State v. Gerdes

• Decision Date: 29 October 1971
• Docket Number: No. 42514,42514
• Citation: 291 Minn. 353,191 N.W.2d 428
• Parties: STATE of Minnesota, Respondent, v. David Arnold GERDES, Appellant.
• Court: Minnesota Supreme Court

Page 428

191 N.W.2d 428

291 Minn. 353

STATE of Minnesota, Respondent, v. David Arnold GERDES, Appellant.

No. 42514.

Supreme Court of Minnesota.

Oct. 29, 1971.

Syllabus by the Court

1. Courts may take judicial notice of the underlying principles and reliability of properly tested and operated radar devices for determining the speed of motor vehicles without requiring expert testimony concerning the theory and mechanics of a particular unit.

2. Where the only means of testing the accuracy of a radar device is an internal mechanism which is an integral part of Robins, Meshbesher, Singer & Spence, and Morley Friedman, Minneapolis, for appellant.

the unit, and there is no evidence other than the radar reading that a motorist was driving at a speed in excess of the limit, his conviction cannot be sustained.

Warren Spannaus, Atty. Gen., St. Paul, Adrian Herbst, City Atty., Gary Gandrud, Edward C. Tischleder, and Robert D. Heacock, Jr., Asst. City Atty., Bloomington, for respondent.

Keith M. Stidd, City Atty., Thomas L. Johnson, Asst. City Atty., Minneapolis, amicus curiae.

Heard before KNUTSON, C.J., and MURPHY, OTIS, ROGOSHESKE, and ROLLOFF, JJ.

OPINION

OTIS, Justice.

Defendant appeals from a conviction for speeding 40 m.p.h. in a 30 m.p.h. zone for which he was sentenced to pay a fine of $30 or serve a term of 5 days. The only evidence of his precise speed was the reading of a radar unit operated by a Bloomington police officer.

The issues are, first, whether the court may take judicial notice of the reliability of radar in establishing the speed of an automobile; and, second, whether the particular radar unit used in the instant case was adequately tested before it was put into operation on the day defendant was arrested.

We hold that the court may take judicial notice of the reliability of radar but that the particular unit here involved was not properly tested. Accordingly, we reverse.

This arrest occurred on the morning of October 3, 1969, in the vicinity of 82nd Street and Colfax Avenue South in the city of Bloomington. The radar unit which was being used by Officer Michael Studer was a Stephenson Mark VI Speedalyzer. He had received one hour's training in its operation at the suburban police academy, and was given 4 hours on-the-job training with another officer. Thereafter, he had operated the machine periodically for a period of 14 months. After warming it up for 5 minutes, Officer Studer tested the unit by pressing a button which indicated whether the radio waves from the antenna head were being properly emitted and received. The machine was then calibrated to a speed of 60 m.p.h. The only other test the officer made was to take a reading of traffic which by personal observation he estimated to be approximately 30 m.p.h. From this he judged that the machine was functioning properly. He acknowledged that the accuracy of the machine can be distorted by interference from other vehicles, noise, neon lights, high-tension power lines or high-power radio stations.

The instruction manual which accompanied the radar unit describes three methods which are available to test its accuracy. The first is to run a patrol car through the beam and check the speedometer against the radar reading. The second is to use a manual tuning fork set to a frequency of 60 m.p.h. The third is to check the unit with its built-in electric tuning fork. This last method was the only one used by Officer Studer. ¹

The prosecution called Richard Holevinski, a project engineer for the Stephenson Company, which manufactured the unit here in question. He explained in detail the operation of the unit and the principle on which it is based. With respect to the critical question of the accuracy of the particular unit used, Mr. Holevinski testified that it had been thoroughly inspected at the factory and that, if anything were wrong with the machine, it would show no reading whatsoever. In his opinion, the internal tests of the antenna head and the calibration by Officer Studer were adequate. He stated that any inaccuracy in the machine would be for the benefit of the motorist since it would read lower than the actual speed.

1. Dr. John M. Kopper is the authority on which nearly all of the courts have relied in accepting the principles underlying radar speedmeters as a proper subject of judicial notice. His treatise on radar speedmeters, The Scientific Reliability of Radar Speedmeters, appears in 33 N.C.L.Rev. 343, and with minor editorial changes in 16 Md.L.Rev. 1. State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460 (1955); United States v. Dreos, 156 F.Supp. 200 (D.Md.1957); People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958); City of East Cleveland v. Ferell, 168 Ohio St. 298, 154 N.W.2d 630 (1958); People v. MacLaird, 264 Cal.App.2d 972, 71 Cal.Rptr. 191 (1968); People v. Abdallah, 82 Ill.App.2d 312, 226 N.E.2d 408 (1967); State v. Tomanelli, 153 Conn. 365, 216 A.2d 625 (1966).

The term 'radar' is an abbreviation of 'radio detection and ranging.' The type of radar system employed in radar speed-meters functions on an application of the Doppler effect. Kopper, 33 N.C.L.Rev. 345, 16 Md.L.Rev. 4. The operation of the speedmeter is summarized in the Magri case as follows:

'* * * It consists of a transmitting and receiving unit which sends out the radar beam and receives the impulse from the moving vehicle. The wave from the transmitting antenna is sent out on one frequency, and because of the speed of the approaching vehicle the deflected wave returns on a different and higher frequency. It is then translated into miles per hour by the electric speedmeter, which measures the difference in the frequencies of the transmitted wave and the received wave * * *. ' 3 N.Y.2d 565, 170 N.Y.S.2d 337, 147 N.E.2d 730.

As Dr. Kopper points out, the theory of the Doppler effect has been known since its discovery by Christian Johann Doppler in 1842. It has been used since then for measuring the velocity of stars and, more recently, the speed and altitude of airplanes. Kopper, Supra. Police in some 47 states now employ radar for detecting the speed of automobiles. Without exception, courts which have dealt with the question have taken judicial notice of the accuracy of such devices if they have been properly tested. They permit testimony of radar readings by police officers who are not conversant with the technical operation or theory of the radar unit they are reading. In Radar in the Courts, 40 Va.L.Rev. 809, 814, Professor Woodbridge, then Dean of Law School, College of William and Mary, had this to say:

'Under the Uniform Rules of Evidence, already approved by the American Bar Association at its 1953 meeting, judicial notice 'shall be taken without request by a party * * * of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.' Radar speed meters are now in this category. Why should the time of experts be wasted and the expenses of litigation be increased by compelling such men to appear in court after court telling the same truths over and over? While it is agreed that every reasonable doubt about the accuracy of new developments should promptly be resolved against them in the absence of expert evidence, there is no longer any such doubt concerning radar. Rather, the applicable maxim should now be, 'What the world generally knows a court of justice may be assumed to know."

We are in accord with the authorities which accept the reliability of radar speedmeters where there is evidence they were operated by trained personnel who have adequately tested the accuracy of the particular device by which the defendant's speed was determined. Consequently, we hold that it was proper for the trial court to take judicial notice of the reliability of radar as a means of establishing speed without requiring the operator to be qualified as an expert in the field. ²

2. No case has been called to our attention where a conviction has been sustained exclusively on evidence of speed determined by a radar device which has not been subjected to external testing. ³ Courts have uniformly refused to take judicial notice of the accuracy of a particular unit. Dr. Kopper recommends that the meter be tested each time it is used, both before and after the period of observation. He suggests that a test car with a calibrated speedometer be run through the zone twice, once at the speed limit of the zone, and once at a speed 10 or 15 miles an hour greater. 33 N.C.L.Rev. 353, 16 Md.L.Rev. 14. The other standard method of testing is described in the instruction pamphlet referred to above and noted in the appendix. It is accomplished by activating a manual tuning fork calibrated to an established frequency, usually 60 m.p.h., which in turn will produce a reading of that speed on the correctly calibrated radar meter. Neither of these tests was used in the instant case.

We are not satisfied that this or any other radar device is infallible. To test the machine by the machine itself seems to be bootstrapping. In two leading cases the New York Court of Appeals has underscored the need for adequate testing. In Magri it said (3 N.Y.2d 566, 170 N.Y.S.2d 338, 147 N.E.2d 731):

'* * * Were the only evidence here that of the untested radar equipment, we would hold, as in the case of an untested automobile speedometer (People v. Heyser, 2 N.Y.2d 390, 393, (161 N.Y.S.2d 36, 37, 141 N.E.2d 553, 554 (1957)), that such evidence is insufficient to sustain a conviction for speeding.'

Subsequently, in a concurring opinion, People v. Dusing, 5 N.Y.2d 126, 130, 181 N.Y.S.2d...