 Kandutsch quotes the US Department of Justice’s manual for federal prosecutors, which explicitly mentions computer-generated GPS records as falling outside the hearsay rules:

Hearsay rules apply to statements made by persons, not to logs or records that result from computer processes. Computer-generated records that do not contain statements of persons therefore do not implicate the hearsay rules. This principle applies both to records generated by a computer without the involvement of a person (e.g., GPS tracking records) and to computer records that are the result of human conduct other than assertions (e.g., dialing a phone number or punching in a PIN at an ATM).

799 N.W. 2d at 799 (emphasis added) (quoting Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 192–94 (3rd ed. 2009)).

17 Based on dictum in Wallace, the majority suggests that Florida’s hearsay definition would need to be amended in order for non-human generated statements to be admitted outside of hearsay. As plainly set forth above, however, Florida’s hearsay definition, like that in Pennsylvania, limits hearsay to statements by human beings.

18 In his reply brief, R.L.G. raises for the first time the argument that the facts were insufficient to make a determination whether the alerts were automatically generated or manually sent by a person. R.L.G. was the objecting party, and therefore, was required to establish the legal grounds for his objection below. See Fleitas v. State,³ So. 3d 351, 355 (Fla. 3d DCA 2008) (“Indeed, proper preservation requires the following three steps from a party: (1) a timely, contemporaneous objection; (2) a legal ground for the objection and; (3) ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005)).

19 Hearsay admitted under the business records exception and nonhearsay electronic evidence both require the proponent to lay a foundation before the evidence can be admitted. Though some conflate these requirements, they are distinct. Compare Yisrael, 993 So. 2d at 956 (“To secure admissibility under [the business records exception], the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.”) with State v. Love, 691 So. 2d 620, 621 (Fla. 5th DCA 1997) (“Section 90.901. . . requires authentication or identification of evidence as a condition precedent to its admission as evidence. Prima facie evidence must be introduced in order to prove that the evidence is authentic. In order to set forth a prima facie case of authenticity, the proponent of the evidence can utilize both direct and circumstantial evidence. Evidence may be authenticated by appearance,

contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances.”).