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Sunday, January 27,2013

Judge: GPS tracking evidence can be used in burglary case

By Jim Phillips

Photo Caption: Shane Benson is charged with multiple burglaries.

The Athens County Prosecutor's office claims that a Nelsonville man who's charged with a string of burglaries made the rather serious mistake of committing them while wearing an electronic ankle monitor, which places him at the scenes of multiple crimes through satellite tracking.

The man's defense attorney, however, has argued that the state shouldn't get to use information from the monitor, unless it can offer expert testimony that it's reliable, and was working properly on the days in question.

Shane Benson, 32, is facing multiple felony charges for alleged break-ins in Athens and Nelsonville. During the time the state claims the burglaries occurred, Benson was wearing a monitor from a previous criminal case in Fairfield County, which tracked his movements with a global positioning system (GPS).

Attorney Eric Hedrick of the Ohio Public Defender's office argues that if the prosecutor's office wants to use the monitor data against Benson, it should have to show in court that data from the device is scientifically reliable, and that the people who do the tracking are qualified to operate it.

"Their entire case… is, 'We have (Benson) at certain addresses at times that we believe fall within the margin of the times that some homeowners thought they were burglarized,'" Hedrick said Friday. "They have no DNA, they have no fingerprints, and they have no recovered (stolen) items."

Given that the state's entire case appears to rest on the monitor putting him at or near the sites of alleged burglaries at or near the times they're alleged to have happened, Hedrick suggested, the court should make the state produce evidence that the monitor can be trusted. He compared the device to, for instance, an alcohol breath-tester, whose operators must be legally qualified in order to use its findings as evidence in court.

Athens County Prosecutor Keller Blackburn wouldn't comment on Hedrick's claim that the monitor data is all the state has in the way of evidence against Benson. Even if it were, however, Blackburn said, it wouldn't make that evidence less compelling.

"Let's pretend (what he's saying is) true," Blackburn said. "There are 16 reported burglaries, and we have GPS data that says his client was at those homes."

Benson, 32, is facing two indictments that include a whopping 18 burglary charges, as well as two counts of grand theft involving a firearm or ordnance, and one count each of trespass in a habitation and theft of drugs.

On Dec. 10, Hedrick filed a motion in Athens County Common Pleas Court, asking Judge Michael Ward to bar Blackburn's office from using any evidence about the monitor tracking in court, unless the state can prove the scientific bona fides of the ankle monitor.

Output documents from the device that the state has provided, Hedrick wrote, "purport to show (Benson) was present at certain addresses at particular dates and times. However, the state has provided no explanation as to how the system that allegedly places (him) at particular residences works or how reliable it is."

Among the evidence he'd like to see, Hedrick added, is the rate of errors for the device, and verification that the monitor was working properly on the pertinent dates.

The defense attorney lost the first round on this issue, however. After a hearing Jan. 11, Judge Ward denied his motion. In his ruling, the judge noted that the only witness at the hearing was Andrew Keister, an employee of ETAT Enterprises, the company that fastened a SecureAlert GPS monitor onto Benson.

Keister's testimony, according to Ward, was that "The company trained him on the use of this device. The company showed him how reliable this device is." The ruling added that the ETAT employee "is not a scientist. He did not design the tracking device nor does he have a detailed knowledge of how the device works." He reportedly testified that he does know that six to nine satellites and cell-phone towers track the wearer of each device, and that a satellite signal hits the device every second, reporting the wearer's location.

Though he must test the machine to see if it's working before he installs it, Keister told the court that "he is not required to calibrate the machine prior to its use." He testified that in three-and-a-half years of using the device, he "has never seen a deviation," and has never seen it report a wrong location for a wearer.

Ward ruled against the defense, citing a federal case in which a court ruled that "a lay witness could testify about the reliability and authenticity of a GPS device."

In that case, the court found that the issues surrounding the accuracy of GPS devices and software "were not so scientifically or technologically grounded that expert testimony was required to authenticate the evidence…"

Ward added at the end of his ruling that "At the most, the state should have a witness well-versed in GPS data systems available to authenticate GPS records."

Hedrick said he's not giving up on the issue yet, and in a Jan. 16 motion, demanded the state turn over evidence including all the output from Benson's monitor.

"I want the data, and I want my own expert to review it," he explained.

The attorney maintained Friday that if all the alleged burglaries were tried separately, and in each case the best evidence the state could produce was printouts suggesting Benson was somewhere near the crime sometime around the time it occurred, the weakness of each case would be blatantly evident.

"I'd win every single one of them," he predicted. Therefore, he suggested, putting them all together doesn't make the GPS evidence any more reliable.

Blackburn disagreed, suggesting that it's precisely the accumulation of GPS evidence showing Benson near an alleged crime scene time and time again that will make it, and validly, convincing to a jury.

"Absolutely," he said. "That's how we build cases."


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