On 7/1/2010 the SJC ruled in COMMONWEALTH vs. JOHN A. THISSELL 457 Mass. 191 (2010) that GPS can form the basis to a probation violation.
The court in deciding stated “CORDY, J. We must determine whether records garnered from a global positioning system (GPS) device, used to monitor the movements of the defendant, John A. Thissell, were sufficiently reliable in this case to serve as the basis for the revocation of his probation in accordance with our decision in Commonwealth v. Durling, 407 Mass. 108 (1990), and its progeny. We conclude that they were and affirm the revocation of probation.
Discussion. It is well established that a probation revocation proceeding is not a criminal prosecution, requiring “the full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Durling, 407 Mass. 108, 112 (1990). However, because revocation may subject a probationer to the deprivation of his liberty, certain requirements of due process apply to such proceedings. Id. at 112-113, citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), and Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Once these requirements are satisfied, the procedure employing them is entitled to the benefit of the flexibility allowed by the nature of due process. See Commonwealth v. Durling, supra at 113-114. See alsoMorrissey v. Brewer, supra at 489 (emphasizing that revocation proceeding entails “narrow inquiry . . . flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial”).
Our preeminent concern with respect to the evidence presented and considered at revocation proceedings is its reliability. See Commonwealth v.Durling, supra at 117-118. If the evidence is admissible under standard evidentiary rules, it is presumptively reliable. Id. at 118. If it is not admissible under such rules, a judge must “independently” evaluate its reliability. Id. While “[u]nsubstantiated and unreliable hearsay cannot . . . be the entire basis of a probation revocation,” evidence that bears “substantial indicia of reliability” and is “substantially trustworthy” can be. Id. With respect to a defendant’s right to cross-examine witnesses whose evidence is admitted through third parties, we have explained that where such evidence is found by the judge to be substantially trustworthy and reliable there is sufficient good cause to dispense with a defendant’s opportunity to confront them. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004), quoting Commonwealth v. Maggio, 414 Mass. 193, 197 (1993).
In this case, the bases of the revocation were the GPS time and location records, the statements of Thissell and the GPS staff members monitoring his location contained within them, and the testimony of the chief probation officer. The records consisted of three computer-generated maps, superimposed with a representation of Thissell’s location at the times and on the dates indicated, and activity reports documenting both Thissell’s location at various times and other significant communications between the GPS staff and Thissell or between the GPS staff and probation officers. We need not determine whether these records are properly characterized, in whole or in part, as nonhearsay evidence or whether they qualify as a recognized exception to the rule against hearsay evidence to conclude that they were sufficiently reliable to serve as the basis of the defendant’s revocation consistent with the requirements of due process. They are factually detailed and made close in time to the events in question by persons reporting to the probation department and responsible for monitoring and communicating with the defendant. To the extent they rely on GPS technology, that technology is widely used and acknowledged as a reliable relator of time and location data. Moreover, the chief probation officer, through whom the records were admitted, was extensively cross-examined with regard to the records and their use by the probation department, which allowed the judge to make a principled decision as to their trustworthiness and reliability.
In addition, the reliability of the locator function of the GPS system, as depicted on the maps and logs of September 7 and September 14, was further corroborated by Thissell’s contemporaneous admission to the GPS staff that he in fact was at the beach when contacted on September 7, and his admission through counsel at the revocation hearing that he had entered the exclusion zone on September 14 while traveling to the supermarket.
Based on this record, we have little difficulty in concluding that the judge appropriately found the GPS records “substantially trustworthy and demonstrably reliable.” Consequently, his reliance on them as the principal basis for his conclusion that Thissell had violated the GPS terms of his probation was proper.
We take this opportunity, however, to recommend strongly that copies of GPS records offered in future revocation proceedings be properly attested and certified by an appropriate custodial officer. See Mass. R. Civ. P. 44 (a), 363 Mass. 807 (1974) (“official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by . . . a copy attested by the officer having legal custody of the record . . . . [A]ny such copy shall be accompanied by a certificate that such custodial officer has the custody”); Mass. R. Crim. P. 40 (a), 378 Mass. 917 (1979) (same). Such a certification will reduce, if not completely eliminate, some of the legitimate concerns with regard to the authenticity of the GPS records that were well raised during the revocation proceeding in this case.
3. Conclusion. For the reasons stated above, the order revoking Thissell’s probation is affirmed.”
The use of GPS and its reliability are outlined here. The case shows that it can be used in a variety of situations and be accepted by the court as reliable evidence.
Attorney Ronald A. Sellon