Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone

In State v. Galicia, __ Md. __, 2022 WL 2301437, at *1 (June 27, 2022), the Court of Appeals held that expert testimony was not required to show that a user can disable location tracking on a smartphone.

Two teenagers were shot by four men in June 2017.  Mr. Galicia was convicted of murder. Two issues were presented, and the Court wrote:

The second issue arises from a prosecution witness’ trial testimony about the tracking of Mr. Galicia’s location on the evening of the murders through data generated by cell phones and other electronic devices. That issue is whether a witness must be qualified as an expert to testify that a user of a smartphone may turn off the location tracking feature of an application on the phone. We hold that a user’s ability to adjust the location tracking feature of a smartphone is within the understanding of the average lay person and that a witness whose testimony referred to that ability did not have to be qualified as an expert.  [emphasis added].[1]

It explained that the prosecution’s lay testimony that a user could turn off tracking associated with the user’s Google accounts “offered a potential explanation for a gap in the location tracking data associated with Mr. Galicia’s Google accounts that included the date of the murders.”

First, the Court set the scene:

At Mr. Galicia’s trial, the State introduced records and elicited testimony through a witness from Google concerning internet searches and location tracking conducted on Mr. Galicia’s two Google accounts. There was a gap in the location tracking data in the Google account that Mr. Galicia was using at the time of the murders for a period of several weeks that included the date of the crime. [emphasis added].

The custodian of Google’s records testified as a lay witness.

Mr. O’Donnell primarily introduced records of internet searches conducted from Mr. Galicia’s two accounts before and after the murders. That testimony established that, during April 2017, prior to the murders, internet searches were conducted from those accounts for firearms matching those used in the shooting. One such search was conducted shortly after the murders in June 2017; in closing, the State suggested that Mr. Galicia was looking to replace a weapon used in the shooting that had been discarded.

The examination continued:

During the direct examination of Mr. O’Donnell, Mr. Galicia’s counsel repeatedly objected to questions about the scope of Google’s recordkeeping.  Defense counsel eventually requested a continuing objection, which was acknowledged by the trial court, as the State presented the data from Mr. Galicia’s two Google accounts in spreadsheet form and asked Mr. O’Donnell to explain how Google compiles search and location history records. As indicated above, only the location history records are at issue before us.

The relevant portion of Mr. O’Donnell’s testimony was as follows:

Q: Is there any other types of records that Google keeps from its accountholders?

A: Yes.

Q: Can you tell us what else?

A: It depends on the products and services that the user is registered with. It could be anything from their, the contents of their e-mails, photos that they’ve uploaded, their location history, if they’ve opted into that service.

Q: When you, now, when you say, if they’ve opted into that service when you said location history, can you explain what you meant by that?

A: Sure. So depending on what the product and service is, the user does have functionality to enable or disable the tracking of that data. Location history is one of those services. So a user can opt out of tracking their location history, either by device or across their Google account.

* * *

Q: So Mr. O’Donnell, what is location history data? Can you just give us an overall look at services?

A: Yes. So it is data that is collected from devices that a user has logged into with their Google account. It’s taken from a number of different sources, and it’s collected for business purposes to provide estimates, or geographic coordinates for where that device has been.

The State then asked Mr. O’Donnell if there was any location data from June 5, 2017 (the date of the murders), associated with either of Mr. Galicia’s accounts. After consulting data from a flash drive that he had compiled for the trial, Mr. O’Donnell stated that there was a “gap” in that there were no logs for that date, although there were logs for other dates. Mr. O’Donnell also testified that the location history data associated with one account began on August 3, 2017, two months after the murders. On cross-examination, Mr. Galicia’s counsel elicited testimony that the “gap” associated with the other account was a period of months. In particular, the exhibit pertaining to that account shows an absence of location data for the period between April 11, 2017 and June 8, 2017.  [emphasis added].

The Court reviewed Payne v. State, 440 Md. 680 (2014), and Johnson v. State, 457 Md. 513 (2018).

In Payne, expert testimony was necessary to prepare a call detail record by paring down thousands of raw phone records providing geographic coordinates of cell tower locations.  “The majority opinion rejected the State’s argument that a lay person with the same information and instructions could have determined the locations of the cell towers….”

In Johnson, a lay custodian of records was permitted to “testify regarding the times and locations recorded by a mobile GPS tracking device used by the defendant, who was an MTA police officer at the time of the offense.” The Court wrote that: “Expert testimony about how a clock works is not necessary every time an employee’s timesheet is offered into evidence. The same is true for GPS entries.”

In Payne, data were being interpreted.  In Johnson, data was being read.

Turning to Galicia, the Court first noted that smartphones are in widespread use.  “There has been, and will continue to be, much debate over which aspects of this pervasive yet rapidly evolving technology are within the common knowledge. The question currently before us, however, concerns not so much the technology behind location tracking, but rather the understanding that a user may exercise some control over this feature and the data that it generates.”[2]

It then wrote:

Google’s location history tracking is a consumer feature designed to be understood and managed by accountholders. When a court considers whether testimony is beyond the “ken” of the average layman, the question is not whether the average person is already knowledgeable about a given subject, but whether it is within the range of perception and understanding. “Testimony elicited from an expert provides useful, relevant information when the trier of fact would not otherwise be able to reach a rational conclusion; such information ‘is not likely to be part of the background knowledge of the judge or jurors themselves.’ ” Payne, 440 Md. at 699, 104 A.3d 142, quoting David H. Kaye, et al., The New Wigmore: Expert Evidence § 1.1 (2d ed. 2010). Some smartphone users – and the minority of Americans who do not own smartphones – may not personally have experience toggling their location tracking on and off, but the simple fact that a mobile electronic device allows its users to customize the data they share with the manufacturer, the cell phone service provider, and various apps is common knowledge in modern society. That a user’s customized or default settings may impact the records kept by those entities does not require specialized knowledge to understand.

…

Mr. O’Donnell’s statement that a user can opt out of location history tracking was properly within the scope of lay witness testimony under Maryland Rule 5-701. The inference that this testimony was intended to help the jury draw – that Mr. Galicia could have manually disabled location tracking around the time of the murders – was well within the understanding of the average lay person. [emphasis added].

The dissent argued:

[I]t was error to allow O’Donnell, a lay witness, to give testimony that only an expert could properly provide—namely, that there was a “gap” in the “location history” of Galicia’s Google account on the date of the murders. O’Donnell’s inference that there was a “gap” in the “location history” was not “rationally based on [his] perception”—i.e., what he saw or heard. Md. R. 5-701. Instead, the inference was based on O’Donnell’s understanding of the “location history” data based on his specialized knowledge and training as an employee of Google.

An average member of the general public would not have the specialized knowledge and training necessary to identify and explain a gap in the “location history” of a Google account—and has likely never even heard of “location history”—to say nothing of being able to discern that there is a “gap” in a user’s “location history” just by looking at data from Google. Interpreting such data is nothing like looking at “commonly used devices such as clocks, scales, and thermometers.” Johnson v. State, 457 Md. 513, 531, 179 A.3d 984, 994 (2018). When one looks at a clock, scale, or thermometer, there is no need to draw an inference—the device says what it means and means what it says. By contrast, when one looks at “location history” data from Google, only by having specialized knowledge or training could one draw an inference could that there is a “gap” in the data. A gap in location history data from Google and an explanation for the gap would not be obvious to a layperson.

In other words, understanding how to evaluate Google “location history” data is a matter that is not within the purview of the general public, and only a properly qualified expert witness could draw such an inference. [emphasis added].

In State v. Sample, 468 Md. 560 (2020), “unfriending” evidence was introduced to show guilt.  There, after a botched robbery, evidence was introduced that the defendant had “unfriended” a person who had been killed while participating in the robbery.  While the issue there was primarily authentication, one may assume or assert that turning off location data could be a parallel action.  See “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media.  The Court has heard argument on whether a criminal defendant had altered his appearance is spoliation.  When is a Haircut Spoliation? – Recent Oral Argument in Court of Appeals.

See S. Perkins, et al., How to completely disable Google location tracking (androidpolice.com).

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[1] This blog does not address the hearsay, cross-examination, and confrontation clause issues.

[2] The Johnson Court wrote: “A factfinder at a trial applies common sense drawn from shared human experience to the evidence to reach a fair determination of the facts. Some evidence, however, is beyond the common experience of most people. Expert testimony may be  necessary for the factfinder to decide the significance of such evidence…. Expert testimony is often required to explain scientific or technical matters. But expert testimony is not required simply because one can explain a matter scientifically. For example, a jury can be expected to readily understand the significance of testimony that a clock or a thermometer displayed certain numbers without need for an expert to explain the scientific  phenomenon that underlies the thermometer or the engineering that powers the clock. But the jury will need an expert to understand the significance of an opinion that two biological samples ‘match’ based upon a statistical analysis involving DNA evidence…. While common sense does not change, common human experience does. A technical marvel of an earlier time may become the everyday tool of the contemporary person. This case presents the question whether location information from a GPS device is more like numbers read from a clock or thermometer or more like a conclusion reached from the analysis of DNA evidence.”  Johnson, 457 Md. at 516–17 (emphasis added).