R.L.G. v. State

• Decision Date: 16 June 2021
• Docket Number: No. 3D21-675,3D21-675
• Citation: 322 So.3d 721
• Parties: R.L.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

322 So.3d 721

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

v.The STATE of Florida, Appellee.

No. 3D21-675

District Court of Appeal of Florida, Third District.

Opinion filed June 16, 2021

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

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

Before LOGUE, LINDSEY, and HENDON, JJ.

LOGUE, J.

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."

In this and other ways, the cursory record before us is woefully lacking the necessary factual support for this Court to consider the State's argument. We are not suggesting that the State does not possess evidence that might support its claim: we are only observing such evidence was never made part of this record. Consideration of whether and when out-of-court "statements by machines" are not hearsay must await a case with a record supporting that argument.

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 was present but spoke only once to indicate she had no questions. On examination by the trial judge and without any prior evidentiary foundation, the probation officer began testifying that the juvenile had left home on certain dates and times. The juvenile's attorney raised a hearsay objection, which the trial court overruled. The trial court granted the juvenile a standing objection to hearsay.

During direct examination by the trial court, the officer made two comments that bear on the evidentiary foundation of his testimony. The trial court asked him twice for the source of his knowledge that the juvenile had left home. The first time, the probation officer answered, "[i]t's coming from the information that's provided from his device that's equipped around his ankle." The second time, the probation officer answered it is "due to the monitoring system that tracks him by the points that's provided by his device."

Only on cross-examination after the officer's testimony was admitted did the probation officer reveal the monitoring was conducted by a third-party which he identified simply as "BI," an apparent reference to BI Incorporated. In the sole mention of GPS at the hearing, he testified that BI's system uses either "Wi-Fi or GPS." Asked how he received BI's information, the officer's answer was far from clear:

QUESTION: So you merely see that someone is not home by looking at some screen that pops up; correct?

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 generated without manual input from any person." No witness testified on this point, one way or the other. No documentary evidence was admitted on this point. The trial judge made no finding in this regard. In fact, there was simply no discussion at trial of this fact that the State asserts for the first time only on appeal.

The trial court found the juvenile had willfully disobeyed the conditions of his supervised release based on the probation officer's testimony and affidavits, held the juvenile in indirect criminal contempt of court, and sentenced him to fifteen days in secure detention. This appeal followed.

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 to admit evidence is reviewed for an abuse of discretion, this is true only when the decision actually involves an exercise of discretion; a trial court's decision whether to admit evidence based upon a purely legal ruling is reviewed de novo. See, e.g., Dayes v. Werner Enters., Inc., 314 So. 3d 718, 722 (Fla. 3d DCA 2021) (holding a trial court's interpretation of the evidence code and applicable case law when deciding whether evidence was hearsay is subject to de novo review). As our Supreme Court has recently reiterated, "the question of whether a statement is hearsay is a matter of law and is subject to de novo review on appeal." Jackson v. Household Fin. Corp. III, 298 So. 3d 531, 535 (Fla. 2020). Following this binding precedent, we review the trial court's decision to overrule the juvenile's hearsay objection de novo.

The GPS records of third parties have traditionally been treated as hearsay and thus ordinarily admissible only under the business records exception to the hearsay rule, a point of law recently affirmed by our sister district courts. See Laing v. State, 200 So. 3d 166, 167–68 (Fla. 5th DCA 2016) (reversing a revocation of probation based on third-party GPS data because such "GPS data ... is definitive hearsay" and "[n]o effort was made to utilize any exception to the hearsay rule."); Channell v. State, 200 So. 3d 247, 249 (Fla. 1st DCA 2016) (reversing a revocation of probation because the third-party GPS data on which it was based was "clearly hearsay" and the State failed to establish the data came within the business records exception); Edwards v. State, 60 So. 3d 529, 530–31 (Fla. 2d DCA 2011) (holding third-party GPS data was "clearly hearsay," and reversing a revocation of probation based on such evidence when the State failed to establish it came within the business records exception).

This traditional approach has been recognized by this Court. In Perez v. State, 980 So. 2d 1126, 1131 (Fla. 3d DCA 2008), for example, we upheld the admission of cell phone companies' records indicating the times of the calls, the duration, and the identity and location of the tower receiving and transmitting the calls under the business records exception to hearsay. See also City of Miami v. Kho, 290 So. 3d 942, 945 (Fla. 3d DCA 2019) (reversing a trial court for admitting a photograph from Google Maps in part because the proponent of its admissibility "did not present any evidence as to the operating capabilities or condition of the equipment used by Google Maps. There also was no testimony as to the procedures employed by Google Maps in taking the photograph").²

The State did not argue below, or now on appeal, that the evidentiary foundation necessary to admit BI's information under the business record exception was established. Because the State does not address these points in its brief, we consider these issues conceded.

On appeal, however, the State introduces an argument that it did not make below. Hearsay, the State maintains, only applies to out-of-court "statements by persons." While BI's location information and messages may constitute out-of-court statements, the State argues, they were "statements by machines."...