Facts
& Procedural History
On
November 25, 2020, Trudy Ayton reported that her car had been
stolen in Capitol Heights, Maryland and that the vehicle was
equipped with onboard GPS tracking which was accessed through
"Bouncie," a device that plugs into a car's
on-board diagnostics port and provides real-time driving
data, including the location of the vehicle
through a user's mobile phone application. Police used
Ms. Ayton's report, as well as her "Bouncie"
tracker, to locate her vehicle, follow it for over two hours,
and ultimately, arrest the driver, who turned out to be
Swails.
On
October 5 and 6, 2021, a jury trial was held before Judge
Lawrence V. Hill, Jr. of the Circuit Court for Prince
George's County. During the trial, Ms. Ayton testified
that her car was a 2019 Kia Cadenza and that she had
purchased it two months prior to the theft, in September
2020, for "right under $40,000."
During
the trial, Sergeant Tariq Hall of the Auto Theft Unit of the
Prince George's County Police Department also testified.
Sergeant Hall related that he had contacted Ms. Ayton after
he received her stolen vehicle report, and she disclosed that
her car was equipped with a tracker that provided the
real-time location of her vehicle through the
"Bouncie" mobile application, which later assisted
him and other officers in locating the automobile. During
this testimony, Swails's counsel objected regarding the
authenticity of the onboard GPS tracker, arguing that the
testimony was "unauthenticated systems hearsay,"
related to what information the GPS tracker
relayed:[2]
[Prosecutor]: So when you gained knowledge of the stolen
vehicle, what, if anything, did you do as a result of knowing
the vehicle was stolen without saying what anyone said?
[Sgt. Hall]: I gained access to the onboard GPS tracking
capability from Kia, logged into that tracking device
software and was able to live monitor the actual location of
the vehicle.
[Prosecutor]: And what, if anything, did you do after that?
[Sgt. Hall]: I responded to the area of the GPS location. One
of the first locations was off of Eastern Avenue.
[Defense Counsel]: Your, Honor, I'm going to object.
(Counsel approach the bench, and the following ensued.)
[Defense Counsel]: Your Honor, this is referring to
essentially what is an unauthenticated systems hearsay.
There's been no authentication of the way that the app
works. There's no indication. The complainant says that
she never used it before. So, I just want to be clear that my
objection is as to him indicating the truth of the matter
being relayed by the GPS system. So, if he wants to discuss
what he did and that he was getting reliance on his belief
that this is how the system works, that's one thing; but
for him to assert the car was at this location, the car was
at that location, that is now going out of the bounds of
explaining his actions and into reliance on the information
being relayed by the GPS system, which has not been
authenticated for the truth of the matter asserted.
[Prosecutor]: Yes, Your Honor. The State in response, the
State has the most recent case law on GPS tracking and the
possibility of a witness to give testimony based on that
without authentication, and the case is Martez Johnson v.
The State of Maryland, decided February 21st, 2018. In
that case it was a Baltimore case. There was an officer
accused of rape and assault. That officer, at that time, had
the GPS tracking system on them. The Defense counsel
objected, and the Court was very clear in its ruling. The
Court offered that the average layman is not required in
matters of which the jurors would be aware of virtual common
knowledge. And then the Court went to that if a witness is
testifying something, like, about the time on a clock, the
time on a clock may be - in the beginning, was an issue, but
the time on the clock is common knowledge. If the hands on
the clock are in a certain way, it's not up to the
witness to authenticate that the clock really works, because
it's common knowledge now with clocks. So, herein, today
in modern technology, as the State has alluded to Big
Brother, a GPS is a common item,
and the court has already ruled that a layman can testify on
the reliance on what the GPS does. And I do have copies for
the Defense and do the Court that his testimony can be
received on the GPS tracking of the car.
Judge
Hill overruled the objection.
Sergeant
Hall then testified that after having initially located the
car, he physically followed it for over two hours, until
Swails got out of the driver's seat. After a short chase
in which Detective Michael Stargel of the Auto Theft Unit of
the Prince George's County Police Department
participated, Swails was arrested. When Sergeant Hall was
asked on cross-examination about whether he was in uniform,
he stated he was in "plain clothes with my tactical
vest."
Detective
Michael Stargel of the Auto Theft Unit of the Prince
George's County Police Department also testified that he
encountered Swails after having assisted Sergeant Hall in his
pursuit. Detective Stargel related that he was not in
uniform.
After
the State rested, defense counsel moved for judgment of
acquittal on all counts, including that the State failed to
sufficiently establish that the value of the car exceeded
$25,000, as charged in the criminal information. Judge Hill
denied the motion.
Prior
to closing, Judge Hill instructed the jurors that closing
arguments by counsel were not to be considered evidence.
Judge Hill then provided instructions to the jury, which
included, among others, Maryland Criminal Pattern Jury
Instruction § 3:00, "What Constitutes
Evidence," from which he explicitly iterated,
"Opening statements and closing arguments of lawyers are
not evidence…. Therefore, if your memory of the
evidence differs from anything the lawyers or I may say, you
must rely on your own memory of the evidence."
During
closing, the prosecutor did not allude to the chase of Swails
by the police. Swails's attorney, however, argued that
the jury should not infer guilt from Swails running from
police,[3] because "there's nothing
suspicious about running when an unmarked plain- clothes
uniforms try trapping you and following you down," and
that "there's no indication [the police] even said
they were police." In rebuttal, the prosecutor asserted
that Sergeant Hall was in uniform, rather than plain
clothes, because he was wearing a "flat vest- protective
vest:"
[Prosecutor]: Now, Defense Counsel said don't take
anything from the Defendant running when encountered by law
enforcement, and Defense Counsel stated that all-that the
officers were in plain clothes. Well, the same Defense
Counsel asked Detective Stargel, "Were you in
uniform?" and Detective Stargel said, "No, I was in
plain clothes." He asked Officer Tariq Hall was he in
uniform, and Tariq Hall said, "I was in uniform,"
and that he was in a flat vest-protective vest, and that he
was, in fact, in uniform, and he, in fact, said he
encountered. So, the inconsistency-
At this
point, defense counsel objected, and counsel approached the
bench. During a lengthy discussion, the prosecutor stated
that she had a "good faith belief" that Sergeant
Hall testified that he was wearing a protective vest with
"police" written on the front and "WAVE"
written on the back, demonstrating that he was in uniform:
[Defense Counsel]: The testimony was very clear that he said
he was in plain clothes wearing a vest. He had said it was
over his clothes. He had not said he had a uniform. He said
plain clothes.
[The Court]: He said plain clothes and he said with the
tactical vest.
[Prosecutor]: With "police" on the front, Your
Honor.
[The Court]: I don't remember that.
[Prosecutor]: I do recall he said it. He said it has
"police" on the front and I believe
"WAVE" on the back.
[The Court]: I don't remember any of that.
[Defense Counsel]: He didn't even testify that he was
wearing a vest over his clothes, and he specifically said
plain clothes. To say "uniform" is highly
misleading.
[The Court]: I mean, he definitely said "plain
clothes[,]" but he said with tactical vest. So, I
don't recall him saying police on the front or definitely
not WAVE on the back. I think that - all right. State, again
the memory of the jury controls. You can say that's what
he said if you have honest belief that's what he said.
[Pros
...
