People v. Campbell

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 25, 2018

2018COA5

No. 14CA2479, People v. Campbell — Constitutional Law —
Fourth Amendment — Reasonable Expectation of Privacy

A division of the court of appeals considers whether a

defendant has a reasonable expectation of privacy under the United

States and Colorado Constitutions in global positioning system

(GPS) data acquired from a defendant’s ankle monitor. The division

concludes that the defendant did not have a reasonable expectation

of privacy when the GPS data was voluntarily given to law

enforcement officials by the company that owned the ankle monitor.

The division further concludes that the trial court did not err in

admitting the GPS evidence without first conducting a hearing to

assess its reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo.

2001).
The division also rejects the defendant’s contentions that he

was seized and searched in violation of the Fourth Amendment and

that the victim’s in-court identification should have been

suppressed due to an unconstitutionally suggestive out-of-court

identification procedure.

Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA5

Court of Appeals No. 14CA2479
Jefferson County District Court No. 12CR1091
Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon Deshawn Campbell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE TAUBMAN
Furman and Richman, JJ., concur

Announced January 25, 2018

Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Brandon Deshawn Campbell, appeals his

judgment of conviction entered on jury verdicts finding him guilty of

two counts of second degree burglary, one count of attempted

second degree burglary, and three counts of criminal mischief. He

contends that the trial court erred in denying his motion to

suppress global positioning system (GPS) location data obtained via

an ankle monitor he wore at the time of his arrest. As a matter of

first impression, we conclude that Campbell did not have a

reasonable expectation of privacy in the GPS data under the United

States or Colorado Constitutions. Because we also perceive no

grounds for reversal with regard to Campbell’s remaining

contentions, we affirm.

I. Background

¶2 In late April 2012, the victim, J.P., called 911 to report an

intruder in his home. He provided the 911 dispatcher with a

description of the intruder and stated that he believed the suspect

had driven away in a white Ford Explorer.

¶3 Officers stopped a white Ford Explorer about ten minutes later

approximately three miles from the victim’s home. Campbell was

the driver and only occupant of the vehicle. Officers searched

1
Campbell and found he was wearing an ankle monitor. A detective

later requested and received the GPS data from the company

owning the ankle monitor. The GPS data revealed that, within the

month before J.P.’s home was broken into, Campbell had been at

the location of two other homes when they were burglarized. The

GPS data also placed Campbell at J.P.’s house at the time of the

break-in. Campbell was convicted of two counts of second degree

burglary, one count of attempted second degree burglary, and three

counts of criminal mischief.

¶4 On appeal, Campbell asserts that the trial court erred by

denying his motions (1) to suppress evidence obtained as a result of

a seizure and subsequent search of his person; (2) to suppress the

GPS data obtained from the ankle monitor; (3) for a hearing to

assess the admissibility of the GPS data; and (4) to suppress J.P.’s

show-up identification. We disagree with all these contentions.

II. Motion to Suppress Fruit of Seizure and Search

¶5 Campbell contends that the trial court erred in denying his

motion to suppress evidence obtained as a result of an illegal

seizure and search of his person. He argues that the officers’ use of

handcuffs and firearms transformed his seizure into an arrest

2
unsupported by probable cause. In the alternative, Campbell

asserts that, even if the officers’ use of force did not constitute an

arrest, the officers nonetheless lacked reasonable suspicion to

conduct an investigative detention. We conclude that the stop and

subsequent search were lawful.

A. Additional Facts

¶6 Officer Dave Smidt responded to J.P.’s 911 call. He was given

the location of the alleged break-in and told that the suspect was a

black male driving “an older model SUV, possibly a white Ford

Explorer.” Less than ten minutes after the victim called 911, Officer

Smidt saw a white Ford Explorer driven by a black man in the area

of the victim’s home. He pursued the vehicle. Officer Smidt

testified that he saw the vehicle turn rapidly without signaling

before it eventually pulled over. He recounted that “it appeared the

car was trying to get away from [him].”

¶7 After the vehicle stopped, Officer Smidt and another officer

who had arrived in a separate car conducted a “felony traffic stop” ―

they drew their weapons and ordered Campbell to exit the car, put

his hands up, walk backwards toward them, and kneel so that he

could be placed in handcuffs. After conducting a pat-down of

3
Campbell, the officers discovered he had an outstanding arrest

warrant. He was then placed in the back of one of the police

vehicles. He later made incriminating statements that he sought to

suppress. Additionally, Campbell sought to suppress evidence of

the officers’ discovery of the ankle monitor during the pat-down

search.

¶8 In a bench ruling on the motion to suppress, the trial court

stated in its findings of fact that Officer Smidt had followed

Campbell for “a number of blocks” during which time “it looked like

the driver was trying to get away from him.” The officer also

observed Campbell commit traffic violations, specifically “failure to

signal a turn” and potentially speeding by going “faster than [was]

prudent in a residential neighborhood.” The trial court concluded

that the officers had reasonable suspicion sufficient to stop

Campbell, and that reasonable suspicion ripened into probable

cause to arrest after J.P. identified Campbell as the intruder in a

one-on-one showup conducted shortly after he was first stopped.

As a result, the trial court denied Campbell’s motion to suppress.

4
B. Standajrd of Review

¶9 In reviewing a ruling on a motion to suppress, we defer to a

trial court’s findings of fact if they are supported by competent

evidence in the record. People v. King, 16 P.3d 807, 812 (Colo.

2001). We review conclusions of law de novo. Id.

C. Applicable Law

¶ 10 The United States and Colorado Constitutions protect against

unreasonable searches and seizures. U.S. Const. amends. IV, XIV;

Colo. Const. art. II, § 7. A warrantless arrest is reasonable when an

officer has probable cause to believe that a crime has been or is

being committed. Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

Because probable cause is an objective inquiry, an officer’s

subjective intent is irrelevant. See People v. Cherry, 119 P.3d 1081,

1083 (Colo. 2005). Thus, it is irrelevant if the offense that

established probable cause is unrelated to the offense actually

charged by the arresting officer. Id.

¶ 11 “If an officer has probable cause to believe that an individual

has committed even a very minor criminal offense in his presence,

he may, without violating the Fourth Amendment, arrest the

offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)

5
(holding that officer had probable cause to make custodial arrest

when he observed woman driving without wearing a seatbelt, a

criminal violation under state traffic code); see People v. Triantos, 55

P.3d 131, 134 (Colo. 2002); see also § 16-3-102(1)(b), C.R.S. 2017

(authorizing a peace officer to make an arrest when “[a]ny crime has

been or is being committed by [a] person in his presence”).

¶ 12 In the context of vehicle stops, “the decision to stop an

automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.” Whren v. United

States, 517 U.S. 806, 810 (1996); see also Cherry, 119 P.3d at

1083. Although minor traffic infractions are classified as “civil

matter[s]” under Colorado statute, § 42-4-1701(1), C.R.S. 2017, an

officer may constitutionally stop a driver based on observation of

even a minor traffic infraction. See Cherry, 119 P.3d at 1084

(concluding that officer’s observation of defendant committing two

class B traffic infractions justified stop); see also People v. Chavez-

Barragan, 2016 CO 16, ¶ 10, 365 P.3d 981, 983 (“Suspicion of even

a minor traffic offense can provide the basis for a stop.”); People v.

Altman, 938 P.2d 142, 145 (Colo. 1997) (concluding that “troopers

6
had a reasonable suspicion that criminal activity had occurred or

was occurring” when they observed minor traffic infractions).

D. Analysis

¶ 13 We conclude that the officers constitutionally stopped

Campbell on the basis of traffic violations witnessed by Officer

Smidt. Further, the officers had probable cause to believe Campbell

was committing the felony of vehicular eluding, and therefore

constitutionally arrested and searched him. We can affirm “on

different grounds than those relied upon by the trial court” if those

grounds are supported by “undisputed facts in the record.” People

v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006), as modified on denial

of reh’g (Jan. 16, 2007). Campbell has not disputed Officer Smidt’s

testimony with regard to the observed traffic violations, and does

not assert on appeal that the trial court’s findings of fact on this

point were clearly erroneous.

¶ 14 The parties initially limited their arguments to whether the

officers had reasonable suspicion to stop Campbell, which was the

basis for the trial court’s denial of Campbell’s motion to suppress.

We requested supplemental briefing from both parties on the issue

7
of whether the violations observed by Officer Smidt gave rise to

probable cause to stop and arrest Campbell.

¶ 15 Officer Smidt testified that he observed Campbell turn without

signaling, a class A traffic infraction under Colorado law. See § 42-

4-903(2), (5), C.R.S. 2017. We conclude that Officer Smidt’s

observation of this violation of the traffic code justified the initial

stop, regardless of whether the description communicated by the

dispatcher independently created reasonable suspicion sufficient to

stop the vehicle.

¶ 16 In their supplemental brief, the People further argue that the

officers had probable cause to believe that Campbell was eluding

the officers in violation of section 18-9-116.5(1), C.R.S. 2017, a

class 5 felony. The record supports this contention. In its findings

of fact, the trial court noted that “it looked like the driver was trying

to get away from” the officer because the driver did not stop for

several blocks after the officer first activated his lights and sirens.

We therefore agree that “the facts and information within the

arresting officers’ knowledge [we]re sufficient” to cause them to

believe Campbell was committing the felony of vehicular eluding.

People v. Bustam, 641 P.2d 968, 972 (Colo. 1982).

8
¶ 17 Because the officers had the right to arrest Campbell for

vehicular eluding, they had the right to use reasonable force in

effectuating the arrest, see § 18-1-707(1)(a), C.R.S. 2017, and

conduct a search of Campbell’s person incident to arrest, see

Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). Thus, we conclude

that the trial court did not err in denying Campbell’s motion to

suppress evidence obtained as a result of his seizure and search.

III. Motion to Suppress GPS Data

¶ 18 Campbell asserts that the trial court erred in denying his

motion to suppress the GPS data obtained from the ankle monitor.

As an issue of first impression in Colorado, we conclude that,

because Campbell did not have a reasonable expectation of privacy

in the GPS location data generated by the ankle monitor under the

United States or Colorado Constitutions, the trial court did not err.

A. Additional Facts

¶ 19 When Campbell was arrested, the officers found a monitor on

his ankle, which Campbell said he was wearing at the request of a

private bail bondsman. The officers did not remove the ankle

monitor.

9
¶ 20 After Campbell’s arrest, Detective George McGlynn contacted

the GPS monitoring company, Interstate Monitoring Bureau

Corporation, to request the data generated by the ankle monitor.

Detective McGlynn did not seek a warrant for this GPS data.

Rather, Interstate Monitoring voluntarily provided the information

requested. As explained during trial, the documents provided by

the monitoring company detailed Campbell’s location every five

minutes. The records introduced at trial covered over one month of

Campbell’s whereabouts, totaling 9643 “tracking events” or

five-minute increments. Based on the records, Detective McGlynn

determined that Campbell had been at J.P.’s home, as well as two

other homes when they were burglarized in March and April of

2012.

¶ 21 In its bench ruling, the trial court concluded that Campbell

lacked standing to challenge the allegedly unconstitutional search

of the GPS data. In its findings of fact, the trial court noted that the

ankle monitor had been imposed “as a condition of bond, whether it

[was] court ordered or ordered by the bondsman.” The trial court

reasoned that Campbell was “not asserting his own rights” because,

even if the bondsman might have an expectation of privacy in the

10
records maintained by the monitoring company, Campbell did not.

In light of its conclusion that Campbell lacked standing to contest

the collection of the GPS data, the trial court denied his motion to

suppress.

B. Standard of Review

¶ 22 In reviewing a ruling on a motion to suppress, we defer to a

trial court’s findings of fact if they are supported by competent

evidence in the record. King, 16 P.3d at 812. We review

conclusions of law de novo. Id.

C. Applicable Law

¶ 23 The constitutional protections against unreasonable searches

and seizures are personal. See Alderman v. United States, 394 U.S.

165, 174 (1969) (“Fourth Amendment rights are personal rights

which . . . may not be vicariously asserted.”). To invoke the Fourth

Amendment’s protections, a defendant must show that “the

disputed search and seizure has infringed an interest of the

defendant which the Fourth Amendment was designed to protect.”

Rakas v. Illinois, 439 U.S. 128, 140 (1978).

¶ 24 While often referred to as an issue of standing, the Rakas

Court recognized that this threshold question “belongs more

11
properly under the heading of substantive Fourth Amendment

doctrine than under the heading of standing.” Id.; see also

Rawlings, 448 U.S. at 106 (noting that, after Rakas, the standing

inquiry merged with the substantive question “whether

governmental officials violated any legitimate expectation of privacy”

held by the defendant). Thus, a person has “standing” to challenge

a search “if the defendant maintained a reasonable expectation of

privacy in the place searched.” People v. Galvadon, 103 P.3d 923,

930 (Colo. 2005).

¶ 25 To assess whether a defendant had a reasonable expectation

of privacy in the place searched, we turn to the two-prong test set

forth in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). People v. Gutierrez, 222 P.3d 925, 932 (Colo. 2009).

Under that test, “[a] defendant must have an actual expectation

that the area or activity subjected to governmental intrusion would

remain free of such intrusion and such an expectation must be one

that ‘society is prepared to recognize as reasonable.’” Galvadon,

103 P.3d at 929 (quoting People v. Oates, 698 P.2d 811, 814 (Colo.

1985)).

12
¶ 26 In a line of cases, the United States Supreme Court has held

that a person has no reasonable expectation of privacy in

information he or she voluntarily discloses to a third party. See

Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v.

Miller, 425 U.S. 435, 443 (1976); Hoffa v. United States, 385 U.S.

293, 302 (1966). Thus, “the Fourth Amendment does not prohibit

the obtaining of information revealed to a third party and conveyed

by him to Government authorities.” Miller, 425 U.S. at 443. This is

true “even if the information is revealed on the assumption that it

will be used only for a limited purpose and the confidence placed in

the third party will not be betrayed.” Id.

¶ 27 The Colorado Supreme Court, however, has held that article II,

section 7 of the Colorado Constitution encompasses a “broader

definition of what constitutes a legitimate expectation of privacy

from government intrusion than that of its federal counterpart.”

Galvadon, 103 P.3d at 927. Thus, the Colorado Supreme Court

held that a bank customer had a reasonable expectation of privacy

in his bank records under the Colorado Constitution, despite

Supreme Court precedent that no reasonable expectation of privacy

in such records exists under the Fourth Amendment. Charnes v.

13
DiGiacomo, 200 Colo. 94, 98-100, 612 P.2d 1117, 1119-21 (1980)

(discussing and declining to follow Miller, 425 U.S. 435); cf.

Gutierrez, 222 P.3d at 935 (finding third party doctrine inapplicable

and holding that taxpayers have reasonable expectation of privacy

in income tax returns even when they disclose them to the Internal

Revenue Service, the state department of revenue, and tax

preparers). Similarly, the Colorado Supreme Court has held that

telephone users have a reasonable expectation of privacy in the

numbers they dial, despite the Supreme Court’s holding to the

contrary. People v. Sporleder, 666 P.2d 135, 142 (Colo. 1983)

(discussing and declining to follow Smith, 442 U.S. 735).

D. Analysis

¶ 28 To begin, we address the first prong of Katz, under which a

defendant must have an actual expectation of privacy in the place

searched. Campbell urges that he maintained a subjective

expectation that the GPS data generated by his ankle monitor

would not be exposed or otherwise subjected to “public scrutiny.”

¶ 29 As support for this assertion, he notes that the monitoring

company stored the data “in a web-based secured interface.”

Further, Campbell asserts that, because he wore the ankle monitor

14
at the request of a private bail bondsman, he believed the sole

purpose of the GPS monitoring was to ensure that he did not

abscond from the state and thereby fail to appear in court. He did

not anticipate that the data would be used “to facilitate criminal

investigations.” We assume without deciding that Campbell had an

actual, subjective expectation of privacy in the GPS data. See

Gutierrez, 222 P.3d at 932 (deferring to trial court’s finding that the

defendant had a subjective expectation of privacy in tax returns

where tax preparer kept the records in a secure cabinet).

¶ 30 Nevertheless, we conclude under the second prong of Katz that

any expectation of privacy in the GPS data was not “one that society

is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361

(Harlan, J., concurring). Campbell asserts that “other jurisdictions

have held that GPS location data implicates an individual’s privacy

interest.” However, the cases he cites in support of that argument

involved circumstances in which law enforcement agents

surreptitiously installed GPS tracking devices on individuals’

vehicles without obtaining warrants. See, e.g., United States v.

Jones, 565 U.S. 400 (2012). Campbell correctly asserts that those

cases generally acknowledge the “unique attributes of GPS

15
surveillance.” Id. at 415 (Sotomayor, J., concurring). Certainly,

several courts have recognized that long-term GPS monitoring

“generates a precise, comprehensive record of a person’s public

movements that reflects a wealth of detail about her familial,

political, professional, religious, and sexual associations.” Id.

¶ 31 However, the cases cited by Campbell do not address the

precise issue here — whether a defendant has a reasonable

expectation of privacy in GPS location data transmitted to and

collected by a third party. Under the Supreme Court precedent,

Campbell had no reasonable expectation of privacy in the GPS data

because he voluntarily disclosed such data to a third party — his

bondsman. Campbell was aware that his bondsman had access to

the GPS location data to ensure that he did not leave the state while

out on bond. In short, Campbell “t[ook] the risk, in revealing his

affairs to another, that the information w[ould] be conveyed by that

person to the Government.” Miller, 425 U.S. at 443. Thus, even if

we assume he subjectively believed his GPS data would remain

private, that expectation was not one society would be prepared to

call reasonable.

16
¶ 32 We reach the same result even under the broader protections

afforded by the Colorado Constitution. In Charnes v. DiGiacomo,

the supreme court distinguished Miller, 425 U.S. 435, by noting

that a bank customer does not truly voluntarily disclose

information about his or her financial transactions because bank

accounts are necessary in modern life and because the customer’s

primary purpose in having a bank account is facilitating the

transfer of funds. 200 Colo. at 99, 612 P.2d at 1121 (discussing

and following Burrows v. Superior Court, 529 P.2d 590 (Cal. 1974)).

In contrast, here, Campbell chose to contract with the private bail

bondsman and knew that the primary purpose of the ankle monitor

was to track and record his location. Further, Campbell could not

reasonably have anticipated that the GPS data would remain “free

from governmental intrusion,” Sporleder, 666 P.2d at 140, when the

bail bondsman could have reported his location to the court had he

absconded in violation of his bond terms.

¶ 33 Accordingly, we conclude that Campbell cannot invoke the

protections of either the Fourth Amendment of the United States

Constitution or article 2, section 7 of the Colorado Constitution

because he had no reasonable expectation of privacy in the GPS

17
data. Thus, the trial court did not err in denying his motion to

suppress.

IV. Admissibility of GPS Data

¶ 34 Campbell next contends that the trial court erred in admitting

the GPS evidence without first holding a hearing to assess its

reliability pursuant to People v. Shreck, 22 P.3d 68 (Colo. 2001).

We disagree.

A. Additional Facts

¶ 35 Before trial, Campbell moved for a Shreck hearing on the

admissibility of the GPS records and any expert testimony relating

to that data. Campbell asserted that a hearing was necessary to

assess the reliability of the evidence because Interstate Monitoring

was not obligated to test the ankle monitor devices or ensure their

accuracy, and because GPS technology is “fairly new.”

¶ 36 In denying the motion for the Shreck hearing, the trial court

stated that “GPS has been around for a long time.” The trial court

therefore concluded that “this is not the type of new and novel

scientific evidence” that must be vetted by a pretrial evidentiary

hearing.

18
¶ 37 During trial, Bruce Derrick testified as an expert in GPS

devices and technology. Derrick worked for SecureAlert, the

manufacturer of the ankle monitor Campbell was wearing when

arrested. He testified how GPS devices communicate location data

to a monitoring center, as well as the specific mechanics of the

ankle monitor device. Defense counsel cross-examined Derrick at

length on the accuracy of GPS location data.

B. Standard of Review

¶ 38 We review a trial court’s evidentiary ruling for an abuse of

discretion. People v. Veren, 140 P.3d 131, 136 (Colo. App. 2005). A

trial court abuses its discretion when its ruling is “manifestly

arbitrary, unreasonable, or unfair.” Id.

¶ 39 We review any error in denying a Shreck hearing under the

nonconstitutional harmless error standard. People v. Wilson, 2013

COA 75, ¶ 24, 318 P.3d 538, 543. Under this standard, we will

reverse only if the error “substantially influenced the verdict or

affected the fairness of the trial proceedings.” Hagos v. People,

2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715

P.2d 338, 342 (Colo. 1986)).

C. Applicable Law

19
¶ 40 CRE 702 governs the admissibility of scientific evidence as

well as expert testimony. Shreck, 22 P.3d at 77. A trial court’s

determination as to scientific evidence’s admissibility should be

“broad in nature” and flexible, with the ultimate goal of assessing

whether the evidence is relevant and reliable. Id. A trial court

assesses whether scientific evidence and related expert testimony

are admissible by considering whether (1) the scientific principles

underlying the expert’s testimony are reliable; (2) the expert is

qualified to give an opinion on the subject; (3) the testimony will be

helpful to the jury; and (4) the probative value of the testimony is

substantially outweighed by the danger of unfair prejudice. See id.

at 77-79; see also People v. Rector, 248 P.3d 1196, 1200 (Colo.

2011).

¶ 41 Once a party requests that evidence be subjected to a Shreck

analysis, the trial court can, in its discretion, hold an evidentiary

hearing on the matter. Wilson, ¶ 23, 318 P.3d at 543. However, the

trial court is not required to conduct an evidentiary hearing if it

“already has sufficient information to make specific findings under

Shreck.” Id.

20
¶ 42 Concerns about conflicting theories or the reliability of

scientific principles go to the weight of the evidence, not its

admissibility. See Estate of Ford v. Eicher, 250 P.3d 262, 269 (Colo.

2011). Such concerns “are adequately addressed by vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof.” Id. (citing Shreck, 22 P.3d at

78).

D. Analysis

¶ 43 We conclude that the trial court did not abuse its discretion in

denying Campbell’s motion for a pretrial hearing on the

admissibility of the GPS data. GPS technology is prevalent in

modern society and widely regarded as reliable. “Courts routinely

rely on GPS technology to supervise individuals on probation or

supervised release, and, in assessing the Fourth Amendment

constraints associated with GPS tracking, courts generally have

assumed the technology’s accuracy.” United States v. Brooks, 715

F.3d 1069, 1078 (8th Cir. 2013). Indeed, the concurrence in Jones

acknowledged that GPS technology in modern cell phones “permit[s]

more precise tracking” than previous technology allowed. Jones,

565 U.S. at 428 (Alito, J., concurring in the judgment). The

21
overarching concern of any Shreck analysis is the reliability and

relevance of the scientific evidence, and we conclude, like other

courts, that GPS evidence is sufficiently reliable to satisfy CRE 702.

¶ 44 We realize that Colorado’s standard for the admissibility of

scientific evidence differs from the test laid out in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that other

state rules of evidence may differ from CRE 702. Nevertheless, we

find it instructive to consider the admissibility of GPS evidence in

other jurisdictions which have held that GPS evidence is reliable

and, thus, admissible. See Brooks, 715 F.3d at 1078 (affirming

district court’s taking judicial notice of “the accuracy and reliability

of GPS technology,” and thus allowing GPS evidence without expert

testimony); United States v. Mathews, 250 F. Supp. 3d 806, 819 (D.

Colo. 2017) (denying the defendant’s motion for a Daubert hearing

on GPS data and stating that the defendant’s challenge to the

accuracy of the GPS data was “a matter for cross-examination”);

Brown v. State, 163 S.W.3d 818, 824 (Tex. App. 2005) (holding GPS

records sufficiently reliable); see also James Beck et al., The Use of

Global Position System (GPS) and Cell Tower Evidence to Establish a

Person’s Location, 49 No. 1 Crim. L. Bull. art. 7 (Winter 2013) (“The

22
relatively unchallenged science behind GPS and the extensive,

successful reliance on the technology during the past 30 years

justify its admissibility in court.”); cf. United States v. Thompson,

393 F. App’x 852, 859 (3d Cir. 2010) (allowing a lay witness “to

testify concerning the operation of [a] GPS device”).

¶ 45 In any event, here, Derrick was properly qualified to testify as

an expert on GPS technology. Campbell conducted voir dire of

Derrick and thoroughly cross-examined him on the accuracy of GPS

technology generally and the ankle monitor device specifically.

¶ 46 In light of the reliability of GPS evidence, we conclude that the

trial court did not err in denying Campbell’s motion for a pretrial

Shreck hearing.

V. Motion to Suppress Identification

¶ 47 Campbell’s final contention is that the trial court erred in

denying his motion to suppress J.P.’s identification. He asserts

that, because the out-of-court identification procedure was unduly

suggestive and unreliable, admission of J.P.’s in-court identification

violated his constitutional due process rights. We disagree.

23
A. Additional Facts

¶ 48 J.P. encountered Campbell in the stairway of his house. The

victim had just woken up when he heard noises downstairs, and he

was not wearing his contact lenses or eyeglasses. It was

midmorning and the house was well lit. The two men were

approximately ten feet away from each other for one or two seconds

before Campbell ran out of the house. During the 911 call, the

victim described Campbell as a black male, about 5’8” or 5’9” tall,

wearing a dark gray or black hoodie, dark jeans, and white

sneakers.

¶ 49 When officers stopped Campbell’s car, the victim was still on

the line to the 911 dispatcher. The dispatcher told him that officers

had pulled over a vehicle matching the description he had given.

Shortly after the 911 call ended, an officer took the victim to the

location where Campbell had been pulled over.

¶ 50 When the victim got to the scene of Campbell’s arrest, there

were four or five police vehicles, two police motorcycles, and more

than eight police officers present. There were no other people aside

from Campbell and the victim. When the victim was driven to the

24
scene, Campbell was seated in the backseat of a police vehicle in

handcuffs. Campbell was the only black person at the scene.

¶ 51 The victim testified that he “knew almost immediately” that

Campbell had been the man who broke into his home. An officer

told him to “slow down [and] make sure.” After another minute or

so, the victim again positively identified Campbell. The victim was

wearing eyeglasses during the show-up identification, though he

later testified that his uncorrected vision was “not bad” and he

merely preferred to have eyeglasses on.

¶ 52 The trial court found that the show-up procedure utilized by

the officers here was suggestive. However, the trial court

nonetheless denied Campbell’s motion to suppress the out-of-court

identification because it found that the identification was reliable

under the totality of the circumstances.

B. Standard of Review

¶ 53 We review a trial court’s determination on the admissibility of

an identification as a mixed question of fact and law, affording

deference to the findings of fact and reviewing the legal conclusions

de novo. See Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).

25
¶ 54 We review preserved errors of constitutional dimension for

constitutional error, meaning we will reverse unless the People

show that the error was harmless beyond a reasonable doubt.

Hagos, ¶ 11, 288 P.3d at 119.

C. Applicable Law

¶ 55 In considering a challenge to an out-of-court identification, a

court must follow a two-step analysis. Bernal, 44 P.3d at 191.

First, a defendant must prove that the identification procedure was

unduly suggestive. See id. If the defendant shows the procedure

was impermissibly suggestive, the burden then shifts to the People

to show that the identification was nevertheless reliable under the

totality of the circumstances. Id.

¶ 56 Under the second step of this analysis, the court may consider

several factors, including “(1) the opportunity of the witness to view

the criminal at the time of the crime; (2) the witness’s degree of

attention; (3) the accuracy of the witness’s prior description of the

criminal; (4) the level of certainty demonstrated by the witness at

the confrontation; and (5) the length of time between the crime and

the confrontation.” Id. at 192. Ultimately, the suggestiveness of the

identification procedure must be balanced against the indicia of

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reliability; provided that there is not a “very substantial likelihood of

irreparable misidentification,” the identification is admissible. Id.;

see also People v. Weller, 679 P.2d 1077, 1083 (Colo. 1984).

D. Analysis

¶ 57 The trial court found, Campbell argues, and the People do not

contest that the show-up procedure utilized here was impermissibly

suggestive. We agree. When the victim arrived at the scene of

Campbell’s arrest, Campbell was handcuffed in the back of a police

vehicle surrounded by officers and he was the only black person

present. Moreover, the dispatcher told the victim that officers had

pulled over a vehicle matching his description. This show-up

procedure was impermissibly suggestive. See generally Weller, 679

P.2d at 1083 (“One-on-one showups are not favored and tend to be

suggestive.”).

¶ 58 Nevertheless, we conclude that the People met their burden of

proving that the identification was reliable despite the suggestive

procedure. With regard to the first factor set forth in Bernal, the

victim had the opportunity to see the intruder for one or two

seconds in a well-lit area while the two men were about ten feet

away from one another. Moreover, the victim testified that,

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although he was not wearing contact lenses or eyeglasses, he felt he

was able to see the intruder sufficiently to later identify him. As for

the second factor, the trial court concluded that the victim was

startled when he encountered the intruder, which heightened his

degree of attention, and we defer to this finding.

¶ 59 The third factor –– the accuracy of the witness’ description ––

weighs less in favor of the People. The victim’s description of the

intruder was somewhat generic, and there were inconsistencies

between the description provided to the 911 dispatcher and

Campbell’s actual appearance. However, looking to the fourth

factor, the victim’s confidence in the identification was high. He

quickly confirmed that Campbell was the intruder once on the

scene, and he later testified that he was ninety-five percent sure his

identification was accurate. He was also “very positive” on the

color, make, and model of the car that he saw driving away from his

home. Finally, the time between the crime and confrontation was

extremely brief. The identification occurred less than an hour after

the victim first saw the intruder.

¶ 60 In sum, especially in light of the strength of the final two

factors, we conclude that the identification was reliable despite the

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suggestiveness of the procedure. We cannot say that, given the

totality of the circumstances, there was a “very substantial

likelihood of irreparable misidentification.” Bernal, 44 P.3d at 192.

As a result, we conclude the trial court did not err in denying the

motion to suppress the identification.

VI. Conclusion

¶ 61 Accordingly, the judgment is affirmed.

JUDGE FURMAN and JUDGE RICHMAN concur.

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