IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHOTSPOTTER, INC.,

Plaintiff,
No. _______________
v.
Jury Trial Demanded
VICE MEDIA, LLC,

Defendant.

COMPLAINT

1. This defamation action arises out of VICE Media, LLC’s deliberate

misrepresentation of court records that rebutted the false narrative that VICE set out

to tell about police and ShotSpotter, Inc., a company whose gunfire-sound-detecting

technology saves lives by reducing the response times of first responders. VICE

targeted ShotSpotter in order to cultivate a “subversive” brand that enables VICE to

sell “sponsored content”—advertising disguised as reporting—to corporations

hawking goods like sneakers and “eco-friendly” beer. In executing that strategy,

VICE was determined to publish stories about how “new technologies” are used

“against people who are historically vulnerable and marginalized.” 1 So when court

records disproved that false narrative about ShotSpotter, VICE intentionally

misrepresented the truth because it was financially incentivized to do so.

1
David Carr, Inviting In a Brash Outsider, N.Y. Times (Feb. 14, 2010); Motherboard Staff, How
to Pitch Motherboard, VICE (Oct. 2018).

1
 2. In furtherance of its marketing strategy, VICE targeted ShotSpotter

with a story, podcast, and tweets—by the Editor-in-Chief of VICE’s “Motherboard”

imprint, Jason Koebler—that falsely accused ShotSpotter of conspiring with police

to fabricate gunshots from thin air to frame innocent Black men.

3. VICE’s agents recklessly disregarded or intentionally concealed facts

that rebutted their smear campaign, for example: that ShotSpotter is led by a Black

CEO and overseen by a board that includes the president of the largest civil rights

organization in the United States, that ShotSpotter has saved the lives of Black

gunshot victims, and that ShotSpotter’s expert witnesses have exonerated Black men

of crimes they did not commit.

2
 4. In endeavoring to make the facts conform to a false preconceived

narrative that supported VICE’s “subversive” branding strategy, VICE’s agents also

deliberately misrepresented court records demonstrating that ShotSpotter evidence

has repeatedly withstood scrutiny in court and that no court has ever ruled that

ShotSpotter altered or fabricated evidence.

5. As a result of VICE’s false reporting, ShotSpotter has suffered

substantial harm. ShotSpotter brings this lawsuit to recover damages in excess of

$300 million, to set the record straight, and to stand up for its dedicated employees,

law enforcement officers, and the communities they serve that are disproportionately

impacted by gun violence.

PARTIES

6. Plaintiff ShotSpotter, Inc. is a Delaware corporation with its principal

place of business in Newark, California. Since 2014, ShotSpotter has contracted

with the City of Wilmington, Delaware, to operate a gunshot monitoring system.

The contract has been renewed annually since an initial three-year trial period ended,

and the system has been expanded, now covering a five-mile radius within the city.

7. Defendant VICE Media, LLC is a media company organized under the

laws of Delaware and headquartered in Brooklyn, New York.

3
 FACTUAL ALLEGATIONS

ShotSpotter’s real-time alerts save lives

8. Every day, more than 100 Americans are killed with guns, and more

than 230 are shot and wounded. 2 More than 80% of gunshots are not reported to

911. 3 Even when people do hear gunshots and call 911, their reports are often

imprecise, erroneous, or too late to save the lives of gunshot victims.

9. To address this problem, ShotSpotter offers communities a network of

gunfire-detecting acoustic sensors. When a loud, impulsive sound is detected by

ShotSpotter’s sensors, ShotSpotter’s software automatically prescreens the sound

and filters out noises likely to be fireworks and helicopters. The remainder are sent

to a team of human reviewers that playback audio clips and analyze them to

determine if the sound is gunfire. Based on the speed of sound and the times at

which the sound reaches different sensors, ShotSpotter’s software determines the

approximate location of the gunfire, and ShotSpotter notifies law enforcement of the

longitude and latitude of the gunfire and a corresponding street address—all

typically within 45-60 seconds. ShotSpotter enables law enforcement to get on the

scene faster to render aid to gunshot victims, reducing transport times to the hospital

and saving lives.

2
Gun Violence in America, Everytown for Gun Safety (May 19, 2020, updated Apr. 27, 2021).
3
Jillian B. Carr & Jennifer L. Doceac, The geography, incidence, and underreporting of gun
violence: new evidence using ShotSpotter data, Brookings Institution (2016).

4
 10. For example, this April in Chicago, ShotSpotter swiftly alerted Officer

Rhonda Ward and Officer Julius Givens to the location where a 13-year-old boy had

been shot while walking home. The officers put the boy in their squad car and rushed

him to the emergency room, where he survived his injuries due to the swift treatment

he received. If ShotSpotter had not promptly alerted police to the shooting, the boy

might not be alive today. 4

A 13-year-old Chicago resident was rushed to the emergency room by Officers Rhonda Ward
and Julius Givens, after ShotSpotter alerted them to the location where he had been shot.

4
See Kelly Davis, ‘He’s a hero too’: CPD officers recall saving 13-year-old boy shot on South
Side, WGN9 (Apr. 29, 2021), https://wgntv.com/news/hes-a-hero-too-cpd-officers-recall-saving-
13-year-old-boy-shot-on-south-side/.

5
 11. He is not the only person alive today because of ShotSpotter. In 2020

alone, ShotSpotter alerted authorities in Oakland, California to 123 shooting victims

before 911 calls came in. Of those victims, 101 survived, some because ShotSpotter

alerts significantly reduced emergency response times, reportedly allowing police

and emergency medical services to respond in as little as two minutes of a

ShotSpotter activation. 5

12. In Pittsburgh, Pennsylvania, ShotSpotter led first responders to 83

shooting victims and allowed police to get to victims and to crime scenes quicker,

according to Commander Jason Lando. He reported that ShotSpotter was invaluable

in helping Pittsburgh police render swift aid to shooting victims. 6

13. Clinical research from Cooper Health in Camden, New Jersey, showed

a 3.5-minute reduction in EMS and police transport time for gunshot victims to the

hospital in ShotSpotter coverage areas compared to non-ShotSpotter areas. 7

5
See Memorandum from Trevelyon Jones, Captain, Ceasefire Section, Oakland Police Dep’t to
LeRonne Armstrong, Oakland Chief of Police, at 2 (Jun. 7, 2021), https://cao-
94612.s3.amazonaws.com/documents/Special-Meeting-Packet.pdf.
6
Adam Smeltz, Pittsburgh Council Backs Expanding Gunshot Detection System, Pittsburgh Post-
Gazette (Mar. 14, 2018), https://www.post-gazette.com/local/city/2018/03/14/Pittsburgh-City-
Council-ShotSpotter-expansion-Wendell-Hissrich-North-Side-Jason-Lando-Darlene-Harris-
Deborah-Gross/stories/201803140183.
7
Cooper Health, Trauma Transport Time Savings, J. of Trauma & Acute Care (2019),
https://journals.lww.com/jtrauma/Citation/2019/12000/Use_of_ShotSpotter_detection_technolog
y_decreases.2.aspx.

6
 14. The Policing Project, a non-profit entity at New York University

School of Law, did a study measuring ShotSpotter’s effects in St. Louis County,

Missouri. The study compared a portion of a high crime area where ShotSpotter

sensors were installed to another portion of the high crime area where ShotSpotter

sensors were not installed and found that police were alerted to four times as many

gunshot incidents in covered areas. Across the eight police beats with ShotSpotter,

reported assaults, which include gun-related assaults, declined by about 30%

following the implementation of the technology. 8

ShotSpotter’s expert witnesses and detailed forensic reports provide

juries with the facts about where and when guns were fired

15. In addition to real-time alerts, ShotSpotter also offers detailed forensic

reports and expert testimony that has repeatedly survived scrutiny under the Frye

and Daubert standards.

16. These in-depth analyses are prepared by experts who spend hours

reviewing audio recordings—sometimes including audio recordings from nearby

sensors and/or immediately before or after the short audio clips identified in real-

time—and evaluating wave patterns for echoes and other acoustic anomalies that

may have impacted how gunfire was initially interpreted.

8
Policing Project at NYU Law, Measuring the Effects of ShotSpotter on Gunfire in St. Louis
County, MO, at 1 (2021), https://static1.squarespace.com/static/58a33e881b631bc60d4f8b31/t/60
3923e3a32c3f57d67dabec/1614357476874/Measuring+the+Effects+of+Shotspotter+on+Gunfire
+in+St.+Louis+County%2C+MO.pdf.

7
 17. The detailed forensic analysis enables ShotSpotter to provide more

precise and detailed information than what is gleaned from the real-time alerts that

are generated in less than a minute.

18. For example, when there are multiple gunshots from a shooter who is

on the move, the real-time alert will dispatch law enforcement to a single location in

the approximate center of the gunshots—rather than generating multiple alerts for

the same incident.

19. But, with hours to evaluate audio recordings, soundwave patterns,

echoes, and other forensic data, experts can identify more precise locations of

individual gunshots involved in a particular incident.

20. Similarly, when compared with real-time alerts, detailed forensic

reports can provide a more complete picture of the context of an incident.

21. For example, out of respect for privacy concerns, ShotSpotter saves

only short audio clips surrounding loud, impulsive sounds, and only those that are

software-classified as likely gunfire are initially reviewed by human analysts during

the 45-60-second real-time alert process.

22. However, during the more detailed post-incident review, experts can

search and analyze the audio from multiple area sensors to obtain a more complete

and detailed picture of the entire incident, which may uncover additional gunshots

or additional information about the gunshots detected in real-time.

8
 23. ShotSpotter’s detailed forensic analysis is an additional level of review

designed to provide more detailed and precise information.

24. Throughout the processes of generating real-time alerts and detailed

forensic reports, the conclusions from each layer of review are preserved by

ShotSpotter to ensure that the process is transparent and can be audited. The record

is not “modified,” and the process does not result in “altered” or “fabricated”

evidence.

25. ShotSpotter’s audio files, like all files, are assigned a 32-character

alphanumeric code called an “MD5 hash.”

26. If a file were edited in the slightest, a new hash would be assigned: in

other words, ShotSpotter audio files cannot be edited without leaving an electronic

trail.

27. Real-time alerts and detailed forensic reports are different services

designed for different purposes.

28. While real-time alerts provide an approximate location of the gunfire

to ensure that shooting victims are reached as quickly as possible, ShotSpotter’s

detailed forensic reports assist juries in determining the facts about where and when

guns were fired, regardless of whether the facts support a conviction or an acquittal

or dismissal.

9
 29. ShotSpotter employs two expert witnesses, both of whom have testified

for the prosecution and for the defense, Walter Collier III and Paul Greene:

Walter Collier III Paul Greene

30. ShotSpotter’s expert witnesses have repeatedly helped vacate

convictions, secure acquittals and dismissals, and defend the constitutional rights of

Black men.

31. By way of example only, in 2018, Rodney Tyrone Smith was convicted

of shooting an elderly man in the face and was sentenced to 95 years in prison. But

after ShotSpotter’s evidence and expert testimony proved that Smith could not have

been at the scene at the time of the shooting, the court vacated his conviction. 9

9
Georgia v. Rodney Tyrone Smith, No. CR161037 (Ga. Super. Ct. Chatham Cty. Jul. 27, 2020)
(Ex. 1).

10
 VICE falsely accuses ShotSpotter of conspiring with police
to fabricate and alter evidence to frame innocent Black men

32. On July 26, 2021, VICE launched a defamatory campaign in which it

falsely accused ShotSpotter of conspiring with police to fabricate and alter evidence

to frame Black men for crimes they did not commit. In support of this defamatory

accusation, VICE also falsely claimed that ShotSpotter evidence has never been

evaluated by a court because a “pattern” exists in which, when challenged,

ShotSpotter evidence is withdrawn to avoid scrutiny.

33. VICE pushed these defamatory falsehoods in a story by Todd Feathers

titled “Police Are Telling ShotSpotter to Alter Evidence from Gunshot-Detecting

AI,” which VICE promoted with its “CYBER” podcast and in a series of tweets

saying that “Police all over America are regularly asking Shotspotter, the AI-

powered microphones that ‘detect gunshots’ to fabricate gunshots from thin air for

court proceedings,” that a “ShotSpotter employee testified in court that police ask

them to invent gunshots where they did not exist,” and that “fabricated Shotspotter

evidence was the only evidence against [a] man” who was “exonerated and

Shotspotter and the Rochester police mysteriously deleted all audio recorded.

Blatant corruption.” 10

10
See Jason Koebler (@jason_koebler), Twitter (Jul. 26, 2021, 10:09 a.m.), https://twitter.com/ja
son_koebler/status/1419661153278513157 (Ex. 2); Jason Koebler (@jason_koebler), Twitter (Jul.
26, 2021, 10:11 a.m.), https://twitter.com/jason_koebler/status/1419661624189849618 (Ex.
3); Jason Koebler (@jason_koebler), Twitter (Jul. 26, 2021, 10:17 a.m.), https://twitter.com/jaso
n_koebler/status/1419663131853402113 (Ex. 4).

11
 VICE intentionally misrepresented court records

34. As ShotSpotter informed Feathers before publication, evidence

collected by the ShotSpotter system has been used by both prosecutors and

defendants in 190 court cases in 20 states over the years. As court records reflect,

no court has ever found that ShotSpotter altered or fabricated evidence.

35. Instead, court records reflect that ShotSpotter has repeatedly withstood

challenges under the Kelly-Frye and Daubert standards, which VICE knew because

ShotSpotter explicitly informed Feathers of this fact before publication. In fact,

ShotSpotter evidence has survived scrutiny and been admitted by courts following

at least fifteen Frye or Daubert hearings:

• Missouri v Edward Roach, No. 1022-CR04186-01 (Mo. Cir. Ct. 22d

Cir.);

• New York v. Durham, No. 11-1078 (N.Y. Sup. Ct. Rensselaer Cty.)
(Ex. 5);

• Nebraska v. Thylun Hill, No. CR12-861 (Neb. D. Ct. Douglas Cty.),

aff’d 851 N.W.2d 670, 689–90 (Neb. 2014) (Ex. 6);

• California v. Timonte Emari Cook, No. 05-120946-9 (Cal. Super.

Ct. Contra Costa Cty.) (Ex. 7);

• California v. Zachery Goodwin, No. F16900408 (Cal. Super. Ct.

Fresno Cty.) (Ex. 8);

• Samelton v. Indiana, 57 N.E.3d 899 (Ind. Ct. App.) (Ex. 9);

• Minnesota v. Talia Brooks, No. 27-CR-14-11992 (Minn. 4th D. Ct.)

(Ex. 10);

• Johnson v. Indiana (Ind. Ct. App. 2016) (Ex. 11);

12
 • Pennsylvania v. Tre Goins, No. 7284-2016 (Penn. Ct. Com. Pl.
Allegheny Cty.);

• California v. Michael D. Reed, No. 1615117 (Cal. Super. Ct. S.F.)

(Ex. 12);

• California v. Rickeoneico Williams, No. 17-FE-007924 (Cal. Super.

Ct. Sacramento Cty.) (Ex. 13);

• California v. Luis Javier Morales, No. 5-170990-6 (Cal. Super. Ct.

Contra Costa Cty.);

• California v. Todd Gillard, No. 1-164044-0 (Cal. Super. Ct. Contra

Costa Cty.);

• Florida v. Ronald Bost, No. 17-582049 (Fla. Cir. Ct. Duval Cty.)
(Ex. 14);

• California v Fred Andre Bates, No. 19-CR-016277 (Cal. Super. Ct.

Alameda Cty.) (Ex. 15).

36. ShotSpotter has also prevailed over many additional Frye and Daubert

challenges that were decided based on written submissions.

37. VICE’s agents who were involved in pushing false claims about

ShotSpotter reviewed at least four of the 190 court cases that ShotSpotter referenced

before publication: Reed, Godinez, Williams, and Simmons. The court records in

those cases rebut VICE’s false claims about ShotSpotter, so VICE intentionally

misrepresented them.

38. For example, VICE referenced testimony from a “2017 San Francisco

case,” which is California v. Michael D. Reed, No. 16015117 (Cal. Super. Ct. S.F.

Cty.). There, the court held a Frye hearing, carefully evaluated the ShotSpotter

13
evidence, and held that the ShotSpotter evidence would be admitted—rebutting

VICE’s false accusation that there was a pattern of ShotSpotter evidence being

withdrawn to avoid scrutiny in court.

39. The ShotSpotter evidence in the Reed case was not only admitted; it

was unquestionably correct. The ShotSpotter alert was corroborated by video

footage and the defendant’s own testimony, in which he admitted to firing at a

passing car but claimed self-defense. 11

40. VICE also falsely claimed that ShotSpotter’s expert testified in the

Reed case that ShotSpotter’s accuracy rates were invented by the marketing

department. But that claim is rebutted by the very testimony at issue, which was that

the marketing department created only the performance guarantee in ShotSpotter’s

contracts, not ShotSpotter’s actual detection rate.

41. Moreover, VICE knew from a pre-publication email from ShotSpotter

to Feathers that the testimony from ShotSpotter’s expert in the Reed case “referenced

the minimum rate of detection we guarantee our customers and had nothing to do

with the determination of our actual historical accuracy rate. While marketing and

sales have appropriate input on our service level guarantees for our contracts, actual

accuracy rates are based on detections that we record.”

11
People v. Reed, No. A155280, 2021 WL 1207376, *1 (Cal. Ct. App. Mar. 30, 2021), review
denied (Jun. 30, 2021).

14
 42. VICE likewise intentionally misrepresented court records from United

States v. Godinez, No. 18-CR-278 (N.D. Ill.). In that case, the defense failed to

persuade the judge that ShotSpotter’s technology was unsound. The records in

Godinez showed that the ShotSpotter evidence survived scrutiny in court, rebutting

VICE’s assertions to the contrary. Although the appellate court later found that the

trial judge had committed a structural error, the appellate court’s finding had nothing

to do with the reliability of ShotSpotter’s technology or whether the company was

tampering with evidence, which the Seventh Circuit expressly noted.

43. VICE also deliberately misrepresented court records from New York v.

Simmons, 71 N.Y.S.3d 924 (N.Y. Sup. Ct. Monroe Cty.). In that case, the court

admitted the ShotSpotter evidence for trial, finding it sufficiently reliable to be

admitted for consideration on the question of whether a weapon had been fired at

police.

44. The jury found Simmons not guilty of those charges and instead found

him guilty of only a gun possession charge. That conviction was then vacated

because the jury’s split verdict—which suggested that jurors had not credited a

police officer’s testimony about Simmons’s actions—left ShotSpotter as the sole

piece of evidence supporting his conviction. But the sound of a gunshot, standing

alone, was simply not enough to put a gun in Simmons’s hand. The ShotSpotter

expert in the Simmons case did not testify that he had “fabricate[d] gunshots out of

15
thin air” as VICE falsely claimed, but simply that he had searched for—and found—

audio recordings that provided additional context for the incident.

45. VICE’s accusation—that ShotSpotter conspired with police to

“mysteriously delete[]” audio files of the so-called “fifth shot” in the Simmons

case—is also demonstrably false. Before publication, Feathers and VICE’s other

agents knew that the audio files had not been deleted because court records show

that the recording of the five shots was introduced as Exhibit 120 and played for the

jury at trial. Indeed, the pictorial representation of the soundwave—and embedded

audio recording—of the shots were included in ShotSpotter’s detailed forensic

report:

Excerpt from ShotSpotter’s detailed forensic report in New York v. Simmons, 71 N.Y.S.3d 924 (N.Y.
Sup. Ct. Monroe Cty.), reflecting a first shot followed by four additional shots.

46. VICE likewise fundamentally misrepresented Illinois v. Michael

Williams, No. 20 CR 0899601 (Ill. Cir. Ct. Cook Cty.). Specifically, VICE falsely

claimed that ShotSpotter had changed the location of the gunfire by “more than a

16
mile” in order to support the prosecutor’s theory of the case. That is demonstrably

false. ShotSpotter’s real-time alert accurately geolocated the shots at longitudinal

and latitudinal coordinates near the intersection of South Stony Island Avenue and

East 63rd Street, on the edge of a large park with a street address of 5700 South Lake

Shore Drive. This is explained and depicted in ShotSpotter’s detailed forensic report

of the incident:

47. Although the street address for the entrance to the park is

approximately a mile away from the coordinates of the intersection where

17
ShotSpotter geolocated the gunfire on the edge of the park, Feathers and VICE’s

other agents knew before publication that ShotSpotter did not change the coordinates

of the gunfire by “more than a mile,” but that ShotSpotter’s real-time alert had

provided law enforcement with both the street address for the entrance to the park

and specific latitudinal and longitudinal coordinates corresponding to the

intersection on the edge of the park. VICE’s agents knew this from a screenshot of

the real-time alert that was contained in a court record that VICE’s agents reviewed

before publication:

48. Moreover, after ShotSpotter learned that prosecutors sought to prove

that Williams had shot the victim inside a car, ShotSpotter reminded them that

ShotSpotter expert testimony and evidence would not support the prosecution’s

theory of the case because—as set forth in ShotSpotter’s contracts and the detailed

18
forensic report itself—ShotSpotter’s technology is only guaranteed to locate shots

fired outdoors, not inside a car. 12 It was then that the prosecution dropped the case.

In other words, the ShotSpotter evidence was not withdrawn to avoid scrutiny of

ShotSpotter’s technology as VICE falsely claimed, but because ShotSpotter only

offers expert conclusions that are supported to a reasonable degree of scientific

certainty.

49. As another example of VICE’s deliberate misrepresentations, VICE, in

its podcast, falsely accused ShotSpotter of nefarious conduct by claiming that

“someone had accessed the ShotSpotter data and altered it so that something that had

been registered as a firework in the database was then called a gunshot later.” VICE

deliberately concealed from listeners that ShotSpotter’s human analyst was

unquestionably correct: the victim was killed by a gunshot, not a firework.

50. In none of these cases—not Reed, Godinez, Williams, Simmons, nor

any of the other cases that VICE’s agents reviewed or purposefully avoided—did a

court find that ShotSpotter had manufactured, altered, or fabricated evidence, nor

did ShotSpotter’s experts ever testify to that effect.

12
ShotSpotter’s contract with Chicago explains that it is only accurate for “Detectable Gunfire,”
which is defined to mean “unsuppressed discharges of ballistic firearms which occur fully outdoors
in free space (i.e. not in doorways, vestibules, windows, vehicles, etc.)[.]” The detailed forensic
report states that ShotSpotter can only detect “outdoor incidents” and notes that “[o]ther factors,
such as … weapon discharge in an enclosed space” can interfere with the sensors.

19
 51. VICE fundamentally and intentionally misrepresented these four cases

as supporting the false propositions that there is a “pattern of alterations,” a “pattern”

of withdrawing evidence to avoid scrutiny, that ShotSpotter “invent[s] gunshots

where they did not exist” and that ShotSpotter repeatedly “modif[ies] alerts,”

“alter[s] reports,” or “[a]lter[s] [e]vidence” to frame innocent Black men.

52. VICE’s false narrative of ShotSpotter conspiring with police to frame

innocent Black men is likewise rebutted by the fact that—as VICE knew before

publication from an email to Feathers—court records reflect that ShotSpotter

evidence and expert testimony have been introduced at trial as relevant to both guilt

and innocence.

53. In sum, despite court records demonstrating that ShotSpotter evidence

and testimony have repeatedly withstood scrutiny in court, that ShotSpotter’s expert

witnesses have exonerated the innocent, and that no court has ever ruled that

ShotSpotter altered or fabricated evidence, VICE’s agents intentionally

misrepresented court records in support of their false preconceived narrative and

their “subversive” branding and marketing strategy.

VICE intentionally misrepresented, disregarded, or concealed facts

that rebutted its false preconceived narrative

54. From pre-publication communications with Feathers, VICE also

knew—but intentionally misrepresented, disregarded, or concealed—facts that

rebutted its false preconceived narrative, including that:

20
• The Brookings Institution found that more than 80% of gunshots
were not reported to 911;

• ShotSpotter was designed to make communities safer and provides

officers with more accurate information than 911 calls;

• ShotSpotter uses a two-phased review process to classify sounds as

gunfire before alerts are dispatched;

• The system uses acoustic sensors throughout a coverage area to

capture loud, impulsive sounds that may be gunfire. These incidents
are transmitted to a central server that assigns them a gunfire
probability percentage along with a location. ShotSpotter-trained
employees listen to the incident audio from multiple sensors with
playback tools, analyze the visual waveforms to see if they match
the typical pattern of gunfire, and either publish the incident as
gunfire or dismiss it as non-gunfire. The reviewers agree with the
machine classification over 90% of the time;

• ShotSpotter helps police find victims of gun violence quickly when

no one calls 911, and in 2020 in Oakland, California, 101 victims of
gun violence were found and aided by police when before anyone
called to report a shooting;

• Previous reporting showed that ShotSpotter had helped save the life
of a 13-year-old boy in Chicago;

• The city of Pittsburgh, Pennsylvania credits ShotSpotter as playing

a major role in reducing crime – including homicides – and saving
lives year-over-year – including 84 gunshot victims found with the
help of ShotSpotter;

• After adopting ShotSpotter’s gunshot detection technology in 2018,

Greenville, North Carolina saw a 29% decrease in gun violence
injuries in 2019 and a 20% reduction in homicides that same year;

• The University of Cincinnati found that 95% of residents thought

ShotSpotter was an effective way to fight crime;

• After adopting ShotSpotter, the City of Miami saw a 35% reduction

in homicides between 2014 and 2017;

21
 • Omaha has reported an over 50% drop in victims of gun homicides
since 2011;

• Fort Meyers, Florida has seen a 33% decrease in gunfire in 2020 and
saw a 25% reduction in homicides the previous year;

• ShotSpotter sensor locations are chosen by analyzing historical

gunfire and homicide data and most commonly sensors are placed
in neighborhoods with the highest levels of gun violence to make
the greatest impact;

• Paul Greene is an experienced forensic engineer who has testified

about ShotSpotter evidence in more than 100 court cases;

• ShotSpotter evidence has survived challenges under the Daubert

and Frye standards in multiple courtrooms; and

• ShotSpotter evidence is widely accepted by courts across the United

States.

55. VICE’s intentional or reckless disregard for the truth is also evidenced

by the fact that its accusations are inherently improbable. It is inherently improbable

that any company would fabricate gunshots out of thin air to frame innocent Black

men; but that accusation is even more inherently improbable and facially ridiculous

when leveled against a company that has helped save the lives of countless Black

gunshot victims, that has helped exonerate innocent Black men (including with the

expert testimony of a Black forensic analyst), and which is led by a Black CEO with

Black directors comprising nearly half its board, including the president of the

largest civil rights organization in the United States. VICE’s agents recklessly

omitted or deliberately concealed the above facts that undermined and rebutted their

false preconceived narrative.

22
 56. VICE had a powerful financial motive to misrepresent court records

and conceal facts that undermined its false preconceived narrative. VICE markets

itself as “edgy” and has been called “a global brand that confers status and cool on

anyone associated with it.” Among VICE’s many imprints is “Motherboard,” the

technology-focused publication that pushed the falsehoods at issue here.

57. Motherboard relies on branding as opposed to banner ads and is VICE’s

twist on custom publishing. “Custom publishing” describes the practice of

corporations paying media organizations for content to be written about them.

VICE’s co-founder has said that by partnering with Motherboard, corporations “can

bypass [advertising] agencies” and instead align themselves with VICE’s

“subversive ideas and content.” Motherboard actively cultivates that “subversive”

image by running articles critical of established corporations.

58. Motherboard’s guide to “How to Pitch Motherboard” on a story

explains that “Motherboard is focused on a few core topics” including:

Power in Tech: We are interested in inequality in tech, how new

technologies are disproportionately used to entrench traditional
power structures (i.e. against people who are historically
vulnerable and marginalized), and how big tech uses its largesse
to entrench power politically and economically. 13

13
Motherboard Staff, How to Pitch Motherboard, VICE (updated Oct. 2018),
https://www.vice.com/en/article/z4j579/heres-how-to-pitch-motherboard.

23
 59. Motherboard routinely publishes stories featuring this preconceived

narrative:

60. Todd Feathers has proved skilled at manufacturing such stories for

VICE. Over and over, he has “found” bias, corruption, or other misconduct on the

part of technology companies or users—at least 40 times in the last year alone. Over

and over, VICE published these stories because they were consistent with the

“subversive” brand VICE uses to sell ads to virtue-signaling corporations:

24
 After again being put on formal written notice of the facts,
VICE refuses to retract

61. On July 28, ShotSpotter emailed Feathers, Koebler, and Motherboard’s

Managing Editor, Emanuel Maiberg, requesting the following corrections and

responses:

Assertion in 7/26 Article: Modifying Alerts at the Request of

Police Departments

“We categorically deny any allegations that ShotSpotter

manipulates any details of an incident at the request of the police.
It is important to understand that real-time ShotSpotter alerts that
detect and alert local law enforcement of a gunfire incident
should not be conflated with Detailed Forensic Reports
(“DFRs”) or expert witness testimony. Real-time alerts are

25
 optimized to quickly determine when and where gunfire has
occurred within the Coverage Area.

A DFR on the other hand, is an entirely separate report created

by a separate team of forensic analysts using specialized tools
and the results are 100% accurate. A DFR is a court admissible
analysis of a shooting incident captured by the ShotSpotter
system. Our expert forensic analysts spend an average of eight
hours per incident to put together a separate court admissible
document that is exact on rounds fired, timing and sequence of
shots fired – something they can testify to in court.

The original incident report is never altered, but new facts may
be discovered upon thorough investigation by our forensic
analysts. We respond to requests to further investigate an
incident but only to provide the facts that we can determine and
not to fit a predetermined narrative. This is about being diligent
and providing the appropriate evidence and insights in the
evidentiary chain of custody and nothing more.”

…..

Assertion in 7/26 Article: “The reliability of their technology has

never been challenged in court and nobody is doing anything
about it.”

“ShotSpotter evidence and ShotSpotter expert witness testimony

have been successfully admitted in over 190 court cases in 20
states. ShotSpotter evidence has prevailed in ten successful Frye
challenges and one successful Daubert challenge throughout the
United States. Our data compiled with our expert analysis help
prosecutors make convictions.”

62. Later, on August 16, September 2, and September 21, ShotSpotter sent

letters to counsel for VICE that again explained the falsity of VICE’s reporting,

provided supporting evidence including court records, audio recordings, and a

26
detailed report proving the falsity of VICE’s claims, and asked for a retraction. 14

Even after receiving evidence conclusively disproving its false claims, VICE refused

to retract.

VICE has caused enormous harm to ShotSpotter

63. VICE’s false reporting has endangered ShotSpotter’s current and future

contracts, damaged ShotSpotter’s commercial relationships and reputation, and

impaired ShotSpotter’s enterprise value.

64. After VICE’s defamatory campaign, VICE’s falsehoods were

foreseeably republished by others and people began calling for cities to cancel their

contracts with ShotSpotter. In many cases, they specifically cited VICE’s

defamatory reporting:

14
Letter from T. Clare to Y. Berkovits (Aug. 16, 2021) (Ex. 16); Letter T. Clare to R. Strom (Aug.
23, 2021) (Ex. 17); Letter T. Clare & M. Meier to R. Strom (Sept. 21, 2021) (Ex. 18).

27
 65. On September 14, 2021, 16 Chicago aldermen cited VICE’s

defamatory reporting and called for the Budget and Public Safety Committees to

hold a joint hearing to consider canceling ShotSpotter’s $33 million contract.

28
 66. After being misled by the falsehoods in VICE’s reporting, U.S. Senator

Ron Wyden launched an inquiry into the use of federal funding to pay for the

ShotSpotter system.

67. As a result of VICE’s false reporting, ShotSpotter’s stock began trading

at a compressed revenue multiple and its stock price fell, resulting in market cap

diminution of approximately $100 million.

68. As a result of VICE’s false reporting, ShotSpotter’s stock was shorted.

COUNT ONE – DEFAMATION PER SE

69. ShotSpotter repeats and re-alleges the above paragraphs as if set forth

fully herein.

70. VICE published the following false and defamatory statements of fact

about ShotSpotter online to a worldwide audience.

(a) A July 26, 2021 story by Todd Feathers, “Police Are Telling
ShotSpotter to Alter Evidence from Gunshot-Detecting AI,”
which was posted to VICE.com, stated that:

• Headline: “Police Are Telling ShotSpotter to Alter

Evidence From Gunshot-Detecting AI.”

• “Prosecutors in Chicago are being forced to withdraw

evidence generated by the technology…”

• “Motherboard’s review of court documents from the

Williams case and other trials in Chicago and New York
State, including testimony from ShotSpotter’s favored
expert witness, suggests that the company’s analysts
frequently modify alerts at the request of police
departments—some of which appear to be grasping for
evidence that supports their narrative of events.”

29
• Section heading: “A pattern of alterations.”

• “Greene … was involved in another altered report in

Chicago, in 2018[.]”

• “Initially, the company’s sensors didn’t detect any

gunshots, and the algorithms ruled that the sounds came
from helicopter rotors.”

• Claims that Chicago prosecutors withdrew the evidence

rather than face a Frye hearing and that “[t] he case isn’t
an anomaly, and the pattern it represents could have huge
ramifications for ShotSpotter in Chicago, where the
technology generates an average of 21,000 alerts each
year. The technology is also currently in use in more than
100 cities. “‘The reliability of [ShotSpotter] technology
has never been challenged in court and nobody is doing
anything about it’ …. ‘Chicago is paying millions of
dollars for their technology and then, in a way,
preventing anybody from challenging it.’”

• Section heading: “Untested evidence.”

• “If a court ever agrees to examine the forensic viability

of ShotSpotter, or if prosecutors continue to drop the
evidence when challenged, it could have massive
ramifications.”

• “[T]he ShotSpotter audio files that were the only

evidence of the phantom fifth shot have disappeared” in
the Simmons case.

• In Williams, “after the 11:46 p.m. alert came in, a

ShotSpotter analyst manually overrode the algorithms
and ‘reclassified’ the sound as a gunshot. Then, months
later and after ‘post-processing,’ another ShotSpotter
analyst changed the alert’s coordinates to a location on

30
 South Stony Island Drive near where Williams’ car was
seen on camera.” 15

(b) The following July 26, 2021 promotional tweets posted by

Motherboard’s Editor-in-Chief to his Twitter account
@Jason_Koebler:

• “SCOOP: Police all over America are regularly asking

Shotspotter, the AI-powered microphones that ‘detect
gunshots’ to fabricate gunshots from thin air for court
proceedings, according to court records we obtained.
This is horrifying and nuts” 16

• “ShotSpotter employee testified in court that police ask

them to invent gunshots where they did not exist ‘on a
semi-regular basis’” 17

• “This fabricated Shotspotter evidence was the only

evidence against the man. He was exonerated and
Shotspotter and the Rochester police mysteriously
deleted all audio recorded. Blatant corruption” 18

(c) A July 29, 2021 episode of VICE’s “CYBER” podcast, which is

widely available online and through podcasting apps, that
featured the following exchange between VICE employees
Ben Makuch and Lorenzo Franceschi-Bicchierai:

Franceschi-Bicchierai: … And [ShotSpotter is]

designed to detect when a gunshot goes off; the
technology relies on algorithms. There’s also some
human review, which is not automatic. I think it just
that comes into play if there’s some issue. This story

15
Todd Feathers, Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI,
VICE (July 26, 2021), https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-
alter-evidence-from-gunshot-detecting-ai (Ex. 19).
16
Jason Koebler (@jason_koebler), Twitter (July 26, 2021, 10:09 a.m.),
https://twitter.com/jason_koebler/status/1419661153278513157 (Ex. 2).
17
Jason Koebler (@jason_koebler), Twitter (July 26, 2021, 10:11 a.m.),
https://twitter.com/jason_koebler/status/1419661624189849618 (Ex. 3).
18
Jason Koebler (@jason_koebler), Twitter (July 26, 2021, 10:17 a.m.), https://twitter.com/jason
_koebler/status/1419663131853402113 (Ex. 4).

31
centers around the case in Chicago where a 60-year-
old man is accused of murdering a 25-year-old. The
accused claims that he wasn’t, you know -- the other
man was shot in a drive-by shooting and he just
picked him up and brought him to the hospital, and
the key evidence in the case is a report from
ShotSpotter that places the shooting at a certain
location. But it turns out that the shooting was a little
bit further, and the defendant’s lawyer essentially is
arguing that this technology is not reliable, should not
be entered into the case, and it’s completely moot.
And what’s interesting here is that the prosecutor
essentially said you know what, we’re not going to
use this evidence anymore. You know, let’s drop the
evidence which, you know, some of the experts
interviewed in the piece essentially argue that this is
a clear sign that the police does not want to talk about
how this technology works, does not want to really
get into how it was used in this case because if this
was entered into evidence, then the defense would
have had the right to really see all the nitty and gritty
of how this worked.

And to Motherboard and CYBER listeners, this may

sound familiar. Years ago, there were a lot of stories
about sting rays, which are surveillance devices that
the police uses to intercept text messages and locate
people using cell phones, and years ago there were
many cases where the police also dropped this kind
of evidence in an attempt not to disclose how the
technology actually worked.

Makuch: Yeah, and I want to highlight something

very specific from this story too that I thought was
really interesting. It’s not just that they backed away
-- in this particular case that they backed away from
using the evidence. It appears based on documents
that the man’s public defender was able to turn up that
someone had accessed the ShotSpotter data and
altered it so that something that had been registered

32
 as a firework in the database was then called a
gunshot later, and they had also moved -- you said
this, but specifically moved the location at which that
shot was heard. And then as soon as someone called
them on it, they abandoned it completely.

It’s interesting when we have these new technologies,

especially with forensic science, where we have
something that’s that supposedly is going to tell us
objectives really what’s occurred and where we have
to be very careful, especially when we’re talking
about sending people to jail for a very long time.

Franceschi-Bicchierai: Yeah. And it’s important to

note that this is not the only case where evidence has
been withdrawn and Todd, the author of the piece,
also delves into another case where a jury acquitted a
defendant because, you know, citing ShotSpotter’s
unreliability. So there’s a history of controversial use
of this evidence. 19

71. These false statements, which repeatedly refer to ShotSpotter by name,

were reasonably understood by those who read them to be statements of fact of,

concerning, and regarding ShotSpotter.

72. VICE published these false statements to millions of people on the

VICE website, which attracts around 30,000,000 unique monthly viewers; on Jason

Koebler’s Twitter account, which has 28,400 followers; and on the CYBER podcast,

which regularly attracts over 15,000 listeners per episode.

19
Matthew Gault, Gig Work Sucks, Just Ask Uber and Lyft Drivers, VICE (July 30, 2021),
https://www.vice.com/en/article/g5gkvx/gig-work-sucks-just-ask-uber-and-lyft-drivers (Ex. 20).

33
 73. Following those publications, VICE’s lies spread as people tweeted,

retweeted, and expressed their outrage that ShotSpotter and the police were

purportedly conspiring to fabricate evidence to put innocent men in prison. And that

was completely foreseeable to—and intended—by VICE, which seeks to maximize

user engagement, an important metric to its corporate advertisers.

74. Todd Feathers is a reporter who, at all relevant times, has been an agent

for VICE. He has written over 60 articles for VICE over the past two years, which

constitutes over 80% of his published work during that time. VICE editors

supervised his reporting on the July 26 article, which VICE edited, published, and

promoted.

75. Jason Koebler is Editor-in-Chief of Motherboard and, at all relevant

times, has been a managing agent of VICE.

76. Ben Makuch holds the position of Correspondent at VICE and, at all

relevant times, has been an agent for VICE.

77. Lorenzo Franceschi-Bicchierai holds the position of Staff Writer at

Motherboard and, at all relevant times, has been an agent for VICE.

78. As set forth above in detail, VICE published the false statements with

actual malice, even though VICE’s agents actually knew or recklessly disregarded

that the statements were false.

34
 79. VICE’s defamatory statements about ShotSpotter are false.

ShotSpotter does not fabricate gunshots or alter evidence. No court has ever

concluded otherwise, nor have ShotSpotter’s experts ever testified otherwise.

Further, ShotSpotter is not untested, unreviewed, or hiding its technology from

scrutiny by courts. Rather, ShotSpotter evidence has been repeatedly scrutinized

and admitted by courts over the past twelve years, prevailing in at least fifteen

Frye/Daubert hearings and playing a part in more than 190 cases and counting.

80. VICE had no applicable privilege or legal authorization to make these

false and defamatory statements, or if it did, VICE abused it.

81. These false statements charge ShotSpotter with conspiracy, criminal

obstruction of justice, evidence tampering, and corruption, and they impair

ShotSpotter’s reputation in its trade. As such, they are defamatory per se and

damages are presumed by law.

82. In addition to the injuries presumed by law, VICE’s defamatory

statements, whether taken individually or together in their cumulative impact, have

damaged ShotSpotter in the ways enumerated above and in other ways yet to be

determined.

83. ShotSpotter is entitled to compensatory damages arising out of VICE’s

defamation.

35
 84. ShotSpotter is also entitled to punitive damages because (a) VICE acted

with malice, oppression, wantonness, and a conscious desire to cause injury; (b)

VICE purposefully made the defamatory statements heedlessly and with reckless

and willful indifference to ShotSpotter’s rights; and (c) VICE published its

defamatory statements about ShotSpotter with actual malice. These acts were

approved by VICE’s managing agents and ratified by VICE itself.

COUNT II – DEFAMATION BY IMPLICATION

85. In the July 26 article, July 26 tweets, and the July 29 podcast, VICE

created and published a false narrative about ShotSpotter and falsely implied and

suggested to readers and listeners that ShotSpotter conspires with police to fabricate

and alter evidence to frame Black men for crimes they did not commit, that

ShotSpotter evidence has never been evaluated by a court because a “pattern” exists

in which ShotSpotter evidence is withdrawn to avoid scrutiny when challenged.

VICE’s publications did this by, among other things:

• Using the headline “Police Are Telling ShotSpotter to Alter

Evidence From Gunshot-Detecting AI” and the section headings
“Untested evidence” and “A pattern of alterations.”

• Stating that the story’s assertions about ShotSpotter were based on

“Motherboard’s review of court documents from the Williams case
and other trials in Chicago and New York State, including testimony
from ShotSpotter’s favored expert witness,” which suggests that
either courts found that ShotSpotter falsifies evidence or that a
ShotSpotter employee testified to that effect.

36
 • Suggesting that the “review” of court documents showed a “pattern
of alterations,” a “pattern” of withdrawing evidence to avoid
scrutiny, and that ShotSpotter has “frequently” or repeatedly
modified, altered, or otherwise tampered with evidence.

• Concealing the fact that ShotSpotter has survived many Daubert and
Frye challenges in states nationwide while affirmatively stating that
the prosecutor withdrew ShotSpotter evidence after a Frye motion
was filed in Williams, that this act was not an “anomaly,” that “‘[t]he
reliability of [ShotSpotter] technology has never been challenged in
court and nobody is doing anything about it,’” that “[i]f a court ever
agrees to examine the forensic viability of ShotSpotter, or if
prosecutors continue to drop the evidence when challenged, it could
have massive ramifications.”

• Stating that ShotSpotter employee Paul Greene is the company’s

“favored” expert witness; that “Greene found a fifth shot, despite
there being no physical evidence at the scene that Simmons had
fired. Rochester police had also refused his multiple requests for
them to test his hands and clothing for gunshot residue. Curiously,
the ShotSpotter audio files that were the only evidence of the
phantom fifth shot have disappeared”; and that “Greene—who has
testified as a government witness in dozens of criminal trials—was
involved in another altered report in Chicago, in 2018.”

86. Read in context of the entire publication, the foregoing statements

would lead a reasonable person to believe that ShotSpotter was engaged in evidence

tampering, evidence falsification, and other misconduct in connection with the

provision of expert analysis and testimony.

87. VICE intended and endorsed these defamatory implications, as shown

by VICE’s statements above and its other statements promoting the July 26 article:

• Motherboard editor-in-chief Jason Koebler tweeted a link to the July

26 article with the summary that “Police all over America are
regularly asking Shotspotter, the AI-powered microphones that

37
 ‘detect gunshots’ to fabricate gunshots from thin air for court
proceedings, according to court records we obtained. This is
horrifying and nuts.”

• Motherboard editor-in-chief Jason Koebler tweeted on July 26 that

“ShotSpotter employee testified in court that police ask them to
invent gunshots where they did not exist.”

• Motherboard editor-in-chief Jason Koebler tweeted on July 26 that

“fabricated Shotspotter evidence was the only evidence against [a]
man” who was “exonerated and Shotspotter and the Rochester
police mysteriously deleted all audio recorded. Blatant corruption.”

• During the July 29 podcast, after discussing the Williams case,

Makuch expressly stated that “I want to highlight something very
specific from this story too that I thought was really interesting. It’s
not just that they backed away from in this particular case that they
backed away from using the evidence.”

• Later during the podcast, Fanceschi-Bicchierai emphasized the point

again, stating “it’s important to note that this is not the only case
where evidence has been withdrawn” and “there’s a history of
controversial use of this evidence.”

88. These defamatory implications were reasonably understood by those

who read them to be statements of fact of, concerning, and regarding ShotSpotter.

89. VICE published these defamatory implications to millions of people on

the VICE website, which attracts around 30,000,000 unique monthly viewers; on

Jason Koebler’s Twitter account, which has 28,400 followers; and on the CYBER

podcast, which regularly attracts over 15,000 listeners per episode.

90. Following those publications, VICE’s lies spread as people tweeted,

retweeted, and expressed their outrage that ShotSpotter and the police were

purportedly conspiring to fabricate evidence to put innocent men in prison. And that

38
was completely foreseeable to—and intended by— VICE, which seeks to maximize

user engagement, an important metric to its corporate advertisers.

91. Todd Feathers is a reporter who, at all relevant times, has been an agent

for VICE. He has written over 60 articles for VICE over the past two years, which

constitutes over 80% of his published work during that time. VICE editors

supervised his reporting on the July 26 article, which was part of a three-part series

Feathers wrote for VICE, which then edited, published, and promoted the story.

92. Jason Koebler is Editor-in-Chief of Motherboard and, at all relevant

times, has been a managing agent of VICE.

93. Ben Makuch holds the position of Correspondent at VICE and, at all

relevant times, has been an agent for VICE.

94. Lorenzo Franceschi-Bicchierai holds the position of Staff Writer at

Motherboard and, at all relevant times, has been an agent for VICE.

95. As set forth above, VICE published each defamatory implication with

actual malice, even though VICE’s agents actually knew or recklessly disregarded

that the defamatory implications were false.

96. VICE’s defamatory implications about ShotSpotter are false.

ShotSpotter does not fabricate gunshots or alter evidence. No court has ever

concluded otherwise, nor have ShotSpotter’s experts ever testified otherwise.

Further, ShotSpotter is not untested, unreviewed, or hiding its technology from

39
scrutiny by courts. Rather, ShotSpotter evidence has been repeatedly scrutinized

and admitted by courts over the past twelve years, prevailing in at least fifteen

Frye/Daubert hearings and playing a part in more than 190 cases and counting.

97. VICE had no applicable privilege or legal authorization to make these

false and defamatory implications, or if it did, VICE abused it.

98. These defamatory implications charge ShotSpotter with conspiracy,

criminal obstruction of justice, evidence tampering, and corruption, and they impair

ShotSpotter’s reputation in its trade. As such, they are defamatory per se and

damages are presumed by law.

99. In addition to the injuries presumed by law, VICE’s defamatory

implications, whether taken individually or together in their cumulative impact, have

damaged ShotSpotter in the ways enumerated above and in other ways yet to be

determined.

100. ShotSpotter is entitled to compensatory damages arising out of VICE’s

defamation.

101. ShotSpotter is also entitled to punitive damages because (a) VICE acted

with malice, oppression, wantonness, and a conscious desire to cause injury; (b)

VICE acted heedlessly and with reckless and willful indifference to ShotSpotter’s

rights; and (c) VICE published its defamatory statements about ShotSpotter with

40
actual malice. These acts were approved by VICE’s managing agents and ratified

by VICE itself.

PRAYER FOR RELIEF

WHEREFORE, ShotSpotter respectfully requests that the Court enter an award

and judgment in its favor, and against VICE Media LLC, as follows:

1) awarding ShotSpotter general damages in amount to be determined at trial,

but not less than $50 million;

2) awarding ShotSpotter damages for (a) future lost profits of not less than
$50 million; (b) lost enterprise value of not less than $100 million; and (c)
expenses incurred combatting the disinformation campaign of not less than
$100,000;

3) awarding ShotSpotter exemplary or punitive damages in an amount to be

determined at trial, but not less than $100 million;

4) awarding ShotSpotter pre- and post-judgment interest;

5) awarding ShotSpotter all expenses and costs, including attorneys’ fees; and

6) such other and further relief as the Court deems appropriate.

JURY DEMAND

ShotSpotter demands a trial by jury on all claims and issues so triable.

41
Dated: October 11, 2021 Respectfully submitted,

FARNAN LLP

/s/ Brian E. Farnan

Brian E. Farnan (Bar No. 4089)
Michael J. Farnan (Bar No. 5165)
919 N. Market St., 12th Floor
Wilmington, DE 19801
Tel: (302) 777-0300
[email protected]
[email protected]

Of Counsel:

Thomas A. Clare, P.C.

Megan L. Meier
Amy M. Roller
CLARE LOCKE LLP
10 Prince Street
Alexandria, VA 22314
(202) 628-7400
[email protected]
[email protected]
[email protected]

Attorneys for Plaintiff

42
Exhibit 1
 CR161037

e-Filed in Office
IN THE SUPERIOR COURT OF CHATHAM COUNTY Tammie Mosley
STATE OF GEORGIA Clerk of Superior Court
Chatham County
STATE OF GEORGIA, § Date: 7/27/2020 10:55 AM
§ Reviewer: DH
vs . § Indictment No. CR16-1037-J4
§
RODNEY TYRONE SMITH , §
§
Defendant. §

ORDER GRANTING DEFENDANT'S MOTION FOR NEW TRIAL

After reading and considering Defendant's Motion for New Trial (as amended ), the
State's Response , reviewing all argument and evidence of record , and the applicable law,
the Court GRANTS the Motion .
On June 8, 2016 , Rodney Tyrone Smith ("Defendant") was indicted by a Chatham
County Grand Jury on the offenses of Aggravated Assault (3 Counts) , Aggravated Battery
(2 Counts), Abuse of an Elder Person, Possession of a Firearm During the Comm ission
of a Felony (3 Counts) , Possession of Cocaine with intent to Distribute, and Possession
of a Firearm by a Convicted Felon.
From April 3, 2018 through April 6, 2018 , the case was tried before a Chatham
County jury. At the conclusion of the jury trial , Defendant was found guilty on all counts .
A sentencing hearing was conducted on April 19, 2018. For purposes of sentencing ,
Count 1 merged into Count 2 and Count 4 merged into Count 2. Pursuant to Georgia 's
recidivist statute, O.C.G.A. § 17-10-7 (c) , the Defendant received ninety years to serve ,
and consecutively, five years to serve.
On May 1, 2018, Defendant, through trial counsel , filed a timely Motion for New
Trial based on general grounds. On October 25, 2018, appellate counsel filed a Motion
for New Trial , as Amended , which included an ineffective assistance of counsel claim
based on the failure of trial counsel to present evidence shown by ShotSpotter.
Defendant alleged the ShotSpotter evidence would have shown his innocence of the first
assault. On March 27, 2019, appellate counsel filed a Motion for New Trial, Second

~t ·11 / SJ th
,.. r F, , · , -J5
J. r ',1 • Fe t•le-,. - a .as iJn,er'Jed)
Amendment, based on a Brady violation for the failure of the State to provide ShotSpotter
information available to the Savannah Police Department.

On January 2, 2019 , Defendant filed a Motion for Discovery and Disclosure under
Brady v. Maryland requesting the State of Georgia to provide to Defendant certain
materials pursuant to O.C.G.A. § 17-16-1, et seq. and Brady v. Maryland , 373 U.S. 83,
83 S.Ct. 1194, 10 L. Ed . 2d 215 (1963). On January 9, 2019 , Defendant filed a Subpoena
for Production of Evidence served on the Savannah Police Department requesting the
same information .

The State filed notices of supplemental discovery disclosure on February 6 and

March 20, 2019, providing evidence the Savannah Police Department produced from its
electronic connection with ShotSpotter.
On March 29, 2019, Defendant filed a Motion for Funds for Forensic Report and
Expert Testimony requesting the Court to provide funding for the preparation of a Forensic
Report from ShotSpotter, Inc. , and for Expert Testimony as requ ired at court proceedings
in the above-referenced case. On April 8, 2019, the Court granted the requested funds .
On May 2, 2019, Defendant filed a discovery disclosure noting the provision, on
April 30, 2019, of certain forensic reports produced for Defendant by ShotSpotter to the
District Attorney:
A) ShotSpotter Detailed Forensic Report for Flex ID (FID) 13830-13832;
B) ShotSpotter Detailed Forensic Report for Flex ID (FID) 15235-15237.
On June 11, 2019, and June 24, 2019, the various motions identified above came
before the Court for a hearing . The subject of the evidentiary hearings included the
following claims of error:
7) Trial counsel provided ineffective assistance of counsel under the standard
set in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 , 80 L. Ed . 2d
674 (1984), by failing to present evidence shown by ShotSpotter, which
illustrated a conflict in the State's theory 1 that the same person committed
the separate assaults within the indictment.

9) The State of Georgia withheld exculpatory evidence from Defendant in the

form of data produced by ShotSpotter technology, including ShotSpotter

1 The State's theory was that the same individual , driving a Ford Mustang, shot Abraham Johnson , Ill , at 7
E. Victory Drive and , shortly after, committed an assault with a firearm at Chu's Convenience Store, located
at 2 W DeRenne Avenue, and then committed a third assault with a firearm , located at 108 Mills Run Lane.
::-l•ii.E: ., Rc,dn'" 1 S111,th 2
C .ss No CR 1 6 ,GT' ,b
Q; J"'r r,r [Jc'.. o~ for ~Jev" T• ,ar I as amen ded)
 Flex reports and audio of gunshots, in violation of Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963).

Having had an evidentiary hearing on March 25, 2019, Defendant's Motion for New
Trial (as amended) is now ripe before the Court.

RELEVANT FACTS

In the early morning hours of March 14, 2016, Rotaisha McCkinney loaned a gray
newer model Ford Mustang convertible to Defendant. Defendant was dressed in a black
shirt and camouflage shorts. Around 5:00 a.m ., Angel Vargas saw Defendant driving a
vehicle of the same description in the area of 219 W . 33 rd Street in Savannah . After he
saw Defendant, he heard gunshots. Vargas described Defendant as wearing a black shirt
and camouflage shorts.

Abraham Johnson, Ill (hereinafter, "Johnson"), who was sixty-seven at the time,
had pulled into his driveway at 7 East Victory Drive in Savannah after he returned home
from work. While Johnson was still in his car, he saw a newer model gray Ford Mustang
stop in front of his house. Johnson was shot in the face twice. Subsequent to being shot,
Johnson watched the Ford Mustang sit in front of his house for a few minutes before the
vehicle drove away. He did not see the individual who shot him.
Shortly after Johnson was shot, Defendant was captured on video at Chu's
Convenience Store on the corner of Derenne Avenue and Bull Street in Savannah. 2 The
video showed Defendant driving a gray Ford Mustang and wearing a black shirt,
camouflage shorts and a black hat. Inside the store, Defendant pointed a gun at Tyre
Smith and the gun made a click. Khadijah Jenkins, an employee of Chu's Convenience
Store who was working that day, and Alexis Proctor, a patron of Chu's Convenience
Store, both witnessed Defendant point a gun at Smith. Proctor also saw Defendant exit
the store, enter a gray newer model Ford Mustang convertible, and drive away from the

store.

2 At trial, the State entered into evidence a video which showed that Defendant entered the parking lot of
Chu's Convenience Store at 5:08:53 a.m. According to testimony during the evidentiary hearing, a diagram
produced by the State in pretrial discovery showed that ShotSpotter detected gunshots in the vicinity of 7
E. Victory Drive, where Johnson was shot, with the latest detected at 5:08:34 a.m.
St.,;tc ,; Rodney S1n1tt1 3
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 A short time later, Defendant went to 108 Mills Run Lane. Defendant knocked on
the front door and when Jamelle Sanders opened his door, Defendant pointed a gun at
Sanders. Sanders heard a click sound, as if the gun did not have bullets in it.
The police arrested Defendant later that day at 107 Mills Run Drive, the residence
directly across the street from where Sanders lived. When the police arrived, they noticed
a gray newer model Ford Mustang convertible in the driveway. The vehicle matched the
same description as : (1) the one loaned to Defendant by Rotaisha McCkinney; (2) the
one driven by Defendant as witnessed by Angel Vargas; (3) the one driven by the person
who shot Abraham Johnson, Ill; and (4) the one then seen on video being driven by
Defendant at Chu's Convenience Store. Defendant was also arrested wearing the same
clothes he was described to have been wearing by Rotaisha McKinney and Angel Vargas,
and the same clothes that he was seen wearing on video at Chu's Convenience Store.
Inside 107 Mills Run Lane, Detective Eric Blaser recovered a 9mm Glock and a
bag of cocaine from a laundry basket. The police also found a scale, baggies and cash .
Inside the gray Ford Mustang, Detective Kevin Fikes found spent 9mm shell casings and
a small bag of cocaine in the back seat. The shell casings were tested and proven to have
been fired from the Glock 9mm that was found in 107 Mills Run Road. Additionally, an
expert from Georgia Bureau of Investigation concluded that the bullet fragments extracted
from Johnson's face were fired from a Glock 9mm.

ARGUMENT AND CITATION OF AUTHORITY

The Court has attempted to address each of Defendant's various claims in his
Motion for New Trial (as amended). Accordingly, any claim not specifically addressed
herein is DENIED.

I. THE VERDICT WAS NOT CONTRARY TO THE EVIDENCE AND THE

PRINCIPLES OF JUSTICE AND EQUITY, NOR WAS IT DECIDEDLY
AND STRONGLY AGAINST THE WEIGHT OF EVIDENCE.

Defendant has failed to cite to any point in the transcript or any authority that would
support any of the numerous insufficiency of the evidence claims. Due to Defendant's
failure to include any citations or authority this Court deems any such claims abandoned.
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Holmes v. State, 301 Ga. 143,146,800 S.E.2d 353, 355 (2017) . The Court has reviewed
the record and finds that in this case the evidence presented to the jury was more than
sufficient to allow a rational trier of fact to find the Defendant guilty beyond a reasonable
doubt of the offenses charged . Jackson v. Virginia, 443 U.S. 307 (1979) . Although
Defendant's view of the evidence was different from that of the State, such differences
were a matter for the jury to resolve. "Conflicts in the testimony of the witnesses, including
the State's witnesses, [are] a matter of credibility for the jury to resolve," Bell v. State, 226
Ga. App. 271,272,486 S.E.2d 422,425 (1997) . Likewise, the Court finds that the verdict
is not decidedly and strongly against the weight of evidence admitted at trial. O.C .G.A. §
5-5-21 .

II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION I,
PARAGRAPH XIV OF THE 1983 GEORGIA CONSTITUTION.

A convicted Defendant must satisfy a two-prong test in order for the Court to uphold
the validity of a claim addressing ineffective assistance of counsel at trial.
First, the defendant must show that counsel's performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment. Second , the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be
said that the conviction .. . resulted from a breakdown in the adversary
process that renders the result unreliable.

Strickland v. Washington , 466 U.S. 668, 687 (1984). "There is a strong presumption that
the performance of trial counsel falls within the wide range of reasonable professional
assistance . The reasonableness of the conduct is viewed at the time of trial and under
the circumstances of the case, " Williams v. State, 277 Ga. 853, 857, 596 S.E.2d 597, 602
(2004) (citation and punctuation omitted) . If an appellant fails to meet his burden of
proving either prong of the Strickland test, the reviewing court need not examine the other
prong . See Strickland, supra, 466 U.S. at 697; Fuller v. State, 277 Ga. 505, 591 S.E.2d

782 (2004).
5
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 As explained in Powell v. State, the Defendant's burden is significant:
To prove he has received ineffective assistance of counsel, the defendant
must show both that counsel's performance was deficient and that this
deficiency prejudiced the defense. Thus, counsel's performance will not be
found to be deficient if it falls within the range of 'reasonably effective
assistance'. The defendant must overcome the strong presumption that
counsel's conduct falls within the broad range of reasonable professional
conduct. As to deficient performance, errors in judgment and tactical errors
do not constitute denial of effective assistance of counsel.

198 Ga . App. 509,510,402 S.E.2d 108, 109 (1991) .

A new trial should not be granted on the basis of an ineffective assistance claim
unless conduct by trial counsel so undermined the proper functioning of the adversarial
process that the trial could not have produced a just result. Holland v. State, 250 Ga .
App. 24, 25, 550 S.E.2d 433,436 (2001). The Holland Court explained further:
Whether an attorney's trial tactics are reasonable 'is a question of law', not
fact. The test for reasonable attorney performance has nothing to do with
what the best lawyers would have done. Nor is the test even what most
good lawyers would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as defense
counsel acted at trial . . . (W)e are not interested in grading lawyers'
performances; we are interested in whether the adversarial process at trial,
in fact, worked adequately.

A. Defendant's trial counsel rendered ineffective assistance by failing to

present evidence shown by ShotSpotter.

The State provided pretrial discovery in this case on August 24, 2016. The
discovery contained a diagram produced from raw data taken from the City's ShotSpotter
program. The diagram was created by Gianna Nelson, an analyst with the Savannah
Police Department, who summarized the raw data generated on the date of the shooting .
The diagram showed that the ShotSpotter program detected gunshots at 5:07:43 a.m . at
51 OE. Victory Drive, Savannah, Georgia, 5:08 : 10 a.m. at 2601 Drayton Street, Savannah,
Georgia , and at 5:08 :34 a.m. at 15 E. Victory Drive, Savannah , Georgia .3
The diagram is important because the ShotSpotter evidence reveals a significant
inconsistency in State's theory; that Defendant shot Johnson at 7 E. Victory Drive and

3These locations are adjacent to 7 E. Victory drive where Abraham Johnson , Ill was shot.
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subsequently committed an assault at Chu's Convenience Store on West DeRenne
Avenue in Savannah . In order for this theory to hold up the Defendant would have to
have had sufficient time to travel from the Johnson shooting on Victory Drive to Chu's
Convenience Store on West DeRenne Avenue. As shown on the diagram, ShotSpotter
detected gunfire seemingly related to the Johnson shooting at 5:08:34 a.m . At trial, the
State presented evidence from Chu's Convenience Store on West DeRenne Avenue that
showed Defendant entering the store parking lot at 5:08:53 a.m.4 The State introduced a
map which showed the distance between Johnson's house and Chu's Convenience Store
is two miles with several traffic signals on the numerous intersections. 5
Furthermore, the State presented Defendant's statement to the police in which he
admitted to being at Chu's Convenience Store, but denied being at the East Victory Drive
location. Defendant's admission that he was at Chu's (essentially at the same time that
ShotSpotter indicated or recorded the shots fired at the East Victory Drive vicinity) was
corroborated by the State's video evidence.
Moreover, Johnson testified that the shooter did not leave immediately or speedily
after Johnson was shot: 6
A. What had happened when he shot me, he sat there. I couldn't figure
it out. I guess (unintelligible) see if I would have gotten out. He
probably would have killed me. And he sat for a few minutes to
watch . Because after this my car done ran into everything . And he
just sat there. And all of a sudden, he just slowly drove away. (T.80)

Based on the ShotSpotter evidence, as shown on the diagram, and in light of the evidence
produced at trial by the State, it is reasonable for one to conclude that it would have been
impossible for Defendant to both shot Johnson and been at Chu's Convenience Store at
the times presented in the State's evidence.
Accordingly, the Court finds that trial counsel's handling of the ShotSpotter
evidence, and the timeline it establishes, was deficient. The deficiencies include failure to

• There was never a suggestion that the time stamp of the video was inaccurate. At trial , the State introduced
a business record certificate for an unedited video from Chu's Convenience Store . Additionally, Defendant's
trial counsel elicited testimony from the Chu's Convenience Store representative that the time and date on
the video was accurate , showing Monday, March 14, 2016 , at 5:08.
5 Chu 's Convenience Store is located at 2 W . DeRenne Avenue.
6 Johnson also testified that he did not see the individual who shot him .

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present the diagram and evidence of the ShotSpotter information to the jury and failure
7
to argue the conflict in the State's theory that Defendant shot at Johnson on Victory Drive.
Each of the points above could have been used by Defendant's trial counsel to illustrate
a conflict in the State's theory and present an alibi defense. Given the critical nature of
the ShotSpotter data, as shown in the diagram prepared by the Savannah Police
Department, a reasonably effective trial lawyer would have taken proper steps to insure
that the diagram would have been presented to the jury to show Defendant's innocence
of the assaults on Johnson. Accordingly, the record demonstrates that despite the critical
nature of the ShotSpotter data in the diagram , there was an apparent lack of consideration
that was ultimately detrimental to Defendant.
Having found that Defendant's counsel was deficient, the Court must now
determine if Defendant was prejudiced. "When considering the prejudice prong for
multiple claims of ineffective assistance of counsel, [the court] look[s] to whether 'the
cumulative effect of counsel's [alleged] errors,' leads to a reasonable probability that the
outcome of the trial would have been different,'' Schofield v. Holsey, 281 Ga . 809 , 812 ,
642 S.E.2d 56 (2007).
The Court finds that but not for the trial counsel's deficient performance there is a
reasonable likelihood that the outcome of the trial would have been different. Here, the
trial counsel was deficient in multiple ways by failing to present the diagram provided by
the State, failing to elicit testimony about the specific timeline of the assaults, failing to
illustrate the conflict in the State's theory, and failing to present a possible alibi (that he
was at Chu's Convenience Store at about the same time as the Johnson shooting). The
evidence that gunfire was detected at East Victory Drive at 5:08:34 was critical given the
State's presentation of evidence that Defendant was also at Chu's Convenience Store at
5:08:53. Trial counsel failed to argue to the jury that the State's timeline was flawed or
that the States own evidence proved the impossibility of its theory on the Johnson
Shooting . There was no mention of the nineteen seconds separating the assaults on
Johnson and the Defendant's appearance at Chu's Convenience Store combined with

7 The State did not elicit testimony about the specific timeline of the assaults during the trial , which would
have revealed the inability of Defendant to have committed the shooting at 7 E. Victory Drive, as he
appeared on video two miles away at Chu's Convenience Store .
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the two-mile distance between the locations of the two assaults. Defendant's potential
alibi (that he was at Chu 's at the time of the Johnson shooting) was supported by
Defendant's admission that he was at Chu's Convenience Store, the State's evidence of
Defendant on video at the store, and the two eye-witness identifications of Defendant as
being at the store. The alibi was additionally supported by Johnson's testimony that the
shooter "sat for a few minutes" after Johnson was shot. For these reasons, the trial
counsel failed to argue Defendant was not the individual who shot Johnson. See Moss v.
State, 298 Ga. 613, 619, 783 S.E.2d 652,658 (2016) .
As stated by the Supreme Court in Strickland, "The benchmark for judging any
claim of ineffectiveness must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced
a just result." Strickland, 466 U.S. 668 at 686(11) . Here, the Court finds that the trial
counsel's conduct undermined the proper functioning of the adversarial process, and the
Court concludes that Defendant was prejudiced .
B. Defendant's trial counsel was not ineffective for failing to challenge the
admissibility of Defendant's statement.

Defendant claims that his trial counsel was ineffective for not challenging the
admission of his statement to the police after his Constitutional Rights were invoked . "To
establish ineffective assistance of counsel on the basis of counsel's failure to file a timely
motion to suppress, [the Defendant] must make a strong showing that had the motion
been considered, the damaging evidence would have been suppressed ." Brown v. State,
311 Ga. App. 405, 407, 715 S.E.2d 802, 804 (2011) . On April 3, 2016, the Court held a
hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964). At the hearing the State
entered a copy of a Constitutional Rights form that was presented to Defendant. The State
also entered a video which showed Defendant conversing with officers. After Defendant
invoked his right to remain silent, Defendant told an officer that he "needed" to speak with
Detective Richard Wiggins ("Wiggins") . Defendant was reminded that he had invoked his
rights. Defendant again said that he needed to speak with Wiggins . The Court finds
Defendant waived his Constitutional Rights after telling officers that he "needed" to speak

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 with Detective Wiggins. 8 Accordingly, Defendant cannot show that had his trial counsel
challenged the admissibility of the statement, the statement would have been
suppressed . Therefore, Defendant has failed to meet the burden, and the Court
concludes that Defendant's trial counsel was not ineffective for failing to challenge the
admissibility of Defendant's statement to police.

C. Defendant's trial counsel was not ineffective for failing to object to the
Court's instructions on the offense of violation of the Georgia Controlled
Substances Act.

Defendant claims that his trial counsel was ineffective for failing to object to the
Court's instructions on the offense of violation of the Georgia Controlled Substances Act.
In this case, Defendant was charged in Count 1o of the Indictment with Possession of
Cocaine with the Intent to Distribute. Defendant argues the Court's instruction on the
offense of a violation of the Georgia Controlled Substances Act was erroneous because
it included a reference to simple possession of cocaine as a violation of the Georgia
Controlled Substances Act, and thus could have misled the jury into convicting Defendant
on possession with intent to distribute on evidence of simple possession . Defendant's trial
counsel did not object to the instruction at trial, and now Defendant contends that his trial
counsel was ineffective for failing to object to the instruction. As discussed further
hereunder, Defendant cannot show that the jury instruction prejudiced his case, and
therefore, Defendant cannot succeed on his ineffective assistance claim. See Gomillion
v. State, 236 Ga.App. 14, 18 (3) (c), 512 S.E .2d 640 (1999) ("Failure to object to a court's
charge ( ] ... is not ineffective assistance where the appellant does not show how this
prejudiced his case."

111. THE STATE OF GEORGIA DID NOT WITHHOLD EXCULPATORY

EVIDENCE FROM THE DEFENDANT.

In Brady v. Maryland , 373 U.S. 83 (19631, the United States Supreme Court
established that the prosecution has a constitutional duty to disclose certain information
to the defense. The duty applies to "material" information". In United States v. Bagley,

8
The Supreme Court of Georgia has found that incriminating statements made to police, after the invocation
of his rights , which are made as a result of the Defendant initiating a conversation, are admissible. State v.
Brown , 287 Ga . 473 , 474, 697 S.E.2d 192, 194 (2010).
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473 U.S. 667 (1985) the United States Supreme Court explained the standard for
materiality in Brady challenges. The court held :

The evidence is material only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding
would have been different. A "reasonable probability" is a probability
sufficient to undermine confidence in the outcome.
473 U.S. at 682 . As explained by the Georgia Supreme Court in Walker v. Johnson , 282
Ga. 168, 646 S.E.2d 44 (2007) :
To succeed on his Brady claim , (the Defendant is] required to show: (1) the
State possessed evidence favorable to his defense; (2) he did not possess
the favorable evidence and could not obtain it himself with any reasonable
diligence ; (3) the State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the trial would have been different.

282 Ga. at 169, 646 S.E.2d at 46 ; Danforth v. Chapman, 297 Ga . 29 , 30, 771 S.E.2d 886,
887 (2015)
The Court applies Brady as follows:
1. The State Possessed Evidence Favorable to Defendant's Defense.
In this case , the State was in possession of gunshot audio and two certain forensic
reports produced by ShotSpotter to the State which were not provided to Defendant
before trial. Specifically, the State was in possession of ShotSpotter Detailed Forensic
Report for Flex ID (FID) 13830-13832 and ShotSpotter Detailed Forensic Report for Flex
ID (FID) 15235-15237.
2. Defendant Possessed the Favorable Evidence.
The question this Court must wrestle with is whether Defendant possessed the
favorable evidence even though he was not provided the two reports and audio of the
gunshots . The State provided pretrial discovery in this case on August 24, 2016 . As has
been established, Defendant was provided with a diagram created by an analyst with
Savannah Police Department, which reflected the ShotSpotter information concerning
location and times of gunfire detected by the system . There are only two points of
information that were not present in the discovery that the State sent to Defendant in its
discovery disclosures: (1) the longitude and latitude of the alerts, and (2) the actual
' ]I . I.} Si 1 l, 11
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recordings of the gunshots. While the longitude and latitude of the alerts were not
provided numerically on the diagram provided in discovery, the addresses corresponding
to the longitudes and latitudes are present and reflected on the diagram. Here, the Court
finds Defendant possessed the favorable evidence given that Defendant's trial counsel
was provided with the diagram in pretrial discovery.
3. The State Did Not Suppress the Favorable Evidence.
The suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution . Brady, 373 U.S.
at 87. Although t Defendant was not provided copies of the two Flex Reports or the audio
of the gunshots, his trial counsel was in possession of the diagram, which contained the
same date and information that was depicted in the diagram. Although the reports and
gunshots would have provided additional evidence of the gunshots detected in the East
Victory Drive vicinity , Defendant was not deprived of the time and location of the gunshots
detected by ShotSpotter, which as discussed above, was critical to his defense.
Moreover, although the audio recordings of the gunshots were not produced to
Defendant, they contained no exculpatory information . Under these circumstances the
Court finds that the ShotSpotter evidence was not suppressed by the State.
4. A Reasonable Probability Exists that the Outcome of the Trial Would Not
Have Been Different.
Under the final prong of the analysis the Court must determine if there is a
reasonable probability that had Defendant been provided with the two forensic reports
and the audio the outcome of the trial would have been different. A "reasonable
probability" is a probability sufficient to undermine confidence in the outcome. Bagley,
473 U.S. at 682 . In this analysis the Court cannot ignore an analysis of the effectiveness
of the Defendant's trial counsel. As explained above, the Court finds that the Defendant's
trial counsel was ineffective and deficient in his representation of Defendant, specifically
in his handling of the diagram . As Defendant's trial counsel testified during the June 11 ,
2019 post-trial hearing, Defendant's counsel failed to notice the time issue, as exhibited

in the diagram , in his trial preparation :

ll ... )Jt )) lll 12

r 1 1
'I
 0. Does that -- did you recognize that diagram indicated those shots
were fired at the same time that the incident at Chu 's was beginning?

A. Actually I did not at the time ...

(MT. June 11 , 2019, 53-54) .

0. But you did not -- it's safe to say you did not really notice the -- the
fact that the Shot Spotter indicated or recorded the shots were fired at the
same time as the video at Chu's was started with the defendant entering the
parking lot?

A. No, I did not.

(MT. June 11 , 2019, 81) .

This testimony revealed that Defendant's trial counsel did not notice that the
evidence on the diagram indicated the shots fired on Johnson were essentially at the
same time as the incident at Chu's Convenience Store. Consequently, the Court
concludes that there is a reasonable probability that the outcome of the trial would not
have been different if the two forensic reports and audio had been provided to Defendant.

IV. THE COURT PROPERLY ADMITTED EVIDENCE OF A PRIOR

AGGRAVATED ASSAULT, FAMILY VIOLENCE, PURSUANT TO
O.C.G.A. § 24-4-404(b).

Defendant seeks to relitigate the admission of evidence related to an April 12, 2009
incident in which Defendant committed aggravated assault with a firearm, terroristic
threats, and cruelty to children . The State gave notice of its intent to offer evidence of
other crimes or acts of Defendant under Rule 404(b) on August 24, 2016.9 Oral argument
was heard on January 3, 2017. In light of the proffer made by the State at the hearing ,
and after considering the objections to the proffer by Defendant, the Court found that the
April 12, 2009 incident was allowed. 10 Specifically, the Court found the evidence of the

9
The State also sought to introduce evidence of two other incidents: a May 6, 2007 incident, in which the
Defendant was charged with terroristic threats and possession of a firearm in committing a crime, and a
January 4, 2007 incident, in which Defendant was charged with possession of a controlled substance,
misdemeanor marijuana , and kidnapping .
10 The May 6, 2007 and January 4, 2007 incidents were not allowed because the evidence was not relevant

for the purposes proposed by the State, and the probative value the evidence may have had with respect
to the crimes charged under the Indictment was substantially outweighed by undue prejudice to Defendant.
13
I 'r r,r 1·

J f 1,1 /1
April 12, 2009 incident admissible pursuant to O.C.G.A. § 24-4-404(b) for the purposes
of proving motive, identity, and intent. Additionally, the Court provided a limiting instruction
to the jury, both at the time the other act evidence was introduced and in the final charge
to the jury, concerning the appropriate purposes for and the limitations upon the evidence.
Having reviewed Defendant's arguments in his amended motion , the Court stands by its
ruling on the other acts evidence.

V. THE COURT PROPERLY ADMITTED EVIDENCE OF A STATEMENT

MADEBYTHEDEFENDAN~

As addressed above , the Court finds it was proper to admit evidence of the
statements made by Defendant to Detective Wiggins after Defendant invoked his right to
remain silent. Defendant waived his Constitutional Rights after telling officers that he
"needed" to speak with Detective Wiggins. Defendant was reminded that he had invoked
his right to remain silent; however, Defendant clearly requested to speak with Detective
Wiggins . Defendant initiated a conversation with Detective Wiggins subsequent to
invoking his rights, and therefore, his statement was admissible.11

VI. THE COURT DID NOT ERR IN INSTRUCTING THE JURY ON A

VIOLATION OF THE GEORGIA CONTROLLED SUBSTANCES ACT BY
GIVING THE PROVISIONS OF BOTH O.C.G.A. § 16-13-30(a) AND (b).

Defendant contends the Court committed error by instructing the jury on a violation
of the Georgia Controlled Substances Act by giving the provisions of both O.C.G.A. § 16-
13-30(a) and (b), in reference to Count 10 of the Indictment charging Possession with the
Intent to Distribute. In defining the alleged offense to the jury, the Court instructed:

The offense charged in this indictment - an offense charged in this

indictment is a violation of the Georgia Controlled Substances Act wh ich
provides that it is unlawful for any person to A) possess or have under one's
control or B) possess with intent to distribute any quantity of cocaine which
is a controlled substance. Distribute means to deliver a controlled substance
other than by administer or dispensing it. Intent to distribute means intent to
unlawfully deliver or sell.

11 See Footnote 8.
1, 14
 Defendant argues the Court's instruction was erroneous because it included a
reference to simple possession of cocaine as a violation of the Georgia Controlled
Substances Act, and thus could have misled the jury into convicting Defendant on
12
possession with intent to distribute on evidence of simple possession .
"While instructing the jury that a crime can be committed in a manner different from
that charged in the indictment can constitute reversible error, a reversal is not mandated
where ... the charge as a whole limits the jury's consideration to the specific manner of
committing the crime alleged in the indictment." McNorrill v. State, 338 Ga.App . 466, 789
S.E.2d 823 (2016) , citing Machado v. State, 300 Ga.App . 459, 462 , 685 S.E.2d 428
(2009) .
Here , the Court read the indictment to the jury, instructed the jury that the State
had the burden of proving every material allegation of the indictment beyond a reasonable
doubt, further instructed the jury that it could find the Defendant guilty if it found beyond
a reasonable doubt that he committed the offenses alleged in the indictment, and
provided the indictment to the jury during its deliberations. When considered as a whole ,
these instructions limited the jury's consideration to the specific manner of committing the
crime as alleged in Count 10 of the Indictment. Accordingly, the Court did not err in the
Court's instruction on Count 10.

VII. THE COURT DID NOT ERR IN SENTENCING THE DEFENDANT

SEPARATELY ON COUNT 2, AGGRAVATED BATTERY AGAINST
ABRAHAM JOHNSON, AND COUNT 3, AGGRAVATED BATTERY
AGAINST ABRAHAM JOHNSON.

Defendant argues that the Court committed error in sentencing Defendant

separately on Count 2, Aggravated Battery against Abraham Johnson , and Count 3,
Aggravated Battery against Abraham Johnson . Defendant contends that the two counts
of aggravated battery should have merged for the purposes of sentencing because the
counts stemmed from a single act against a single victim .
Under OCGA § 16-5-24(a), "[a] person commits the offense of aggravated
battery when he or she maliciously causes bodily harm to another by depriving him or her

12 Defendant's Motion for New Trial , As Amended , filed on October 25, 2018, p. 4.

I 15
e J • j
of a member of his or her body, by rendering a member of his or her body useless, or by
seriously disfiguring his or her body or a member thereof. "
Here , Defendant was charged of two separate counts of aggravated battery based
on two separate acts of shooting the victim : Count 2 alleged that Defendant caused bodily
harm to Abraham Johnson "by seriously disfiguring his right ear"; and Count 3 alleged
Defendant caused bodily harm to Abraham Johnson "by seriously disfiguring his nose."
At trial , the State presented evidence that two separate and specific injuries occurred from
two separate acts . Accordingly, the Court finds that it was proper to sentence the
Defendant separately on the two aggravated battery convictions. See Ledford v. State,
289 Ga. 70, 71 , 709 S.E.2d 239 , 245 (2011) (separate convictions of aggravated battery
predicated on separate blows to the victim 's body that caused separate injuries to the
victim's lung, head , face and larynx did not merge with each other) .

CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant's Motion for New
Trial (as amended) .

Tt,.,
so ORDERED , this '2..'°' day of July, 2020.

Timothy R. Walmsle
Chatham Superior Cou

cc: David Lock, Esq .

Kristjan Whiteway, Asst. Dist. Atty.

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Exhibit 2
 screenshot-twitter.com-2021.08.04-12_01_10
https://twitter.com/jason_koebler/status/1419661153278513157
04.08.2021
Exhibit 3
10/5/21, 11:59 AM nimbus screenshot app print

screenshot-twitter.com-2021.10.05-11_59_03
https://twitter.com/jason_koebler/status/1419661624189849618
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Exhibit 4
10/5/21, 12:00 PM nimbus screenshot app print

screenshot-twitter.com-2021.10.05-11_59_53
https://twitter.com/jason_koebler/status/1419663131853402113
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Exhibit 5
Exhibit 6
State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

Affirmed.
288 Neb. 767
Supreme Court of Nebraska.
Syllabus by the Court
STATE of Nebraska, appellee,
v. *767 1. Expert Witnesses: Appeal and
Thylun M. HILL, appellant. Error. The standard for reviewing the
admissibility of expert testimony is abuse of
No. S–13–698
discretion.
|
Filed August 8, 2014
2. Expert Witnesses: Appeal and Error.
Synopsis Abuse of discretion is the proper standard of
Background: Defendant was convicted in the review of a district court's evidentiary ruling
District Court, Douglas County, Leigh Ann on the admission of expert testimony under
Retelsdorf, J., of first degree murder. Defendant Daubert v. Merrell Dow Pharmaceuticals, Inc.,
appealed. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).

3. Judges: Words and Phrases. A judicial

Holdings: The Supreme Court, McCormack, abuse of discretion exists when a judge,
J., held that: within the effective limits of authorized judicial
power, elects to act or refrain from acting, but
defendant was not “seized,” for Fourth the selected option results in a decision which
Amendment purposes, until he was subdued by is untenable and unfairly deprives a litigant of
police subsequent to his flight; a substantial right or a just result in matters
submitted for disposition through a judicial
probable cause existed to arrest defendant at the system.
time he was seized;
4. Constitutional Law: Search and Seizure:
good-faith exception to exclusionary rule Motions to Suppress: Appeal and Error. In
applied to any lack of probable cause for reviewing a trial court's ruling on a motion to
residential search warrant; suppress based on a claimed violation of the
Fourth Amendment, an appellate court applies
trial court did not abuse its discretion in a two-part standard of review. Regarding
admitting expert testimony relating to gunshot historical facts, an appellate court reviews
location system; and the trial court's findings for clear error. But
whether those facts trigger or violate Fourth
evidence supported conviction. Amendment protections is a question of law
that an appellate court reviews independently
of the trial court's determination.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

5. Search and Seizure. Application of the good 10. Search Warrants: Probable Cause:
faith exception to the exclusionary rule is a Words and Phrases. Probable cause sufficient
question of law. to justify issuance of a search warrant means a
fair probability that contraband or evidence of
6. Expert Witnesses: Appeal and Error. a crime will be found.
An appellate court's standard of review with
respect to a sufficiency of the evidence claim *768 11. Search Warrants: Affidavits:
is very narrow, in that the court must find Evidence: Appeal and Error. In evaluating
the evidence to be sufficient if there is any **675 the sufficiency of an affidavit used to
evidence, when viewed in a light favorable to obtain a search warrant, an appellate court is
the prosecution, upon which a rational finder of restricted to consideration of the information
fact could conclude that the State has met its and circumstances contained within the four
burden of proof beyond a reasonable doubt. corners of the affidavit, and evidence which
emerges after the warrant is issued has no
7. Police Officers and Sheriffs: Arrests: bearing on whether the warrant was validly
Search and Seizure. When a police officer issued.
makes an arrest, in the absence of physical
contact, the fact that a reasonable person would 12. Search Warrants. Even when a search
have believed he or she was not free to leave is warrant is invalid, the exclusionary rule applies
a necessary, but not a sufficient, condition for only in those cases in which exclusion will
seizure; the subject must also yield to that show further its remedial purposes.
of authority.
13. Motions to Suppress: Search Warrants:
8. Constitutional Law: Search and Seizure: Affidavits: Police Officers and Sheriffs:
Search Warrants: Probable Cause. The Probable Cause. The good faith exception
Fourth Amendment to the U.S. Constitution to the exclusionary rule provides that in the
guarantees the right of the people to be secure absence of an allegation that the magistrate
in their persons, houses, papers, and effects, issuing a warrant abandoned his or her detached
against unreasonable searches and seizures, and and neutral role, suppression is appropriate
further provides that no warrants shall issue, only if the officers were dishonest or reckless
but upon probable cause, supported by oath in preparing their affidavit or could not have
or affirmation, and particularly describing the harbored an objectively reasonable belief in the
place to be searched, and the persons or things existence of probable cause.
to be seized.
14. Motions to Suppress: Search Warrants:
9. Search Warrants: Affidavits: Probable Affidavits: Police Officers and Sheriffs:
Cause. A search warrant, to be valid, must Evidence. Evidence obtained through the
be supported by an affidavit which establishes execution of an invalid warrant may
probable cause. appropriately be suppressed only if (1) the

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

magistrate or judge in issuing a warrant was (2001), jurisprudence, the trial court acts as a
misled by information in an affidavit that gatekeeper to ensure the evidentiary relevance
the affiant knew was false or would have and reliability of an expert's opinion.
known was false except for his or her reckless
disregard of the truth, (2) the issuing magistrate 18. Homicide: Intent: Time. To commit first
wholly abandoned his or her judicial role, (3) degree murder, no particular length of time
the warrant is based on an affidavit so lacking for premeditation is required, provided that
in indicia of probable cause as to render official the intent to kill is formed before the act is
belief in its existence entirely unreasonable, or committed and not simultaneously with the act
(4) the warrant is so facially deficient that the that caused the death.
executing officer cannot reasonably presume it
to be valid.
**674 Appeal from the District Court for
15. Search Warrants: Affidavits: Probable Douglas County: Leigh Ann Retelsdorf, Judge.
Cause: Police Officers and Sheriffs: Appeal Affirmed.
and Error. When evaluating whether a warrant
Attorneys and Law Firms
was based on an affidavit so lacking in indicia
of probable cause as to render official belief in Thomas C. Riley, Douglas County Public
its existence entirely unreasonable, an appellate Defender, and Kelly M. Steenbock for
court should address whether the officer, appellant.
considered as a police officer with a reasonable
knowledge of what the law prohibits, acted in Jon Bruning, Attorney General, and Erin E.
objectively reasonable good faith in relying on Tangeman for appellee.
the warrant.
**676 Heavican, C.J., Wright, Connolly,
16. Search Warrants: Affidavits: Police Stephan, McCormack, Miller–Lerman, and
Officers and Sheriffs: Appeal and Error. Cassel, JJ.
In assessing the good faith of an officer's
conducting a search pursuant to a warrant, an
McCormack, J.
appellate court must look to the totality of the
circumstances surrounding the issuance of the
warrant, including information possessed by *769 I. NATURE OF CASE
the officers but not contained within the four
corners of the affidavit. Thylun M. Hill appeals from his conviction of
first degree murder. Hill argues that evidence
17. Courts: Expert Witnesses. Under the found on his person the night of the murder
Daubert v. Merrell Dow Pharmaceuticals, should have been suppressed because he was
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 seized the moment officers encountered Hill
L.Ed.2d 469 (1993), and Schafersman v. in the street, even though he fled. Hill argues
Agland Coop, 262 Neb. 215, 631 N.W.2d 862 that evidence found where he lived should
have been suppressed because the affidavit

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

in support of the search warrant was so At the hearing on the motion, Officers
lacking in indicia of probable cause that it was Mickey Larson and Jeff Wasmund described
wholly unreasonable for the executing officer the circumstances surrounding their encounter
to presume it to be valid. Hill argues that the with Hill on the night in question. Larson
court should have suppressed expert testimony and Wasmund testified that at approximately
and exhibits relating to Omaha's “ShotSpotter” 10:41 p.m. on February 18, 2012, they were
system and its detection of the gunshots that in their police cruiser and Larson was pulling
killed the victim, because the testing of the the cruiser out of the lot of the northeast police
accuracy of the system was inadequate. Finally, station, located between North 30th Street and
Hill alleges that the evidence presented at trial North 31st Avenue. They were traveling in an
was insufficient to support his conviction. We all-black gang unit cruiser. The cruiser did not
affirm. have emergency lights on top, but was marked
in large print as Omaha Police on the sides. The
officers were wearing tactical vests also marked
“POLICE,” but otherwise were not wearing
II. BACKGROUND
uniforms.
Hill was convicted, among other crimes, of first
degree murder in connection with the shooting Almost immediately, both officers heard what
death of an acquaintance of Hill's on the night sounded like gunshots. They explained that it
of February 18, 2012. Hill made three pretrial was clear to them that the shots had been fired
motions to suppress evidence, all of which were nearby. Wasmund was “very confident” that
denied. the gunshots had come from the west; he was
less certain that they also came from the south.
The officers headed one-half block west to 31st
Avenue and then turned south.
1. Motion to Suppress Results of Search of
person The officers radioed the precinct to determine
if the ShotSpotter detection system was able
First, Hill moved to suppress all evidence to pinpoint a more precise location for gunfire.
gained as a result of the alleged illegal search of As will be described in more detail below, the
his person on the night of the *770 shooting. ShotSpotter system uses microphones and a
The motion alleged that the officers who global positioning system (GPS) to pinpoint
apprehended Hill lacked reasonable suspicion the time and location of sounds consistent with
sufficient to justify a stop and frisk under Terry gunshots in the area covered by the system. The
v. Ohio1 and that the search was not incident to ShotSpotter soon gave the officers an address
a lawful arrest. on North 31st Avenue about 2 ½ blocks north
of the police station. Thus, while the officers
1 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 had been correct that the **677 gunfire
(1968). originated west of their original location, the
ShotSpotter indicated the shots originated from

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

the northwest, not the southwest. The officers The officers did not have the emergency lights
had traveled only about two blocks south on on. Hill paused. The officers did not observe
North 31st Avenue when they turned around a weapon on Hill, and they began to walk in
and headed north. Hill's direction. The officers did not have their
weapons drawn at that time.
*771 The officers arrived at the address
indicated by the ShotSpotter and parked their Hill immediately turned around and fled,
cruiser in the middle of the street. Only 1 running northbound. The officers ran in pursuit,
minute had passed since the shots had been drew their weapons, and advised Hill that “we
heard. were police officers and you need to stop
running.”
About the same time the officers were stopping
in front of the house identified by the Hill attempted to hurdle the white picket fence
ShotSpotter as the source of the gunfire, the of a nearby house and tripped. Hill broke the top
officers observed a male rounding the corner of a few of the pickets and hit the ground. The
at the end of the block and heading down the officers, trailing close behind, observed at that
middle of North 31st Avenue directly toward time a black revolver fall out from somewhere
them. This man was later identified as Hill. The on Hill's person. Hill picked up the gun and
officers noted that Hill was the only civilian the began running again before the officers could
officers had seen in the area since they heard the catch up to him. The officers thereafter fired at
gunshots. They sought to determine whether Hill, and he was apprehended.
Hill was the shooter, a victim, or a witness to
the gunshots. *772 Numerous additional officers arrived at
the scene almost immediately, and Hill was
Both officers testified that they stepped out of placed under arrest. Several of these officers
their vehicle and shined the vehicle spotlight also testified at the hearing on Hill's motion
in Hill's direction. They then announced, “ to suppress. The officers described that they
‘Omaha police.’ ” During cross-examination, began searching Hill to determine if he had
Larson was asked whether they had yelled, a weapon and whether he had been shot. The
“ ‘Omaha police, stop,’ ” when they exited officers conducting the search emptied Hill's
the vehicle. Larson answered “[u]h-huh,” but pockets. The items in Hill's pockets included
almost immediately thereafter, when defense paper, a wallet, and some latex gloves. A
counsel asked Larson to clarify whether they short while thereafter, officers discovered the
had ordered Hill to “stop” during their initial discarded firearm in the path of Hill's flight
encounter with Hill, Larson indicated that from the police. They also discovered the
they did not; they “just announced ‘Omaha victim, whose body was located behind the
police.’ ” Later at trial, Larson clarified that he house identified by the ShotSpotter as the
announced only “Omaha police” and that he source of the gunshots heard by Larson and
used a “normal tone of voice.” Wasmund.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

The court denied the motion to suppress. The Labor benefits. In the affidavit, Queen averred
court found that the officers had yelled for Hill that he had reason to believe ammunition,
to stop only after he began running away. The companion equipment, venue items, and other
court reasoned that Hill was not “seized” until items of evidentiary value “to the homicide that
he was physically apprehended and subdued by occurred on the 18th day of February 2012 at
the pursuing officers. Therefore, the court did 2240 Hours at [the address]” would be found at
not analyze whether the officers had reasonable the apartment. The affidavit then explicitly set
suspicion prior to that time. The court found forth as grounds for the issuance of the warrant:
that by the time **678 Hill was apprehended,
which was when he was placed under arrest, the On Saturday, February 18th, 2012 at about
officers knew that Hill was in the area of the 2240 Hours officers of the Omaha Police
shooting at the time of the shooting and also Department were in the area of 31 Avenue
that he had a gun and had fled from police. and Meredith Avenue Omaha, Douglas
The court concluded that such information County, Nebraska, when they heard several
not only provided reasonable suspicion, but gunshots close by.
also probable cause for Hill's arrest. The court
Shortly after the shots Officers observed a
concluded that the search of Hill's person was
party in the same area and attempted to make
proper incident to Hill's arrest. Furthermore, the
contact with him. The party ran from officers
court noted that the firearm had not been seized
and dropped a R.G. Industries .38 caliber
from Hill, since he had discarded it before any
revolver. The party was apprehended and
seizure of his person.
identified as Thylun M. HILL.

Shot Spotter was checked and it indicated

2. Motion to Suppress Results of Search of that the shots were fired in the back yard
Home of [address]. Officers went to that location
and found a party deceased from apparent
Hill moved to suppress the evidence found gunshot wounds.
in the apartment where he was living at the
time of the shooting. In particular, he sought to A data check showed that Thylun M. HILL
suppress bullets found in the bedroom where was convicted of 1st Degree Manslaughter in
he slept, which a ballistics expert connected at Hennipin, Minnesota on April 16th, 1998[.]
trial to the bullets used in the shooting of the
A check of Department of Labor records
victim. Hill alleged that the affidavit in support
showed that Thylun M. HILL was receiving
of the search warrant, made by Officer Thomas
benefits at [address] and was scheduled to
Queen, lacked probable cause.
receive those benefits up through October
27th, 2012 at that address.
*773 Queen, of the homicide unit of the
Omaha Police Department, completed the It is the belief of Officer Thomas QUEEN #
affidavit for a warrant to search the apartment 1182 of the Omaha Police Department that,
where Hill was receiving his Department of

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

should this warrant be issued, the listed items

would be recovered from the listed address.
3. Daubert Motion in Limine
The county court judge signed the warrant, and
Queen testified that he executed the warrant Finally, Hill filed a pretrial motion in
in good faith, believing it to be valid. At the limine under Daubert v. Merrell Dow
apartment, officers seized 37 live rounds *774
Pharmaceuticals, Inc.,2 stating that he
of .38–caliber ammunition inside a knit glove
questioned whether proposed witness Paul
located inside a gray bag in the bedroom where
Greene qualified as an expert; “whether the
Hill slept.
reasoning and methodology used by the State's
witness to draw conclusions, inferences, and
The trial court denied the motion to suppress.
locations regarding the ability to triangulate
The court agreed with Hill that certain
noises using a so-called ‘shot spotter’ is valid”;
information was missing from the search
and whether the proposed testimony was
warrant affidavit. Most notably, the court found
relevant and more probative than prejudicial.
that the affidavit did not specify the time of
death of the victim or that the death from
2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
apparent gunshot wounds was a homicide. The
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
court also found missing from the affidavit
the explicit allegations that (1) the officers At the hearing on the motion, Greene testified
responded to an area within several houses of he is an ex-Marine and the lead customer
**679 where the shots were fired and the support engineer at SST, Inc. SST sells a
victim was located, (2) the officers arrived in product called the ShotSpotter to cities across
the area within a minute of the gunshots, and (3) the country. Greene stated he has experience in
Hill was the only person in the area. The court hearing and *775 recognizing gunshot sounds
said that it could not fill in this necessary factual and in the information technology system
information with commonsense inferences, design and operation of the ShotSpotter. The
and, thus, the affidavit lacked probable cause. ShotSpotter is an acoustic gunfire detection and
location system of GPS-enabled microphones
Nevertheless, the court found that the officers placed in various locations of a municipal area.
acted in good faith when relying on the warrant SST has been in existence since 1995 and
and that therefore, the motion to suppress has been selling and maintaining ShotSpotter
should be denied. The court noted, among systems since 1996. In the summer of 2011,
other things, that Queen had knowledge of SST installed a ShotSpotter system in northeast
all the facts missing from the affidavit that Omaha.
would support probable cause. Because it was
objectively reasonable for Queen to rely on On February 18, 2012, the ShotSpotter system
the warrant, the court found no basis for in Omaha consisted of approximately 80
suppression of the evidence. sensors, spaced roughly 400 to 500 meters
apart. Each sensor has four GPS-enabled
microphones. The digital signal processors
of the sensors measure sound input to

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

determine if the sound meets 28 different audio sonar. Since then, seismologists use the
characteristics of “impulsive audio pulses,” or same mathematics, the same techniques to
a “bang, boom, or pop,” and could thus be determine the epicenter of earthquakes. It's
categorized as a possible gunshot. still used by the Navy in sonar applications.
It's used in space as well.
If the sound meets the preprogrammed criteria
for a possible gunshot, the system transmits the Greene described that the ShotSpotter system
information to a central location server, which has “multiple redundancy” of the sensors, such
uses triangulation to pinpoint the latitude and that losing power on an individual basis does
longitude of the sound and uses a process called not detract from the accuracy of the array.
“geolocation” to place that location on a map. Greene testified that in order to triangulate
a gunshot, only three sensors are required to
Incident review staff in California then quickly actually hear and participate in the incident.
look at the audio waveform and listen to a A fourth sensor is used for confirmation
recording of the event to discern if it is a information in the event of a single gunshot.
false positive for a possible gunshot. Once the When there are multiple shots, the repetition of
incident review staff rule out a false positive, the pulse data serves as its own confirmation.
they send an alert to the police dispatchers. The GPS satellites are synchronized down to
a thousandth of a second from the atomic
Greene testified that the incident review staff clock at the National Institute of Standards and
are specially trained in recognizing the audio Technology in Boulder, Colorado.
waveform characteristics of gunfire and in
recognizing the sound of gunfire. SST requires Greene testified that the official margin of error
the staff to be able to correctly identify 80 for the location of detected gunfire is a 150–
percent of 500 audioclips during performance foot radius, but that they regularly achieve
testing. accuracy of a radius of 10 or 20 feet or better.
The ShotSpotter guarantees that it will give a
Greene explained that the science behind the correct location, within this margin of error, for
ShotSpotter system has been recognized for 80 percent of detectible outdoor gunfire in the
decades: system area. Gunfire that is silenced or masked
by other sounds is not considered detectible.
**680 The principles—the mathematical
principles used for the triangulation, the When the system was installed in 2011, SST
location of the event or object we would performed a live fire test that verified the
call trying to locate an unknown point using accuracy of the system. Greene stated that an
two or more known points, the mathematics SST project manager was present during this
behind that are actually very old. The testing. SST has not performed such a test since
practical application of it, you know, in that time. Greene explained, however, that
the use of technology is a little more SST “monitor[s] for sensor health constantly.”
recent, *776 but still fairly old. Came The sensors self-calibrate every 48 hours,
about with the advent of World War I and

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

and if a sensor does not self-calibrate, SST number of sensors detecting an incident might
is automatically notified. In addition, each be higher or lower, changing the direction of
sensor sends a “heartbeat pulse” once every fire can have a significant impact on the number
30 seconds. In fact, each GPS sensor, as of detecting sensors. At trial, Greene further
well as each of the four microphones attached explained that if a shot were fired at the ground,
to it, independently communicates with the fewer sensors would detect it, because the
ShotSpotter server about its health. ground tends to absorb some of the acoustic
energy.
When enough sensors lose network
communication with the system, SST Greene testified that he did not specifically note
dispatches a technician to replace all of the the number of sensors in Omaha that were not
inactive sensors. At the hearing on the motion working at the time of the incident, because
in limine, Greene testified that SST generally the data in the report was based on the sensors'
dispatches a technician when the active sensor actually detecting the gunshots; a compromised
count is 90 percent or less. At trial, Greene sensor would not produce location detection
*777 elaborated that SST's written policy data. Greene explained further at trial that
guarantees that SST will dispatch technicians even if there had been sensors in the area
to replace sensors when SST detects that not working, that fact would not affect the
the system reaches a “20 percent or better” conclusions drawn in the ShotSpotter report.
reduction in sensor capacity. Greene testified
that the system is designed so that it can lose Based on the testimony at the hearing and
up to 20 percent of its capacity and still make the arguments made by counsel, the court
accurate detections. characterized the Daubert analysis in terms
of two basic questions: (1) the detection and
Greene created a “ShotSpotter Detailed location of sound and (2) the classification
Forensic Report” for the shooting on February of that sound as a gunshot. The court noted
18, 2012. He testified that in his experience, he that Hill did not challenge the underlying
believed to a reasonable degree of certainty that mathematical and physics principles of
the sounds detected by the ShotSpotter were triangulation utilized by the ShotSpotter, but
consistent with gunfire. The report reflects that instead challenged the “ShotSpotter's testing,
the alert containing the precise location of the positioning, and maintenance of the sensors
shots detected on February 18 was given to and the *778 process of classification of an
Omaha police dispatch 48 seconds after the individual impulsive sound as a gunshot.”
time the sound was detected by the ShotSpotter
sensors. In a 15–page order denying the motion in
limine, the court found that Greene was
Three of the shots were detected by 11 sensors. qualified as an expert in the design, installation,
The last shot was detected by four sensors. and function of the ShotSpotter system and
Greene explained that while **681 there are in gunshot sound recognition. The court
a multitude of environmental reasons why the also found that the ShotSpotter system was

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 9

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

sufficiently reliable. The court noted Hill's the area of the northeast precinct, which was
argument that because an SST project manager characterized as a “high crime area.”
was present during the original testing of
the system, there was no “blind” testing Larson and Wasmund testified that as they
conducted. But the court reasoned that blind were leaving the precinct parking lot, with
studies are not necessary when determining the vehicle windows rolled partway *779
if electronic equipment operates properly and down, they heard “loud” and “distinct” multiple
that there was no evidence that the SST gunshots nearby. They headed in the direction
project manager somehow influenced the they thought the shots came from. They
testing results. The court also found that despite corrected their course about 30 to 40 seconds
the lack of regularly scheduled maintenance, later when the ShotSpotter gave them an
there were sufficient safeguards in the protocol, address.
which provided for constant monitoring and
maintenance when necessary, to support the **682 As they approached the residential
reliability of the technology. Finally, the court address given by the ShotSpotter,
found that there was a sufficient factual basis to approximately in the middle of the block,
support the classification of the sounds as being Larson and Wasmund observed Hill as the only
consistent with gunfire. civilian in the area. Hill was rounding the far
corner from where the alley ran behind the
At trial, Hill renewed his objection under residence specified by the ShotSpotter. Hill was
Daubert to Greene's testimony and to various heading in their direction.
exhibits concerning the ShotSpotter detection
of the shots fired on February 18, 2012. Hill did The officers parked their vehicle in front of
not object, however, to the testimony of Larson, the house. The officers then shone a spotlight
Wasmund, and other officers concerning their toward Hill, exited their vehicle, and identified
understanding of the ShotSpotter technology themselves in a normal tone of voice as
and their responses to the ShotSpotter alerts on Omaha police. The officers did not yet know
February 18. a homicide had been committed, and they did
not see a gun on Hill. They sought only to
inquire whether Hill was a witness, victim,
or the perpetrator of the shots they heard and
4. Evidence at Trial
which were identified by the ShotSpotter. Hill
paused for a moment, turned, and fled.
(a) Chase
The officers ran after Hill, yelling “Omaha
During the trial, Larson and Wasmund police.” In his flight, Hill tripped over a picket
reiterated their testimony from the suppression fence and a gun fell from his person. At that
hearing. They testified that at the time of the moment, Wasmund was about 8 feet from Hill,
incident, they were assigned to the north gang and Larson was about 5 feet away, and both
suppression unit. They primarily worked in clearly saw the weapon.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 10

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

The officers also went to the backyard of the

Hill picked up the gun and resumed his flight. address identified by the ShotSpotter. There
The officers split up to try to catch him. they found the body of the victim, lying face
Wasmund fired a shot at Hill when he saw down in the backyard. The victim's pants
Hill change direction and appear to have an were pulled down to his thighs. Near the
open line of fire at both Larson and Wasmund. scene, officers found a pack of cigarettes, a
Larson heard two shots and, not knowing if Hill lighter, two cell phones, a beer can, and other
had fired at Wasmund or the other way around, miscellaneous items eventually identified by
fired one shot at Hill. Shortly thereafter, Hill nonforensic means as likely belonging to the
was apprehended. victim.

At least seven other officers arrived almost

immediately on the scene. It was revealed
(b) Victim's Cell Phones
during the defense that one of those officers was
a sergeant who was later under investigation The cell phones, in particular, were identified
by the Douglas County Attorney's office for an as belonging to either the victim or the victim's
unrelated incident of an indefinite nature and mother. The victim's mother testified that
which incident resulted in a recommendation because the victim's cell phone did not make
that the sergeant be terminated from the Omaha telephone calls, the victim often borrowed her
Police Department. However, no officers cell phone.
reported observing *780 the sergeant doing
anything out of keeping with standard Omaha Over 6 months had passed before the police
Police Department protocols on the night of were asked by the Douglas County Attorney's
February 18, 2012. office to attempt to discover the telephone
records for those cell phones.
Officers who arrived at the scene shortly after
Hill was apprehended emptied Hill's pockets. By the time the police investigated the
The officers discovered a pair of latex gloves telephone logs for the cell phones carried by
and a camouflage ski mask, as well as other the victim, the telephone company connected
miscellaneous personal items. **683 with the victim's mother's cell phone no
longer maintained the call records for the time
When it was discovered from the search of his of the shooting.
person that Hill no longer carried the gun he had
previously dropped and picked up, the officers What the mother had identified as the victim's
searched the area. They found a revolver lying cell phone was actually registered to an
on the ground in the path of Hill's previous unrelated party who did not know the victim.
flight. Both Larson and Wasmund identified Call records for that cell phone were able to
that revolver as the same one they saw fall from be obtained. The records showed several calls
Hill's person during his flight. and text messages *781 to the victim on the
day of the shooting from a prepaid cell phone

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

registered to “John Doe” with the address of a rendered the heart nonfunctional as soon as it
U.S. Cellular store, as well as several telephone was hit, leaving the victim only about 15 to 20
calls from the victim to “John Doe.” seconds of consciousness thereafter.

The records obtained closest to the time of the The pathologist did not observe any lacerations
shooting reflected that at 8:50 p.m. the night or trauma, other than the bullet wounds, to the
of February 18, 2012, the victim and “John victim's body. The bullet wounds, because there
Doe” had a 64–second telephone conversation. was no evidence of soot or stippling, were made
At 10:19 p.m., the victim sent a text to “John by a firearm held at a distance at least 12 inches
Doe.” At 10:26 p.m., the victim called “John away.
Doe” and reached his voice mail. At 10:27
p.m., the victim again called “John Doe” and
reached his voice mail. “John Doe” thereafter
*782 (d) ShotSpotter Report
attempted to call the victim three times in an
11–minute period shortly after midnight and At trial, Greene reiterated his testimony from
subsequent to the shooting. There were no the hearing on the motion in limine. In addition,
attempted telephone calls from “John Doe” the detailed forensic report prepared by Greene
to the victim after the victim's death was to document the incident was entered into
announced the following day on the news. evidence. The report indicated that beginning
at approximately 10:40 p.m. on February 18,
2012, four shots were fired in fairly rapid
(c) Cause of Death succession. The shots began either in the alley
or on the side of the alley opposite where
A pathologist determined that the victim had the victim's body was found. The last shot
suffered three gunshot wounds. One wound was located approximately where the body was
entered the right cheek and exited the left cheek found. That last shot occurred after a slightly
at a straight angle through the sinuses, causing longer pause of 3.8 seconds from the preceding
little damage. The other two shots had entered shot. From the first shot to the last, a total of
the victim's back and lodged in his body. One 6 ½ seconds passed. The last shot occurred
entrance wound was located in the left lateral approximately 10 feet from the first three. The
chest. The bullet had entered at an upward report also identified the correct location of the
angle and had punctured the victim's diaphragm officers' shots in pursuit of Hill, which were
and stomach. The other entrance wound was time stamped as occurring at 10:43 p.m.
located in the middle of the victim's lower back.
That bullet had also entered at an upward angle
and it punctured the victim's heart.
(e) Ballistics Evidence From Gun
The wounds in the victim's face and chest The gun that Larson and Wasmund identified
would not have been fatal unless left as being carried by Hill and discarded during
unattended. But the wound to his lower back his flight had four spent casings inside the

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 12

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

cylinder. The gun was discovered to have

been registered in 1982 to a woman unrelated On the day of the shooting, the brother and Hill
to Hill and who had been deceased since had been drinking continuously since the early
2000. An expert **684 working in the area hours of the morning. Sometime in the evening,
of firearm and toolmark examination for the Hill and the brother ran into the victim in the
Omaha Police Department testified that the hall of the apartment building. The brother
bullets found in the victim's body were fired testified that Hill and the victim began “[d]runk
from the weapon found in the path of Hill's shit talking.” The brother did not know what
flight and identified by Larson and Wasmund Hill and the victim were arguing about, but they
as the gun that Hill had dropped during that were yelling at each other.
flight. The expert testified that test-fired bullets
from the gun were consistent with the bullets The brother went back into the apartment. But
found in the victim's body, in both general and he continued to hear loud talking in the hallway.
class characteristics and individual and specific The next thing the brother remembered, Hill
characteristics. was in the apartment, seemingly upset. Hill
was in the bathroom with the light off either
whispering to himself or breathing heavily. The
brother then passed out and did not wake up
(f) Relationship Between Hill and Victim and
until the following morning.
Events on Night of Shooting

Testimony at trial established that Hill lived The victim's mother recalled that at some point
in the same apartment building as the victim. in the evening, there had been a knock on their
Hill lived with his girlfriend, her infant child, apartment door and the victim left. She did not
and his girlfriend's brother. According to the see or hear from the victim after that.
brother, Hill and the victim knew each other.
They “hung out sometimes, drank together,
you know, normal neighbor stuff.” He often (g) Bullets Found Where Hill Lived
heard Hill and the victim in the hallway
engaging in *783 “casual daily arguments.” Officers testified that the day after the shooting,
The brother described such arguments as they conducted a search of the apartment where
common amongst most of the people in the Hill lived. In the bedroom where Hill slept
building and “[n]othing out of the ordinary.” with his girlfriend and the infant, they found
a gray bag. Inside the bag were latex gloves
About 6 weeks before the shooting, the brother and also a knit glove with 37 live rounds of
had told Hill he thought the victim was an ammunition inside it. The ammunition was
informant for the Omaha Police Department. head stamped “R–P 38 SPL.” It was the same
The brother had come to this conclusion as the ammunition used in the shooting.
because often he saw the victim with brand-
new $100 bills and the victim acted like he was
a “big deal.”

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

(h) Telephone Call Made by Hill in Jail IV. STANDARD OF REVIEW

The State presented evidence that while Hill The standard for reviewing the admissibility of
was incarcerated awaiting charges against him, expert testimony is abuse of discretion.3
he made a telephone call in which he told an
unidentified person to have his girlfriend “ ‘get 3 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
rid of that bag, that gray bag.’ ”
Abuse of discretion is the proper standard of
review of a district court's evidentiary ruling
on the admission of expert testimony under
*784 (i) No DNA Evidence Daubert.4

There was no DNA or fingerprint evidence

4 See State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618
found either connecting Hill to the shooting or (2003).
excluding him.
A judicial abuse of discretion exists when a
judge, within the effective limits of authorized
judicial power, elects to act or refrain from
III. ASSIGNMENTS OF ERROR acting, but the selected option results in
a decision which is untenable and unfairly
Hill assigns that the trial court erred when deprives a litigant of a substantial right or a
(1) it overruled his motion to suppress and just result in matters submitted for disposition
exclude from use against him at trial any through a judicial system.5
statements he made and any evidence obtained
by Omaha police officers as a result of 5 Id.
the illegal search and seizure of his person
conducted by Omaha police officers **685 In reviewing a trial court's ruling on a motion
on February 18, 2012; (2) it overruled Hill's to suppress based on a claimed violation of
motion to suppress evidence obtained from the Fourth Amendment, we apply a two-part
the search of the residence where he lived, standard of review. Regarding historical *785
because it erroneously concluded that the facts, we review the trial court's findings for
search was conducted pursuant to the good faith clear error. But whether those facts trigger
exception to the warrant requirement; (3) it or violate Fourth Amendment protections is a
overruled Hill's motion in limine challenging question of law that we review independently
the admissibility of the State's expert testimony of the trial court's determination.6
regarding the ShotSpotter technology; and (4)
it found the evidence sufficient to support the 6 State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
guilty verdict for first degree murder. Application of the good faith exception to the
exclusionary rule is a question of law.7

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

7 Id. We first address Hill's motion to suppress the

Our standard of review with respect to a search of his person. According to Hill, he
sufficiency of the evidence claim is very was subjected to a Terry stop *786 “the very
narrow, in that we must find the evidence to moment [the] encounter between [Hill] and
be sufficient if there is any evidence, when the officers was initiated.”10 Hill describes that
viewed in a light favorable to the prosecution, he was walking down the sidewalk when the
upon which a rational finder of fact could officers commanded him to stop. Hill argues
conclude that the State has met its burden of that merely walking down the sidewalk in an
proof beyond a reasonable doubt.8 area where sounds consistent with gunfire were
detected is insufficient to support reasonable
8 suspicion of criminal activity. Therefore, all
See State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
evidence later seized on Hill's person and
statements made by Hill should have been
V. ANALYSIS suppressed.

Hill challenges four rulings of the trial court. 10 Brief for appellant at 19.
First, Hill argues that the court should have Hill's descriptions of the relevant events are not
suppressed the evidence of the gloves and entirely consistent with the testimony presented
mask found on his person, because he had at the suppression hearing, nor with the trial
allegedly been stopped without probable cause. court's findings in its order denying the motion
Second, Hill argues that there was no good faith to suppress. In any event, we agree with the
exception to the lack of probable cause in the trial court that Hill was not seized until he
affidavit supporting the search warrant of the was subdued by police subsequent to his flight.
apartment where he lived and that the court By that time, there was probable cause for his
should have suppressed the ammunition found arrest.
there pursuant to the search warrant. Third,
Hill argues that expert testimony and exhibits
In California v. Hodari D.,11 the U.S. Supreme
concerning the ShotSpotter system, which
Court held that the defendant who fled from
detected the location of the shots fired the night
police was not seized by the officers' show of
of the murder, should have been excluded under
authority until he was tackled subsequent to
Daubert.9 Finally, Hill argues that the **686 his flight. The Court said that in the absence
evidence at trial was insufficient to support his of physical contact, the fact that a reasonable
conviction of first degree murder. person would have believed he or she was
not free to leave is a “necessary, but not a
9 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra
note 2. sufficient, condition for seizure.”12 The subject
must also yield to that show of authority. Thus,
the Court held in Hodari D. that the cocaine
1. Motion to Suppress Results of Search of the defendant abandoned while he was running
Person from the police, who were at that time pursuing

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

him and ordering him to stop, was not the 14 Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145
fruit of a seizure. The defendant's motion to L.Ed.2d 570 (2000).

exclude that evidence was accordingly properly

denied. The Court further explained that if the
officers saw the defendant discard the cocaine **687 2. Motion to Suppress Results of
and recognized it as such, the cocaine would Search of Home
provide reasonable suspicion for *787 the
We next address Hill's argument that the trial
unquestioned seizure that occurred when the
court erred in failing to suppress evidence
defendant was eventually tackled.13 found at his residence pursuant to the search
warrant. Hill agrees with the trial court's
11 California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, assessment of the affidavit in support of
113 L.Ed.2d 690 (1991). See, also, e.g., State v. Van
the search warrant as lacking in probable
Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993); State v.
Cronin, 2 Neb.App. 368, 509 N.W.2d 673 (1993). cause. But Hill disagrees with the trial court's
determination that the officers carrying out
12 California v. Hodari D., 499 U.S. at 628, 111 S.Ct. 1547
(emphasis in original).
the warrant acted in good faith, such that
the evidence found during the search was
13 California v. Hodari D., supra note 11.
admissible. The State argues the trial court was
We reject Hill's argument that he was seized incorrect in finding that no probable cause was
before his flight. Hill did not yield to Larson stated in the affidavit but that, in any case, the
and Wasmund until after his flight and the trial court was correct in finding applicable the
officers discovered Hill was carrying a gun. good faith exception to the exclusionary rule.

Hill does not appear to argue that there The Fourth Amendment to the U.S.
was insufficient cause to seize him after his Constitution guarantees “[t]he right of the
flight. In any event, we affirm the trial court's people to be secure in their persons,
conclusion that the officers had probable cause *788 houses, papers, and effects, against
to arrest Hill by the time he was seized. The unreasonable searches and seizures ...” and
U.S. Supreme Court, in Illinois v. Wardlow,14 further provides that “no Warrants shall issue,
said: “Headlong flight—wherever it occurs— but upon probable cause, supported by Oath
is the consummate act of evasion: It is not or affirmation, and particularly describing the
necessarily indicative of wrongdoing, but it place to be searched, and the persons or
is certainly suggestive of such.” Headlong things to be seized.” The Nebraska Constitution
flight while carrying a gun in a high-crime provides similar protection.15
area where shots were heard within the
last 3 minutes is sufficiently suggestive of 15 See Neb. Const. art. I, § 7.
wrongdoing to support probable cause. We
The execution of a search warrant without
affirm the judgment of the trial court denying
probable cause is unreasonable and violates
Hill's motion to suppress the evidence found on
Hill's person. these constitutional guarantees.16 Accordingly,
a search warrant, to be valid, must be supported

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

by an affidavit which establishes probable 21 See, e.g., United States v. Leon, 468 U.S. 897, 104 S.Ct.

cause.17 Probable cause sufficient to justify 3405, 82 L.Ed.2d 677 (1984); State v. Davidson, 260
Neb. 417, 618 N.W.2d 418 (2000).
issuance of a search warrant means a fair
22 Id.
probability that contraband or evidence of a
crime will be found.18 23 United States v. Leon, 468 U.S. at 926, 104 S.Ct. 3405.

24 Herring v. United States, 555 U.S. 135, 140, 129 S.Ct.

16 State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010). 695, 172 L.Ed.2d 496 (2009).

17 Id. **688 In Herring v. United States,25 the

18 Court said, “[t]o trigger the exclusionary rule,
Id.
police conduct must be sufficiently deliberate
In reviewing the strength of an affidavit that exclusion can meaningfully deter it, and
submitted as a basis for finding probable cause sufficiently culpable that such deterrence is
to issue a search warrant, an appellate court worth the price paid by the justice system.”
applies a “totality of the circumstances” test.19 Otherwise, application of the exclusionary rule,
The question is whether, under the totality of as the Court explained in United States v.
the circumstances illustrated by the affidavit, Leon,26 would offend “basic concepts of the
the issuing magistrate had a substantial basis criminal justice system” and “ ‘generat[e]
for finding that the affidavit established disrespect for the law and administration of
probable cause. In evaluating the sufficiency justice.’ ”
of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration 25 Id., 555 U.S. at 144, 129 S.Ct. 695.
of the information and circumstances contained
within the four corners of the affidavit, and 26 United States v. Leon, 468 U.S. at 908, 104 S.Ct. 3405.

evidence which emerges after the warrant is The good faith exception to the exclusionary
issued has no bearing on whether the warrant rule accordingly provides that “[i]n the absence
was validly issued.20 of an allegation that the magistrate abandoned
his detached and neutral role, suppression is
19 Id.
appropriate only if the officers were dishonest
or reckless in preparing their affidavit or could
20 Id.
not have harbored an objectively reasonable
But even when a search warrant is invalid under belief in the existence of probable cause.”27
this test, the exclusionary rule applies only in It is, after all, “the magistrate's responsibility
those cases in which exclusion will further its to determine whether the officer's allegations
remedial purposes.21 The exclusionary rule is establish probable cause and, if so, to issue
a judicially created remedy designed to *789 a warrant comporting in form with the
deter police misconduct.22 It is an “extreme requirements of the Fourth Amendment.”28
sanction”23 of “ ‘last resort.’ ”24 And, ordinarily, “an officer cannot be expected
to question the magistrate's probable-cause
determination or his judgment that the form

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

of the warrant is technically sufficient.”29 the good faith of an officer's conducting a

Penalizing the officer for the magistrate's error search pursuant to a warrant, an appellate court
does not “logically contribute to the deterrence must look to the totality of the circumstances
surrounding the issuance of the warrant,
of Fourth Amendment violations.”30
including information possessed by the officers
but not contained within the four corners of the
27 Id., 468 U.S. at 926, 104 S.Ct. 3405.
affidavit.33
28 Id., 468 U.S. at 921, 104 S.Ct. 3405.

29 Id. 32 State v. Davidson, supra note 21.

30 Id. 33 See, United States v. Leon, supra note 21; State v.
*790 In sum, evidence obtained through Davidson, supra note 21; State v. Holguin, 14 Neb.App.
417, 708 N.W.2d 295 (2006).
the execution of an invalid warrant may
appropriately be suppressed only if (1) the **689 Hill asserts that “Officer Queen's
magistrate or judge in issuing a warrant was omission from the affidavit that [the victim's]
misled by information in an affidavit that death was an apparent homicide and that the
the affiant knew was false or would have police assumed [Hill] was involved because
known was false except for his or her reckless he was in the same area shortly after the
disregard of the truth, (2) the issuing magistrate apparent homicide was a glaring mistake.”34
wholly abandoned his or her judicial role, (3) Our review of the affidavit reveals that, in fact,
the warrant is based on an affidavit so lacking contrary to Hill's assertion and some of the trial
in indicia of probable cause as to render official court's *791 findings, the affidavit referred
belief in its existence entirely unreasonable, or in its introductory statements to a “homicide”
(4) the warrant is so facially deficient that the at approximately 10:40 p.m. on February 18,
executing officer cannot reasonably presume it 2012, at a stated address. The affidavit further
to be valid.31 referred to the fact that Hill was found in that
area near the time of the homicide.
31 See State v. Nuss, supra note 16.
34 Brief for appellant at 22.
Hill asserts that the search warrant affidavit was
so lacking in indicia of probable cause that it Considering those allegations, as well as the
was entirely unreasonable for Queen to have other allegation in the affidavit, we are certainly
relied upon it. When evaluating whether the not presented here with a case of a “bare
warrant was based on an affidavit so lacking in bones” affidavit—one which relies only on
indicia of probable cause as to render official uncorroborated tips or mere suspicion.35 The
belief in its existence entirely unreasonable, affidavit described how the officers had heard
an appellate court should address whether gunshots near their location at approximately
the officer, considered as a police officer 10:40 p.m. and how they arrived shortly
with a reasonable knowledge of what the law thereafter at the address identified by the
prohibits, acted in objectively reasonable good ShotSpotter as the location of the gunshots. The
faith in relying on the warrant.32 In assessing affidavit described Hill's flight from the officers

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

and the fact that he was carrying a gun. Finally, 31st Avenue on February 18, 2012. Under
the affidavit described that the victim had died our Daubert39/Schafersman40 jurisprudence,
from apparent gunshot wounds and was found the trial court acts as a gatekeeper to ensure
at the address identified by the ShotSpotter and the evidentiary relevance and reliability of
near where Hill was seen when officers arrived.
an expert's opinion.41 The purpose of the
gatekeeping function is to ensure that the
35 See, State v. Sprunger, supra note 6; State v. Holguin,
courtroom door remains closed to “ ‘junk
supra note 33.
science’ ” that might unduly influence the jury,
Courts are free to reject suppression motions while admitting reliable expert testimony that
posing no important Fourth Amendment
will assist the trier of fact.42 This gatekeeping
questions by turning immediately to a
function entails a preliminary assessment
consideration of the officers' good faith.36 We **690 whether the reasoning or methodology
affirm the trial court's decision that the evidence underlying the testimony is valid and whether
obtained during the search of Hill's residence that reasoning or methodology properly can be
should not have been suppressed, because the
applied to the facts in issue.43
good faith exception applied. Like the affidavit
presented in Leon, Queen's affidavit certainly
39 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra
provided at least “evidence sufficient to create
note 2.
disagreement among thoughtful and competent
40 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
judges as to the existence of probable cause.”37 862 (2001).
Thus, as in Leon, the officers' reliance on the
41 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
magistrate's determination of probable cause
42
was, by definition, objectively reasonable.38 State v. Casillas, 279 Neb. 820, 834, 782 N.W.2d 882,
896 (2010).
Therefore, the district court was correct
that application of the extreme sanction of 43 State v. Daly, supra note 41.

exclusion was inappropriate. In determining the admissibility of an expert's

testimony, a trial judge may consider several
36 See United States v. Leon, supra note 21. more specific factors that might bear on
37 Id., 468 U.S. at 926, 104 S.Ct. 3405. a judge's gatekeeping determination.44 These
factors include whether a theory or technique
38 See id.
can be (and has been) tested; whether it has
been subjected to peer review and publication;
*792 3. Motion in Limine Challenging whether, in respect to a particular technique,
ShotSpotter Technology there is a high known or potential rate of
error; whether there are standards controlling
We turn now to Hill's argument that the the technique's operation; and whether the
trial court should have excluded Greene's theory or technique enjoys general acceptance
testimony that the ShotSpotter detected within a relevant scientific community.45 These
gunshots at the specified address near North factors are, however, neither exclusive nor

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

binding; different factors may prove more the source of the shots Larson and Wasmund
significant in different cases, and additional heard. Indeed, the principal import of the
factors may prove relevant under particular ShotSpotter evidence in this case apparently
circumstances.46 was the precise measurement of the timing
between the four shots fired at the victim, and
44 Id.
Hill does not challenge the ShotSpotter's time
stamps.
45 Id.

46 Id. In any event, we find no merit to Hill's

*793 In support of his assertion that the arguments that the trial court abused its
ShotSpotter technology was not established discretion in denying his motion in limine.
as reliable under our Daubert/Schafersman A court performing a Daubert/Schafersman
jurisprudence, Hill makes only three inquiry should not require absolute certainty.48
arguments: (1) that “blind” tests of the system Instead, a trial court should admit expert
have never been performed; (2) that Greene testimony if there are good grounds for
did not know what percent capacity the the expert's conclusion, even if there could
Omaha ShotSpotter system was operating at possibly be better grounds for some alternative
on February 18, 2012; and (3) that the conclusion.49 An abuse of discretion in the trial
SST employees at the incident review center court's Daubert/Schafersman determination
“are ultimately just people using their own occurs when a trial court's decision is based
subjective opinions about whether particular upon reasons that are untenable *794 or
sound files are consistent with gunfire.”47 unreasonable or if its action is clearly **691
against justice or conscience, reason, and
47 Brief for appellant at 25. evidence.50
Hill does not challenge the underlying GPS
triangulation methodology upon which the 48 State v. Daly, supra note 41.
ShotSpotter location is based. Thus, insofar as 49 Id.
these challenges present Daubert/Schafersman
issues at all, they focus on whether that 50 Id.

methodology properly can be applied to the It was neither untenable nor unreasonable for
facts in issue in this case. the trial court to conclude that the absence
of blind testing did not seriously undermine
We first observe that Hill's arguments the reliability of the ShotSpotter system in
challenging the ShotSpotter detection in this northeast Omaha. The court noted that there
case are somewhat dubious given that the was no evidence that the presence of the SST
sounds of gunshots in the general area project manager influenced the results of the
identified by ShotSpotter were simultaneously electronic equipment, which accurately located
heard by Larson and Wasmund, and given that the source of the test gunshots fired by police
the victim was confirmed shot in almost the officers in the project manager's presence.
exact location identified by the ShotSpotter as

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 20

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

Likewise, the reliability of the ShotSpotter

technology was not seriously undermined by
*795 4. Sufficiency of Evidence
Greene's failure to identify the percent capacity
of the Omaha ShotSpotter system at the time of Lastly, we address Hill's argument that the
the shooting. Greene's testimony indicated that evidence was insufficient to support the verdict
the system would have been running at least of first degree murder. Hill argues that the
at an 80–percent capacity, according to their evidence supports, at most, second degree
maintenance protocols. Furthermore, Greene murder upon a sudden quarrel.
testified that incapacitated sensors would not
report data for the triangulation of the gunshots Hill points out that there were no witnesses
and that there were sufficient sensors reporting to the shooting; that there was no blood,
data for the shots in question to accurately mudstains, or gunshot residue on Hill; and
triangulate their location. that the angle of the gunshot to the victim's
cheek indicates a taller shooter than Hill. He
Finally, the court did not err in admitting also argues that the State failed to establish
the ShotSpotter evidence over Hill's objection any motive for the crime. He generally asserts
that SST employees were unqualified to the police conducted a deficient investigation,
characterize sounds as being consistent with pointing out that one involved officer was under
gunshots. Greene testified that SST employees investigation and that the State failed to pursue
were extensively trained in the recognition DNA testing on certain items or to timely
of sounds consistent with gunshots. Greene pursue telephone records of the cell phones
testified as to his experience in identifying found on the victim. Thus, Hill argues that the
sounds consistent with gunshots, as well as State failed to discover other possible suspects.
the visual wavelength consistent with gunshots, He asserts that the “John Doe” who was
and he testified to a reasonable degree of calling the victim the night of the murder may
certainty that the sounds detected by the have been the real killer. Finally, Hill alleges
ShotSpotter at approximately 10:40 p.m. on there was evidence of a physical altercation
February 18, 2012, were consistent with precluding premeditation: the victim's pants
gunshots. We also note that the system itself were pulled down and he had scrape marks on
first identifies the wavelength of the sound as his body.
consistent with gunshots before sending data to
the incident review staff. All these arguments were made to and rejected
by the jury, which was given a step instruction
None of Hill's arguments regarding the on second degree murder. These arguments
ShotSpotter system demonstrate that the trial do not demonstrate that the evidence was
court abused its discretion in admitting insufficient to support the jury's verdict. Our
Greene's testimony or the ShotSpotter report. standard of review **692 with respect to
a sufficiency of the evidence claim is very
narrow, in that we must find the evidence to be
sufficient if there is any evidence, when viewed

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State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

in a light favorable to the prosecution, upon have been the result of the victim's either being
which a rational finder of fact could conclude hunched over or on the ground when the shots
that the State had met its burden of proof were fired. In fact, Greene explained at trial
beyond a reasonable doubt.51 without objection that the later shots were
detected by fewer ShotSpotter sensors, which
51 See State v. Matit, supra note 8.
was consistent with the shots being fired toward
the ground.
Hill concedes the evidence at trial established
that Hill was near the crime scene shortly
Hill assigns that the trial court erred when it
after the officers heard gunshots and that
found the evidence was sufficient to support
Hill carried the gun that was used to
the guilty verdict for first degree murder. It
shoot the victim. He further concedes that
was conceded at oral argument that the gun in
officers subsequently found ammunition for
Hill's possession was the weapon that killed the
that weapon in Hill's residence. The evidence
victim. The victim was shot three times, twice
at trial also demonstrated that several shots
in the back and once in the face. The victim
were fired at the victim and that at least two
was killed in a dark, secluded alley. The brother
shots were fired at the *796 victim's back.
of Hill's girlfriend testified that earlier in the
And, as demonstrated by the ShotSpotter time
evening of the shooting, Hill and the victim
stamps, there was more than sufficient time
engaged in an argument and were yelling at
between shots for Hill to form premeditation.
each other, and that afterward, he remembered
To commit first degree murder, no particular
Hill was in the apartment seemingly upset. The
length of time for premeditation is required,
brother testified that he had told Hill he thought
provided that the intent to kill is formed before
the victim was an informant for the Omaha
the act is committed and not simultaneously
Police Department. If the trier of fact believed
with the act that caused the death.52 this evidence, these facts would be sufficient
for a conviction of premeditated first degree
52 See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). murder.
Further, viewing the evidence in a light most
favorable to the prosecution, we find there
are explanations consistent with a finding of
*797 VI. CONCLUSION
first degree murder for the physical state of
the victim and his clothing, the cell phone We hold that the trial court properly denied
conversations, and the angles of the shots. Hill's motions to suppress and motion in limine,
The condition of the victim could have been and we find the evidence sufficient to support
the result of running or falling. It is mere the jury's verdict of first degree murder. We
speculation that the unknown “John Doe” affirm the judgment below.
was the killer, and any inadequacies in the
investigation of another possible killer were a Affirmed.
matter for the jury to consider. The angle of
the shots, as the State argued at trial, could

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 22

State v. Hill, 288 Neb. 767 (2014)
851 N.W.2d 670

All Citations

288 Neb. 767, 851 N.W.2d 670

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 23

Exhibit 7
 11

1 THE COURT: Mr. Jallepalli, submitted?

2 MR. JALLEPALLI: Yes.
3 THE COURT: All right. I listened very
4 carefully to the evidence. And as you both know,
5 I spent a bit of time, more than I would like to admit,
6 preparing for the hearing. And I found in particular
7 the attachments to Mr. Jallepalliis opposition helpful
8 once I waded through them.
9 I will note that of the Court's exhibits that
10 were admitted, almost all of them are in the packet, but
11 there were additional materials that I did consider
12 including the Nebraska Supreme Court case which
13 Mr. Jallepalli just referenced, as well as I looked very
14 carefully at Judge Kennedy's decision with regard to the
15 Kelly-Frye standard and the difficulties or the
16 omissions that he found which made this particular
17 technology fall short of being generally accepted in the
18 relevant scientific community.
19 I will not repeat all of what he had to say,
20 but I will note that the Kelly-Frye standard is
21 important to be upheld because jurors may give undue
22 weight to experimental techniques ~resented by
23 credentialed experts whose testimony may convey an aura
24 of scientific certainty.
25 There are three prongs to Kelly-Frye, and the
26 first prong is the test must be generally accepted in
27 the relevant scientific community, there must be a
28 consensus drawn from a typical cross-section of relevant

JENNIFER J. MATTEO, CSR 12139

 12

1 and qualified scientific -- or scientists; and the

2 second prong, the testimony must be given by properly
3 qualified experts; and the third prong,- the correct
4 procedures must have applied in the case at issue.
5 I would agree with Judge Kennedy that the
6 primary field of the relevant scientific communities is
7 acoustic engineering. However, in addition, sound
8 propagation, wave propagation, and computer science of
9 developing software in order to make the calculations of
10 location are all implicated in this technology.
11 The information that was before Judge Kennedy
12 included a Popular Science magazine article from 1918
13 which referenced the use of multilateration to locate
14 German guns in World War II, a U.S. Geological Survey in
15 the 1990s that was referred to but was not in evidence,
16 and the ShotSpotter's test-firing in Richmond, and then
17 finally an anecdotal questionnaire commissioned by
18 ShotSpotter conducted independently by the National
19 Organization of Black Law Enforcement Executives. This
20 study I did not have before me, nor did I have the
21 Popular Science article nor the test-fires in Richmond.
22 But in general, Judge Kennedy also reviewed
23 the article by Robert Calhoun which describes the
24 science and technology of acoustic gunshot location.
25 I do not believe he had the two articles that Mr. Dunham
26 coauthored, "Three Layers of Battlefield Gunfire
27 Protection - Soldier, Vehicle, and Area Protection
28 Sensors," as well as -- that's Court's Exhibit 8 -- as

JENNIFER J. MATTEO, CSR 12139

 13

1 well as Court's Exhibit 7, "Acoustic Gunshot Location in

2 Complex Environments - Concepts and Results." Those
3 were not before Judge Kennedy.
4 MR. JALLEPALLI: I'm sorry, Your Honor, I do
5 apologize. I wanted to interrupt just to clarify for
6 the Court, the Calhoun presentation to the New Jersey
7 forensic scientists was not actually in evidence.
8 Directing the Court
9 THE COURT: I'm sorry, which is Court's 9.
10 MR. JALLEPALLI: So --
11 THE COURT: "The Science and Technology of
12 Acoustic Gunshot Technology."
13 MR. JALLEPALLI: Correct. The presentation by

14 Dr. Calhoun. And just to direct the Court at

15 Judge Kennedy's ruling on page 4064 --
16 THE COURT: Yes?
17 MR. JALLEPALLI: -- he notes that there were
18 references to the presentation but that it was not
19 admitted into evidence itself.
20 THE COURT: I see.
21 MR. JALLEPALLI: So just to clarify the record
22 on that point.
23 THE COURT: Thank you.
24 But what was not before Judge Kennedy were the
25 articles that had been presented to this Court
26 including -- well, I believe the patents were before
27 Judge Kennedy. But the thesis provided by the Naval
28 Postgraduate School which I noted I did not find it

JENNIFER J. MATTEO, CSR 12139

 14

1 tremendously helpful, although what is premised within

2 that article is a clear acceptance of the reliability of
3 the ShotSpotter technology.
4 Although the thesis was focused on a
5 comparison of the functional concept of battlespace
6 awareness versus the concept of power to the edge,
7 meaning a distribution of power, as opposed to a
8 hierarchical structure in power which is very typical in
9 military operations, necessitated by the advances in
10 technology and focusing on ShotSpotter as the impetus to
11 changing the very structure of how the battlefields
12 might be run in the future based on this trend in
13 technology with very realtime information being provided
14 to the troops so immediately.
15 So despite the fact that that thesis really
16 wasn't an analysis of the accuracy of the ShotSpotter
17 technology, it was clearly an acceptance in the
18 scientific community or the relevant community of the
19 validity of the ShotSpotter technology.
20 Moreover, Court's Exhibit 17, the "Distributed
21 Radar Network for Realtime Tracking of Bullet
22 Trajectory," is, for me, yet another article which
23 evidences the acceptance and analysis by peers of the
24 relevant technology as being not only acceptable but
25 reliable.
26 And the Court's 10, "Distributed Radar Network
27 Realtime Tracking of Bullet Trajectory," again an
28 article that does not solely focus on ShotSpotter but

JENNIFER J. MATTEO, CSR 12139

 15

1 the related technologies that use similar technology as

2 being accepted within the community.
3 And finally Court's 12, "Technological
4 Approaches to Controlling Random Gunfire."
5 So what was largely missing with regard to
6 Judge Kennedyis ruling has been amply filled here.
7 The peer review which also includes the
8 ShotSpotter experts -- and I will note that I found
9 Mr. Dunham to be highly qualified and proficient in
10 understanding his technology, working with the
11 technology and presenting it to the Court.
12 What wasn't presented are any conflicting
13 theories in the scientific community. And I did ask a
14 few questions of Mr. Dunham and the expert with regard
15 to the practicality of the system and the problems of
16 the system, meaning that would there be any what
17 I characterize as false positives, something that would
18 be gunshots that were heard by the audio that didn't
19 exist, phantom gunshots, and that basically was -- I was
20 assured was impossible, which I think for basic science
21 or basic acoustic science would agree with that.
22 There haven't been any new studies presented
23 to the Court that pose new challenges to any of these
24 assumptions, so no conflicting theories from the
25 scientific community were presented to the Court. The
26 technique has been peer-reviewed and all of the reviews
27 are positive and support the accuracy of the technology.
28 Moreover, I am noting that some portion of the

JENNIFER J. MATTEO, CSR 12139

 16

1 technology requires human interaction. The

2 interpretation of the audio clips, there may be, as
3 Mr. Brown noted, a margin of error, but that is an area
4 that's ripe for cross-examination, not an area which
5 would exclude the technology.
6 I would also note that the notion of a
7 decrease in a number of shootings needing to -- being
8 needed to validate the technology itself is not
9 necessary. The accuracy or reliability of the
10 technology does not hinge upon the result of less
11 shootings. It actually hinges on the result of noting
12 where the shootings occurred.
13 I'm looking at prong two and prong three,
14 although it was really the first prong of Kelly-Frye
15 that was challenged. In prong two was the expert
16 qualified to test about the technique. I found that
17 both Mr. Dunham as well as Mr. Beegle were both amply
18 qualified as experts in their area of expertise. The
19 experts both had the proper foundation to testify about
20 the technique.
21 And finally prong three was whether or not
22 correct scientific procedures were used in this case.
23 There was no evidence with regard to any problems with
24 the system. I appreciate the fact that there was
25 different topography in San Pablo, but it appears to be
26 addressed by the number of sensors. And once again, the

i
27 only deficit or problem would be they would miss
28 gunshots, and, in fact, I believe one of them was missed

JENNIFER J. MATTEO, CSR 12139

 17

1 on the Spotter. There were 15 shell casings found and

2 14 gunshots heard. And that again is an area that's
3 ripe for cross-examination, not ripe for admissibility.
4 So with that said, I am finding that all three
5 prongs of Kelly-Frye have been met and that the
6 ShotSpotter technology is admissible and is accepted in
7 the scientific community -- generally accepted in the
8 relevant scientific community, and therefore I will deny
9 the motion to exclude it.
10 So with that, I wanted to check with Mr. Brown
11 and see if there are any further motions in limine or
12 should we just talk about planning for trial?
13 MR. BROWN: Was the Court going to hear the
14 argument on it being cumulative?
15 THE COURT: Oh, I'm sorry. On the second part
16 of it, with it being redundant as well as --
17 MR. BROWN: Cumulative.
18 THE COURT: Cumulative, thank you. Please --
19 excuse me -- relevant and cumulative. Please proceed.
20 MR. BROWN: Thank you, Judge.
21 In regards to the cumulative issue, I'd like
22 to begin.
23 THE COURT: Please proceed.
24 MR. BROWN: With that, the People have a slew
25 of witnesses to testify in this case. They will be
26 testifying, be it police officers or witnesses at the
27 scene, testifying as to the fact that shots were fired,
28 the victim was killed. There will be people called who,

JENNIFER J. MATTEO, CSR 12139

Exhibit 8
 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 1

·1 · · · IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

·2 · · · · · · · ·IN AND FOR THE COUNTY OF FRESNO

·3 · · · · · · · · · · · CENTRAL DIVISION

·4 · · · · · Before the Honorable John F. Vogt, Judge

·5 · · · · · · · · · · · · Department 60

·6 · · · · · · · · · · · · · · -o0o-

·7 THE PEOPLE OF THE STATE· · · ·)

· · ·OF CALIFORNIA,· · · · · · · · )
·8 · · · · · · · · · · · · · · · ) Case No. F16900408
· · ·· · · · · · · ·Plaintiff,· · ·)
·9 · · · · · · · · · · · · · · · )
· · ·· · · · · ·vs.· · · · · · · · ) REPORTER'S TRANSCRIPT
10 · · · · · · · · · · · · · · · )
· · ·ZACHERY GOODWIN,· · · · · · · )
11 · · · · · · · · · · · · · · · )
· · ·· · · · · · · ·Defendant.· · ·)
12 ______________________________)

13 Fresno, California· · · · · · · · · · · · April 9, 2019

14 · · · · · · · · · · · · · · -o0o-

15 A P P E A R A N C E S:

16 FOR THE PEOPLE:· · ·LISA A. SMITTCAMP, District Attorney

· · ·· · · · · · · · · · of the County of Fresno
17 · · · · · · · · · · BY:· RYAN WELLS
· · ·· · · · · · · · · · · · ·Deputy District Attorney
18
· · ·FOR THE DEFENDANT:· MICHAEL MCKNEELY
19 · · · · · · · · · · Attorney At Law
· · ·· · · · · · · · · · 2300 Tulare Street, Suite 115
20 · · · · · · · · · · Fresno, California 93721

21

22

23

24
· · ·REPORTED BY:
25
· · ·VERONICA ESPINOZA, C.S.R.
26 Certificate No. 8456

Superior Court of the State of California

County of Fresno 09-21-2021 2:19PM
 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 53

·1 the People will present.· Any attacks on the evidence or the

·2 foundation is an attack on the weight of the evidence, not
·3 the admissibility, therefore, I believe this evidence via
·4 Mr. Greene about ShotSpotter, the location, and the amount of
·5 shots should be admitted.
·6 · · ·THE COURT:· Okay.· Is the matter submitted then?
·7 · · ·MR. WELLS:· Yes.
·8 · · ·MR. MCKNEELY:· Yes, Your Honor.
·9 · · ·THE COURT:· All right.· Well, you know, when we started
10 this process I wasn't necessarily clear on whether this was a
11 challenge to this particular offer of evidence or whether it
12 was a more comprehensive objection based on the Kelly rule.
13 Based on your concluding comments, I took it to be
14 essentially both.· And looking at it from the standpoint of
15 the Kelly rule I have gone back over the pretty long history
16 of the application of the Kelly rule here in California and
17 just noted that essentially within the State of California,
18 California courts through the direction of our Supreme Court
19 still basically applies the Kelly rule as opposed to other
20 federal rules and federal rules of evidence.· And the Kelly
21 rule is applied to an assessment of new scientific techniques
22 or processes.· It's a three-part process, a three-part test
23 that requires that the reliability of the method be
24 established usually through expert testimony, that the
25 witness furnishing such testimony must be properly qualified
26 as an expert to give an opinion on the subject and the

Superior Court of the State of California

County of Fresno 09-21-2021 2:19PM YVer1f
 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 54

·1 proponent of the evidence must demonstrate that the correct

·2 scientific procedures were used in the particular case.
·3 · · ·Now, there are a number of ways to go about this and I'm
·4 certainly not trying to short circuit the process in any way,
·5 but I'm certainly satisfied that Mr. Greene is qualified to
·6 testify as to the essential design and operational qualities
·7 of the ShotSpotter system and I'm certainly satisfied that he
·8 is capable of offering an opinion on the subject that can be
·9 properly examined in front of the jury and his opinions be
10 evaluated in an objective way.
11 · · ·He also -- well, first of all, I -- second of all, I
12 would point out that I'm more than satisfied that the People
13 have established that it is probative, so we don't have to go
14 back to -- to that issue.· But the criticisms that you raise,
15 Mr. McKneely, are things that I believe ultimately go to the
16 weight of the evidence, not the admissibility.· There's
17 nothing really new or controversial about the mechanics and
18 the design of the system used in ShotSpotter.· All of those
19 concepts are accepted within the public understanding of many
20 of our conveniences.· GPS is not a mystery to people.· It's
21 something that can be discussed in open terms without really
22 obtuse scientific discussion.· Microphones and
23 multi-directional microphones are not controversial in any
24 way in the scientific field.
25 · · ·The mathematical principles that are utilized by the
26 system to -- the term was multi, to perform tasks of

Superior Court of the State of California

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 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 55

·1 multilateration, which is more points of reference and

·2 triangulation as we discussed in the testimony, but those are
·3 all calculated and performed on basic mathematical formulas
·4 that are accepted without controversy.· The question comes
·5 down to the specific placement of the sensing devices that
·6 were used in this particular case.· And in this particular
·7 case the testimony in voir dire in this motion here was that
·8 there were four particular sensors essentially within a
·9 defined geographical area that were utilized.· That the
10 process of the ShotSpotter system creates a level of
11 detection and initial analysis at the server system itself,
12 which is then transmitted to the location servers and
13 reanalyzed essentially to rule out false positive reports,
14 and it is then passed on to the ultimate user interface.
15 None of those processes are, I think, novel or controversial
16 in a scientific way at all.
17 · · ·So getting down to this, I think we're talking about
18 fairly recognizable technologies that apply accepted and time
19 honored mathematical calculations.· And I'm satisfied that
20 the witness was able to establish, both through his testimony
21 and through discovery provided in preparation for this
22 particular case, that the system was properly operational and
23 properly administered during the period in time in which it
24 was called into play here.
25 · · ·So from a Kelly standpoint I'm really not sure that it
26 requires a Kelly analysis, but to the extent that we're

Superior Court of the State of California

County of Fresno 09-21-2021 2:19PM YVer1f
 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 56

·1 looking at it from that standpoint, that's my analysis.· You

·2 know, I don't -- I don't see anything to exclude this type of
·3 testimony from the trier of fact in this case.
·4 · · ·Now, as far as the challenge to the general acceptance
·5 of the technology and testimony about it in courts, the law
·6 is very clear that I can take judicial notice of the fact
·7 that he's qualified as an expert in other courts, that the
·8 subject matter has been testified to in other courts.· I do
·9 accept the fact that you were able to document and confront
10 the witness with a situation in a court in Rochester, which I
11 take it to be New York.
12 · · ·MR. MCKNEELY:· Yes, Your Honor.
13 · · ·THE COURT:· And, you know, without commenting about the
14 differences between New York and California courts,
15 obviously, a state court ruling in Rochester is not binding
16 on us in any way.· But to be more complete in looking at
17 that, I don't know what the basis was for that court
18 excluding testimony.· I'm not aware of whether it was a total
19 denial of allowing evidence under a Kelly type analysis or
20 whether it was a failure to qualify a witness as a particular
21 expert.· I don't know.
22 · · ·What the witness did testify to is that he has qualified
23 in approximately two-thirds of the 80 cases, approximately 80
24 cases he's testified in, and I understood that to be beyond
25 the jurisdiction of California.· So, again, I don't have a
26 lot of details on that, but clearly he has testified in other

Superior Court of the State of California

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 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 57

·1 courts on the operations of ShotSpotter technology.

·2 · · ·Now, as far as the issues that you raised, I believe
·3 that, you know, I was a little concerned, Mr. McKneely, about
·4 some of the questions about the contractual arrangements and
·5 the protocol for confidentiality between ShotSpotter and
·6 ultimate users, which in this case would be the Fresno Police
·7 Department; ShotSpotter and contractual relations with
·8 private parties who agree to allow the technology to be
·9 mounted in their physical premises.· There are a number of
10 things that I'm, quite frankly, uncomfortable with discussing
11 in front of the jury, and I'm not going to -- it doesn't have
12 any affect ultimately on what my ruling is today, but it
13 seems to me that the concerns that you brought, and the point
14 I'm trying to make is, the concerns you brought up ultimately
15 don't dissuade me from thinking that the testimony should be
16 disqualified from the jury's hearing.
17 · · ·There are things that the jury can consider, for
18 example, you know, when we asked -- when we ask a witness if
19 they're being compensated for their testimony.· That's fair
20 game.· I'm sure that a ShotSpotter is a for-profit
21 corporation.· They make money off of this, I'm sure, and they
22 have reasons to be very protective of their various
23 contractual relationships.· And I think, you know, to some
24 extend that's all fair game for the jury to understand, but
25 none of that disqualifies the essential technical testimony
26 that this witness would provide.

Superior Court of the State of California

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 PEOPLE vs ZACHERY GOODWIN
F16900408 April 09, 2019 Page 58

·1 · · ·So, all told, I'm satisfied that Mr. Greene was more
·2 than capable of testifying to the operations of ShotSpotter
·3 technology, to the specific application of it in this
·4 particular case, and he seems mature enough to be able to
·5 answer your questions as honestly as he can without betraying
·6 the trust placed in him.· So what I'm saying is you have a
·7 number of things that I think are fair game.· I will caution
·8 you, though, that references to specific briefs from specific
·9 interested parties in other litigation, for example, the
10 Innocence Project, that should not be brought up in front of
11 the jury.
12 · · ·MR. MCKNEELY:· Understood, Your Honor.
13 · · ·THE COURT:· But otherwise I think that everything that
14 he talked about and the things that you cross-examined him on
15 are fair game and the jury may consider those things, okay.
16 So I think I covered what I needed to in analyzing this
17 particular subject.
18 · · ·Mr. Wells, is there anything else that you think the
19 record should address?
20 · · ·MR. WELLS:· No.
21 · · ·THE COURT:· Mr. McKneely, is there anything else you
22 want to put on the record about this?
23 · · ·MR. MCKNEELY:· No, Your Honor.· Thank you.
24 · · ·THE COURT:· All right.· So from what I wrote down
25 yesterday I believe we have covered things that were in our
26 motions in limine.

Superior Court of the State of California

County of Fresno 09-21-2021 2:19PM YVer1f
Exhibit 9
Samelton v. State, 57 N.E.3d 899 (2016)

57 N.E.3d 899 (Table) [2] We affirm.

Unpublished Disposition
Court of Appeals of Indiana.
ISSUES
Isaiah SAMELTON,
Appellant–Defendant, [3] Samelton raises two issues on appeal, which
v. we restate as follows:
STATE of Indiana, Appellee–Plaintiff.
(1) Whether the trial court abused its
No. 71A03–1509–CR–1589. discretion in admitting certain evidence; and
|
June 16, 2016. (2) Whether the trial court abused its
discretion by not instructing the jury
Appeal from the St. Joseph Superior Court; The on Samelton's proposed jury instruction
Honorable Jane Woodward Miller, Judge; Trial offering attempted voluntary manslaughter
Court Cause No. 71D01–1407–F1–2. as a lesser included offense to the attempted
murder charge.
Attorneys and Law Firms

Charles W. Lahey, South Bend, IN, Attorney

for Appellant. FACTS AND PROCEDURAL HISTORY
Gregory F. Zoeller, Attorney General of [4] During the evening hours of July 9, 2014,
Indiana, Eric P. Babbs, Deputy Attorney Antonio Garcia (Garcia) was working as a
General, Indianapolis, IN, Attorneys for cashier at the Phillips 66 gas station located
Appellee. at the corner of Western Avenue and Falcon
Street in South Bend, Indiana. Willie Menyard
(Menyard), a patron at the store, was prepaying
MEMORANDUM DECISION for his gas. At about that time, a red sedan
drove into the pump area and, without stopping,
RILEY, Judge. drove to the front of the store entrance. An
individual inside the car pointed a gun out of
the driver's side window and began firing. As
STATEMENT OF THE CASE
Menyard was exiting the store, a bullet struck
*1 [1] Appellant–Defendant, Isaiah Samelton him in his back and exited out of his right
(Samelton), appeals his conviction for arm. The red sedan then turned around, drove
attempted murder, a Level A felony, Ind.Code back into the pump area where the customer
§§ 35–42–1–1; –41–5–1; and aggravated vehicles remained parked, and fired more shots.
battery, a Level 3 felony, I.C. § 35–42–2– The vehicle circled around the pump area
1.5(2).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Samelton v. State, 57 N.E.3d 899 (2016)

before speeding off. The patrons outside the gas

station ran for cover. *2 [6] On July 11, 2014, the State filed an
Information, charging Samelton with Count
[5] Garcia called the police. Also, the Shot– I, attempted murder, a Level 1 felony; and
Spotter system—a gunshot detection, alert and Count II, aggravated battery, a Level 3 felony.
analysis tool that incorporates sensors to detect, Samelton's jury trial commenced on August
locate, and alert law enforcement agencies of 25, 2015. Among the evidence introduced and
illegal gunfire incidents in real time—notified admitted were the two semiautomatic firearms,
the police. Four bullet fragments and seventeen bullet fragments, and casings recovered from
fired casings were left at the scene. Officer the gas station, the gas station's surveillance
Greg Howard (Officer Howard) of the South videos1, and Exhibit 101, a map image showing
Bend Police Department got the description of the approximate location of each of the twenty-
the red car and its suspects after reviewing the three shots fired at the gas station. Exhibit
store surveillance videos and started searching 101 also included a large circle representing
the surrounding area. Driving on Meade Street, a twenty-five meter margin of error. Samelton
Officer Howard located the suspected red sedan argued, in part, that the margin of error would
parked on the sidewalk. After watching the essentially place each gunshot anywhere in
car for a couple of minutes, he saw two male the circled area, and consequently “have no
individuals enter the vehicle, and drive south on assurance that shot number 1 wasn't really
Meade Street toward Western Avenue. When taken from location number 22 or that 21 was
the red sedan crossed Western Avenue, Officer taken from location number 2[.]” (Transcript p.
Howard initiated a traffic stop. Samelton was 273). After hearing Samelton's arguments, and
identified as the driver. A male, later identified the testimony on how the Shot–Spotter system
as Juwan Jones (Jones), exited the vehicle from works, the trial court overruled Samelton's
the passenger's side and ran through an alley. objection and admitted Exhibit 101 into
During the foot pursuit, Officer Howard saw evidence.
an object, later identified as a semiautomatic
handgun, fall from Jones' person. The handgun 1 The record shows that the surveillance videos were
contained a loaded magazine. The following admitted as Exhibit 2, however, they were submitted
day, a K–9 officer found another semiautomatic with Jones' appeal, and therefore were unavailable for
Samelton's appeal.
handgun along the route where Jones had fled.
A magazine was also found nearby. Each of the [7] At the close of the evidence, Samelton
semiautomatic handguns matched the casings requested the trial court to instruct the jury on
and the bullet fragments left at the gas station. attempted voluntary manslaughter as a lesser
The fired casings were both on the west and east included offense of attempted murder. The trial
sides of the gas station's property. Garcia's car, court refused to tender the instruction, finding
which was parked on the west side parking lot, that there was no appreciable evidence of
sustained damage from three bullet holes. Also, sudden heat. At the close of trial, the jury found
a gas pump and a dumpster sustained bullet Samelton guilty as charged. On September 23,
damage. 2015, the trial court sentenced Samelton to
concurrent sentences of thirty years for his

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

Samelton v. State, 57 N.E.3d 899 (2016)

attempted murder conviction and nine years for the foundation and reliability of the scientific
his aggravated battery conviction. principles.” Doolin v. State, 970 N.E.2d
785, 787 (Ind.Ct.App.2012). “In determining
[8] Samelton now appeals. Additional facts will whether scientific evidence is reliable, the trial
be provided as necessary. court must determine whether the evidence
appears sufficiently valid, or, in other words,
trustworthy, to assist the trier of fact.” Id. at
788.
DISCUSSION AND DECISION
*3 [11] Samelton seems to challenge the
I. Admission of Evidence accuracy of Exhibit 101, arguing that because
there was a twenty-five meter margin of error
[9] We review the admission of evidence for using the Shot–Spotter system, there was no
an abuse of discretion. Wilson v. State, 765 way of decoding the accurate location of each
N.E.2d 1265, 1272 (Ind.2002). An abuse of of the twenty-three bullets fired at the gas
discretion occurs “where the decision is clearly station.
against the logic and effect of the facts and
circumstances.” Smith v. State, 754 N.E.2d [12] Paul Greene (Greene), the lead forensic
502, 504 (Ind.2001). Indiana Evidence Rule analyst at SST Inc.—the company that
702 governs the admissibility of testimony by developed and manufactures the Shot–Spotter
expert witnesses. It provides that: system—testified that he had written close to
600 forensic reports on shooting incidents and
(a) A witness who is qualified as an expert given testimony in court thirty-six times. He
by knowledge, skill, experience, training, stated that the purpose of the Shot–Spotter
or education may testify in the form of an system is to “simply provide law enforcement
opinion or otherwise if the expert's scientific, agencies, rapid notification that a weapon has
technical, or other specialized knowledge been fired within their jurisdiction, or at least
will help the trier of fact to understand or to within the sensory area.” (Tr. p. 255). Greene
determine a fact in issue. explained the science behind the Shot–Spotter
system stating, in relevant part:
(b) Expert scientific testimony is admissible
only if the court is satisfied that the expert The [Shot–Spotter] system is an acoustic
testimony rests upon reliable scientific gunshot detection system. It is comprised
principles. of three separate parts. The first being the
sensors. [ ] It has a processor board. It has
[10] The trial court acts as a gatekeeper a memory. It has a GPS receiver, and it
when determining the admissibility of opinion also has a radio modem that allows network
evidence under Rule 702. Estate of Borgwald communication back to the location of the
v. Old Nat'l Bank, 12 N.E.3d 252, 257 server. The location server is the second part
(Ind.Ct.App.2014). “The proponent of expert of the system, and it's a software application
testimony bears the burden of establishing that gathers all of the information that is

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

Samelton v. State, 57 N.E.3d 899 (2016)

sent [ ] by different sensors. It matches the margin of error essentially would place
pulses from different sensors and then is able each gunshot anywhere within that circled
to locate the origin of a gunshot incident, area, and consequently we have no assurance
whether single shot or multiple shots. It then that shot number 1 wasn't really taken from
reports that information to the user interface. location number 22 or that 21 was taken from
The user interface is the third portion of it. location number 2.
We call that the [ ] investigator portal or the
alert console which resides on the operator's *4 So I think [ ] that's the problem
desktop or laptop computer. It is where they right there. I think the [S]tate has failed
receive the alerts. to demonstrated that that process ... meets
(Tr. pp. 243–44). Greene testified that the scientific standards .... In essence, we're
Shot–Spotter system notifies law enforcement telling the jury we have an expert telling the
agencies within sixty seconds of any gunfire, jury that this is where the shots occurred,
and “they get a dot on the map indicating when in fact, he is not. He's saying, within
the latitude and longitude of where that this margin of error, any of these shots could
incident happened, and they also get a street have been taken from the location....
address.” (Tr. p. 256). There are sixty-five
sensors installed in South Bend, and six of those [14] (Tr. pp. 273–74). After hearing Samelton's
sensors detected the gunfire. Greene identified arguments and Greene's testimony regarding
Exhibit 101 as an aerial map of the gas station the Shot–Spotter system, the trial court
with twenty-three superimposed bullseye-type overruled Samelton's objection to Exhibit 101,
graphics reflecting the estimated location of by stating, in part:
each of the gunshots fired on July 9, 2014.
Looking at Rule 702 just on the face of
The map also had a large circle representing
the rule, [ ] scientific, technical, or other
a twenty-five meter margin of error, centered
specialized knowledge would assist the tier
from the first shot fired. Greene explained that
of fact to understand the evidence or to
all twenty-three shots were within the twenty-
determine fact in issue, a witness qualified
five meter radius circle, and so “shot number
as an expert by knowledge, skill, experience,
12 could have easily have been shot number 17
training or education may testify thereto in
within the margin of error.” (Tr. p. 266).
the form of opinion or otherwise.
[13] Samelton objected to the admission of I think we have established that this witness
Exhibit 101 by arguing, in part: has that kind of technical and specialized
knowledge that he has accrued only in his
Our objection is to the attempt to extrapolate
current job [ ] and he certainly seems to have
back the precise time of each shot and
deep knowledge of science and math that I
most particularly the location of each shot,
don't share but certainly explains it in a way
because by doing so we have such a great
that I feel that I'm understanding....
margin of error in the scientific evaluation
that it creates a situation where literally each
of the gunshots is within the same area, and

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

Samelton v. State, 57 N.E.3d 899 (2016)

them to judge and weigh the persuasiveness of

I am satisfied with the scientific principles Exhibit 101.
upon which the expert testimony based as
reliable.... [16] The State argues that, under the
circumstances, however, any error in the
And I think that the State's Exhibit 101 does
admission of Exhibit 101 is harmless. It is well
provide the jury with the understanding that
recognized that any error in admitting evidence
this is not a perfect science in the sense
will be found harmless where the evidence is
that, and maybe I'm using the word science
merely cumulative. Fuller v. State, 674 N.E.2d
wrong and maybe the system would be more
576, 578 (Ind.Ct.App.1996). We note that the
accurate, and they cannot with a hundred
import of Exhibit 101 only corroborated that
percent accuracy to the centimeter determine
a shooting had occurred, and was merely
the location of a shot when it has been
cumulative to the following evidence: Garcia,
fired, but I think this coupled with other
the gas station attendant, testified that he
evidence that's presented certainly tells me,
saw the gunshots coming from the red sedan;
one, that there is enough scientific principles
Menyard was struck twice by bullets; the
to allow it, and two, that the prejudice of this
bullets and casing recovered at the gas station
information does not outweigh its probative
matched the firearms recovered during the
value So I'm overruling the objections to
police investigation; and the gas station's
both Exhibits 101, and 102.
surveillance video displayed the shooting. In
(Tr. pp. 281–83).
light of the foregoing, we conclude that trial
court did not abuse its discretion in admitting
[15] We find Samelton's argument insufficient
Exhibit 101.
to establish an abuse of the trial court's
discretion in admitting Exhibit 101. In
determining whether scientific evidence is
reliable, the trial court must determine whether II. Attempted Voluntary Manslaughter
the evidence appears sufficiently valid, or, in Instruction
other words, trustworthy, to assist the trier
of fact. Doolin, 970 N.E.2d at 788. The *5 [17] Lastly, Samelton argues that the trial
trial court evaluated Greene's testimony at court abused its discretion when it denied his
length, and it determined that the scientific proposed jury instruction offering attempted
principle or workings of the Shot–Spotter voluntary manslaughter as a lesser included
system were reliable in presenting evidence offense to the attempted murder charge. In
of a shooting at the gas station. The jury response to Samelton's assertion, the State
could have readily understood from Greene's argues that the trial court correctly determined
testimony that all twenty-three shots were fired that the evidence did not support the tendering
in the area roughly corresponding to the gas of the instruction because there was no
station's property. Accordingly, the jury was appreciable evidence of sudden heat.
not presented with inaccurate information, but
instead with a margin of error that allowed

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

Samelton v. State, 57 N.E.3d 899 (2016)

[18] In general, a trial court has complete v. State, 506 N.E.2d 1090, 1093 (Ind.1987).
discretion in matters pertaining to jury Sudden heat is not an element of voluntary
instructions. Driver v. State, 760 N.E.2d 611, manslaughter. See Boesch v. State, 778 N.E .2d
612 (Ind.2002). In reviewing whether a trial 1276, 1279 (Ind.2002). Rather, it is that
court has abused its discretion by refusing to which distinguishes voluntary manslaughter
include a party's jury instruction, this court from murder.
considers: (1) whether the instruction correctly
states the law; (2) whether the evidence [21] Here, the question is whether there was
supports giving the instruction; and (3) whether appreciable evidence of sudden heat, and from
any other instructions cover the same substance the record, we find that there was no evidence
as the excluded instruction. Id. of sufficient provocation nor was there any
evidence that Samelton was in such a state
[19] In Wright v. State, 658 N.E.2d 563, of terror or rage that he became incapable
566–67 (Ind.1995), our supreme court held of cool reflection. At the hearing, Garcia, the
that a trial court must give a tendered lesser gas station attendant, testified that a red sedan
included offense instruction if the alleged lesser drove into the pump area and without stopping,
included offense is either inherently or factually drove to front of the store entrance, and an
included in the crime charged and there is a individual inside the car pointed a gun out
serious evidentiary dispute about the element of the driver's side window and began firing.
or elements distinguishing the greater from the As Menyard walked out of the store, he was
lesser offense such that a jury could conclude struck by gunfire. Soon after, Garcia called
that the lesser offense was committed but the 911, and while still on the phone, Garcia saw
greater was not. Voluntary manslaughter is an the red vehicle circle around the parking lot,
inherently included offense of murder because drive back through the pumps, and over to west
it requires proof of the same material elements side of the store. Multiple shots were fired in
as murder. See Champlain v. State, 681 N.E.2d sequence. As the red vehicle sped away from
696, 701–02 (Ind.1997). This is true because the scene, the patrons outside the gas station
voluntary manslaughter is murder with the ran for cover. After the police arrived, Garcia
mitigating factor that it was committed while showed them the surveillance videos which
acting under sudden heat. Id. For the same documented the shooting. In addition, the State
reasons, attempted voluntary manslaughter is published the gas station's surveillance videos
an inherently included offense of attempted to the jury. Furthermore, Greene, the forensic
murder. analyst, testified that the first shot was fired
at 10:41:33 p.m. and the twenty-third shot
[20] Sudden heat has been defined as was fired at 10:42:12 p.m. The incident lasted
“sufficient provocation to excite in the mind thirty-nine seconds.
of the defendant such emotions as anger,
rage, sudden resentment, or terror, and that *6 [22] We find that the numerous shots,
such excited emotions may be sufficient to fired in rapid succession, revealed a deliberate
obscure the reason of an ordinary man.” Fox attack on the persons at the gas station.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6

Samelton v. State, 57 N.E.3d 899 (2016)

Accordingly, we find that the evidence was by “failing to link the anger, rage, sudden
not susceptible of an inference that Samelton resentment or jealousy to any action that
was rendered incapable of cool reflection and constitutes provocation, the instruction could
deliberation. Because there was no evidence have confused the jury into thinking that any
of sudden heat and no serious evidentiary time a person acts out of such emotions, there is
dispute, the trial court did not abuse its sudden heat even though there may not be any
discretion when it refused to tender Samelton's provocation.” (Appellee's Br. p. 15) (quotation
tendered instruction of attempted voluntary marks omitted). We agree. This court has
manslaughter. held that “words alone will not constitute
sufficient provocation.” See Supernant v. State,
[23] Moreover, we note that Samelton's 925 N.E.2d 1280, 184 (Ind.Ct.App.2010),
attempted voluntary manslaughter instruction trans. denied. Because Samelton's tendered
incorrectly stated the law. The purpose of jury instruction used an incorrect definition of
instructions is to inform the jury of the law sudden heat, the trial court did not err in
applicable to the facts without misleading the refusing it.
jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct
verdict. Munford v. State, 923 N.E.2d 11, 14 CONCLUSION
(Ind.Ct.App.2010). A trial court does not err
by refusing an instruction that incorrectly states [25] Based on the foregoing, we conclude
the law. See McEwen v. State, 695 N.E.2d 79, that the trial court did not abuse its discretion
84, n. 1 (Ind.1998). by admitting Exhibit 101, or for refusing
to instruct the jury on Samelton's proposed
[24] Sudden heat has been defined as “sufficient attempted voluntary manslaughter instruction.
provocation to excite in the mind of the
defendant such emotions as anger, rage, sudden [26] Affirmed.
resentment, or terror, and that such excited
emotions may be sufficient to obscure the
reason of an ordinary man.” Fox, 506 N.E.2d at
[27] KIRSCH, J. and PYLE, J. concur.
1093. (emphasis added). Samelton's proposed
instruction, by contrast, gave a definition All Citations
of sudden heat without any reference to
sufficient provocation. The State argues that 57 N.E.3d 899 (Table), 2016 WL 3364769

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

Exhibit 10
STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

State of Minnesota, Case Type: Criminal

Judge Carolina A. Lamas
Plaintiff,
Court File No. 27-CR-14-11992
v.
ORDER DENYING
Talia Donalee Brooks, DEFENDANT’S MOTION TO
EXCLUDE
Defendant.

The above-entitled matter came before the Honorable Carolina Lamas on October 7, 2016
at the Hennepin County Government Center for a Frye-Mack Hearing.

APPEARANCES

Peter Mason, Assistant Hennepin County Attorney, appeared on behalf of the State of
Minnesota. Jeffrey Benson, Assistant Hennepin County Public Defender, appeared on behalf of
Talia Donalee Brooks, who was present. Following the hearing, the parties submitted
memoranda to the Court in support and opposition to the Defendant’s Motion to Exclude
Evidence.
Based upon the testimony adduced, the arguments and briefs of counsel, and all files,
records, and proceedings herein, the Court orders the following:

1. Defendant’s Motion to Exclude is DENIED.

By the Court:

Date: 12/15/16 _____________________________

Honorable Carolina A. Lamas
Judge of District Court

1
 INTRODUCTION
The State has charged Defendant with (1) Terroristic Threats-Reckless Disregard Risk, (2)
Dangerous Weapons-Reckless Discharge of Firearm within a Municipality, and (3) Possess
Pistol/Assault Weapon-Conviction or Adjudicated Delinquent for a Crime of Violence.
Defendant brought a motion to exclude any ShotSpotter evidence regarding the location and
time of shots fired on March 15, 2014.

FACTS ALLEDGED
1. On March 15, 2014, Officers Grout and Doran of the Minneapolis Police Department were
dispatched on a report of gunshots fired.
2. Officers were alerted of the gunshots because the ShotSpotter system detected potential
gunshot sounds.
3. The ShotSpotter report indicates that there were two occurrences of a “Single Gunshot”
type of incident. Ex. 1 1 Incident #84457 occurred on March 15, 2014 at 19:20 (7:20 p.m.),
listing an address of 912 23rd Ave. N. Id. Incident #84456 occurred on March 15, 2014 at
19:19 (7:19 p.m.), listing an address of 914 23rd Ave. N. Id.
4. The alleged victim told Officer Grout that Defendant arrived at her apartment, yelled at
her, and shot at her house.
5. Officers located a single spent shell casing near the mouth of the alley, located behind the
alleged victim’s house.

FINDINGS OF FACT
1. On October 7, 2016, Paul Greene, Manager of Forensic Services for SST, Inc. testified on
behalf of the State. SST, Inc. is the company that manufactures and operates the
ShotSpotter system.
2. The ShotSpotter process has three primary components: (1) the sensor array, (2) the
location server, and (3) the human operator review.
3. The sensor array consists of an array of self-calibrating, microphone and GPS-enabled
sensors installed in a geographic location. These sensors listen for impulsive noises. A

1This exhibit was labeled as Exhibit 1 when offered by the State and received at the hearing, and labeled
as Exhibit B in the attached exhibits to the Defendant’s Memorandum in Support of Motion to Exclude.

2
 sensor timestamps and sends data to the location server when it detects a sound
consistent with its criteria for a potential gunshot. For a single gunshot to be detected
and reported, four sensors must detect the noise.
4. Sensors communicate with the location server every thirty to sixty seconds, sending the
status of its power and health indicators.
5. Minneapolis has 5.4 square miles of ShotSpotter coverage, over two coverage areas. The
present case occurred in the north side coverage system, where there are fifty-seven
sensors.
6. The array is designed so that if twenty to thirty percent of the sensors become inoperable,
the remaining sensors could accurately maintain operation of the ShotSpotter system.
7. The sensors are placed above the roofline, in an effort to avoid obstacles that would
hinder sound from reaching the sensors.
8. The second component of the system is the location server which coordinates the pulses
that are received from sensors. If the location server’s criteria are met for a sound to be
deemed a gunshot, it will attempt to locate the geographic location of the pulse.
9. The location server is where the scientific and mathematical operation of ShotSpotter
occurs.
10. The operation that the location server uses to locate a pulse is called multilateration.
Multilateration plots hyperbolas between known geographic points to locate an
unknown geographic point.
11. The third component of the ShotSpotter system is the human operator review. If the
location server’s criteria are met, the audio clip of the impulsive noise and pictures of the
audio waveform are sent to the human operator. Human operators cannot create or alter
events. Human operators review the data, and if consistent with a gunshot publish the
data to the ShotSpotter customer.
12. The human reviewers tend to be former law enforcement, EMS dispatchers, and former
military. Human reviewers receive on the job training.
13. Mr. Greene, or another forensic analyst, may then review the data and create a forensic
report. These reviews are done to check on the accuracy of the location and the number
of shots fired.

3
 14. In the present case, Mr. Greene created a forensic report. Mr. Greene found no
erroneously located pulses and performed no corrections.
15. ShotSpotter performs redundant calculations and error correction routines on its system.
16. ShotSpotter also monitors temperature and weather conditions.

CONCLUSIONS OF LAW
Defendant moves the Court to exclude the ShotSpotter evidence, arguing that the State
has failed to meet its burden under the Frye-Mack test. The Frye-Mack standard requires the
Court to “determine whether [the scientific evidence] is generally accepted in the relevant
scientific community. In addition, the particular scientific evidence in each case must be shown
to have foundational reliability. Foundational reliability requires the proponent of a *** test [to]
establish that the test itself is reliable and that its administration in the particular instance
conformed to the procedure necessary to ensure reliability.” Goeb v. Tharaldson, 615 N.W.2d 800,
814 (Minn. 2000) (citations omitted). The Frye-Mack standard puts the burden on the proponent
of the novel scientific evidence to demonstrate the sufficiency of both prongs of the Frye-Mack
test: (1) that the scientific evidence is generally accepted in the relevant scientific community,
and (2) the particular scientific evidence in the case at hand has foundational reliability. Doe v.
Archdiocese of St. Paul, 817 N.W.2d 150, 165 (Minn. 2012). The State contends that it met its
burden under the Frye-Mack test. State’s Reply Mem. at 2. The Court will address each prong of
the Frye-Mack test in turn.
A. The Scientific Evidence Offered is Generally Accepted in the Relevant Scientific
Community
In State v. Mack, Minnesota adopted the Frye rule which requires, “the thing from which
the [expert testimony] deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs.” State v. Fenney, 448 N.W.2d 54, 57
(Minn. 1989) (quoting State v. Mack, 292 N.W.2d 764, 767 (Minn. 1980)). “The results of
mechanical or scientific testing are not admissible unless the testing has developed or improved
to the point where experts in the field widely share the view that the results are scientifically
reliable as accurate…. The scientific technique on which expert testimony is based must be
scientifically reliable and broadly accepted in its field. The test, then, requires neither unanimity
nor acceptance outside its particular field.” Id. at 57–58 (internal citations omitted). Scientific
evidence that is not “novel” need not be assessed under the first prong of the Frye-Mack test.

4
Evidence obtained from “a new scientific method that the [Minnesota Supreme Court] has
never before considered” and is “sufficiently different” from previously generally accepted
methods, is novel scientific evidence. State v. Roman Nose, 649 N.W.2d 815, 821 (Minn. 2002).
Sound multilateration is the mathematical operation that is the basis for the geographic
locating component of the ShotSpotter system. Transcript at 44. The State contends that it
adequately demonstrated that sound multilateration evidence is generally accepted in the
relevant scientific community. State’s Mem. Opp’n at 3. Defendant concedes that sound
multilateration is generally accepted, but argues that ShotSpotter technology specifically is not.
Def.’s Mem. at 5. Defendant specifically asserts that “Shotspotter combines sound
multilateration principles with the complex, real world environment and a human interprets
that data. This combination takes ShotSpotter outside of the general acceptance of sound
multilateration, and the state has not satisfied their burden under the first prong of Frye-Mack.”
Def.’s Mem. at 6.
The State presented expert testimony from Mr. Greene from SST, Inc. Defendant
highlights that “Mr. Greene holds no college degrees, and he never attended a course in
engineering, acoustics, acoustical engineering, or sound propagation.” Id. at 2. Mr. Greene has
worked for SST, Inc. for nine and a half years. Tr. at 5. He currently serves as a manager of
forensic services, which primarily deals with forensic analysis. Id. Mr. Greene is a former U.S.
Marine. Id. at 7. During his eight years in the Marines, Mr. Greene shot several years on rifle
and pistol teams and was trained as a machine gunner. Id. He has worked in the field,
performing live fire tests against Shotspotter, military, and public safety systems. Id. Mr. Greene
became aware of the technology used by ShotSpotter in 2004, when he was employed by the
U.S. Joint Forces Command, which conducted battlefield sensor testing and integration. Id. Mr.
Greene also was employed by the New Mexico Institute of Mining Technology at the Playas
Training and Research Center where he was the command and control manager, tasked with
operating test ranges for military hardware clients to test their systems. Id. at 8. Since working
for ShotSpotter, Mr. Greene has conducted over 600 forensic analyses of gunfire incidents and
has analyzed audio of thousands of gunshot incidents. Id. at 9. He has testified fifty-five times in
court and has been certified as an expert in gunshot sound detection and location technology
each time. Id. at 10.

5
 The State offered Mr. Greene as an expert in “gunshot sound detection and location
technology.” Id. at 10. Defendant did not object to Mr. Greene being offered as such an expert
and the Court accordingly certified Mr. Greene as such an expert. Id. Defendant questions the
application of multilateration within the ShotSpotter system and the human interpretation of
the data. Def.’s Mem. at 6. The area of gunshot detection and location technology falls within
the relevant scientific community in question. Therefore, Mr. Greene’s expert testimony weighs
heavily in favor of the State.
Mr. Greene testified at length about the processing system for the ShotSpotter.
ShotSpotter has three primary components to its process. Tr. at 15. Put simply, the first
component is a sensory array, which is an array of microphone and GPS-enabled sensors that
are installed in a geographic area. Id. The sensors “listen constantly for the sound of impulsive
noises, anything that does bang, boom, or pop” and if such a noise is detected, it timestamps it
and sends the data related to the impulsive noise to the location server. Id. at 15–16.
The second component is the location server which coordinates the pulses that are
received from sensors and attempts to match them, and if there is a match within a specific time
period the location server attempts to locate the pulse. Id. at 16. Mr. Greene testified that
ShotSpotter “uses a mathematical system called multilateration to locate -- or, or to determine a
geographic location of the source of that impulsive noise.” Id. at 15. If certain characteristics are
met, then the location and data is sent to a human operator, which is component three. Id. The
human operator listens to the audio clip they receive and reviews pictures of the corresponding
audio waveform and makes a “judgment call” whether or not they believe it is gunfire. Id. at 33.
The reviewer can add notes to the incident report but cannot create or alter an incident. Id. at 33,
36. Reviewers receive on-the-job training and tend to be former law enforcement, dispatchers or
military. Id. at 35. The reviewer will send an alert or dismiss the event as a gunshot within one
minute. Id. at 41. If deemed to be a gunshot, the result will then be published to the customer
(i.e., law enforcement). Id. at 31. A forensic analyst, such as Mr. Greene, may ultimately conduct
a forensic analysis and draft a report, in an effort to confirm the accuracy of particular incidents.
Id. at 43.
Multilateration has had practical applications starting over one hundred years ago. Tr. at
44. The use of multilateration to locate sound has been utilized in earlier forms in World War I
and subsequent military involvement, including applications to the use of sonar by the Navy.

6
Id. at 48. Multilateration is used in locating submarines underwarter, in plane navigation, and
by seismologists in determining the epicenter of earthquakes. Id.
Law enforcement’s utilization of a scientific technique or practice is not dispositive of
whether the technique is generally accepted, but may be relevant evidence as to whether the
technique has gained general acceptance in the relevant scientific community. Roman Nose, 649
N.W.2d at 821. The first installation of ShotSpotter was in 1996 in Redwood City, California. Tr.
6. ShotSpotter operates in about one hundred cities, including Minneapolis. Id. Minneapolis has
used ShotSpotter since 2007. State’s Mem. Opp’n at 4.
“The decisions of other appellate courts may be relevant evidence at an evidentiary
hearing on the general acceptance of a scientific technique within the relevant scientific
community.” Id. at 820. The Supreme Court of Nebraska considered a challenge to the
ShotSpotter system in State v. Hill, 851 Neb. 767 (2014). In Hill, the Defendant did not challenge
the “underlying GPS triangulation methodology upon which the ShotSpotter location is based.”
Id. at 793. Instead, the Defendant made three arguments, “(1) that ‘blind’ tests of the system
have never been performed; (2) that Greene did not know what percent capacity of the Omaha
ShotSpotter system was operating at on [the date in question]; and (3) that the SST employees at
the incident review center ‘are ultimately just people using their own subjective opinions about
whether particular sound files are consistent with gunfire.’” Id. The Nebraska Supreme Court
found that the lower court’s conclusion that absence of blind testing and Mr. Greene’s inability
to identify the percent capacity of the Omaha ShotSpotter system did not seriously undermine
the reliability of the ShotSpotter technology was a reasonable conclusion. Id. at 794. The
Nebraska Supreme Court also disagreed with Hill’s assertion that the SST, Inc. employees were
unqualified to characterize sounds as being consistent with gunshots due to the employees’
training and the system’s recognition of potential gunshots prior to the data being sent to the
review staff. Id. While Nebraska follows the Daubert/Schafersman jurisprudence, the Court takes
this case into consideration as an example of acceptance and utilization of the ShotSpotter
system and its underlying mathematical and scientific approach. Id. at 792.
The scientific and mathematical technique used by ShotSpotter is sound multilateration.
The other components to ShotSpotter are tools to collect and record data for the multilateration
process, and to check the accuracy of the system’s decision to qualify a noise as a gunshot. The
State has demonstrated that sound multilateration is a scientific practice that is generally

7
accepted in the relevant scientific community. The Court will analyze the foundational
reliability of ShotSpotter’s application of sound multilateration. Defendant’s concerns regarding
the accuracy of the system based on the environmental elements as well as the human operator
involvement will be addressed under the reliability prong of the Frye-Mack analysis. See State v.
Traylor, 656 N.W.2d 885, 893 (Minn. 2003) (determining that the science of PCR-STR DNA
testing was generally accepted, and concerns over the utilized testing kits and procedures dealt
more with reliability).
B. The Scientific Evidence Has Foundational Reliability
The second prong of the Frye-Mack test requires that the State show that the scientific
evidence in the case at hand has foundational reliability. Doe, 817 N.W.2d at 165. The proponent
of scientific evidence has the burden to establish the proper foundation for the admissibility of
the test by showing that the methodology used is reliable and in the particular instance
produced reliable results. Goeb, 615 N.W.2d at 816. Sound multilateration, as applied through
the ShotSpotter system, in the matter at hand has foundational reliability.
1. The methodology used is reliable.
At each stage of the ShotSpotter system, ShotSpotter has built in redundancy and
safeguards to better ensure the accuracy of its results. First, the sensors pick up an impulsive
event. The array of sensors are installed in such a manner that if twenty to thirty percent of the
sensors became inoperable, the remaining sensors could accurately maintain operation of the
ShotSpotter system. Tr. at 22. Each sensor communicates with the location server every thirty to
sixty seconds, sending the status of its power and health indicators. Id. at 27. The “health” of the
sensors is constantly monitored. Id. The sensors are self-calibrating; a sensor will either record
or not record. Id. at 28. For a single gunshot to be detected and reported, four sensors must
actively participate in detecting the gunshot. Id. at 44. The location of the sensors is known
based on their installation but also through the GPS receiver on the sensors which
communicates with GPS satellites. Id. at 28. Only if the event meets between twenty-eight and
thirty-two criteria will the event data be sent to the location server. Id. at 32–33.
The location server also has its own set of criteria for which the sound is evaluated. Id. at
31. If the criteria are met an alert is created and a request is sent back to the participating sensors
to transmit the audio clip. Id. at 31–32. The audio clip and the pictures of the audio waveform
are then reviewed by a human operator at the review center, who cannot alter the event. Id. at

8
33. If the human operator believes it is a gunshot, then they publish the data. Id. at 38. If they
believe it is something other than gunfire, the alert is dismissed. Id. The human operator acts a
check on the system in an effort to make sure only likely gunfire is being published. Mr. Greene
testified that the main reason there are human reviewers is to verify that the sound is a gunshot
and not another sound that is similar. Id. at 65. Mr. Greene or another forensic analyst may then
perform a forensic analysis and create a detailed forensic report. Id. at 43. The chief function of
the forensic analyst when writing the report is to confirm the accuracy of the location and the
number of shots fired. Id.
With regards to the utilization of multilateration, Shotspotter uses the time that each
sensor detects the pulse, measuring that sensor’s detection of the pulse against another sensor’s
detection of the pulse against the speed of sound, to generate curves called hyperbolas. Id. at
45–46. As Mr. Greene described it, for example, if there are three sensors, “[ShotSpotter] take[s]
the time differences between sensor A, sensor B, then sensor A and then C, and then sensor B
and C and it gives [ShotSpotter] three different measurements… three different curves.” Id. at
46. Where the hyperbolas intersect is where the source of the impulsive noise, or gunshot, is
located. Id. Because of ShotSpotters’ use of GPS, ShotSpotter knows the exact latitude and
longitude of the starting points to plot out the hyperbolas and find the point of intersection. Id.
at 46–47.
Defendant specifically questions the utilization of human operators. Human
involvement in this system acts as an additional check on the processes that have already
occurred. The Supreme Court of Minnesota has held the human involvement in a protocol
designed to develop or identify evidence, and specifically non-scientist human involvement,
does not make that evidence inadmissible. See State v. Klawitter, 518 N.W.2d 577 (Minn. 1994). In
Klawitter, the Minnesota Supreme Court reasoned that following a specified protocol for drug
recognition, including nystagmus testing, did not involve “any significant scientific skill or
training on the part of the [police] officer. Drug recognition training is intended to refine and
enhance the skill of acute observation which is the hallmark of any good police officer and to
focus that power of observation on a particular situation.” Id. at 585. The Klawitter Court put it
another way, “the protocol, in the main, dresses in scientific garb that which is not particularly
scientific.” Id.

9
 Similarly, the Court here finds that the human operators are not required to engage in
particularly scientific processes. The human reviewers tend to be former law enforcement, EMS
dispatchers, and former military. Tr. at 35. They generally “have more than a passing familiarity
with real gunfire.” Id. When someone is hired, they receive on the job training, where an
experienced operator or shift leader, sits with the new operator for one to two weeks, and
coaches them through the process of determining what is and is not gunfire. Id. In determining
if a noise is a gunshot, the reviewer listens to the audio clip and views a picture of the audio
waveform. Id. at 33. Reviewers cannot create a gunshot incident, or alter the times or locations
of a gunshot incident. Id. at 36. In the aforementioned State v. Hill, the Nebraska Supreme Court
agreed that the ShotSpotter employees were not unqualified to characterize sound as consistent
or inconsistent with gunshots, based on their training and the fact that the system recognizes
the potential gunshot before it is sent to the reviewer. Hill, 851 Neb. at 794.
Defendant also raises concerns over the environmental elements of the urban city of
Minneapolis affecting the accuracy and reliability of ShotSpotter. Def’s Mem. at 6. Factors like
temperature, background noise, buildings, and trees may affect the soundwaves and ultimately
location accuracy. Tr. at 62–70. ShotSpotter performs “redundant calculations” and “error
correction routines” to ensure that results are accurate. Id. at 79. ShotSpotter monitors
temperature and weather. Id. at 62. ShotSpotter installs “as many sensors as [they] do in an
array because [they] know that there are going to be environmental facts that [they] cannot
account for.” Id. at 78. The sensors are placed above what SST, Inc. calls the “acoustic horizon,”
meaning that they try to place sensors high enough above the roofline that there are few
obstacles that would hinder sound from reaching the sensors. Id. at 17–18. Further, Mr. Greene
testified that even if there are refraction and diffusion issues, they are “usually in the
millisecond range, a thousandth of a second… even if [they] had half the sensors with a couple
milliseconds of diffraction error, it may only change the location of the gunshot, ultimately, by a
couple of feet.” Id. at 78. Taking into consideration the efforts of ShotSpotter to ensure accuracy,
the Court finds that the methodology used has foundational reliability.
2. In this particular instance, the methodology used produced reliable results.
The methodology described above yielded reliable results in the case at hand.
Minneapolis has 5.4 square miles of ShotSpotter coverage. Id. at 17. There are two separate
ShotSpotter systems in two coverage areas, the north of the city and the south. Id. In this case,

10
the data in question comes from the north side system. Id. There are fifty-seven sensors in the
north side array. Id. at 56. There are two types of sensors in the Minneapolis system, each with
two to four microphones, a processor board with a GPS antenna and receiver, a certain amount
of memory, and a cellular based communication device. Id. at 18–19.
In the present case, the ShotSpotter report indicates that there were two occurrences of a
“Single Gunshot” type of incident. Ex. 1. On March 15, 2014 ShotSpotter detected two impulsive
events. Tr. at 54. Both incidents were detected by five sensors. Id. at 56. Mr. Greene created a
forensic report on the reported incidents. Id. at 54; see Ex. 2. To create this report, Mr. Greene
reviewed the audio and the location that the system created. Tr. at 56. Mr. Greene found no
error, specifically relocating one shot by less than one yard. Id. Mr. Greene testified that he
confirmed the locations of the incidents, and saw no erroneously located pulses and performed
no corrections. Id. at 58. Mr. Greene believes that both incidents were gunfire. Id. at 56. The
ShotSpotter’s detection of gunshots is further bolstered in this case by the recovery of a shell
casing found at the mouth of an alley located behind the victim’s house, very close to the
locations listed in the ShotSpotter report. 2 Therefore, the Court finds that in the present case, the
methodology used produced reliable results.

CONCLUSION
Both prongs of the Frye-Mack test have been sufficiently demonstrated. Multilateration is a
generally accepted mathematical and scientific technique for locating a geographic point from
other known geographic points. The other components of ShotSpotter are tools for the collection
of data for the sound multilateration process, and checks on the process as a whole. The
methodology utilized has foundational reliability. Further, the methodology as used in the
present case produced reliable results.
Based on the foregoing the Defendant’s motion to exclude is denied.
CAL

2The police report, attached to Defendant’s Memorandum as Exhibit A, lists the “Incident Details…
Address,” “Victim… Residence,” and “Witness… Residence” as “2303 Bryant AV N Apt. UPPER
Minneapolis, MN 55411”. Def’s Mem., Ex. A. This Bryant address is 213 feet or a one minute walk from
912 23rd Ave N (the address listed in the ShotSpotter report for Incident # 84457) and 285 feet or a one
minute walk from 914 23rd Ave N (the address listed in the ShotSpotter report for Incident # 84456). Ex. 2;
GOOGLE MAPS, https://www.google.com/maps.

11
Exhibit 11
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 22 2016, 9:32 am

regarded as precedent or cited before any CLERK

Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Bryant Johnson, November 22, 2016

Appellant-Defendant, Court of Appeals Case No.
71A03-1603-CR-672
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1508-MR-10

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 1 of 9
 Case Summary and Issue
[1] Following a jury trial, Bryant Johnson was convicted of murder, attempted

murder, and battery. Johnson appeals his convictions, raising the sole issue of

whether the trial court abused its discretion in admitting certain evidence.

Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History

[2] In the early morning hours of August 1, 2015, Justin Sharpe and Marcus Harris

were passengers in a green SUV driven by Stephen Johnson (“Stephen”).

Around 2:30 a.m., Stephen pulled out of a gas station and proceeded toward an

intersection near 301 North Lafayette Street in South Bend, Indiana. While

stopped at the intersection, a champagne-colored Chevrolet Tahoe pulled up to

right of the green SUV and a white vehicle pulled up behind the green SUV.

Stephen recognized the driver of the Tahoe as Johnson. Johnson then pulled

out a revolver and fired four bullets in the direction of the green SUV. One of

the bullets struck Stephen in the shoulder and at least one bullet struck Sharpe.

As Stephen attempted to drive away, an individual in the white vehicle also

fired at least three bullets in the direction of the green SUV.

[3] South Bend Police Officer John Cox heard the gunshots, but did not know

where the sound was coming from until he received a ShotSpotter alert

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 2 of 9
 notifying him the shots were fired near 301 North Lafayette Street.1 Upon

arrival at that address, police officers observed multiple bullet holes in the green

SUV’s front passenger-side window and door; Sharpe was pronounced dead at

the scene from multiple gunshot wounds. Police officers then collected

fragments of ammunition from the street and the green SUV indicating at least

one of the guns used was either a .38 caliber special or a 357 magnum revolver.

Some of these fragments recovered from the scene matched the fragments

removed from Sharpe’s body during an autopsy. On August 5, 2015, the State

charged Johnson with murder, a felony; attempted murder as a Level 1 felony;

and battery as a Level 5 felony.

[4] At trial, the State elicited testimony pertaining to ShotSpotter technology from

Paul Greene, the lead forensic analyst and lead customer service support

engineer for SST Inc., the manufacturer of ShotSpotter. Greene testified

ShotSpotter is an acoustic gunshot detection and location system and its

purpose is to provide law enforcement with rapid notification of when and

where local gunfire occurs. The system uses microphone sensors with GPS

antennas to detect gunshots by recording nearly twenty acoustic measurements

and a location server that measures the latitude and longitude of the gunshots

recorded. The system then plots the location of gunshots on a map and reports

the location of gunshots to police departments. SST Inc. guarantees

1
Evidence pertaining to ShotSpotter is the sole issue on appeal, which we discuss in detail below.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 3 of 9
 ShotSpotter will detect and locate at least 80 percent of all
outdoor detectable gunfire and will locate that gunfire to within
25 meters of where the weapon was actually fired. So you take
where the weapon is fired, draw a 25 meter line out, draw a big
single [sic] and we guarantee that at least 80 percent of the time
that gunfire will have originated within that 25 meter or 50 meter
diameter circle, actually, which actually comes out to about 150
feet diameter, 160 feet diameter or so.

Transcript at 267. Greene explained the more sensors that record a gunshot,

the more precise the system can be. For example, if at least five sensors record

a gunshot, then it is likely the system will pinpoint a location on the map within

ten meters of the gunshot’s location. Id. at 267-69.

[5] The State then moved to admit State’s Exhibit 180, a detailed ShotSpotter

forensic report of the August 1 incident. Specifically, the report includes a map

showing the location of the shooting; a map showing the number of

microphone sensors that recorded the shooting; and a table showing the exact

time the gunshots were recorded and the strength and sharpness of the

recordings. Johnson objected on the ground the report was cumulative.

Specifically, Johnson expressed concern that one page of the report merely gave

“a description about ShotSpotter . . . .” Id. at 271. The trial court agreed the

one page was cumulative of Greene’s previous testimony, but noted the

remaining pages, which include the maps and tables, would assist the jurors in

understanding Greene’s testimony. Johnson objected again, this time arguing

the remainder of the report was scientific evidence lacking proper foundation

pursuant to Indiana Evidence Rule 702. Specifically, he expressed concern as

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 4 of 9
 to how much ShotSpotter has been tested and whether it has been subjected to

peer review. The trial court disagreed and overruled the objection as to the

remainder of the report, noting, “I would find it to be . . . more of a weight issue

than an admissible evidence issue and [an] argument that you could make,

[Defense Counsel], should you choose to do so.” Id. at 274.

[6] The jury found Johnson guilty as charged. At the sentencing hearing, the trial

court entered judgment of conviction and ordered Johnson to serve an

aggregate sentence of eighty-five years executed in the Indiana Department of

Correction. This appeal ensued.

Discussion and Decision

I. Standard of Review
[7] The trial court has broad discretion in ruling on the admissibility of

evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This

court will reverse the trial court’s ruling only if it abused that discretion. Id. An

abuse of discretion involves a decision that is clearly against the logic and effect

of the facts and circumstances before the court. Huffines v. State, 739 N.E.2d

1093, 1095 (Ind. Ct. App. 2000) (citation omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 5 of 9
 II. ShotSpotter Evidence
[8] Johnson argues the trial court abused its discretion in admitting State’s Exhibit

180.2 Specifically, he contends the trial court failed to assess the reliability of

the ShotSpotter technology pursuant to Rule 702(b). We disagree.

[9] Rule 702(b) states, “Expert scientific testimony is admissible only if the court is

satisfied that the expert testimony rests upon reliable scientific principles.”

Stated differently, “expert scientific testimony is admissible only if reliability is

demonstrated to the trial court.” Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct.

App. 2012), trans. denied.

The proponent of expert testimony bears the burden of

establishing the foundation and reliability of the scientific
principles. There is no specific test that must be considered in
order to satisfy Rule 702(b). Rather, reliability may be
established by judicial notice or, in its absence, by sufficient
foundation to convince the trial court that the relevant scientific
principles are reliable. In determining whether scientific
evidence is reliable, the trial court must determine whether the
evidence appears sufficiently valid, or, in other words,
trustworthy, to assist the trier of fact.

Id. at 787-88 (citations and internal quotation marks omitted).

[10] Prior to admission of Exhibit 180, the State elicited extensive testimony from

Greene. Our review of Greene’s testimony indicates he explained how the

2
Johnson does not challenge Greene’s testimony or any other exhibits the State admitted that contained
evidence pertaining to ShotSpotter.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 6 of 9
 ShotSpotter system operates to inform local law enforcement of any shots fired

in their jurisdiction. Specifically, he explained how the system generates

reports pinpointing the location of gunshots within twenty-five meters. As

noted above, Exhibit 180 is a ShotSpotter report prepared by Greene with

regard to the August 1 incident and it is clear by the trial court’s own words it

determined Exhibit 180 would “help” and “assist” the jurors “in understanding

the testimony.” Tr. at 272. Therefore, contrary to Johnson’s assertion, the trial

court properly assessed the reliability of the ShotSpotter evidence prior to the

admission of Exhibit 180.

[11] In addition, we note “Rule 702 is not intended to interpose an unnecessarily

burdensome procedure or methodology for trial courts.” Turner v. State, 953

N.E.2d 1039, 1050 (Ind. 2011) (citation and internal quotation marks omitted).

Rather, the intent of Rule 702 is to liberalize the admission of reliable scientific

evidence and therefore the evidence need not be conclusive to be admissible.

Id. In the event shaky—but reliable—scientific evidence is admitted, the

appropriate means of attacking such evidence is by “[v]igorous cross-

examination, presentation of contrary evidence, and careful instruction on the

burden of proof . . . .” Id. (alteration in original) (citation omitted). For

example, by cross-examining the witness, the opposing party has the

opportunity to expose the differences between the actual evidence and the

scientific theory. Id. at 1051. “The dissimilarities go to the weight rather to the

admissibility of the evidence.” Id. To the extent Johnson argues the evidence

lacked reliability, the trial court concluded the evidence was reliable and would

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 7 of 9
 assist the jury in understanding Greene’s testimony. Even assuming the

evidence was “shaky,” the trial court correctly noted Johnson’s reliability

concerns went to the weight of the evidence, not its admissibility. Johnson had

a full opportunity to attack the credibility of the evidence in an attempt to

diminish any weight it carried with the jury. We conclude the trial court did

not err in admitting Exhibit 180.

[12] Further, and assuming the trial court erred, we conclude any error was

harmless. See Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014)

(“Errors in the admission or exclusion of evidence are to be disregarded as

harmless error unless they affect the substantial rights of a party.”) (citation

omitted). Exhibit 180 merely shows a shooting occurred near 301 North

Lafayette Street, and at trial, the State admitted numerous other ShotSpotter

exhibits also showing a shooting occurred near 301 North Lafayette Street;

Johnson does not challenge the admission of these other exhibits on appeal. In

addition, many witnesses testified they heard a shooting occur, Stephen testified

Johnson shot him, the green SUV had numerous bullet holes, and Sharpe was

killed by a gunshot. This evidence undoubtedly indicates a shooting occurred.

Exhibit 180 is no different and its admission did not prejudice Johnson.

Conclusion
[13] The trial court did not abuse its discretion in admitting evidence. Accordingly,

we affirm Johnson’s convictions.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 8 of 9
[14] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 9 of 9
Exhibit 12
 SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEFORE THE HONORABLE LINDA H. COLFAX, JUDGE PRESIDING

DEPARTMENT NUMBER 26

---oOo---
PEOPLE OF THE STATE OF CALIFORNIA,)
)
Plaintiff, ) SCN 226661
) Court No. 16015117
vs. )
) 402 HEARING
MICHAEL D. REED, )
)
Defendant. )
__________________________________)

Reporter's Transcript of Proceedings

Monday, June 5, 2017

APPEARANCES OF COUNSEL:

For Plaintiff:
George Gascón, District Attorney
850 Bryant Street - Suite 300
San Francisco, California 94103
BY: CHRISTOPHER ULRICH, Assistant District Attorney

For Defendant:

JEFF ADACHI, PUBLIC DEFENDER

555 Seventh Street - Suite 205
San Francisco, California 94103
BY: MICHELLE TONG, Deputy Public Defender

Reported by: Teanna L. Ward, CSR No. 11918, RPR

 I N D E X

Monday, June 5, 2018

PEOPLE'S WITNESS PAGE VOL.

GREENE, PAUL
Cross-Examination by Ms. Tong 6 1

E X H I B I T S

EXHIBITS DESCRIPTION IDEN EVID VOL.

C Enlargement of the 15 1
visual wave lengths
for audio clip 41334

D Enlargement of page 25 1
14
 66

1 Monday, June 5, 2017, 1:47 p.m.

2 ---oOo---
3 THE COURT: Let's go back on the record in our trial matter,

4 People vs. Michael Reed.

5 Counsel are present. Mr. Reed is present.

6 I have had an opportunity to review your pleadings, as well

7 as the testimony in the ShotSpotter 402, as well as arguments by

8 counsel. And the motion to exclude the testimony is denied.

9 Mr. Greene will be permitted to testify in the trial.

10 (Whereupon, the ShotSpotter 402 hearing was concluded.)

11 ---oOo---

12

13
14

15

16
17

18
19

20

21
22

23

24
25

26

27
28
Exhibit 13
 1 SUPERIOR COURT OF CALIFORNIA

2 COUNTY OF SACRAMENTO

3 HONORABLE ERNEST W. SAWTELLE, JUDGE, DEPARTMENT 19

4 ---o0o---

5 THE PEOPLE OF THE STATE OF CALIFORNIA, )

)
6 Plaintiff, )
)
7 -vs- ) No. 17FE007924
)
8 RICKEONEICO KEGAN WILLIAMS, )
)
9 Defendant. )
________________________________________)
10

11 ---o0o---

12 WEDNESDAY, APRIL 4, 2018

13 ---o0o---

14 REPORTER'S TRANSCRIPT OF

15 KELLY-FRYE HEARING AND COURT RULING

16 ---o0o---

17 APPEARANCES:

18 For the People:

19 ANNE MARIE SCHUBERT, District Attorney for the

County of Sacramento, State of California
20 By: SYDNE CHRISTENSEN,
Deputy District Attorney
21

22 For the Defendant:

23 PAULINO G. DURAN, Public Defender for the

County of Sacramento, State of California,
24 By: GREG FOSTER,
Assistant Public Defender
25

26 ---o0o---

27

28 ELESE M. TALONE, CSR NO. 6925

 1 I N D E X

3 Page Ref.

5 WEDNESDAY, APRIL 4, 2018 1

6 Kelly-Frye Hearing 1

8 PAUL GREENE, People's Witness;

9 Direct examination by Ms. Christensen 16

10 Cross-examination by Mr. Foster 52

11 Redirect examination by Ms. Christensen 93

12 Recross-examination by Mr. Foster 95

13

14 Argument by Ms. Christensen 98

15 Argument by Mr. Foster 102

16 Court's ruling on Kelly-Frye hearing 104

17 Court denies motion 105

18

19 Court Reporter's Certificate

20

21 --o0o--

22

23

24

25

26

27

28
 104

1 MS. CHRISTENSEN: Yes.

2 MR. FOSTER: Yes.

3 THE COURT: All right. The Court has listened to this

4 witnessed in both direct and cross.

5 And as I mentioned earlier, I had also read the

6 transcript of this same witness's testimony in San Francisco

7 Superior Court back in June of 2017. And in fact he was

8 cited in that Nebraska Supreme Court case for his testimony

9 related to that case.

10 In addition, there were other experts that testified

11 in Contra Costa County, that was in Exhibit Number 2 I

12 think, from 2016 dealing with similar issues, just not

13 the -- it wasn't this witness.

14 But when you listen to it all, I'm not sure I really

15 needed to hear all the testimony I did today. Nothing I

16 heard on direct or cross, either one, radically altered the

17 Court's information that the Court had already from reading

18 the other transcript.

19 And that is that when it comes down to it, you know,

20 there is really nothing new here. You know, speed of sound

21 is not new. Acoustics are not new. Acoustic location is

22 not new. Audio recordings sure is heck aren't new.

23 Microphones, multi-lateration is not new.

24 And I mean, cell phones use this, a lot of the same

25 technology all the time. We have a Third DCA case, I

26 can't -- escapes me at -- name of it at the moment but

27 recently published the Third DCA indicating there is no

28 Kelly-Frye issue with regard to cell phone triangulation.

SACRAMENTO OFFICAL COURT REPORTERS 104

 105

1 And -- and we're -- we're doing something similar to this

2 in -- in here.

3 So I think it seems clear to the Court that this is

4 not new or novel scientific procedures being used in this

5 case with the ShotSpotter technology.

6 It's -- it's perhaps a -- a -- they put a lot of old

7 knowledge, old tech -- information together in one clever

8 application. But -- but I don't think that its component

9 parts can by any stretch of the imagination be considered

10 new or novel. They're clearly accepted in the -- in the

11 community. I think the -- in the scientific community that

12 is.

13 The -- the witness is more than qualified to give an

14 expert opinion in this case and he did. I didn't think he

15 was -- there were any questions really that he was

16 particularly stumped on that I heard.

17 I know that there were some questions about

18 questioning his mathematical background and there were a

19 couple questions that were asked that he did not know the

20 answer to. But I do not think that that was -- would

21 suggest that he didn't understand, wasn't qualified as an

22 expert in this system and in the various component parts

23 that make up the system. So I think he was properly

24 qualified.

25 And -- and I think his testimony bears out that all of

26 the correct procedures were used in this case so the motion

27 to exclude this is denied.

28 And that least was what, you still plan on calling

SACRAMENTO OFFICAL COURT REPORTERS 105

 106

1 this witness as a witness, correct --

2 MS. CHRISTENSEN: Yes.

3 THE COURT: -- at trial?

4 So is there any issue that we still have outstanding?

5 MS. CHRISTENSEN: I do not believe so, your Honor.

6 THE COURT: Mr. Foster?

7 MR. FOSTER: The only thing that I brought to the

8 Court's attention Monday was my client stipulation to --

9 THE COURT: Yes.

10 MR. FOSTER: -- the felony element of the 29800

11 charge. I do still need a couple minutes to chat with him.

12 THE COURT: Okay.

13 MR. FOSTER: I think we could probably still get

14 through voir dire and I think we could probably just

15 characterize it as unlawful possession of a firearm or -- or

16 in some generic fashion if we're not able to handle that --

17 THE COURT: For the 29800 violation in Count 5, right?

18 MR. FOSTER: Yes.

19 THE COURT: So normally, well, the jury would always

20 know that he's convicted of a felony, right?

21 MR. FOSTER: Correct.

22 THE COURT: You would just stipulate to the type or

23 the -- in the CALCRIMS the parties stipulated or he was

24 convicted of a felony.

25 So I can't remember how we -- so what you're saying is

26 your client is willing -- so that the People don't have to

27 prove that, your client is willing to admit that he was

28 convicted of a felony in the past.

SACRAMENTO OFFICAL COURT REPORTERS 106

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Exhibit 15
 1

1
2
3
4
5 IN THE SUPERIOR COURT
6 STATE OF CALIFORNIA, COUNTY OF ALAMEDA
7 BEFORE THE HONORABLE C. DON CLAY, JUDGE
8 DEPARTMENT NUMBER 6
9 ---oOo---
10 THE PEOPLE OF THE STATE OF CALIFORNIA,)
)
11 Plaintiff,) No. 19-CR-016277
)
12 vs. )
)
13 FRED BATES, )
)
14 Defendant.)
)
15
16 FELONY JURY TRIAL - TESTIMONY OF PAUL GREENE
17 WEDNESDAY, JULY 7, 2021
18
RENE C. DAVIDSON COURTHOUSE
19 OAKLAND, CALIFORNIA
20
A P P E A R A N C E S
21
22 FOR THE PEOPLE: SEAN FLYNN
Deputy District Attorney
23
24
FOR THE DEFENDANT: ANDREW DOSA
25 Attorney at Law
26
27
28 REPORTED BY: Danielle A. DeWarns, CSR #9743
 44

1 Court might order that for the following Tuesday.

2 THE COURT: You're ordered back for the 20th of --
3 July 20th.
4 MR. FLYNN: Is it the 21st?
5 MR. DOSA: No, the 20th.
6 THE COURT: 19th is the Monday. The 20th is the
7 Tuesday.
8 MR. FLYNN: Appreciate it.
9 THE COURT: Okay. All right. You're ordered
10 back.
11 THE WITNESS: I do have a subpoena for that.
12 THE COURT: All right. Great. Thank you.
13 Any further witnesses?
14 MR. FLYNN: No, your Honor.
15 THE COURT: All right.
16 Mr. Dosa, any witnesses?
17 MR. DOSA: No, your Honor.
18 THE COURT: All right. Do you parties want to be
19 heard?
20 MR. FLYNN: I'll reserve.
21 THE COURT: Mr. Dosa?
22 MR. DOSA: Well --
23 THE COURT: You know, the reason you have Kelly-Frye
24 is to make sure -- the Court is basically a gatekeeper so you
25 don't have a bunch of fake sort of dubious-type of science
26 coming up in front of everybody to make this so the jury --
27 you don't have the jury prejudiced one way or the other.
28 That's what it is. It's a gatekeeping responsibility. For
 45

1 the purposes of these proceedings, the question is whether or

2 not it's a legitimate technology. Or, one, is it a technology
3 and method? I'm not certain this is -- this is a new method
4 because I've been dealing with this when I was a defense
5 lawyer. We had them way back when. And so it's not really
6 new. The question is whether or not there is a scientific
7 community that deals with this particular type of technology.
8 I mean, it's -- I don't think it's dubious. It's not
9 experimental anymore because it's been around. They've been
10 around since 1995, and I know in 1995, '96, when all of the
11 murders were going on in Oakland, it was starting to come out.
12 You know they didn't have it here, per se, but we
13 were hearing. People were talking about it, and I guess in
14 2006 Oakland really adopted it.
15 So it's not that -- it's not that issue in terms of
16 the technology itself. My gatekeeper responsibilities is to
17 make sure it's nothing to mislead the jurors, and I think
18 based upon this testimony by this expert in this particular
19 case, it's -- he's clearly shown this Court his expertise. I
20 believe there's enough evidence that backs the technology from
21 the standpoint of his company being involved in this area.
22 And, as I say, I don't think it's really a new scientific
23 technology.
24 But that being said, my gatekeeper responsibility,
25 there's nothing misleading that would come out of this
26 testimony as it relates to the ShotSpotter technology from
27 this company. It addresses all the issues that I think is
28 important when you conduct a Kelly-Frye in the sense that in
 46

1 this particular case, the technology is being offered to prove

2 or dispute a potentially disputed fact based upon what you all
3 are telling me, whether or not there's shots at that time or
4 if there weren't any shots. It's going to aid both of you,
5 quite frankly, in your cases as it relates to the shooting or
6 the shots being fired, and it's relevant. And the testimony
7 by this expert clearly, I believe, is admissible.
8 He's testified to the reliability, the testing of
9 the stuff itself, the fact that he's been deemed an expert 117
10 times, at least. I know he's been here in this courthouse
11 testifying before. And the mere fact that he's been an expert
12 in one of my other colleagues' courts doesn't mean I would
13 take him as an expert, but clearly his testimony supports his
14 expertise. He knows and he's knowledgeable in the subject
15 matter. He's involved initially in the whole sounding issue
16 through the federal government and finally becoming part of
17 the ShotSpotter company itself.
18 I think he's qualified properly, and I think, as I
19 said, the procedure itself is -- is a valid technology and
20 it's being used so frequently. And the fact that he's --
21 it's interesting, in the Court of Appeals and don't let me get
22 started about, you know, in Hardy whether or not those judges
23 did a lot of trials, but the trial judges have seen this stuff
24 all the time. And they said there's only been two reported
25 cases, when they came to issue this. The mere fact that
26 there's only two reported appellate cases doesn't mean that
27 people aren't using this in terms of finding that the
28 technology itself is not new because that's why it's being
 47

1 used, and that's why you're getting it all over this state. I
2 mean, I've talked to other judges that have used it in their
3 courtroom in these murders especially in the gang cases where
4 they're going to the scene.
5 So I don't think it's a new technology, and I think
6 it just hasn't gotten to the Court of Appeals. Nobody has
7 tested it, and as I say the issue in Hardy is totally
8 different because the D.A. made a statement about his
9 reliability and wasn't offered for the truth of the matter
10 asserted to support this evidence that somebody shot six times
11 plus make it an automatic versus a handgun. But here we're
12 really talking about someone coming in. You talk about the
13 equipment, how it's set up between the recorders, the people
14 who reviewed, their reviews that he goes on and does for the
15 purposes of making determination. As he said, there were
16 three phases of this, as I remember.
17 We had the sensor, the microphones that are put up,
18 the location of the servers that get the information. We have
19 the review center that tells -- makes sure that it's a
20 shooting and then goes in and they record it.
21 Interesting enough, you got -- this stuff, they have
22 a historical, a storage of all this stuff. I mean, you can go
23 back and check the accuracy, and I don't think -- if that was
24 a problem here, you would definitely have some postings from
25 defense lawyers.
26 I think under the circumstances in this case, he'll
27 be allowed to testify to the subject matter of this trial, and
28 you'll be able to present him, and both of you will be able to
 48

1 use him in court.

2 I'll find that this technology is valid and not just
3 dubious, and it's relevant to the subject matter and it will
4 help the trier of fact, the lawyers, the layman person in
5 this case. Although, I think, all the people in this
6 community, they know ShotSpotter. They hear so much now.
7 They all expect it. I mean you find that -- it's very
8 interesting, you know, since everybody expects you to have
9 DNA, which you don't, and I try to explain to the jury, the
10 shooting stuff they're hearing. It's all in the news every
11 time. The ShotSpotter is going off and people kind of expect
12 that, but he'll be allowed to use that.
13 MR. FLYNN: Thank you.
14 THE COURT: All right. Gentlemen, so our next thing
15 is, we're going to see you and get the questionnaires and do
16 what you do, and I'm not going to be letting out any marginal
17 people unless somebody is really bad and you guys say that
18 somebody is so, so prejudice and out of line, you guys -- we
19 got about 70-plus jurors. We're going to use those to pick
20 this jury. And, you know, really depending on what you get,
21 you might get a jury even quicker than -- I mean, they're
22 coming in Tuesday -- Monday. Monday, excuse me. Tuesday was
23 to -- this was the holiday. They're coming in Monday. You
24 could have a jury late Monday, definitely Tuesday morning, and
25 that gives you all some time to be ready for your opening and
26 evidence. So I don't know how much evidence you're going to
27 have because you're going to get to Tuesday with him. He
28 could be --
Exhibit 16
THOMAS A. CLARE, P.C.
[email protected]
(202) 628-7401 10 Prince Street
Alexandria, Virginia 22314
(202) 628-7400
www.clarelocke.com

August 16, 2021

Via Email

Yonaton Berkovits
Vice President, Business & Legal Affairs
Vice Media
49 South 2nd Street
Brooklyn, NY 11249
Email: [email protected]

Jason Koebler
Editor-in-Chief, Motherboard
[email protected]

Todd Feathers
Freelance Reporter
[email protected]

Re: Retraction Demand: “Police Are Telling ShotSpotter to Alter Evidence from
Gunshot-Detecting AI” (July 26, 2021)

Dear Messrs. Berkovits, Koebler, and Feathers:

Our firm is defamation counsel to ShotSpotter, Inc.

On July 26, 2021, Vice Media LLC published — and heavily promoted on its media platforms
and social media accounts — a feature-length investigative story by Todd Feathers titled “Police Are
Telling ShotSpotter to Alter Evidence from Gunshot-Detecting AI” (the “Article”). The Article
falsely alleges, both directly and by clear implication that: (1) ShotSpotter has falsified and
manufactured evidence for use in criminal trials; (2) ShotSpotter’s technology is flawed and
unreliable and, as such, prosecutors and ShotSpotter have sought to shield the technology from any
sort of pressure-testing or challenge to its admissibility in court proceedings; and (3) ShotSpotter has
misrepresented its product to customers and the public in its marketing material. With respect to
each of these false assertions, Vice recklessly disregarded—and deliberately hid from its readers—
critical facts that were either apparent from the Article’s source material, provided to Mr. Feathers
prior to publication, or otherwise apparent to Vice and Mr. Feather’s, but did not fit their
preconceived narrative.

A. The Article Falsely States and Implies That ShotSpotter Has Falsified and Manufactured
Evidence for Use in Criminal Trials

In support of its false narrative, the Article makes the following false and defamatory
statements:
• The headline: “Police Are Telling ShotSpotter to Alter Evidence From Gunshot-
Detecting AI.”
• “Motherboard’s review of court documents from the Williams case and other trials
in Chicago and New York State, including testimony from ShotSpotter’s favored
expert witness, suggests that the company’s analysts frequently modify alerts at the
request of police departments—some of which appear to be grasping for evidence that
supports their narrative of events.”

• The section heading: “A pattern of alterations.”

• “Initially, the company’s sensors didn’t detect any gunshots, and the algorithms ruled
that the sounds came from helicopter rotors.”

• “Greene … was involved in another altered report in Chicago, in 2018[.]”

• Overall, the Article’s one-sided reporting on the Simmons, Godinez, Williams, and Reed
cases rely on cherry-picked quotes and facts to create a false narrative about evidence
tampering, which fails to accurately convey the substance, outcome, parties’ positions,
or testimony from these proceedings.

• These promotional tweets from Motherboard’s Editor-in-Chief, Jason Koebler:

2
These outrageous falsehoods charge my client with criminal obstruction of justice, evidence
tampering, and corruption, and they impair its reputation in its trade or profession. As such, they
are defamatory per se.

ShotSpotter never “modif[ies] alerts,” as the Article claims. Rather, ShotSpotter offers two
distinct services. First, it provides real-time notifications to police when ShotSpotter detects gunfire.
This gunfire detection involves successive levels of computer and human review to determine
whether a given sound is a gunshot. An alert is never “modified”; it is analyzed in two steps to
determine whether there has been a gunshot before alerting law enforcement, and the whole process is
completed in less than sixty seconds. Second, on request, ShotSpotter employees can re-review the
preliminary real-time findings and audio to determine whether any recorded sounds were overlooked
or misclassified when generating the real-time alerts and/or to prepare a detailed forensic analysis
for use as evidence in court. Those analyses take up to eight hours per incident—far more time than
the initial alert. Again, this is not a modification of the real-time alert. It is an additional level of
review designed to ensure accuracy and provide more detailed information than that which can be
gleaned from the initial 60-second analysis. Throughout all these processes, each layer of review’s
conclusion is preserved by ShotSpotter’s software to ensure that the process is transparent and can
be audited. Thus, nothing in the record is ever “modified,” and nothing in this process results in
altered alerts or evidence. Indeed, the multi-level review process is designed to ensure that audio is
reliably interpreted.
Nor can your assertions be grounded in Mr. Greene’s testimony. Although he testified that
“on a semi-regular basis” police “ask[] [ShotSpotter] to search for—essentially, search for additional
audio clips,” this is a far cry from your claims that on a semi-regular basis “Police Are Telling
ShotSpotter to Alter Evidence” or “ask [ShotSpotter] to invent gunshots where they do not exist.”
In this regard, Vice’s representations are outright lies. And it seems clear that you reviewed—at
most—filings from four cases (Godinez, Williams, Simmons, and Reed) among the hundreds in which
ShotSpotter evidence has been used. Those four cases could not conceivably serve as the basis for
making findings regarding the “frequency” with which ShotSpotter does anything, let alone
“modif[ies] alerts” or alters evidence (which ShotSpotter never does, as explained above, and which
none of them found).

3
 Finally, your narrative that ShotSpotter would make these changes to cater to police or
prosecutors is patently false. ShotSpotter evidence is used by both the defense and the prosecution
in criminal cases. One example is United States v. King, 439 F. Supp. 3d 1051 (N.D. Ill. 2020)—a case
out of Chicago that would have been included in your “review” of cases from that jurisdiction.
There, a court suppressed evidence found during a stop-and-frisk of Mr. King, which police had
justified based on an anonymous report of shots fired. But ShotSpotter records—introduced by the
defense—showed no gunshots in the area, and the court held that the uncorroborated anonymous
tip could not by itself justify the stop when ShotSpotter had no record of gunshots in the area. And
in Arizona v. Bryan Wayne Hulsey, CR-2007-111655-001 (Maricopa Cty. Super. Ct.), Mr. Greene
testified for the defense in a high-profile capital case involving the murder of a police officer.1
ShotSpotter never alters evidence, and your claims of corruption are patently false.

B. False Claims of a “Pattern” of Inadmissibility, Withdrawal by Prosecutors, or Shielding

ShotSpotter from Scrutiny

Several of the Article’s false statements suggest that ShotSpotter evidence is facing a pattern
of frequent inadmissibility or withdrawal and that prosecutors and authorities are shielding
ShotSpotter from scrutiny:

• “Prosecutors in Chicago are being forced to withdraw evidence generated by the

technology…”
• Claims that Chicago prosecutors withdrew the evidence rather than face a Frye
hearing and that “[t]he case isn’t an anomaly, and the pattern it represents could have
huge ramifications for ShotSpotter in Chicago,” and elsewhere.
• “‘The reliability of [ShotSpotter] technology has never been challenged in court and
nobody is doing anything about it’ …. ‘Chicago is paying millions of dollars for their
technology and then, in a way, preventing anybody from challenging it.’”

• The section heading: “Untested evidence.”

• “If a court ever agrees to examine the forensic viability of ShotSpotter, or if

prosecutors continue to drop the evidence when challenged, it could have massive
ramifications.”

1
See Arizona v. Hulsey, 408 P.3d 408, 416 (Ariz. 2018).
Defendants also introduced ShotSpotter evidence in Massachusetts v. Pina, 81 N.E.3d 824 (Mass. App. 2017), United
States v Gregory Hale, No. 2015 CF2 7728 (D.C. Super. Ct. Oct. 8, 2015), and California v. Tavon Foster, No. 17-CR-
007803 (Alameda Cty. Super. Ct. Jan. 24, 2019).

4
These claims are false and impair ShotSpotter’s reputation in its trade or profession. As such, they
are defamatory per se.
First, ShotSpotter evidence is widely considered admissible. It has been used in over 190
court cases in 20 states. It has overcome 13 Frye challenges and 1 Daubert challenge, which are
proceedings in which the defense challenges the reliability of and the science behind ShotSpotter
(or any expert, scientific, or technical evidence for that matter).2

And, as noted above, it appears you reviewed filings from only four cases among hundreds—
a review of such limited scope that it could not conceivably serve as the basis for making any findings
regarding “anomol[ies]” or “pattern[s]” in courts’ decisions. Even if it were possible to form broad-
based conclusions based on just four cases, these four cases did not support your conclusion:

(A) In United States v. Godinez, the defense filed a motion to exclude challenging the reliability
of acoustic triangulation but failed to persuade the trial judge that the technology was unsound.3

(B) In Illinois v. Michael Williams, No. 20 CR 0899601 (Cook Cty.), prosecutors declined to
litigate the admissibility issue, but that likely occurred because they were discontinuing the
prosecution of Mr. Williams altogether. Cook County records show that prosecutors informed the
court of their intention to nolle pros the case on July 23, 2021 (before the Article ran).

(C) The Article also mentions Silvon Simmons’ civil lawsuit against the City of Rochester
and ShotSpotter, which resulted from the reversal of Mr. Simmons’ conviction on weapons charges.
But, in that case, the court admitted the ShotSpotter evidence, finding it sufficiently reliable to be
admitted for consideration on the question of whether Mr. Simmons had fired a weapon at police.4
The jury found Mr. Simmons not guilty of those charges and instead found him guilty of only a gun
possession charge. That conviction was then vacated because the jury’s split verdict (which suggested
that jurors had not credited a police officer’s testimony about Mr. Simmons’ actions) left
ShotSpotter as the sole piece of evidence supporting his conviction. But the sound of a gunshot,
standing alone, was simply not enough to put a gun in Mr. Simmons’ hand.

2
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-595 (1993) (holding that “under the [Evidence] Rules the trial
judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable” and
outlining relevant considerations); Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding that to be admissible
“the [science] from which the deduction is made must be sufficiently established to have gained general acceptance in
the particular field in which it belongs”).
3
Def.’s Reply in Support of Motion to Exclude at 1, United States v. Godinez, No. 18-CR-278 (N.D. Ill. May 24, 2019),
ECF No. 75 (“At issue in regard to the use of ShotSpotter data, which the government seeks to introduce as evidence,
is how the laws of physics control the manner in which audio sounds are transmitted and captured. Instead, the
government circumvents that issue of collection, and focuses only on how that data is interpreted by ShotSpotter once
the sound has been transmitted and captured.”).
4
People v. Simmons, 71 N.Y.S.3d 924, 2017 WL 4782912 at *11 (N.Y. Monroe Cty. Ct. Apr. 13, 2017).

5
 (D) The Article quotes Paul Greene’s testimony from a “2017 San Francisco” case, which is
People v. Michael D. Reed, No. 16015117 (Cal. S.F. Super. Ct.). There, the ShotSpotter evidence was
not only admitted but was unquestionably correct—the ShotSpotter alert was corroborated by video
footage and the defendant’s own testimony, in which he admitted to firing at a passing car (but
claimed self-defense).5

In sum, you reviewed four cases: two in which the evidence was successfully admitted; one
in which it was successfully admitted, but the conviction was later vacated; and one in which
prosecutors discontinued the charges. So, even when looking at the Article’s limited sample set, its
conclusions regarding “patterns” of withdrawal or inadmissibility are plainly false. Rather, the only
conclusion that can be drawn is that ShotSpotter’s technology and science are in fact reliable and
admissible in criminal proceedings.

Second, the assertion that ShotSpotter is untested is wholly untrue because, as noted,
ShotSpotter evidence has been subjected to and prevailed over 13 Frye challenges and 1 Daubert
challenge. 6 Although courts sometimes forgo a formal evidentiary hearing prior to making an
admissibility determination under Frye or Daubert, and instead opt to resolve the matter based on
the parties’ submissions or oral argument, that does not render ShotSpotter evidence untested or
unchallenged. Resolving a motion on the papers it is simply a different procedural mechanism for
the challenge. Further, the Article’s claim that, in United States v. Godinez, “[p]rior to the trial, the
judge ruled that Godinez could not contest ShotSpotter’s accuracy or Greene’s qualifications as an
expert witness,” offered in furtherance of the false narrative, is wrong. A Daubert motion is the
mechanism by which the accuracy of ShotSpotter’s technology and its witness’s qualifications can be
challenged (it is not a bar to launching such challenges). And, even though the evidence was
admitted, Mr. Godinez was permitted to contest ShotSpotter’s accuracy and Greene’s qualifications
as an expert witness on cross examination for the jury.7 But, after considering all of Mr. Greene’s
testimony, including this cross-examination, the jury returned a guilty verdict.8

Because ShotSpotter has been challenged extensively and frequently admitted, your claims
are patently false.

5
People v. Reed, No. A155280, 2021 WL 1207376, *1 (Cal. App. 1st Dist. Mar. 30, 2021), review denied (Jun. 30, 2021).
6
See, e.g., State v. Hill, 288 Neb. 767 (Neb., 2014); Allen v. State, 68 N.E.3d 623 (Ind. App. 2016); California v. Stephan
Joseph, No. 15000843 (S.F. Super. Ct. 2015); Missouri v. v Edward Roach (St. Louis 2010); California v. Zachery Goodwin,
No. F16900408 (Fresno Super. Ct. Apr. 12, 2019).
7
May 29, 2019 Hearing Tr. at 9:19-24, United States v. Godinez, No. 18-CR-278 (N.D. Ill.), ECF No. 131 (“THE COURT:
You can certainly cross-examine Mr. Greene but, I mean, the principles that he’s espousing, it's not a question where
he’s pulling this out of the air. You might disagree with it and might -- you know, the principles, I think, are valid.
Whether or not they’ve been properly utilized, of course, is subject to cross-examination”).
8
See Verdict, United States v. Godinez, No. 18-CR-278 (N.D. Ill.), ECF No. 93.

6
C. Claims That ShotSpotter Misrepresented Its Product to Customers and the Public in Its
Marketing Material

Several of the Article’s false statements suggest that ShotSpotter lies about its accuracy:
• “Over the years, ShotSpotter’s claims about its accuracy have increased, from 80
percent accurate to 90 percent accurate to 97 percent accurate. According to Greene,
those numbers aren’t actually calculated by engineers, though. ‘Our guarantee was
put together by our sales and marketing department, not our engineers,’ Greene told
a San Francisco court in 2017. ‘We need to give them [customers] a number … We
have to tell them something. … It’s not perfect. The dot on the map is simply a
starting point.’”

• “The company has not allowed any independent testing of its algorithms, and there’s
evidence that the claims it makes in marketing materials about accuracy may not be
entirely scientific.”

• “In May, the MacArthur Justice Center analyzed ShotSpotter data and found that
over a 21-month period 89 percent of the alerts the technology generated in Chicago
led to no evidence of a gun crime and 86 percent of the alerts led to no evidence a
crime had been committed at all.”

• This promotional tweet from Motherboard’s Editor-in-Chief, Jason Koebler:

These false claims impair ShotSpotter’s reputation in its trade or profession. As such, they are
defamatory per se.

First, the Article’s claims about changing efficacy rates falsely conflates two distinct statistics
to fit its false narrative that ShotSpotter is lying about its accuracy. In its customer contracts,
ShotSpotter warrants a minimum level of accuracy and, if it is not met, the customer’s fees are
reduced. Over the years, ShotSpotter has indeed increased the minimum level of accuracy promised
to its customers from 80 percent to 90 percent (the level promised today). Although ShotSpotter
currently promises at least 90 percent accuracy, the system over-delivers. In 2019 and 2020, the
ShotSpotter system delivered a 97% accuracy rate for real-time detections across all customers, a
figure derived directly from police department feedback regarding performance. So, the Article’s
contention that “ShotSpotter’s claims about its accuracy have increased, from 80 percent accurate

7
to 90 percent accurate to 97 percent accurate” is a deliberate falsification based on an obvious apples-
to-oranges comparison.

Second, the Article falsely twists the words of ShotSpotter forensic expert Paul Greene to
suggest that the company’s 97 percent accuracy rate is the product of the marketing or sales
departments. Mr. Greene testified that the minimum accuracy guarantee (the level below which
customers receive a discount) is put together by marketing but not the actual accuracy rate:

Third, the ShotSpotter system has been tested to ensure that ShotSpotter correctly conveys
the system’s efficacy to customers. In addition, ShotSpotter rigorously trains, tests, and continuously
monitors the performance of every individual reviewing real-time gunfire incidents at the company
to ensure they perform at a level consistent with the company’s quality objectives.

To assail ShotSpotter’s accuracy the Article heavily relies on a purported “study” by the
MacArthur Justice Center (“MJC”), which is far from a neutral or independent source. MJC is an
advocacy organization whose stated mission is (among other things) to end the use of so-called
“surveillance technology” in policing. The MJC approached its “study” with a preconceived result
in mind, borne of its advocacy mission—a bias that the Article fails to disclose.

8
 In fact, ShotSpotter obtained two independent analyses from Edgeworth Analytics (which
are hereby incorporated into this letter by reference and are attached for your review9) that refute
the Article’s core assertions. Edgeworth is a data science firm comprised of PhD economists who
regularly serve as expert witnesses in court. In the first report, Edgeworth conducted an independent
analysis and concluded that the MJC study’s conclusions were misleading because they flowed from
a failure to provide a rigorous, balanced, and thorough assessment of ShotSpotter’s use in Chicago.
Specifically, Edgeworth found the MJC study drew conclusions based on data that are an incomplete
information source that cannot, on its own, be used to assess ShotSpotter’s efficacy. Further, in its
assessment that ShotSpotter imposes a discriminatory burden on communities of color in Chicago,
the MJC study omitted crucial context about how and where Chicago deploys ShotSpotter sensors,
ignoring historical data about homicide and gun crimes in the city.10

The second Edgeworth report provides an independent audit of ShotSpotter’s claims

regarding its accuracy in gunshot reporting. Specifically, Edgeworth examined ShotSpotter’s
representation that its system has an aggregate 97 percent accuracy rate, which includes a 0.5 percent
false positive rate—the rate at which an alert is issued to a client, but no gunshot occurred—across all
customers for 2019 and 2020. Edgeworth’s review confirmed that (1) ShotSpotter’s claims are
consistent with data based on actual customer feedback from a broad range of ShotSpotter clients,
and (2) despite variation in the intensity of reporting potential errors across clients, ShotSpotter’s
accuracy rate is not sensitive to differences in clients’ propensity to report potential errors.

* * *

I am sure you appreciate the seriousness of these issues. ShotSpotter has worked hard to
earn its reputation as a responsible and ethical company devoted to reducing gun violence and saving
lives in the communities in which its technology is employed. It was reckless and irresponsible for
Vice to damage that reputation with provably false allegations and implications that ShotSpotter
falsified evidence for use in criminal prosecutions, that ShotSpotter is an inherently unreliable
technology that must be shielded from legal scrutiny, and that the company lied to the public and
its customers about the efficacy of its products and services. These allegations are defamatory per se.

9
The Reports are also publicly available online. See Edgeworth Analytics, Independent Analysis of the MacArthur Justice
Center Study on ShotSpotter in Chicago (July 22, 2021), https://edgeworthanalytics.com/wp-
content/uploads/2021/07/Shotspotter-MJC-Analysis.pdf; see also Edgeworth Analytics, Independent Audit of the
ShotSpotter Accuracy (July 22, 2021), https://edgeworthanalytics.com/wp-content/uploads/2021/07/Shotspotter-
Accuracy-Study.pdf.
10
We also note that no empirical evidence supports the notion that ShotSpotter’s presence in communities contributes
to over-policing. Rather, ShotSpotter saves lives. For example, in 2020 alone ShotSpotter alerts led Oakland authorities
to 123 shooting victims before a 911 call notified police of the incident. Of those victims, 101 survived, some reportedly
because ShotSpotter alerts can significantly reduce emergency response times, allowing Oakland police and emergency
medical services to respond in as little as two minutes of ShotSpotter activation. See Memorandum from Trevelyon
Jones, Captain, Ceasefire Section, Oakland Police Dep’t to LeRonne Armstrong, Oakland Chief of Police, at p.2 (Jun.
7, 2021), https://cao-94612.s3.amazonaws.com/documents/Special-Meeting-Packet.pdf.

9
They have caused—and will continue to cause—serious economic and reputational harm to
ShotSpotter.
To mitigate the harm to ShotSpotter, we demand that Vice and Mr. Feathers each
immediately retract the Article or, at a minimum, retract the specific false statements from the Article
identified in this letter. Further, Vice, its staff, and Mr. Feathers must take down any social media
posts repeating or elaborating upon these patently false claims. For avoidance of doubt, this
constitutes ShotSpotter’s formal demand for a retraction pursuant to Cal. Civ. Code § 48a or similar
retraction-demand provisions that may apply in a legal proceeding arising from the publication of
defamatory falsehoods in the Article.
Given the seriousness of the Article’s false allegations and the likelihood that litigation will
result from its defamatory claims, Vice and Mr. Feathers must immediately retain—and direct all
other persons involved in any way in the research, drafting, editing, fact-checking, or publication of
the Article to retain—all documents, electronically stored information, and other materials relating
in any way to ShotSpotter and the Article, including without limitation all electronic
communications, hard-copy documents, text messages, photographs, phone records, emails, social
media posts, internet search histories, drafts, markups, and communications with sources. These
retention requirements apply with equal force to communications and materials stored or
transmitted on personal or professional devices, servers, or accounts.
Further, this is not intended to be a complete statement of ShotSpotter’s rights and remedies,
all of which are expressly reserved. Our review of Vice’s ShotSpotter coverage remains ongoing, and
we will address the falsehoods from subsequent articles, including the doubling-down on falsehoods
in the initial article, in future correspondence.
Please confirm receipt of this letter and that you intend to adhere to our request to retain
documents as set forth above. We look forward to your prompt response, no later than August 30.

Very truly yours,

Thomas A. Clare, P.C.

10
 Appendix of Edgeworth Analytics Reports

Independent Analysis of the MacArthur Justice Center Study on ShotSpotter in Chicago A.1

Independent Audit of the ShotSpotter Accuracy A.14

Independent Analysis of the MacArthur
Justice Center Study on ShotSpotter in
Chicago
July 22, 2021

Prepared by: Prepared for:

Edgeworth Analytics ShotSpotter

www.edgeworthanalytics.com

A.1
Table of Contents
I. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. MacArthur Justice Center Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. Edgeworth Analytics Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV. What is ShotSpotter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
V. Edgeworth Conclusion: OEMC Data Cannot be Used to Determine if
ShotSpotter Alert is in Fact a Gunfire Incident. . . . . . . . . . . . . . . . . . . . . . 3
1. Deposition Codes Are Not a Reliable Measure of ShotSpotter’s
Efficacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Subsequent Identified Criminal Activity is Unlikely to Be Connected Back
to Police Deployment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
VI. Edgeworth Conclusion: The MJC Study Mischaracterizes the Deploy-
ment of ShotSpotter Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A.2
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 1
Study on ShotSpotter in Chicago

I. EXECUTIVE SUMMARY
ShotSpotter commissioned Edgeworth Analytics (“Edgeworth”) to review a study by the MacArthur Justice
Center (“MJC”) published May 2021 and provide an independent evaluation of the claims contained in
it. Based on our analysis, Edgeworth concludes that the MJC study fails to provide a rigorous, balanced,
and objective assessment of the use of ShotSpotter in Chicago and is, at best, misleading because of
the inappropriate data source used for the study, the selective choice of data and a fundamental lack of
understanding as to where ShotSpotter was deployed relative to the highest homicide rate areas of Chicago.
Specifically, we conclude the following:
1. The OEMC data that was the primary data source used to support the MJC study’s conclusions regarding
“unfounded” CPD deployments is an inappropriate source on its own to determine the ultimate outcome
of an individual incident and, therefore, is not a reliable measure of ShotSpotter’s efficacy. The MJC study’s
interpretation is misleading because the data obtained from the OEMC is not designed to capture and account
for any subsequent police action resulting from an initial ShotSpotter alert. The conclusion that the lack of a
police report is a measure of ShotSpotter’s accuracy is baseless and misleading.
2. The MJC study mischaracterizes the placement of ShotSpotter technology as unduly burdening Black and Latinx
communities. Specifically, it omits important context – that the placement is based upon areas of need across
Chicago as measured by incidents of homicide and gun crime.
In addition to this analysis, Edgeworth has conducted an independent review of ShotSpotter’s claims
regarding accuracy in gunshot reporting and false positives—sending an alert of gunfire when none
occurred. Specifically, Edgeworth examined ShotSpotter’s representation that its system has an aggregated
97 percent accuracy rate that includes a 0.5 percent false positive rate across all customers over the last two
years. Our review confirmed that (1) these claims are valid and based on actual customer feedback from
a broad range of ShotSpotter customers and (2) despite substantial variation in the intensity of reporting
potential errors across clients, ShotSpotter’s accuracy rate does not appear to be sensitive to differences in
clients’ propensity to report potential errors. The details of this analysis are provided in a separate report.

II. MACARTHUR JUSTICE CENTER REPORT

The MacArthur Justice Center (“MJC”) obtained Office of Emergency Management and Communications
(“OEMC”) data on Chicago Police Department (“CPD”) deployments between July 1, 2019 and April 14, 2021
and prepared a study of calls for service (“CFS”) initiated by ShotSpotter alerts and 9-1-1 calls based on these
data1. The study’s findings were posted on an MJC-created website and included in an amicus brief filed

1 Edgeworth notes that the MJC study focused on a period of time (July 1, 2019 through April 14, 2021) that included frequent and
long-term protests, unprecedented gun-related violence in Chicago, and the global pandemic. Notably, the MJC study did not ac-
knowledge that this period is not representative of the typical deployment period, and it did not attempt to demonstrate how this
period differs from others. Interestingly, Edgeworth found that, while the raw number of ShotSpotter-initiated dispatches spiked
during parts of this period, the rate of dispatches resulting in a crime or gun report remained relatively stable, casting some doubt
on MJC’s raw number conclusions as being indicative of any credible conclusion outside of this tumultuous time period.

A.3
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 2
Study on ShotSpotter in Chicago

on May 3, 2021 in Cook County Circuit Court (the “Amicus Brief”). The study’s primary conclusions were that:
(1) ShotSpotter-initiated alerts resulted in CPD finding no evidence of a gun-related crime or any crime the
majority of the time during the period of study; (2) there were more than 40,000 “unfounded” deployments
of CPD; and (3) these “unfounded” deployments were disproportionately in Black and Latinx neighborhoods
where ShotSpotter is deployed.

III. EDGEWORTH ANALYTICS REVIEW

ShotSpotter commissioned Edgeworth Analytics to review the MJC study and provide an independent
evaluation of the analysis contained in it.[2] For our analysis, we reviewed: (1) the MJC study and an Amicus
Brief that describes it in detail; (2) the same publicly-available OEMC data MJC used to draw its conclusions,
which was provided to ShotSpotter by the CPD, (3) the academic literature; (4) publicly available CPD data;
and (5) analyses conducted by ShotSpotter.

IV. WHAT IS SHOTSPOTTER?

According to a report from the Brookings Institution, 88 percent of gunshot incidents go unreported to
police.2 ShotSpotter intends to help solve that issue. According to ShotSpotter, the company offers law
enforcement agencies an acoustic gunshot detection service that detects, locates, and alerts police to
gunfire enabling a precise and rapid response to incidents that likely would have gone unreported to police.
The system uses wireless sensors throughout a coverage area to capture loud, impulsive sounds that may
be gunfire. The data are transmitted to a central cloud service that classifies each incident with a gunfire
probability percentage along with a location determined by triangulation enabled by multiple sensors.
Then, specially-trained ShotSpotter employees called “reviewers” located across two ShotSpotter Incident
Review Centers listen to the recorded pulses from the sensors that detected the incident audio with playback
tools, visually analyze the audio waveforms to see if they match the typical pattern of gunfire, assess the
grouping of sensors that participated, and either publish the incident as gunfire or dismiss it as non-gunfire.
ShotSpotter said the entire process typically occurs in less than 60 seconds from the time of the gunfire to
the time law enforcement is alerted to allow for a timely law enforcement response. The gunfire alerts that
are sent to ShotSpotter customers, including the CPD, have three recorded audio snippets that patrol officers
can listen to before they arrive on the scene.
Below are examples of gunshot and non-gunshot audio provided by ShotSpotter that were captured by
ShotSpotter sensors from various locations nationwide. Each example of gunshots includes the date of
the event, the rounds fired, the audio that was shared with the local police department, and a redacted
Investigative Lead Summary (ILS) report for the event. For non-gunshot events, each example includes the

2 https://www.brookings.edu/research/the-geography-incidence-and-underreporting-of-gun-violence-new-evidence-us-
ing-shotspotter-data/

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Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 3
Study on ShotSpotter in Chicago

date of the event, the type of event, and the audio that was shared with the local police department (ILS
reports are not generated for non-gunshot events.)

EXAMPLE AUDIO OF GUNSHOTS CAPTURED BY SHOTSPOTTER SENSORS

Date: July 13, 2021 Date: July 20, 2021 Date: July 14, 2021
Rounds fired: 13 Rounds fired: 15 Rounds fired: 10

Investigative Lead Summary Investigative Lead Summary Investigative Lead Summary

EXAMPLE AUDIO OF NON-GUNSHOTS CAPTURED BY SHOTSPOTTER SENSORS

Date: July 18, 2022 Date: July 20, 2021 Date: July 14, 2021
Rounds fired: 13 Rounds fired: 15 Rounds fired: 10

V. EDGEWORTH CONCLUSION: OEMC DATA CANNOT BE USED TO DETERMINE IF A

SHOTSPOTTER ALERT IS IN FACT A GUNFIRE INCIDENT
At the outset, it is important to recognize that the OEMC is not an arm of the CPD, but instead a distinct
office within the government of the City of Chicago. OEMC manages several functions, including 9-1-1 call
intake and dispatch in addition to emergency management, traffic management, and other areas, according
to OEMC’s website.3 Consequently, OEMC data do not reflect the ultimate outcomes following subsequent
investigations or reports that are created in the hours, days, weeks, and months after a CFS occurs. Only CPD’s
own police reports are able to capture the entire outcome of an investigation. This is a misapprehension
at the heart of the MJC study as it used OEMC data for its analysis of police deployments based solely on
ShotSpotter alerts. The MJC study erroneously interpreted its results to mean that “the ShotSpotter system
generates nearly two-thousand alerts every month that turn up absolutely no evidence of gun crime—or
any crime at all.” 4 The MJC study concluded that ShotSpotter alerts in Chicago during this time period are
3 OEMC website: https://www.chicago.gov/city/en/depts/oem.html
4 Motion for Leave to File Brief as Amici Curiae in Support of Defendant’s Motion for a Frye Hearing, The State of Illinois v. Michael

A.5
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 4
Study on ShotSpotter in Chicago

“dead ends” that “reinforce[s] racial disparities in policing.”5

1. Disposition Codes Are Not a Reliable Measure of ShotSpotter’s Efficacy

To identify the outcome of a CFS, the MJC study relied on the “final disposition” code that law enforcement
officers enter into the OEMC system when recording their findings at the scene of the reported event. The
MJC study identified “unfounded” deployments as those where police assign a final disposition code of
“Miscellaneous Incident,” which primarily corresponds to “Other Police Service” or “No Person Can Be Found.”6
However, as noted above, OEMC data is not designed to contain complete or updated information about any
investigations about a potential criminal event and so may only contain a small part of a larger case file.
The MJC study said a Miscellaneous Incident code “did not even prompt police to file a case report.”7
However, this code does not provide information on whether a police report was filed or whether a criminal
event occurred. Instead, it indicates the initial response to a CFS, and that is all. If a report is later filed or if
there is follow-up to the initial event, there is no update to the disposition code. A possible scenario of such
an instance might include police arriving at the scene of a reported “person shot,” but the injured person
may have left the scene to seek medical attention. A disposition code of Miscellaneous Incident may be
reported to OEMC for the CFS, but a police report may be subsequently filed at a local hospital by officers
responding to a call from the hospital. Similarly, police may arrive at the scene of a “shots fired” CFS and
find no person of interest or shell casings, but the next day a citizen may report property damage from a
gunshot. As these examples illustrate, relying solely on OEMC final disposition data can result in incorrect
interpretations of actual events and misleading conclusions about police responses to reports of gunfire.
Therefore, the disposition code alone is not a reliable measure of ShotSpotter’s efficacy, and we conclude
the MJC study’s interpretation is misleading because the data obtained from OEMC does not appear to
be designed to necessarily capture and account for any subsequent police actions as a result of an initial
ShotSpotter alert.
To illustrate this issue, Edgeworth analyzed OEMC data on events where a call was made to 9-1-1 and a
person was reported to have been shot in police districts both with and without ShotSpotter coverage.
Between July 1, 2019 and April 14, 2021, there were 963 CFS for a “person shot” in police districts without
ShotSpotter coverage.8 Of these, only 49 percent (469) included a final disposition code relating to a gun
event.9 The same percentage of “person shot” CFS in police districts with ShotSpotter deployed included a
final disposition code for a gun event -- 2,897 CFS for a person shot with 1,430 gun events, or 49 percent. This

Williams (20 CR 0899601), filed May 3, 2021 (“Amicus Brief”), Exhibit A, p. 2.

5 https://www.macarthurjustice.org/shotspotter-generated-over-40000-dead-end-police-deployments-in-chicago-in-21-months-
according-to-new-study/
6 Miscellaneous Incidents are identified by final disposition codes beginning with “19.” See, Chicago Police Department, Miscella-
neous Incident Reporting Table – CPD-11.484.
7 Amicus Brief, Exhibit A, p. 8.
8 Following the MJC’s approach as described in the Amicus Brief, throughout this report, the initial dispatch type coded for an
OEMC dispatch record—whether it be an emergency 9-1-1 call or a ShotSpotter alert—is used to determine what initiated the
deployment.
9 Note that the 51% of “unfounded” CFS for a person shot is not comparable to the MJC’s corresponding figure for ShotSpotter
because it does not include other reports of gunfire, which constitute over 90% of the relevant CFS.

A.6
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 5
Study on ShotSpotter in Chicago

occurs because the final disposition code reported to OEMC at the scene of a reported event is not necessarily
the end of the story. Using the MJC’s flawed logic, one would conclude that CPD responses to 51 percent of
the 9-1-1 calls from the public reporting that a person was shot were “unfounded” and generated “dangerous,
unnecessary, and wasteful deployments.”10
While the OEMC data can potentially provide useful information on initial responses, a Miscellaneous Incident
code in the OEMC data is not sufficient to support the conclusion that a deployment was unfounded or
that no crime occurred. The OEMC data, which report information on deployments, are not a substitute for
case files and police reports that include details not only on the initial response, but also on any subsequent
investigation.

2. Subsequent Identified Criminal Activity Is Unlikely to Be Connected Back to Police

Deployment
Information on the time spent on CFS that is contained in the OEMC data help to illustrate why subsequently
identified criminal activity is unlikely to be connected back to a police deployment.
Specifically, an OEMC dispatch record captures: (1) the time when the deployment was initiated; (2) the location
to which the deployment was made; (3) the reason for the deployment; (4) what was immediately found at the
scene; and (5) the time when the deployment was closed. When the deployment is “closed,” what was found
(e.g., evidence, a victim, a perpetrator) is reported and the deployment is likely ended.
A core function of OEMC is to deploy an emergency response to an event. Therefore, deployments that do not
require an immediate emergency response and result in Miscellaneous Incident reports, where no evidence
of a crime is found at the time, are typically short-duration events, regardless of whether ShotSpotter or 9-1-1
calls reporting gunfire initiated the deployment. In both cases, the median duration of the deployment is
12 minutes, including the time for police to travel to the location. Figure 1 below shows the distribution of
durations for ShotSpotter-initiated deployments recorded as Miscellaneous Incidents. The short duration
of these deployments suggests that Miscellaneous Incidents in the OEMC data are typically concluded in a
relatively short period of time and do not track any subsequent investigations or reports.
As our analysis demonstrates, the MJC study’s analysis is misleading as it relies solely on the OEMC data which,
by itself, is insufficient to assess ShotSpotter’s effectiveness.

10 Amicus Brief, Exhibit A, p. 3.

A.7
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 6
Study on ShotSpotter in Chicago

FIGURE 1
DURATION OF MISCELLANEOUS INCIDENTS IN MINUTES
FOR OEMC DISPATCHES INITIATED BY SHOTSPOTTER
JULY 1, 2019 - APRIL 14, 2021

70%

60%
Percent of SST Initiated Miscellaneous Incident Deployments

50%

40%

30%

20%

10%

0%
Under 15 min 15 to 30 30 to 45 45 to 60 More than 1 hr

Source: Chicago OEMC dispatch data. 

A.8
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 7
Study on ShotSpotter in Chicago

VI. EDGEWORTH CONCLUSION: THE MJC STUDY MISCHARACTERIZES THE

DEPLOYMENT OF SHOTSPOTTER TECHNOLOGY
The MJC study claimed that ShotSpotter’s pattern of deployment in Chicago is in predominately Black and
Latinx neighborhoods and that the “unfounded ShotSpotter alerts…can create a false ‘techwash’ justification
for racialized and oppressive patterns of policing in communities of color.”12 This claim appears to be entirely
premised on the MJC study’s improper conclusions addressed above.
ShotSpotter claims that coverage areas are typically determined by law enforcement and elected leadership
using objective, historical data that prioritize areas of a city that experience the most gun violence.
Edgeworth has confirmed that ShotSpotter deployments are indeed in the Chicago police districts where
violent crime is disproportionately greater. For example, as shown in Figure 2, CPD homicide data show that
the 12 police districts where ShotSpotter is deployed are the 12 police districts with the highest number of
homicides between 2012 and 2021.
Similarly, applying OEMC data to 9-1-1 emergency calls (not including ShotSpotter alerts), the 12 police
districts with ShotSpotter had more than 120 percent more deployments initiated by 9-1-1 emergency CFS
for reports of gunfire (29,317) than the 10 other police districts (13,269) between July 1, 2019, and April 14,
2021.

12 https://endpolicesurveillance.com/burden-on-communities-of-color/

A.9
 Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 8
Study on ShotSpotter in Chicago

FIGURE 2
HOMICIDES BY POLICE DISTRICT
DISTRICTS WITH SHOTSPOTTER COVERAGE AREAS HIGHLIGHTED IN RED
JANUARY 2012 TO APRIL 2021

700

600

500

400
Homicides

300

200

100

0
11 7 6 15 4 5 10 8 3 9 25 2 22 12 14 24 17 19 16 18 1 20
Police District

Note: Police districts where ShotSpotter is deployed are in red and the remaining police districts are in gray. The
shares of crime reports involving guns are proportionally the same as homicides by police district over the same
period. Therefore, a graph of crime reports involving guns would be very similar to the above graph showing
homicides.
Source: City of Chicago Data Portal, https://data.cityofchicago.org/browse?category=Public%20Safety.

A.10
Report: Independent Analysis of the MacArthur Justice Center Edgeworth Analytics | 9
Study on ShotSpotter in Chicago

VII. CONCLUSION
Edgeworth’s analysis of the OEMC data used by the MJC and the conclusions it drew based on those data
demonstrates that the MJC study is severely flawed. The OEMC data simply cannot be used to support the
MJC’s conclusions about whether gunfire or a gun-related crime occurred because they are an incomplete
source of information. The unsupported conclusion that no police report of a crime for a deployment
recorded in the OEMC data means no gunshot occurred can lead to incorrect interpretations of actual events
and misleading conclusions about police responses to reports of gunfire. Indeed, the MJC’s deeply flawed
approach would implicate the 9-1-1 system—a critical, trusted tool for communities and law enforcement
across the nation—as generating unnecessary police deployments 51 percent of the time when a person
is reported as shot. Finally, the MJC’s assertions regarding the deployment of ShotSpotter in predominantly
Black and Latinx neighborhoods fail to consider that the deployment is consistent with an objective, data-
based approach of using the ShotSpotter system where homicide and gun crime is most prevalent.

A.11
About Edgeworth Analytics
Through consulting and education, Edgeworth Analytics empowers professionals and
organizations to unlock data’s potential. Data is the lifeblood of every organization. But the
amount and complexity of data grows every day. Using proven methods for gathering,
structuring, analyzing, and applying data, we help companies transform their data from a source
of anxiety to a consistent driver of stronger operational and competitive performance. Our unique
approach to data analytics consulting is rooted in the expertise and real-world experience of our
sister company Edgeworth Economics, a firm of PhD economists who rigorously apply economic
principles and hard data to high-stakes litigation, regulatory, and other challenges.

Edgeworth Analytics makes data analysis accessible and easy to understand for practitioners
across a range of business services—including human resources, sales, operations, strategy, and
finance—as well as for those looking to better understand the effects of a proposed or existing
policy, investment, or regulation on industries, local markets, regional economies or the global
economy. In our consulting service, our team works closely with clients to deliver key insights and
targeted recommendations, while providing a working understanding of sound data analysis long
after the project ends. Our teaching program equips professionals to become comfortable with
data and to better understand their KPIs and dashboards.

Contact:
Edgeworth Analytics:
[email protected]
+1 202-559-7995

A.12
 Copyright 2021
www.edgeworthanalytics.com All rights reserved.

A.13
Independent Audit of the ShotSpotter
Accuracy
July 22, 2021

Prepared by: Prepared for:

Edgeworth Analytics ShotSpotter

www.edgeworthanalytics.com

A.14
Table of Contents
I. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ShotSpotter Data Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. Edgeworth Analytics Audit Results and Robustness Checks. . . . . . . . . 2

A.15
Report: Independent Audit of the ShotSpotter Accuracy Edgeworth Analytics | 1

I. EXECUTIVE SUMMARY
According to a report from the Brookings Institution, 88 percent of gunshot incidents go unreported to
police.1 The ShotSpotter system is an acoustic gunshot detection service that detects, locates, and alerts
police to gunfire, including those incidents that otherwise would have gone unreported. ShotSpotter enables
law enforcement agencies to provide a precise and rapid response to detected incidents. The system uses
wireless sensors throughout a coverage area to capture loud, impulsive sounds that may be gunfire. The data
are transmitted to a central cloud service that classifies each incident with a gunfire probability percentage
along with a location determined by triangulation enabled by sensors. ShotSpotter employees, located
across two ShotSpotter Incident Review Centers, listen to the pulses from the sensors that detected the
incident audio with playback tools, analyze the visual waveforms to see if they match the typical pattern of
gunfire, and either publish the incident as gunfire or dismiss it as non-gunfire. The entire process is intended
to take less than 60 seconds from the time of the gunfire to the time law enforcement is alerted to allow for a
timely law enforcement response.
ShotSpotter claims that its system is 97% accurate and has a false positive rate—the rate at which gunfire is
detected when none occurred—of 0.5%. To determine the accuracy rate for its system, ShotSpotter analyzes
information from clients on possible errors, determines whether an error occurred, and catalogs any errors
found. ShotSpotter commissioned Edgeworth Analytics to conduct an audit of the data and analyses that it
uses to support its claims. Our audit has yielded 4 important insights:
• ShotSpotter published 146,804 and 233,966 gunfire alerts to clients in 2019 and 2020, respectively.2 For
these years across all clients, our audit confirmed that based on client reports ShotSpotter correctly
detected gunfire with 97.59% accuracy.
• Across 2019 and 2020, the ShotSpotter system published alerts of gunfire when clients indicated that
none occurred 0.41% of the time.
• Despite substantial variation in the intensity of reporting of potential errors across clients, ShotSpotter’s
accuracy rate does not appear to be sensitive to differences in clients’ propensity to report potential
errors.
• No single client exerts a disproportionate effect on ShotSpotter’s overall error reporting rate such that
the accuracy rate would change significantly.
This report discusses Edgeworth Analytics’ approach to auditing ShotSpotter’s data and analysis and our
additional testing intended to ensure the validity of our results.

1 https://www.brookings.edu/research/the-geography-incidence-and-underreporting-of-gun-violence-new-evidence-us-
ing-shotspotter-data/
2 A small number of ShotSpotter accounts—six in 2019 and 12 in 2020—are for clients for which feedback was not expected. These
included new clients, pilot programs, and clients who terminated their service, as well as some low volume clients. Excluding these
accounts, there are 144,739 alerts in 2019 and 229,359 alerts in 2020 with an accuracy rate of 97.56% on average across the years.

A.16
Report: Independent Audit of the ShotSpotter Accuracy Edgeworth Analytics | 2

II. SHOTSPOTTER DATA SOURCES

Edgeworth Analytics obtained data from ShotSpotter for 2019 and 2020. We discussed the data available and
ShotSpotter’s error tracking and reporting process with ShotSpotter personnel. Based on our discussions with
ShotSpotter personnel, we requested the following data:
• The number of published incidents sent to clients, by location;
• Potential errors identified by clients for investigation and ShotSpotter’s conclusions regarding those
potential errors; and
• A sample of “Scorecards,” which are documents sent to clients summarizing the activity detected and
the error rates.
ShotSpotter data on published incidents are tracked in ShotSpotter’s own systems. However, information on
potential errors relies on clients reporting those potential errors to ShotSpotter. When an error report comes
in from a client, ShotSpotter creates a ticket and the incident is reviewed. The conclusion of the review may
result in one of several outcomes:
• A gunfire incident did not occur, but ShotSpotter published an alert for one—this is referred to as a
“false positive”;
• A gunfire incident occurred and ShotSpotter detected it, but an alert was not published for gunfire—
this is referred to as a “false negative”;
• A gunfire incident occurred and was not detected by ShotSpotter—this is referred to as a “missed”
incident;
• ShotSpotter failed to identify the location of the gunfire to within 25 meters of the actual location—
this is referred to as a “mislocated” incident; or
• The error report was incorrect, or the incident was one that ShotSpotter is not intended to detect, such
as gunfire outside the coverage area, indoors, or of a small caliber weapon (i.e., less than 25mm).
We used these data to conduct our audit.

II. EDGEWORTH ANALYTICS AUDIT RESULTS AND ROBUSTNESS CHECKS

First, Edgeworth conducted an analysis to ensure that the data were complete and accurate. Specifically, we
compared the published incidents and errors detected in the Scorecards to those in the underlying data we
received. Our analysis confirmed that the data appeared to be complete and accurate.
Once the data were validated, we reviewed the data and consolidated it into a format suitable for our
analysis. This involved combining reporting of events across data sources and reviewing data fields and
the possible outcomes of error reports. Using these data, we independently calculated the accuracy across
the categories ShotSpotter uses for its reporting. Our analysis confirmed that the accuracy rate across all

A.17
Report: Independent Audit of the ShotSpotter Accuracy Edgeworth Analytics | 3

ShotSpotter clients for 2019 and 2020 was 97.42% and 97.70%, respectively. Having audited and validated
ShotSpotter’s claims, we conducted additional analyses to confirm that these results are robust.
Since accuracy reporting depends on clients informing ShotSpotter of potential errors, we tested whether
differences in the intensity of reporting may have unduly influenced the reported accuracy. For example,
if a client with a relatively high level of incidents rarely reports potential errors, then the reported accuracy
rate may be higher than the actual rate. To test for this issue, we identified the areas where the intensity of
reporting potential errors was at or below the 5th and 10th percentile of client reporting intensity. As shown
in Table 1 below, if these clients are removed from the data entirely—an extreme test—then the overall
accuracy would decrease by less than 1%. Alternatively, assuming these clients with low reporting intensity all
had the reporting intensity of the 5th or 10th percentile client and that all additional reports were erroneous
ShotSpotter alerts, the overall accuracy rate would again decrease by less than 1%. These accuracy rates are
not statistically significantly different from the overall accuracy rate for all ShotSpotter clients.

FIGURE 1
SHOTSPOTTER ACCURACY RATES
BY EXCLUSION THRESHOLD
2019 AND 2020

Client Feedback Rate Threshold

ShotSpotter Alerts Year All Data >5th Percentile >10th Percentile
[a] [b] [c] [d] [e]

Excluding Selected Accounts 2019 97.39% 97.03% 96.65%

2020 97.66% 97.26% 96.96%
All Data 2019 97.42% 97.40% 96.81%
2020 97.70% 97.68% 97.68%

Note: Excluded accounts include new, pilot program, and service terminated clients as well as clients from
which feedback was not expected.
Source: ShotSpotter.

A.18
About Edgeworth Analytics
Through consulting and education, Edgeworth Analytics empowers professionals and
organizations to unlock data’s potential. Data is the lifeblood of every organization. But the
amount and complexity of data grows every day. Using proven methods for gathering,
structuring, analyzing, and applying data, we help companies transform their data from a source
of anxiety to a consistent driver of stronger operational and competitive performance. Our unique
approach to data analytics consulting is rooted in the expertise and real-world experience of our
sister company Edgeworth Economics, a firm of PhD economists who rigorously apply economic
principles and hard data to high-stakes litigation, regulatory, and other challenges.

Edgeworth Analytics makes data analysis accessible and easy to understand for practitioners
across a range of business services—including human resources, sales, operations, strategy, and
finance—as well as for those looking to better understand the effects of a proposed or existing
policy, investment, or regulation on industries, local markets, regional economies or the global
economy. In our consulting service, our team works closely with clients to deliver key insights and
targeted recommendations, while providing a working understanding of sound data analysis long
after the project ends. Our teaching program equips professionals to become comfortable with
data and to better understand their KPIs and dashboards.

Contacts:
Edgeworth Analytics:
[email protected]
+1 202-559-7995

A.19
 Copyright 2021
www.edgeworthanalytics.com All rights reserved.

A.20
Exhibit 17
THOMAS A. CLARE, P.C.
[email protected]
(202) 628-7401 10 Prince Street
Alexandria, Virginia 22314
(202) 628-7400
www.clarelocke.com

August 23, 2021

Via Email

Rachel Strom
Davis Wright Tremaine LLP
1251 Avenue of the Americas, 21st Floor
New York, NY 10020
Email: [email protected]

Re: Retraction Demand: “More Cities Are Moving to Drop Automated Gunshot-
Detection Tech” (August 3, 2021)

Dear Ms. Strom:

I write again on behalf of my client, ShotSpotter, Inc. On August 3, 2021, Vice Media LLC,
Jason Koebler, and Todd Feathers published a story by Todd Feathers titled “More Cities Are
Moving to Drop Automated Gunshot-Detection Tech” (the “August 3 Article”),1 which contains
additional false and defamatory statements and reiterates some of Vice’s prior false and defamatory
statements that were discussed in my letter dated August 16.

First, the title “More Cities Are Moving to Drop Automated Gunshot-Detection Tech” is
false and defamatory. Neither of the two cities discussed in the article (Chicago and San Diego)
have “mov[ed]” to cancel ShotSpotter contracts. In fact, Chicago’s contract was just renewed.
Further, the headline falsely implies that ShotSpotter was experiencing a wave of contract
cancellations prior to Vice’s false and defamatory articles. That is not the case.

1
Todd Feathers, More Cities Are Moving to Drop Automated Gunshot-Detection Tech, Vice (Aug. 3, 2021),
https://www.vice.com/en/article/88nekp/more-cities-are-moving-to-drop-automated-gunshot-detection-tech.
 Second, the August 3 Article features the sub-title: “Experts say ShotSpotter is unreliable and
disproportionately calls armed police into Black and brown neighborhoods.” The article does not
cite a single “expert” who has determined that ShotSpotter is unreliable; rather it cites the McArthur
Justice Center’s so-called “study” that was prepared by law students—not statisticians. Rather,
Edgeworth Analytics—the only outside expert involved—concluded ShotSpotter’s published 97%
accuracy rate is sound.
Third, the August 3 Article states that “[r]ecent Motherboard investigations found … that
ShotSpotter analysts who prepare forensic reports for criminal trials have changed the system’s
original findings about the number and location of gunshots—sometimes in ways that support police
narratives that aren’t backed by any physical evidence” [sic]. This representation is false for the
reasons discussed in my August 16 letter.
Finally, the August 3 Article again cites the “study” from the McArthur Justice Center,2
without disclosing the organization’s anti-police-technology advocacy mission and its corresponding
heavy bias, as discussed in my August 16 letter.
*****
To mitigate the harm to ShotSpotter, we demand that Vice and Mr. Feathers each
immediately retract the August 3 Article or, at a minimum, retract the specific false statements from
the August 3 Article identified in this letter and any social media posts repeating or elaborating upon
these patently false claims. For avoidance of doubt, this constitutes ShotSpotter’s formal demand
for a retraction pursuant to Cal. Civ. Code § 48a or similar retraction-demand provisions that may
apply in a legal proceeding arising from the publication of defamatory falsehoods in the August 3
Article.
Given the seriousness of the August 3 Article’s false allegations and the likelihood that
litigation will result from its defamatory claims, Vice and Mr. Feathers must immediately retain—
and direct all other persons involved in any way in the research, drafting, editing, fact-checking, or
publication of the August 3 Article to retain—all documents, electronically stored information, and
other materials relating in any way to ShotSpotter and the August 3 Article, including without
limitation all electronic communications, hard-copy documents, text messages, photographs, phone
records, emails, social media posts, internet search histories, drafts, markups, and communications
with sources. These retention requirements apply with equal force to communications and materials
stored or transmitted on personal or professional devices, servers, or accounts.
This is not intended to be a complete statement of ShotSpotter’s rights and remedies, all of
which are expressly reserved. Our review of Vice’s ShotSpotter coverage remains ongoing, and we
will address the falsehoods from subsequent articles in future correspondence. Please confirm

2
“In Chicago, the MacArthur Justice Center recently released a study that found police did not file a report of a crime
in 86 percent of the cases initiated by a ShotSpotter alert.”

2
receipt of this letter and that you intend to adhere to our request to retain documents as set forth
above. We look forward to your prompt response, no later than September 6.

Very truly yours,

Thomas A. Clare, P.C.

3
Exhibit 18
 From: Kayla Cardoza [email protected]
Subject: Time-Sensitive Legal Correspondence regarding ShotSpotter, Inc.
Date: September 21, 2021 at 9:43 PM
To: [email protected]
Cc: Tom Clare [email protected], Megan Meier [email protected], Amy Roller [email protected]

Ms. Strom,

Please see the attached correspondence from Tom Clare and Megan Meier. Due to their size
and format, the referenced attachments are available for download here:
https://clarelocke.box.com/s/thz5lnsqh5nlj39rc71wor3zkpoxi8k1.

Please let me know if you have any trouble accessing these documents.

Sincerely,

Kayla Cardoza | Case Manager

C L A R E L O C K E L L P
10 Prince Street | Alexandria, Virginia 22314
(202) 899-3873 - direct
[email protected] | www.clarelocke.com

This electronic message transmission contains information from the law firm of Clare Locke LLP, which may be
confidential or privileged. The information is intended exclusively for the individual or entity named above. If you are not
the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information is
prohibited. If you received this electronic transmission in error, please notify us immediately at [email protected].

20210921 Ltr T.
Clare &…nd.pdf
THOMAS A. CLARE, P.C. MEGAN L. MEIER
[email protected] [email protected]
(202) 628-7401 10 Prince Street (202) 628-7403
Alexandria, Virginia 22314
(202) 628-7400
www.clarelocke.com

September 21, 2021

Via Email

Rachel Strom
Davis Wright Tremaine LLP
1251 Avenue of the Americas, 21st Floor
New York, NY 10020
Email: [email protected]

Re: Retraction Demand for July 29, 2021 Episode of VICE’s “CYBER” Podcast
And Supplement to Our August 16 Retraction Demand

Dear Ms. Strom:

We write once again on behalf of our client, ShotSpotter, Inc.

On September 7, 2021, ShotSpotter discovered that an episode of VICE’s “CYBER” podcast

contains false and defamatory statements. VICE published the episode, titled “Gig Work Sucks,
Just Ask Uber and Lyft Drivers,” on July 29, 2021.1 In the podcast, beginning around the 00:20:00
mark, VICE employees Ben Makuch and Lorenzo Franceschi-Bicchierai make the following false
and defamatory statements about ShotSpotter:

Franceschi-Bicchierai: … And [ShotSpotter is] designed to detect when a gunshot goes

off; the technology relies on algorithms. There’s also some human review, which is
not automatic. I think it just the comes into play if there’s some [00:20:00] issue.
And this is the story here centers around the case in Chicago, where a 60 year old
man is accused of murdering a 25 year old; the accused claims that he wasn’t, it was

1
Matthew Gault, Gig Work Sucks, Just Ask Uber and Lyft Drivers, VICE (July 30, 2021),
https://www.vice.com/en/article/g5gkvx/gig-work-sucks-just-ask-uber-and-lyft-drivers.
 the other man was shot in a drive by shooting, and you just picked him up and
brought him to the hospital.

And the key evidence in the case is a report from ShotSpotter that places the shooting
at [00:20:30] a certain location, but it turns out that the shooting was a little bit
further. And the defendant’s lawyer essentially is arguing that this technology is not
reliable, should not be entered into the case. And it’s completely moot. And what’s
interesting here is that the prosecutor that essentially said, you know what, we’re not
going to use this evidence anymore. Let’s drop the evidence, which, some of the
experts interviewed in the piece essentially argue that [00:21:00] this is a clear sign,
that the police does not want to talk about how this technology works, does not want
to really get into how it was used in this case, because if this was entered into
evidence, then the defense would have the right to really see all the nitty and gritty
of how this worked. And to Motherboard and CYBER listeners, these may sound
familiar. Years ago, there were a lot of stories about stingrays, which are surveillance
devices that the police uses to intercept [00:21:30] text messages and locate people
using cell phones. And years ago, there were many cases where the police also
dropped this kind of evidence in an attempt not to disclose how the technology
actually worked.

Makuch: And I want to highlight something very specific from this story too that I
thought was really interesting. It’s not just that they backed away from in this
particular case that they backed away from using the evidence. It appears based on
documents that the man’s public defender was able to turn up, that someone had
accessed the ShotSpotter data and altered it so that something that had been
registered as a firework in the database was then called a gunshot later. And they
had also moved, you said this, but specifically moved the location at which that shot
was heard. And then as soon as someone called them on it, they abandoned it
completely. So just think it’s interesting when we [00:22:30] have these new
technologies, especially with forensic science, where we have something that’s that
supposedly is going to tell us objectives really what’s occurred and where we have to
be very careful, especially when we’re talking about sending people to jail for a very
long time.

Franceschi-Bicchierai: And it’s important to note that this is not the only case where
evidence has been withdrawn and Todd, the author of the piece also delves into
another case where a jury acquitted a defendant because you know, citing,
ShotSpotter’s unreliability. So there’s a history of controversial use of this evidence.

As previously explained, VICE’s defamatory accusations about ShotSpotter are false.

ShotSpotter never fabricates evidence, and it does not alter its conclusions to cater to law
enforcement or prosecutors. ShotSpotter simply presents the facts, regardless of whether those facts

2
lead to convictions or acquittals. Indeed, ShotSpotter evidence and expert testimony have repeatedly
helped exonerate the innocent. ShotSpotter’s technology has been used in over 200 court cases and
survived scrutiny in at least 15 Frye or Daubert hearings, several transcripts of which are attached for
your convenience. VICE’s agents fundamentally misrepresented these and other court records in
their defamatory reporting about ShotSpotter.
For example, VICE falsely claimed that ShotSpotter had “fabricated gunshots from thin air”2
in the Simmons case, that “the ShotSpotter audio files that were the only evidence of the phantom
fifth shot have disappeared,”3 and that “Shotspotter and the Rochester police mysteriously deleted
all audio recorded. Blatant corruption.”4 These statements are demonstrably false. No shots were
“fabricated,” nor did any recordings of shots disappear. Five separate audio recordings of the fifth
shot exist, each captured by a different audio sensor. Those recordings were introduced as Exhibit
120 during Mr. Simmons’s trial and played for the jury. Before publication, VICE knew or recklessly
disregarded this fact, which is readily apparent from the Simmons court records that Feathers
mischaracterized in the story and that Koebler mischaracterized in the tweets. We attach those audio
recordings—and ShotSpotter’s detailed forensic report for the Simmons case—for your convenience.
VICE likewise fundamentally misrepresented Illinois v. Michael Williams, No. 20 CR 0899601
(Cook Cty.). Specifically, VICE falsely claimed that ShotSpotter had changed the location of the
gunfire by “more than a mile” in order to support the prosecutor’s theory of the case.5 That is
demonstrably false. ShotSpotter’s real-time alert accurately geolocated the shots at longitudinal and
latitudinal coordinates near South Stony Island Avenue and East 63rd Street, on the edge of a large
park with an entrance with a street address of 5700 South Lake Shore Drive. This is explained and
depicted in ShotSpotter’s detailed forensic report of the incident:

2
Jason Koebler (@jason_koebler), Twitter (July 26, 2021, 10:09 am),
https://twitter.com/jason_koebler/status/1419661153278513157.
3
Todd Feathers, Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI, VICE: Motherboard (Jul. 26,
2021), https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-
ai.
4
Jason Koebler (@jason_koebler), Twitter (July 26, 2021, 10:17 am),
https://twitter.com/jason_koebler/status/1419663131853402113.
5
Specifically, VICE stated that “months later and after ‘post-processing,’ another ShotSpotter analyst changed the alert’s
coordinates to a location on South Stony Island Drive near where Williams’ car was seen on camera.”

3
 Although the street address for the entrance to the park is approximately a mile away from
the coordinates of the intersection where ShotSpotter geolocated the gunfire on the edge of the
park, Feathers knew before publication that ShotSpotter did not change the location of the gunfire
by “more than a mile,” but that ShotSpotter’s real-time alert had provided law enforcement with
both the street address for the entrance to the park and specific latitudinal and longitudinal
coordinates corresponding to the intersection on the edge of the park—as evidenced from the
screenshot featured in the defamatory VICE article itself:

Moreover, after ShotSpotter learned that prosecutors sought to prove that Williams had shot
the victim inside a car, ShotSpotter refused to provide expert testimony in the case because—as set
forth in ShotSpotter’s contracts—ShotSpotter’s technology is only guaranteed to identify and locate

4
shots fired outdoors, not inside a car.6 That led prosecutors to nolle prose the case. In other words,
ShotSpotter evidence was not withdrawn to avoid scrutiny of its technology as VICE falsely claimed,
but because ShotSpotter exercises appropriate restraint in only offering expert conclusions that are
supported to a reasonable degree of scientific certainty.
In light of the above and to mitigate the ongoing harm to ShotSpotter, we again demand
that VICE retract its false and defamatory accusations about ShotSpotter. We remind VICE of its
ongoing obligation to retain all materials relevant to these matters, including materials relating to
the podcast we recently discovered and all of VICE’s other publications about ShotSpotter.
This is not intended to be a complete statement of ShotSpotter’s rights and remedies, all of
which are expressly reserved. We look forward to your prompt response.

Very truly yours,

Thomas A. Clare, P.C.

Megan L. Meier

Enclosures

6
ShotSpotter’s contract with Chicago explains that it is only accurate for “Detectable Gunfire,” which is defined to
mean “unsuppressed discharges of ballistic firearms which occur fully outdoors in free space (i.e. not in doorways,
vestibules, windows, vehicles, etc.)[.]” The detailed forensic report states that ShotSpotter can only detect “outdoor
incidents” and notes that “[o]ther factors, such as … weapon discharge in an enclosed space” can interfere with the
sensors.

5
Appendix
 1

1
2
3
4
5 IN THE SUPERIOR COURT
6 STATE OF CALIFORNIA, COUNTY OF ALAMEDA
7 BEFORE THE HONORABLE C. DON CLAY, JUDGE
8 DEPARTMENT NUMBER 6
9 ---oOo---
10 THE PEOPLE OF THE STATE OF CALIFORNIA,)
)
11 Plaintiff,) No. 19-CR-016277
)
12 vs. )
)
13 FRED BATES, )
)
14 Defendant.)
)
15
16 FELONY JURY TRIAL - TESTIMONY OF PAUL GREENE
17 WEDNESDAY, JULY 7, 2021
18
RENE C. DAVIDSON COURTHOUSE
19 OAKLAND, CALIFORNIA
20
A P P E A R A N C E S
21
22 FOR THE PEOPLE: SEAN FLYNN
Deputy District Attorney
23
24
FOR THE DEFENDANT: ANDREW DOSA
25 Attorney at Law
26
27
28 REPORTED BY: Danielle A. DeWarns, CSR #9743
 2

1 WEDNESDAY, JULY 7, 2021 AFTERNOON SESSION

2
3 P R O C E E D I N G S
4
5 THE COURT: Good afternoon, counsel and Mr. Bates.
6 MR. FLYNN: Good afternoon.
7 THE DEFENDANT: Good afternoon, Judge.
8 THE COURT: So we have here a question on the 402 on
9 the issue of a Kelly-Frye regarding it's supposed to be a
10 scientific -- new scientific testing, or is this -- procedure,
11 or is this just for the purposes of establishing that they
12 heard some shots? I'm trying to figure out what you guys --
13 what the purpose of the ShotSpotter is here in these
14 proceedings because it's not going to identify -- the only
15 issue I see in front of the Court, at least what I heard from
16 you, gentlemen, is that -- whether or not somebody reacted to
17 hearing some particular shots. Nobody can say an association
18 of the sound to Mr. Bates. All it says is that we heard some
19 sounds that came off on our system as shots being fired at the
20 time that the shots were -- after we heard the sounds. It was
21 very close in time to when we believe that the witness says
22 she was shot. Is that it, or are you telling me something
23 else?
24 MR. FLYNN: More or less, your Honor. My
25 understanding from the PX, and just my conversations with
26 Mr. Dosa, is that there's going to be some question as to
27 whether this encounter between Ms. Stocker and the defendant
28 occurred in the area of 42nd and International or a few blocks
 3

1 up the street on Bond Street.

2 There's also a defense witness under subpoena, Ms.
3 Lea, I believe, L-e-a, who, it's my understanding, will
4 testify that there was no shooting in the area of 42nd and
5 International. So this ShotSpotter evidence, I would seek to
6 admit it to corroborate Ms. Stocker just to the fact there was
7 a shooting where she says she was shot.
8 THE COURT: So -- I see. It is a little different.
9 Someone says there was no shots in the area. What you got was
10 an alert from the system saying there's shots in this
11 particular area. So you're going to bring in the evidence for
12 the purpose of saying that this is inconsistent, or at least
13 it supports what our theory is in that this may question her
14 credibility as to what she saw or, I mean, what she
15 perceived.
16 MR. FLYNN: Exactly.
17 THE COURT: That's the purpose of your admission,
18 you wanting the Court to review and Counsel have an
19 opportunity to cross to determine whether or not there's
20 foundation shown to bring this in for the purposes of its
21 ability to isolate.
22 MR. FLYNN: Yes, and the Hardy decision that I
23 referenced. It did call into question -- I think it is a
24 generally accepted scientific procedure. Mr. Greene will
25 testify that it's nothing particularly new or novel, but the
26 Court of Appeal did indicate that that was not shown in the
27 Hardy case.
28 THE COURT: Well, that case is a 2018 case. It
 4

1 appears to me at the time they said there was only two cases
2 that had, in fact, cited the ShotSpotter technology in
3 California. It was a case in another jurisdiction where they
4 did have a 402 Kelly hearing to bring in testimony about the
5 science, what they did, what the -- the relationships to
6 sounds or technology. But, in that case, the idea was that
7 the prosecutor indicated he wasn't offering the information
8 for the truth of certain facts which in that case there was a
9 question of an officer doing some surveillance and saying that
10 he heard six or seven shots being fired, and that it could --
11 if a revolver could only shoot six or five and then that
12 became an issue because they were saying there were seven
13 shots fired, at least they heard in the Spotter, which would
14 make it an automatic versus a revolver which would put -- they
15 found the defendant in that case with an automatic. And so
16 it's consistent he was the one that shot, right?
17 MR. FLYNN: That's correct.
18 THE COURT: They were offering for the truth of the
19 matter that, in fact, yeah, that was true and that he was
20 shooting an automatic and would support and only corroborate
21 evidence of a potential automatic being used if you looked at
22 what the testimony was from that Officer Rosen, I think it
23 was --
24 MR. FLYNN: Correct.
25 THE COURT: -- which he said was six or seven shots.
26 And the prosecutor said he wasn't using it for those purposes
27 from the beginning, and then they end up saying that they were
28 using it in the closing statements. They asked for the
 5

1 truth.
2 MR. FLYNN: That's correct, your Honor. I'm not
3 trying to do anything like that. I am simply introducing this
4 evidence to show that there was a gunshot recorded in this
5 general area --
6 THE COURT: Yeah.
7 MR. FLYNN: -- at this time.
8 THE COURT: Mr. Dosa? So go ahead, Mr. Dosa. That
9 apparently is -- that's what the focus of -- at least he's
10 going to bring his witness in to talk about the technology and
11 how -- how it operates, I assume, but it's a little different
12 than in the case that was cited and the Court reviewed out of
13 this jurisdiction, all right. So now I kind of understand.
14 Anything further you want -- I'm trying to
15 figure out what you guys were talking about. Now I'm getting
16 a little bit better from him.
17 MR. DOSA: Yeah. I'm kind of stuck in a tweeter
18 place. I'm not really sure exactly if I'm satisfied with what
19 I'm about to concede, but if we look at Hardy, the Court there
20 said I don't have to -- the Court of Appeals said we don't
21 have to determine that ShotSpotter has been accepted in the
22 scientific community. It can be used to explain that the
23 police officer responded with information that such-and-such
24 happened. And I suspect, your Honor, that realistically if
25 you were going to address that issue, I wouldn't be surprised
26 if you were inclined to say it's not offered for the truth.
27 It's offered for an explanation for why the officers went
28 there and they responded. And then in the context of that,
 6

1 the jury can do what it wishes.

2 I mean, we -- the only way I think that we can say
3 the ShotSpotter is absolutely certainly correct as a -- as
4 identifying a shot there is if we go through and establish it
5 as a scientifically accepted technology. And so it's between
6 those two where we explain two officers going to the scene and
7 doing their investigation.
8 By the way, those two officers did bump into
9 Kimberly Lea who is a witness that I've subpoenaed. I will
10 subpoena her again because we have a new date.
11 THE COURT: Okay.
12 MR. DOSA: And her comments to them were, I heard
13 some shots over on the other side of Smart & Final or
14 something to that effect.
15 THE COURT: Okay.
16 MR. DOSA: There was no shot here.
17 THE COURT: Okay.
18 MR. DOSA: And I will say our -- my defense position
19 is that there's no evidence that Mr. Bates was at 42nd and
20 International other than Ms. Stocker. So the jury can believe
21 that or not. And -- and then I've got an alibi witness at
22 that time, at 3:17 a.m., three or four blocks away. So I
23 mean --
24 THE COURT: There's no question based upon what
25 you've both said and the testimony -- the prior testimony that
26 you cite. The reference is that there's no question she got
27 shot. The question is who shot her.
28 MR. DOSA: And where. But that's -- we may not be
 7

1 able to answer that one.

2 THE COURT: She's the only one right now, as I see
3 it from you, except for the fact that they're saying -- I
4 mean, the ShotSpotter is only going to tell you, yeah, there's
5 shots fired. And it also is a range, so I don't know how that
6 range -- it's going to weight and the jury will decide, yeah,
7 it could be over here and it could be over here and you can
8 map it out, how does that fit with the testimony. So why
9 don't you go ahead and call your witness.
10 But -- absolutely you guys -- you, gentlemen, both
11 have arguments to both sides as it relates to this issue.
12 MR. FLYNN: I'll step outside.
13 MR. DOSA: So can I just ask, are you going to
14 present him with the idea of getting the Court to agree that
15 the ShotSpotter meets the Kelly-Frye requirements and should
16 be admitted?
17 MR. FLYNN: Yes. I'm seeking to admit the
18 ShotSpotter from 42nd and International for the truth of the
19 matter that there was a shot fired in that area at that
20 time.
21 MR. DOSA: Okay.
22 THE COURT: Okay.
23 MR. FLYNN: Your Honor, the People are going to call
24 Mr. Paul Greene.
25 THE COURT: Come on up, Mr. Greene.
26 THE CLERK: Please stand and raise your right hand.
27 PAUL GREENE
28 called as a witness by the People,
 8

1 having been first duly sworn, was

2 examined and testified as follows:
3 THE CLERK: Please be seated. Please state and
4 spell your name for the record.
5 THE WITNESS: My name is Paul Greene spelled
6 P-a-u-l. G-r-e-e-n-e.
7 THE COURT: All right, Counsel.
8 DIRECT EXAMINATION
9 MR. FLYNN: Q. Good afternoon, Mr. Greene.
10 A. Afternoon, sir.
11 Q. Where are you currently employed?
12 A. I'm employed at ShotSpotter Incorporated.
13 Q. What is your current position with ShotSpotter
14 Incorporated?
15 A. I'm the forensic services manager at ShotSpotter.
16 Q. And what does that entail?
17 A. Um, my primary function is to still analyze gunshot
18 incidents as captured by the ShotSpotter system; produce
19 reports for evidentiary purposes; to testify as an expert
20 witness. But, additionally, I have a hand in policies and
21 procedures regarding how our forensics work. I also do a lot
22 of beta testing of software, training of prosecutors, training
23 of customers.
24 Q. Okay. Before we go any further, can you just in a
25 general sense tell us what ShotSpotter does?
26 A. Certainly. ShotSpotter is an acoustic gunshot
27 detection location system. We install a number of microphone
28 sensors in a geographic area that our customer has identified.
 9

1 Those sensors listen specifically for the sound -- impulsive

2 noises, typically gunfire. Anything bang, boom or pop. When
3 they detect those impulsive noises, they report the times that
4 those sounds were detected back to a central server.
5 The central server then uses those times to
6 calculate the geographic location of where that impulsive
7 noise or gunshot originated. We then try to characterize it
8 or classify it as a type of incident being gunfire or
9 non-gunfire.
10 It gets sent to an incident review center where a
11 human reviewer listens to the audio clip of the incident, and
12 then it gets reported to our customers 911 center.
13 Q. Thank you. Can you describe any training or
14 educational background that you use as an employee at
15 ShotSpotter?
16 A. Nothing specific. I have a high school diploma. I
17 have some college worth -- working toward a computer science
18 degree but that's incomplete. Most of my training has been
19 on-the-job over 14 years.
20 Q. And that's 14 years at ShotSpotter?
21 A. 14 years at ShotSpotter.
22 Q. Can you briefly describe some of the on-the-job
23 training that you've received over your time there?
24 A. Certainly. Well, it's easier to describe some of the
25 functions that I've served at ShotSpotter. My first function
26 was as a -- essentially a military training technical writer
27 where I had to learn how ShotSpotter worked inside and out so
28 that we publish a military training and technical manuals.
 10

1 At the time, the ShotSpotter was competing for

2 military contracts, so I used a lot of training experience
3 that I had gained through prior government contracts to
4 facilitate this. So after that, I went to work for the
5 customer support department in that -- supporting all of our
6 public safety customers, typically police departments, doing
7 their database administration, dealing with the location
8 server software, installations, being the front end and the
9 backend of live-fire testing. I spent a lot of time doing
10 live-fire research and development testing with ShotSpotter,
11 setting up ShotSpotter systems in the field and firing live
12 weapons against them. And then eventually working with our
13 company founders and chief engineers, I was instructed in
14 techniques and how to analyze these gunshot incidents using
15 our in-house software.
16 Q. Okay.
17 A. And since 2008, or so, I have been performing forensic
18 examinations of ShotSpotter events.
19 Q. So can you explain what the live-fire testing that you
20 referenced consists of?
21 A. Certainly. Well, in regards to the military testing,
22 it would entail taking a number of ShotSpotter sensors out
23 into a military testing range, setting them up, setting up the
24 software on portable computers, firing any number of rounds
25 against those systems and recording the results. Essentially
26 what we're trying to find is survey the location of where the
27 shooter actually stands and then compare the results of what
28 the system detects and locates.
 11

1 We also do live-fire testing for all of our new

2 customers when we install a new ShotSpotter system. We have
3 the police department in that municipality, and they get with
4 us and they work with us and set up a 1, 2, 3 or more firing
5 points in the coverage area, inside the city. They set up a
6 bullet trap. They notify the general public in the area.
7 They fire anywhere from 10 to 30 rounds of ammunition per
8 firing point and we compare the results, where the shooter was
9 actually standing versus how many rounds were detected and how
10 close to the actual shooting location they were located.
11 Q. So it's essentially a police officer in the field
12 testing the accuracy of the sensors?
13 A. Yes.
14 Q. By firing a gun?
15 A. Yes, sir.
16 Q. And you mentioned you didn't have any formal
17 educational training, but prior to working in ShotSpotter, did
18 you have a background in law enforcement, or the military, or
19 something involving firearms?
20 A. Um, yes, sir. Military, primarily. I would -- I'm
21 not -- I don't have a law enforcement history, but I did serve
22 eight years in the United States Marine Corps. I shot
23 competition rifle and pistol, served in the first Gulf War.
24 Many different weapon types I've qualified within the Marine
25 Corps. I've been a life-long shooter.
26 The -- after leaving the Marine Corps. I went into
27 information technology. I spent about 10 years working in New
28 Mexico and Texas in various IT contracts as a database
 12

1 administrator, as an installer, as a project manager.

2 And then after that I went to work for the United
3 States government for a company, a contractor, called
4 Battlespace Incorporated, working on a project called the
5 Joint Operational Test Beta System. This is a system where we
6 contracted with a number of -- a number of vendors,
7 ShotSpotter being one of them, to provide sensor systems,
8 different types of sensor systems which we would put into
9 military -- military exercises to evaluate the performance, to
10 integrate them into what we call a common operating picture.
11 Essentially, a system where a unit or an instant commander
12 could see all of the electronic assets that he had available
13 to him as well as the output of those assets. When they
14 alerted, he would click on the screen and see video or listen
15 to the result of that sensor being triggered.
16 After that I went to work for New Mexico Tech and --
17 for their Playas Training and Research Center facility in
18 Playas, New Mexico. There I performed a similar function as
19 the IT manager and the command and control supervisor where I
20 instrumented the testing and training ranges with vendor
21 technologies, different sensor types which we used military
22 and police exercises against and it recorded the results of
23 those.
24 Q. Okay. I think you mentioned this, 14 years ago, what
25 year did you start with ShotSpotter?
26 A. In 2007.
27 Q. You mentioned part of your current role is to prepare
28 forensic reports?
 13

1 A. Yes, sir.
2 Q. Can you tell us what a forensic report consists of?
3 A. Certainly. There are a number of different report
4 types that ShotSpotter issues. Some are very basic. Most
5 have no human interaction. Essentially we push a button and
6 the system reads what's in the database and it spits out a
7 report on paper so that it can be handed out to an officer or
8 somebody else, an investigator. A detailed forensic report is
9 a report type required for court reviews. It's typically a
10 10-page or plus document that the first half of it will detail
11 the incident as it was reported to the customer, the results
12 as they were reported, along with the descriptive of how the
13 system works.
14 The second half of the report includes the results
15 of a review of the data -- of the audio data including the
16 exact time of discharge of weapon, the location, a reviewed
17 location of where that weapon was fired from, audio clips of
18 the incident, pictures of the -- pictures of the sound called
19 an audio waveform. So it's an actual graphic image of the
20 actual sound as essentially was viewed -- the waveform as
21 viewed by the computer as well as a graphic depiction of the
22 multilateration results, how the system performs its
23 location -- location calculation.
24 Q. Could you estimate how many forensic reports you've
25 prepared for ShotSpotter during your career?
26 A. Close to 2000.
27 Q. Have you ever testified in court as an expert on the
28 ShotSpotter system?
 14

1 A. I have, sir.
2 Q. Do you know about how many times?
3 A. Um, as of last month 113.
4 Q. And do you know about how many of those were in
5 California?
6 A. Not offhand, but -- no, I couldn't guess offhand, but
7 there's a number of them. In fact, I've testified in eight
8 trials this year. All eight this year have been in
9 California.
10 Q. And have you ever testified as an expert witness on
11 ShotSpotter in a state besides California?
12 A. Yes, I have.
13 Q. And do you know roughly how many states you've
14 testified as an expert in?
15 A. In at least 17 other states.
16 Q. And do you recall if you've ever testified as an expert
17 here in Alameda County?
18 A. Yes, I have.
19 Q. I want to go back to how the ShotSpotter system works a
20 little bit more in depth. Can you describe the main
21 components of the ShotSpotter system?
22 A. Certainly. There are three main components --
23 actually, four if we count the reviewers. The first and most
24 important is the sensors themselves. These are microphone
25 sensors. They're placed on poles and buildings usually 20 to
26 40 feet off the ground, typically installed above the general
27 roofline of a neighborhood. The sensors have a -- have at
28 least two microphones onboard. They have an amount of memory.
 15

1 They have a processing unit. They have a network device to

2 communicate back to the server, and they have -- each sensor
3 has its own GPS receiver and antenna.
4 All of the data from the sensors gets transmitted
5 directly to the ShotSpotter location server which is an
6 application that we developed in-house. It is installed in a
7 cloud -- internet cloud system. The facility that it is
8 installed is called QTS. I believe it's in Sunnyvale. The
9 location server does all of the location calculation. It does
10 the initial classification calculations.
11 The somewhat -- the somewhat third portion of this
12 would be the actual incident review center, the human
13 operators that listen to the audio clips and determine whether
14 or not the computer was correct or not in its initial
15 assessment. They're not really there to determine if
16 something is actually gunfire. They're actually there to weed
17 out those incidents that are definitely not gunfire, so that
18 what we do report to our customers is more likely to be
19 gunfire.
20 And the last part of the system is our user
21 interface which we have a number. Reviewers have a review
22 interface which is -- it's software that runs in a browser on
23 their desktop computers. They use it to receive the initial
24 alert, to listen to audio clips, to publish or dismiss an
25 incident. It gets sent to then an interface called the
26 respond application. This would reside on the 911
27 dispatcher's desktop or sometimes on a police M.D.T. or even
28 on a mobile device, a telephone or tablet, and it receives
 16

1 that alert so that somebody can act upon it.

2 It shows the -- it shows the user the date, time and
3 location of all of the alerts for a seven-day period. It
4 plots those alerts onto -- onto a street map or onto a
5 satellite map. It's the user choice, and when new events
6 occur, when new incidents come in, they're alerted
7 immediately. There's a noise that plays and the screen
8 flashes and the map then moves to the place of the newest
9 incident.
10 And the last interface would be the insight
11 interface which is typically what I use, and it is a -- it's a
12 similar browser-based software that allows you to historically
13 view all -- every alert that is captured by a system. You can
14 go all the way back to 2006, for instance, here in Oakland and
15 look at the first incidents. You'd be able to listen to the
16 audio clips, view the map, look at the street view -- Google
17 street view of that location. It gives me all of the
18 locations, the logs. It allows me a historical review.
19 Q. And the ShotSpotter analyst at the incident review
20 center, what kind of training do they receive?
21 A. The reviewers go through a training program called the
22 ShotSpotter Academy. It is a battery of audio clips that we
23 know definitely are gunfire and many that are not gunfire.
24 And they listen to these and have to, at the end of their
25 training period, be able to correctly identify at least 90
26 percent -- correctly identify the gunfire from the -- 90
27 percent accuracy, the gunfire from the non-gunfire events.
28 And it takes them anywhere from two to three weeks to go
 17

1 through that.
2 Alongside that, there is a number of task trainings
3 that they have to go through for other software programs.
4 They do front-line customer support functions for us. When
5 the end users have a problem, they click a chat button and the
6 person they chat with is actually the incident review person
7 because the incident reviewers are on duty 24 hours a day, 7
8 days a week.
9 Q. You referenced earlier that the various sensors use
10 multilaterations to determine the location of a respective
11 gunshot; is that correct?
12 A. That's correct, sir.
13 Q. Can you describe a little bit more what multilateration
14 is and what it consists of?
15 A. Certainly. Multilateration is very similar to what we
16 know as triangulation which in a simplest form is using two
17 unknown points -- two unknown geographic points to
18 determine -- excuse me, two known geographic points to
19 determine one unknown geographic point where you might have a
20 street map or you might have a topographic map in front of
21 you. You don't know where you're at, but you can see two
22 geographic features. And if you have a compass, you are able
23 to determine the compass angle from one to the other and draw
24 two lines on the map and determine where you are.
25 Multilateration expands on that greatly. It's
26 essentially using many -- as many -- as many known points as
27 possible to determine a single unknown point.
28 And we do that by using a technique called time
 18

1 difference of arrival. So if we assume that there are three

2 sensors that detect a single gunshot, sensors A, B and C, so a
3 weapon is fired. The sound of that weapon being fired, the
4 muzzle blast, the bang, travels outward in all directions at
5 the speed of sound. As it -- it's detected by these three
6 sensors at different times because they are at different
7 distances from the shooting location.
8 As those sensors detect that sound, they timestamp
9 it. They look at the GPS clock that they have internally.
10 They read the time and they send that time back to the
11 location server. We take the -- we call those times the
12 arrival times. So what we do is we take the arrival time from
13 sensor A and the arrival time from sensor B, we subtract one
14 from the other and we find the difference in that time. We
15 use the difference formula from calculus to calculate against
16 the known speed of sound. And instead of outputting, say, a
17 single number, we take the result of that calculation and we
18 plot it onto a graph.
19 Now, the interesting part of the graph that we plot
20 that onto is it's the actual map of the earth or at least a
21 map of the area that we're operating in. We're using the
22 latitude and longitude lines as the X and Y axis of that
23 graph.
24 So the curve that we plot onto that graph is called
25 the curve of constant difference. Every point on that curve
26 is representative of time and distance, and it is also equal
27 to any other point on that curve. So we can't locate a single
28 gunshot from that. So we take the next pair of sensors,
 19

1 sensors B and C. We repeat the operation.

2 We find the difference in times between the two
3 sensors, arrival times. We compute them around the time, the
4 difference against the speed of sound. We generate yet
5 another curve, and we plot it on top of the first, on top of
6 that map -- that graph, the geographic -- with the geographic
7 lines.
8 And then we do it with the third pair of sensors,
9 sensors A and C. At some point all of those curves, they
10 cross. They intersect. And because they're plotted onto an
11 actual map, we can look at that spot and find the latitude and
12 longitude from -- from that intersection, and that's what we
13 report as the location of a gunshot. And that's essentially
14 how a ShotSpotter calculates location, using
15 multilateration.
16 Q. And how accurate is the ShotSpotter system?
17 A. ShotSpotter guarantees that it will detect and
18 accurately locat at least 90 percent of all outdoor
19 unsuppressed gunfire, and we define "accurate" as a 25-meter
20 radius. Essentially, we're guaranteeing that the location
21 that we -- that we report to the customer will be within 25
22 meters of the actual shooter.
23 We see that as an obvious understatement of our
24 system performance, and we have to do that because ShotSpotter
25 is not perfect. We operate -- we operate outdoors in a very
26 dynamic environment that we have no control over. So we
27 deliberately understate our performance in our guarantee.
28 But from my own experience doing live-fire testing,
 20

1 the -- and the feedback that we get from law enforcement and
2 customers, it's typical to see locations within 10 or 15 feet
3 of the actual shooter.
4 Q. 25 meters, is that like 90 feet?
5 A. That's 82 feet.
6 Q. 82 feet, thank you. How do you ensure the accuracy of
7 the clocks and the sensors and the time?
8 A. So all of the clocks involved in ShotSpotter, whether
9 it's the hardware, the sensors, whether it's the software or
10 the servers, the servers themselves and the networks we
11 operate on, all are synchronized and use GPS time. GPS being
12 the Global Positioning Satellite System or satellites orbiting
13 the earth. They radiate timing signals from their own
14 internal clocks so that we use the devices on the face of the
15 earth to determine the time or to -- more commonly to find
16 your place on the face of the earth, to locate yourself.
17 Whether you're using an application like Google Earth or a
18 satellite in a car, they have to have very accurate clocks.
19 So those satellites in turn have -- their internal
20 clocks are synchronized back to a master atomic clock at the
21 National Institute of Standards and Technology in Boulder,
22 Colorado. And that clock is accurate down to billions of a
23 second. So we consider our clocks to be very accurate.
24 Q. And how do you know that the ShotSpotter system itself
25 as a whole was working when it picks up a gunshot in a
26 specific location?
27 A. Well, first obvious clue is that it detected and
28 located in the first place. It would indicate that enough
 21

1 sensors in the first place picked up information to allow us

2 to detect and locate an incident.
3 The other side of that coin is sensors that aren't
4 working would not report information that we can use, and they
5 would essentially be considered sensors that wouldn't have
6 heard the incident in the first place, but we do keep records
7 of when sensors are operating and when they're not operating.
8 Every sensor reports back to the server every 60 seconds with
9 what we call a status package.
10 That status package includes its current GPS
11 location, the time, it's power stay, how many impulsive events
12 it has detected over the last 60 seconds, the temperature that
13 is detected, a number of data points. And all of that
14 information is saved in the database within the system
15 database and we keep that indefinitely. We can go back into
16 the system database and research at any given point what
17 sensor was operating when.
18 Q. And you mentioned the live-fire testing. Is that
19 something that is done at the time of installation of the
20 system, or is that something that is done repeatedly as an
21 accuracy check or a test?
22 A. Typically a live-fire test is performed only in
23 installation. There have been cases where, say, we have added
24 sensors or there have been sensors moved through the
25 construction or various other circumstances where the customer
26 has requested that we perform follow-up tests. But,
27 typically, it's just when the system is installed.
28 Q. And do the sensors -- is there any type of ongoing
 22

1 calibration that they require?

2 A. No. Sensors don't require any calibration. When
3 they're turned on, they simply acquire -- GPS satellites
4 connect to the network and start listening for gunfire.
5 Q. And does ShotSpotter Incorporated release the location
6 of your sensors?
7 A. No, we do not.
8 MR. DOSA: I'm sorry. I didn't hear that question.
9 Could you have it read back?
10 (Record read.)
11 MR. FLYNN: Q. Why is that?
12 A. Increasingly we end up having to install our sensors on
13 private properties. It's up to and including private
14 residences and businesses. While we do try to install sensors
15 on public properties such as libraries, police stations,
16 schools, even some churches in some cases, as we expand, as
17 customers want more coverage, we have to install onto private
18 properties. We obtain a permission contract with those --
19 with those properties which, first of all, states that we will
20 not disclose the location that the sensors are located on.
21 And, ultimately, that's because we don't want those property
22 owners to suffer any sort of retaliatory property damage or
23 vandalism due to having a ShotSpotter sensor installed.
24 Q. You mentioned that the sensors are typically installed
25 20 feet in the air or higher; is that correct?
26 A. That's correct.
27 Q. Can you just explain why that is?
28 A. Well, 20 feet or -- 20 feet or higher is optimum. What
 23

1 we're looking for is to install the sensors above the general

2 roofline of a neighborhood. Sound will travel above the
3 rooflines and travel farther that way than it will through the
4 streets. There are fewer obstructions.
5 Q. And does ShotSpotter retain audio recordings of the
6 gunshots that the system captures?
7 A. Yes, it does.
8 Q. And are those altered in any way?
9 A. No, sir, they are not.
10 MR. FLYNN: Your Honor, I'm going to ask to qualify
11 Mr. Greene as an expert in the ShotSpotter system at this
12 time.
13 THE COURT: Mr. Dosa, would you like to voir dire
14 the witness?
15 MR. DOSA: I have a couple of questions.
16 THE COURT: Okay.
17 MR. DOSA: I'm not sure if it goes to his
18 expertise.
19 THE COURT: That's okay.
20 VOIR DIRE EXAMINATION
21 MR. DOSA: Q. Good afternoon, sir. My name is
22 Andrew Dosa and welcome to Oakland, California.
23 A. Good afternoon, sir.
24 Q. And Department 6. What I wanted to do is start with a
25 couple of questions. The first one having to do with your
26 statement a few moments ago about the optimum height of 20 or
27 more feet.
28 How do you know that's optimum? And the real
 24

1 question is, what test were you involved in to determine 20

2 feet or more was optimum?
3 A. So back in -- I'll begin with your second path of
4 questions. In 2007, 2008, 2009, when I was involved in
5 military testing, we found that through experience, through
6 actual testing, that we got better results the higher we
7 mounted the sensors. But it really does come down to there
8 are fewer obstructions to -- that prevent the sound of gunfire
9 from reaching ShotSpotter sensors when you mount the sensors
10 above the roofline and that -- it's optimum. Optimum is
11 meaning that it has a clear line of sight, essentially. It's
12 not that -- that it would be optimum lower or higher, but my
13 statement was optimum in general.
14 Q. Okay. And with -- with these sensors mounted at about
15 20 feet, are they still able to, in your opinion, accurately
16 identify a gunshot that may have come from an alleyway so that
17 there was -- picking up of the sound from a ricochet, for
18 example?
19 A. Typically, yes, and we do pick up sounds of ricochets,
20 and they are readily identifiable. Sound will travel.
21 Sound -- sound of a gunshot will travel either in a direct
22 path, or it can be a reflection, or as an echo, or it will
23 actually refract in some cases where it will come over the top
24 edge of a building and refract over. What that does is
25 introduce a -- slight errors in timing. It depends on the
26 distance from the gunshot to the sensor. It detects it. So
27 sensors that are farther away, those -- the actual shot
28 impulse to the echo, that timing will spread some. But for
 25

1 sensors that are closer to a gunshot and -- it will be less

2 prevalent and less of an issue.
3 Q. And when a shot -- when a sensor picks up a -- say, a
4 ricochet, or echo -- I think I used the word echo, so let's
5 deal with echo, is that something that is discernible by the
6 people who are reading the -- the -- you called it the sound
7 wave -- the audio waveform?
8 A. It is to me in most cases. The software that we use
9 allows me to visually inspect that audio waveform as well as
10 play that sound and listen to it at different speeds. I can
11 listen to it quickly. I can slow the sound down. I can
12 listen for individual elements that are happening. I can also
13 visually inspect that. The software allows me to essentially
14 zoom in on -- on the actual pulses. So I can -- I can see --
15 say, if -- if the echo is just a millisecond or two following
16 the initial gunshot impulse, I can see that, and I can
17 determine the time difference between the two down to the
18 millisecond level.
19 Q. Right. And the audio waveform would reflect,
20 essentially, a second sound if there was an echo or a
21 ricochet, right? Because it's the initial sound, then it's
22 the sound waves hitting off of an object and coming back to a
23 sensor?
24 A. That's correct, sir. Depending on the -- on the actual
25 gunshot and the waveform, the initial gunshot impulse may
26 present as being louder or having more amplitude meaning a
27 taller impulse or -- and the following echoes might be shorter
28 and shorter and shorter. Or in some cases, the -- where the
 26

1 system may erroneously detect an echo rather than a gunshot,

2 the gunshot impulse might be very faint but still present, and
3 then what you see is the most visible is then followed by the
4 echo impulse.
5 Q. Assuming a relatively open space with a shooter aiming
6 in a certain direction and a ShotSpotter sensor behind him,
7 would that still be able to pick up the sound of a gunshot
8 even if it was aimed away from the sensor?
9 A. In general, yes. The sound of the muzzle blast travels
10 in all directions, though. Typically it's 40 percent, 50
11 percent louder along the direction of fire. What is more
12 important is the close end, local circumstances of how the
13 weapon is fired, whether it was fired into or out of a closed
14 space. The direction of fire sometimes has a huge effect
15 whether a sensor can pick up or not or whether it was fired in
16 the ground or fired in the air. You know, if it was -- how --
17 the distance to the target has an effect, as well. So if the
18 target is very close, then the target can soak up some of that
19 acoustic energy and prevent farther sensors from detecting
20 properly.
21 Q. Does wind or weather affect the ability of the sensor
22 to pick up the sound?
23 A. Yes, sir, but typically wind would have to be pretty
24 fast and pretty loud against the sensors to obscure the
25 microphone. Gusts 30, 40 miles-an-hour would definitely have
26 an effect. But, you know, a light breeze, 15 to 20
27 miles-an-hour would have very little effect. Rain might have
28 an effect on whether or not a sensor picks up. We do have --
 27

1 we do have a system in place to -- we call it the floating

2 triggers to account for that. What it does is lowers the gain
3 of the microphone which allows the lower frequency gunshot
4 pulses to become more prominent.
5 Q. A slightly different question. Whenever a firearm, a
6 pistol, is shot, is there always a flash?
7 THE COURT: Is there always a flash?
8 MR. DOSA: Yes.
9 THE WITNESS: A visible flash?
10 MR. DOSA: Q. Yes.
11 A. No, sir.
12 Q. Is it typically the case a firearm generates a visible
13 flash?
14 A. That would depend -- it would depend on the visual
15 wavelength of that. If you were looking at an infrared
16 camera, then, yes, you would almost always see a visible
17 flash. But in -- in daylight -- in most daylight situations,
18 it would have to be a really dirty propellant in the cartridge
19 case to generate a muzzle flash. At nighttime you would
20 probably see a flash.
21 Q. So a shot, say, at 3:17 in the middle of October in
22 2019, if there was a gunshot at night, assuming darkness all
23 around, would the person who was shot at be able to see the
24 flash if they were looking at the gun?
25 A. It's possible, yes.
26 Q. Would you say probably?
27 A. I -- no, I couldn't say probably because the -- again,
28 I don't have any details of other than the actual sound of the
 28

1 gunshot at this point. Anything that I gave you would be, you
2 know, speculation.
3 MR. DOSA: All right. Thank you.
4 THE COURT: Anything further? Submitted?
5 MR. DOSA: A couple of more questions.
6 THE COURT: Okay.
7 MR. DOSA: Q. How do you know that -- how does
8 ShotSpotter guarantee that it will accurately identify at
9 least 90 percent of the gunfire that -- that's -- that goes
10 off in the city?
11 A. So our guarantee is based off of a 1997 National
12 Institute of Justice study that was done in Redwood City,
13 California where the results of that they found that a
14 ShotSpotter detected 82 to 83 percent of the gunfire that
15 was -- that they fired and located -- properly located at
16 least 80 percent of those within that 25-meter radius.
17 Since then, working with our customers and doing
18 more of our testing, we have decided that we would increase
19 our -- our guarantee, so to speak, increase that accuracy
20 level to 90 percent. But, essentially, it's based on that NIJ
21 study.
22 Q. And it was the National Institute of?
23 A. Justice.
24 Q. Justice, thank you. In Palo Alto?
25 A. It was Redwood City.
26 Q. Redwood City. Hey, I may have trusted it if it was in
27 Palo Alto. Redwood City is a little shaky.
28 No further questions.
 29

1 THE COURT: Submitted?

2 MR. DOSA: Submitted.
3 MR. FLYNN: Submitted.
4 THE COURT: He's deemed an expert in the area
5 requested.
6 (Resumed)DIRECT EXAMINATION
7 MR. FLYNN: Q. So, Mr. Greene, is the concept -- is
8 multilateration a new concept?
9 A. No, sir, it's not.
10 Q. Can you describe the history of multilateration?
11 A. Mathematically, no. But as employed by ShotSpotter as
12 a system to detect impulsive sounds and then locate them, yes.
13 The first known instance that we know of is 1913. It was a
14 system called Sound Artillery Ranging, and it was patented in
15 1913. It was employed in World War I. The first deployment
16 was they put observers out in the trench lines with,
17 essentially, accurate pocket watches, and they recorded the
18 times that they heard the German artillery across the line
19 firing.
20 And they would take those times back and they would
21 compare, and they would use a slide rule and manually --
22 manually compute a location where they thought that German
23 artillery was. And then they would take those results back to
24 their own artillery and they'd fire counter back and they'd
25 fire back at them.
26 Later in the war they devised a system using
27 microphones, using the -- that drove needles that scratched a
28 calibrated film. And then they would calculate the locations
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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

State of Minnesota, Case Type: Criminal

Judge Carolina A. Lamas
Plaintiff,
Court File No. 27-CR-14-11992
v.
ORDER DENYING
Talia Donalee Brooks, DEFENDANT’S MOTION TO
EXCLUDE
Defendant.

The above-entitled matter came before the Honorable Carolina Lamas on October 7, 2016
at the Hennepin County Government Center for a Frye-Mack Hearing.

APPEARANCES

Peter Mason, Assistant Hennepin County Attorney, appeared on behalf of the State of
Minnesota. Jeffrey Benson, Assistant Hennepin County Public Defender, appeared on behalf of
Talia Donalee Brooks, who was present. Following the hearing, the parties submitted
memoranda to the Court in support and opposition to the Defendant’s Motion to Exclude
Evidence.
Based upon the testimony adduced, the arguments and briefs of counsel, and all files,
records, and proceedings herein, the Court orders the following:

1. Defendant’s Motion to Exclude is DENIED.

By the Court:

Date: 12/15/16 _____________________________

Honorable Carolina A. Lamas
Judge of District Court

1
 INTRODUCTION
The State has charged Defendant with (1) Terroristic Threats-Reckless Disregard Risk, (2)
Dangerous Weapons-Reckless Discharge of Firearm within a Municipality, and (3) Possess
Pistol/Assault Weapon-Conviction or Adjudicated Delinquent for a Crime of Violence.
Defendant brought a motion to exclude any ShotSpotter evidence regarding the location and
time of shots fired on March 15, 2014.

FACTS ALLEDGED
1. On March 15, 2014, Officers Grout and Doran of the Minneapolis Police Department were
dispatched on a report of gunshots fired.
2. Officers were alerted of the gunshots because the ShotSpotter system detected potential
gunshot sounds.
3. The ShotSpotter report indicates that there were two occurrences of a “Single Gunshot”
type of incident. Ex. 1 1 Incident #84457 occurred on March 15, 2014 at 19:20 (7:20 p.m.),
listing an address of 912 23rd Ave. N. Id. Incident #84456 occurred on March 15, 2014 at
19:19 (7:19 p.m.), listing an address of 914 23rd Ave. N. Id.
4. The alleged victim told Officer Grout that Defendant arrived at her apartment, yelled at
her, and shot at her house.
5. Officers located a single spent shell casing near the mouth of the alley, located behind the
alleged victim’s house.

FINDINGS OF FACT
1. On October 7, 2016, Paul Greene, Manager of Forensic Services for SST, Inc. testified on
behalf of the State. SST, Inc. is the company that manufactures and operates the
ShotSpotter system.
2. The ShotSpotter process has three primary components: (1) the sensor array, (2) the
location server, and (3) the human operator review.
3. The sensor array consists of an array of self-calibrating, microphone and GPS-enabled
sensors installed in a geographic location. These sensors listen for impulsive noises. A

1This exhibit was labeled as Exhibit 1 when offered by the State and received at the hearing, and labeled
as Exhibit B in the attached exhibits to the Defendant’s Memorandum in Support of Motion to Exclude.

2
 sensor timestamps and sends data to the location server when it detects a sound
consistent with its criteria for a potential gunshot. For a single gunshot to be detected
and reported, four sensors must detect the noise.
4. Sensors communicate with the location server every thirty to sixty seconds, sending the
status of its power and health indicators.
5. Minneapolis has 5.4 square miles of ShotSpotter coverage, over two coverage areas. The
present case occurred in the north side coverage system, where there are fifty-seven
sensors.
6. The array is designed so that if twenty to thirty percent of the sensors become inoperable,
the remaining sensors could accurately maintain operation of the ShotSpotter system.
7. The sensors are placed above the roofline, in an effort to avoid obstacles that would
hinder sound from reaching the sensors.
8. The second component of the system is the location server which coordinates the pulses
that are received from sensors. If the location server’s criteria are met for a sound to be
deemed a gunshot, it will attempt to locate the geographic location of the pulse.
9. The location server is where the scientific and mathematical operation of ShotSpotter
occurs.
10. The operation that the location server uses to locate a pulse is called multilateration.
Multilateration plots hyperbolas between known geographic points to locate an
unknown geographic point.
11. The third component of the ShotSpotter system is the human operator review. If the
location server’s criteria are met, the audio clip of the impulsive noise and pictures of the
audio waveform are sent to the human operator. Human operators cannot create or alter
events. Human operators review the data, and if consistent with a gunshot publish the
data to the ShotSpotter customer.
12. The human reviewers tend to be former law enforcement, EMS dispatchers, and former
military. Human reviewers receive on the job training.
13. Mr. Greene, or another forensic analyst, may then review the data and create a forensic
report. These reviews are done to check on the accuracy of the location and the number
of shots fired.

3
 14. In the present case, Mr. Greene created a forensic report. Mr. Greene found no
erroneously located pulses and performed no corrections.
15. ShotSpotter performs redundant calculations and error correction routines on its system.
16. ShotSpotter also monitors temperature and weather conditions.

CONCLUSIONS OF LAW
Defendant moves the Court to exclude the ShotSpotter evidence, arguing that the State
has failed to meet its burden under the Frye-Mack test. The Frye-Mack standard requires the
Court to “determine whether [the scientific evidence] is generally accepted in the relevant
scientific community. In addition, the particular scientific evidence in each case must be shown
to have foundational reliability. Foundational reliability requires the proponent of a *** test [to]
establish that the test itself is reliable and that its administration in the particular instance
conformed to the procedure necessary to ensure reliability.” Goeb v. Tharaldson, 615 N.W.2d 800,
814 (Minn. 2000) (citations omitted). The Frye-Mack standard puts the burden on the proponent
of the novel scientific evidence to demonstrate the sufficiency of both prongs of the Frye-Mack
test: (1) that the scientific evidence is generally accepted in the relevant scientific community,
and (2) the particular scientific evidence in the case at hand has foundational reliability. Doe v.
Archdiocese of St. Paul, 817 N.W.2d 150, 165 (Minn. 2012). The State contends that it met its
burden under the Frye-Mack test. State’s Reply Mem. at 2. The Court will address each prong of
the Frye-Mack test in turn.
A. The Scientific Evidence Offered is Generally Accepted in the Relevant Scientific
Community
In State v. Mack, Minnesota adopted the Frye rule which requires, “the thing from which
the [expert testimony] deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs.” State v. Fenney, 448 N.W.2d 54, 57
(Minn. 1989) (quoting State v. Mack, 292 N.W.2d 764, 767 (Minn. 1980)). “The results of
mechanical or scientific testing are not admissible unless the testing has developed or improved
to the point where experts in the field widely share the view that the results are scientifically
reliable as accurate…. The scientific technique on which expert testimony is based must be
scientifically reliable and broadly accepted in its field. The test, then, requires neither unanimity
nor acceptance outside its particular field.” Id. at 57–58 (internal citations omitted). Scientific
evidence that is not “novel” need not be assessed under the first prong of the Frye-Mack test.

4
Evidence obtained from “a new scientific method that the [Minnesota Supreme Court] has
never before considered” and is “sufficiently different” from previously generally accepted
methods, is novel scientific evidence. State v. Roman Nose, 649 N.W.2d 815, 821 (Minn. 2002).
Sound multilateration is the mathematical operation that is the basis for the geographic
locating component of the ShotSpotter system. Transcript at 44. The State contends that it
adequately demonstrated that sound multilateration evidence is generally accepted in the
relevant scientific community. State’s Mem. Opp’n at 3. Defendant concedes that sound
multilateration is generally accepted, but argues that ShotSpotter technology specifically is not.
Def.’s Mem. at 5. Defendant specifically asserts that “Shotspotter combines sound
multilateration principles with the complex, real world environment and a human interprets
that data. This combination takes ShotSpotter outside of the general acceptance of sound
multilateration, and the state has not satisfied their burden under the first prong of Frye-Mack.”
Def.’s Mem. at 6.
The State presented expert testimony from Mr. Greene from SST, Inc. Defendant
highlights that “Mr. Greene holds no college degrees, and he never attended a course in
engineering, acoustics, acoustical engineering, or sound propagation.” Id. at 2. Mr. Greene has
worked for SST, Inc. for nine and a half years. Tr. at 5. He currently serves as a manager of
forensic services, which primarily deals with forensic analysis. Id. Mr. Greene is a former U.S.
Marine. Id. at 7. During his eight years in the Marines, Mr. Greene shot several years on rifle
and pistol teams and was trained as a machine gunner. Id. He has worked in the field,
performing live fire tests against Shotspotter, military, and public safety systems. Id. Mr. Greene
became aware of the technology used by ShotSpotter in 2004, when he was employed by the
U.S. Joint Forces Command, which conducted battlefield sensor testing and integration. Id. Mr.
Greene also was employed by the New Mexico Institute of Mining Technology at the Playas
Training and Research Center where he was the command and control manager, tasked with
operating test ranges for military hardware clients to test their systems. Id. at 8. Since working
for ShotSpotter, Mr. Greene has conducted over 600 forensic analyses of gunfire incidents and
has analyzed audio of thousands of gunshot incidents. Id. at 9. He has testified fifty-five times in
court and has been certified as an expert in gunshot sound detection and location technology
each time. Id. at 10.

5
 The State offered Mr. Greene as an expert in “gunshot sound detection and location
technology.” Id. at 10. Defendant did not object to Mr. Greene being offered as such an expert
and the Court accordingly certified Mr. Greene as such an expert. Id. Defendant questions the
application of multilateration within the ShotSpotter system and the human interpretation of
the data. Def.’s Mem. at 6. The area of gunshot detection and location technology falls within
the relevant scientific community in question. Therefore, Mr. Greene’s expert testimony weighs
heavily in favor of the State.
Mr. Greene testified at length about the processing system for the ShotSpotter.
ShotSpotter has three primary components to its process. Tr. at 15. Put simply, the first
component is a sensory array, which is an array of microphone and GPS-enabled sensors that
are installed in a geographic area. Id. The sensors “listen constantly for the sound of impulsive
noises, anything that does bang, boom, or pop” and if such a noise is detected, it timestamps it
and sends the data related to the impulsive noise to the location server. Id. at 15–16.
The second component is the location server which coordinates the pulses that are
received from sensors and attempts to match them, and if there is a match within a specific time
period the location server attempts to locate the pulse. Id. at 16. Mr. Greene testified that
ShotSpotter “uses a mathematical system called multilateration to locate -- or, or to determine a
geographic location of the source of that impulsive noise.” Id. at 15. If certain characteristics are
met, then the location and data is sent to a human operator, which is component three. Id. The
human operator listens to the audio clip they receive and reviews pictures of the corresponding
audio waveform and makes a “judgment call” whether or not they believe it is gunfire. Id. at 33.
The reviewer can add notes to the incident report but cannot create or alter an incident. Id. at 33,
36. Reviewers receive on-the-job training and tend to be former law enforcement, dispatchers or
military. Id. at 35. The reviewer will send an alert or dismiss the event as a gunshot within one
minute. Id. at 41. If deemed to be a gunshot, the result will then be published to the customer
(i.e., law enforcement). Id. at 31. A forensic analyst, such as Mr. Greene, may ultimately conduct
a forensic analysis and draft a report, in an effort to confirm the accuracy of particular incidents.
Id. at 43.
Multilateration has had practical applications starting over one hundred years ago. Tr. at
44. The use of multilateration to locate sound has been utilized in earlier forms in World War I
and subsequent military involvement, including applications to the use of sonar by the Navy.

6
Id. at 48. Multilateration is used in locating submarines underwarter, in plane navigation, and
by seismologists in determining the epicenter of earthquakes. Id.
Law enforcement’s utilization of a scientific technique or practice is not dispositive of
whether the technique is generally accepted, but may be relevant evidence as to whether the
technique has gained general acceptance in the relevant scientific community. Roman Nose, 649
N.W.2d at 821. The first installation of ShotSpotter was in 1996 in Redwood City, California. Tr.
6. ShotSpotter operates in about one hundred cities, including Minneapolis. Id. Minneapolis has
used ShotSpotter since 2007. State’s Mem. Opp’n at 4.
“The decisions of other appellate courts may be relevant evidence at an evidentiary
hearing on the general acceptance of a scientific technique within the relevant scientific
community.” Id. at 820. The Supreme Court of Nebraska considered a challenge to the
ShotSpotter system in State v. Hill, 851 Neb. 767 (2014). In Hill, the Defendant did not challenge
the “underlying GPS triangulation methodology upon which the ShotSpotter location is based.”
Id. at 793. Instead, the Defendant made three arguments, “(1) that ‘blind’ tests of the system
have never been performed; (2) that Greene did not know what percent capacity of the Omaha
ShotSpotter system was operating at on [the date in question]; and (3) that the SST employees at
the incident review center ‘are ultimately just people using their own subjective opinions about
whether particular sound files are consistent with gunfire.’” Id. The Nebraska Supreme Court
found that the lower court’s conclusion that absence of blind testing and Mr. Greene’s inability
to identify the percent capacity of the Omaha ShotSpotter system did not seriously undermine
the reliability of the ShotSpotter technology was a reasonable conclusion. Id. at 794. The
Nebraska Supreme Court also disagreed with Hill’s assertion that the SST, Inc. employees were
unqualified to characterize sounds as being consistent with gunshots due to the employees’
training and the system’s recognition of potential gunshots prior to the data being sent to the
review staff. Id. While Nebraska follows the Daubert/Schafersman jurisprudence, the Court takes
this case into consideration as an example of acceptance and utilization of the ShotSpotter
system and its underlying mathematical and scientific approach. Id. at 792.
The scientific and mathematical technique used by ShotSpotter is sound multilateration.
The other components to ShotSpotter are tools to collect and record data for the multilateration
process, and to check the accuracy of the system’s decision to qualify a noise as a gunshot. The
State has demonstrated that sound multilateration is a scientific practice that is generally

7
accepted in the relevant scientific community. The Court will analyze the foundational
reliability of ShotSpotter’s application of sound multilateration. Defendant’s concerns regarding
the accuracy of the system based on the environmental elements as well as the human operator
involvement will be addressed under the reliability prong of the Frye-Mack analysis. See State v.
Traylor, 656 N.W.2d 885, 893 (Minn. 2003) (determining that the science of PCR-STR DNA
testing was generally accepted, and concerns over the utilized testing kits and procedures dealt
more with reliability).
B. The Scientific Evidence Has Foundational Reliability
The second prong of the Frye-Mack test requires that the State show that the scientific
evidence in the case at hand has foundational reliability. Doe, 817 N.W.2d at 165. The proponent
of scientific evidence has the burden to establish the proper foundation for the admissibility of
the test by showing that the methodology used is reliable and in the particular instance
produced reliable results. Goeb, 615 N.W.2d at 816. Sound multilateration, as applied through
the ShotSpotter system, in the matter at hand has foundational reliability.
1. The methodology used is reliable.
At each stage of the ShotSpotter system, ShotSpotter has built in redundancy and
safeguards to better ensure the accuracy of its results. First, the sensors pick up an impulsive
event. The array of sensors are installed in such a manner that if twenty to thirty percent of the
sensors became inoperable, the remaining sensors could accurately maintain operation of the
ShotSpotter system. Tr. at 22. Each sensor communicates with the location server every thirty to
sixty seconds, sending the status of its power and health indicators. Id. at 27. The “health” of the
sensors is constantly monitored. Id. The sensors are self-calibrating; a sensor will either record
or not record. Id. at 28. For a single gunshot to be detected and reported, four sensors must
actively participate in detecting the gunshot. Id. at 44. The location of the sensors is known
based on their installation but also through the GPS receiver on the sensors which
communicates with GPS satellites. Id. at 28. Only if the event meets between twenty-eight and
thirty-two criteria will the event data be sent to the location server. Id. at 32–33.
The location server also has its own set of criteria for which the sound is evaluated. Id. at
31. If the criteria are met an alert is created and a request is sent back to the participating sensors
to transmit the audio clip. Id. at 31–32. The audio clip and the pictures of the audio waveform
are then reviewed by a human operator at the review center, who cannot alter the event. Id. at

8
33. If the human operator believes it is a gunshot, then they publish the data. Id. at 38. If they
believe it is something other than gunfire, the alert is dismissed. Id. The human operator acts a
check on the system in an effort to make sure only likely gunfire is being published. Mr. Greene
testified that the main reason there are human reviewers is to verify that the sound is a gunshot
and not another sound that is similar. Id. at 65. Mr. Greene or another forensic analyst may then
perform a forensic analysis and create a detailed forensic report. Id. at 43. The chief function of
the forensic analyst when writing the report is to confirm the accuracy of the location and the
number of shots fired. Id.
With regards to the utilization of multilateration, Shotspotter uses the time that each
sensor detects the pulse, measuring that sensor’s detection of the pulse against another sensor’s
detection of the pulse against the speed of sound, to generate curves called hyperbolas. Id. at
45–46. As Mr. Greene described it, for example, if there are three sensors, “[ShotSpotter] take[s]
the time differences between sensor A, sensor B, then sensor A and then C, and then sensor B
and C and it gives [ShotSpotter] three different measurements… three different curves.” Id. at
46. Where the hyperbolas intersect is where the source of the impulsive noise, or gunshot, is
located. Id. Because of ShotSpotters’ use of GPS, ShotSpotter knows the exact latitude and
longitude of the starting points to plot out the hyperbolas and find the point of intersection. Id.
at 46–47.
Defendant specifically questions the utilization of human operators. Human
involvement in this system acts as an additional check on the processes that have already
occurred. The Supreme Court of Minnesota has held the human involvement in a protocol
designed to develop or identify evidence, and specifically non-scientist human involvement,
does not make that evidence inadmissible. See State v. Klawitter, 518 N.W.2d 577 (Minn. 1994). In
Klawitter, the Minnesota Supreme Court reasoned that following a specified protocol for drug
recognition, including nystagmus testing, did not involve “any significant scientific skill or
training on the part of the [police] officer. Drug recognition training is intended to refine and
enhance the skill of acute observation which is the hallmark of any good police officer and to
focus that power of observation on a particular situation.” Id. at 585. The Klawitter Court put it
another way, “the protocol, in the main, dresses in scientific garb that which is not particularly
scientific.” Id.

9
 Similarly, the Court here finds that the human operators are not required to engage in
particularly scientific processes. The human reviewers tend to be former law enforcement, EMS
dispatchers, and former military. Tr. at 35. They generally “have more than a passing familiarity
with real gunfire.” Id. When someone is hired, they receive on the job training, where an
experienced operator or shift leader, sits with the new operator for one to two weeks, and
coaches them through the process of determining what is and is not gunfire. Id. In determining
if a noise is a gunshot, the reviewer listens to the audio clip and views a picture of the audio
waveform. Id. at 33. Reviewers cannot create a gunshot incident, or alter the times or locations
of a gunshot incident. Id. at 36. In the aforementioned State v. Hill, the Nebraska Supreme Court
agreed that the ShotSpotter employees were not unqualified to characterize sound as consistent
or inconsistent with gunshots, based on their training and the fact that the system recognizes
the potential gunshot before it is sent to the reviewer. Hill, 851 Neb. at 794.
Defendant also raises concerns over the environmental elements of the urban city of
Minneapolis affecting the accuracy and reliability of ShotSpotter. Def’s Mem. at 6. Factors like
temperature, background noise, buildings, and trees may affect the soundwaves and ultimately
location accuracy. Tr. at 62–70. ShotSpotter performs “redundant calculations” and “error
correction routines” to ensure that results are accurate. Id. at 79. ShotSpotter monitors
temperature and weather. Id. at 62. ShotSpotter installs “as many sensors as [they] do in an
array because [they] know that there are going to be environmental facts that [they] cannot
account for.” Id. at 78. The sensors are placed above what SST, Inc. calls the “acoustic horizon,”
meaning that they try to place sensors high enough above the roofline that there are few
obstacles that would hinder sound from reaching the sensors. Id. at 17–18. Further, Mr. Greene
testified that even if there are refraction and diffusion issues, they are “usually in the
millisecond range, a thousandth of a second… even if [they] had half the sensors with a couple
milliseconds of diffraction error, it may only change the location of the gunshot, ultimately, by a
couple of feet.” Id. at 78. Taking into consideration the efforts of ShotSpotter to ensure accuracy,
the Court finds that the methodology used has foundational reliability.
2. In this particular instance, the methodology used produced reliable results.
The methodology described above yielded reliable results in the case at hand.
Minneapolis has 5.4 square miles of ShotSpotter coverage. Id. at 17. There are two separate
ShotSpotter systems in two coverage areas, the north of the city and the south. Id. In this case,

10
the data in question comes from the north side system. Id. There are fifty-seven sensors in the
north side array. Id. at 56. There are two types of sensors in the Minneapolis system, each with
two to four microphones, a processor board with a GPS antenna and receiver, a certain amount
of memory, and a cellular based communication device. Id. at 18–19.
In the present case, the ShotSpotter report indicates that there were two occurrences of a
“Single Gunshot” type of incident. Ex. 1. On March 15, 2014 ShotSpotter detected two impulsive
events. Tr. at 54. Both incidents were detected by five sensors. Id. at 56. Mr. Greene created a
forensic report on the reported incidents. Id. at 54; see Ex. 2. To create this report, Mr. Greene
reviewed the audio and the location that the system created. Tr. at 56. Mr. Greene found no
error, specifically relocating one shot by less than one yard. Id. Mr. Greene testified that he
confirmed the locations of the incidents, and saw no erroneously located pulses and performed
no corrections. Id. at 58. Mr. Greene believes that both incidents were gunfire. Id. at 56. The
ShotSpotter’s detection of gunshots is further bolstered in this case by the recovery of a shell
casing found at the mouth of an alley located behind the victim’s house, very close to the
locations listed in the ShotSpotter report. 2 Therefore, the Court finds that in the present case, the
methodology used produced reliable results.

CONCLUSION
Both prongs of the Frye-Mack test have been sufficiently demonstrated. Multilateration is a
generally accepted mathematical and scientific technique for locating a geographic point from
other known geographic points. The other components of ShotSpotter are tools for the collection
of data for the sound multilateration process, and checks on the process as a whole. The
methodology utilized has foundational reliability. Further, the methodology as used in the
present case produced reliable results.
Based on the foregoing the Defendant’s motion to exclude is denied.
CAL

2The police report, attached to Defendant’s Memorandum as Exhibit A, lists the “Incident Details…
Address,” “Victim… Residence,” and “Witness… Residence” as “2303 Bryant AV N Apt. UPPER
Minneapolis, MN 55411”. Def’s Mem., Ex. A. This Bryant address is 213 feet or a one minute walk from
912 23rd Ave N (the address listed in the ShotSpotter report for Incident # 84457) and 285 feet or a one
minute walk from 914 23rd Ave N (the address listed in the ShotSpotter report for Incident # 84456). Ex. 2;
GOOGLE MAPS, https://www.google.com/maps.

11
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 22 2016, 9:32 am

regarded as precedent or cited before any CLERK

Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Bryant Johnson, November 22, 2016

Appellant-Defendant, Court of Appeals Case No.
71A03-1603-CR-672
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1508-MR-10

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 1 of 9
 Case Summary and Issue
[1] Following a jury trial, Bryant Johnson was convicted of murder, attempted

murder, and battery. Johnson appeals his convictions, raising the sole issue of

whether the trial court abused its discretion in admitting certain evidence.

Concluding the trial court did not abuse its discretion, we affirm.

Facts and Procedural History

[2] In the early morning hours of August 1, 2015, Justin Sharpe and Marcus Harris

e e a e ge a g ee SUV d e b Se e J ( Se e ).

Around 2:30 a.m., Stephen pulled out of a gas station and proceeded toward an

intersection near 301 North Lafayette Street in South Bend, Indiana. While

stopped at the intersection, a champagne-colored Chevrolet Tahoe pulled up to

right of the green SUV and a white vehicle pulled up behind the green SUV.

Stephen recognized the driver of the Tahoe as Johnson. Johnson then pulled

out a revolver and fired four bullets in the direction of the green SUV. One of

the bullets struck Stephen in the shoulder and at least one bullet struck Sharpe.

As Stephen attempted to drive away, an individual in the white vehicle also

fired at least three bullets in the direction of the green SUV.

[3] South Bend Police Officer John Cox heard the gunshots, but did not know

where the sound was coming from until he received a ShotSpotter alert

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 2 of 9
 notifying him the shots were fired near 301 North Lafayette Street.1 Upon

arrival at that address, police officers observed multiple bullet holes in the green

SUV f assenger-side window and door; Sharpe was pronounced dead at

the scene from multiple gunshot wounds. Police officers then collected

fragments of ammunition from the street and the green SUV indicating at least

one of the guns used was either a .38 caliber special or a 357 magnum revolver.

Some of these fragments recovered from the scene matched the fragments

e ed f S a e b d d ga a . On August 5, 2015, the State

charged Johnson with murder, a felony; attempted murder as a Level 1 felony;

and battery as a Level 5 felony.

[4] At trial, the State elicited testimony pertaining to ShotSpotter technology from

Paul Greene, the lead forensic analyst and lead customer service support

engineer for SST Inc., the manufacturer of ShotSpotter. Greene testified

ShotSpotter is an acoustic gunshot detection and location system and its

purpose is to provide law enforcement with rapid notification of when and

where local gunfire occurs. The system uses microphone sensors with GPS

antennas to detect gunshots by recording nearly twenty acoustic measurements

and a location server that measures the latitude and longitude of the gunshots

recorded. The system then plots the location of gunshots on a map and reports

the location of gunshots to police departments. SST Inc. guarantees

1
Evidence pertaining to ShotSpotter is the sole issue on appeal, which we discuss in detail below.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 3 of 9
 ShotSpotter will detect and locate at least 80 percent of all
outdoor detectable gunfire and will locate that gunfire to within
25 meters of where the weapon was actually fired. So you take
where the weapon is fired, draw a 25 meter line out, draw a big
single [sic] and we guarantee that at least 80 percent of the time
that gunfire will have originated within that 25 meter or 50 meter
diameter circle, actually, which actually comes out to about 150
feet diameter, 160 feet diameter or so.

Transcript at 267. Greene explained the more sensors that record a gunshot,

the more precise the system can be. For example, if at least five sensors record

a gunshot, then it is likely the system will pinpoint a location on the map within

ten meters of the g ca . Id. at 267-69.

[5] T eSae e ed ad Sae E b 180, a de a ed ShotSpotter

forensic report of the August 1 incident. Specifically, the report includes a map

showing the location of the shooting; a map showing the number of

microphone sensors that recorded the shooting; and a table showing the exact

time the gunshots were recorded and the strength and sharpness of the

recordings. Johnson objected on the ground the report was cumulative.

Specifically, Johnson expressed concern that one page of the report merely gave

a description about ShotSpotter . . . . Id. at 271. The trial court agreed the

one page was cumulative f G ee e e e , but noted the

remaining pages, which include the maps and tables, would assist the jurors in

de a d g G ee e e . J b ec ed aga , ea g g

the remainder of the report was scientific evidence lacking proper foundation

pursuant to Indiana Evidence Rule 702. Specifically, he expressed concern as

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 4 of 9
 to how much ShotSpotter has been tested and whether it has been subjected to

peer review. The trial court disagreed and overruled the objection as to the

remainde f e e , g, I df d be . . . e fa eg e

than an admissible evidence issue and [an] argument that you could make,

[Defe e C e ], d c e d . Id. at 274.

[6] The jury found Johnson guilty as charged. At the sentencing hearing, the trial

court entered judgment of conviction and ordered Johnson to serve an

aggregate sentence of eighty-five years executed in the Indiana Department of

Correction. This appeal ensued.

Discussion and Decision

I. Standard of Review
[7] The trial court has broad discretion in ruling on the admissibility of

evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This

court will reverse the trial court s ruling only if it abused that discretion. Id. An

abuse of discretion involves a decision that is clearly against the logic and effect

of the facts and circumstances before the court. Huffines v. State, 739 N.E.2d

1093, 1095 (Ind. Ct. App. 2000) (citation omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 5 of 9
 II. ShotSpotter Evidence
[8] Johnson argues the trial court abused its discretion ad gSae E b

180.2 Specifically, he contends the trial court failed to assess the reliability of

the ShotSpotter technology pursuant to Rule 702(b). We disagree.

[9] R e 702(b) a e , E e ce fc e ad be f ec

a f ed a ee e e e e ab e c e fc c e.

S a ed d ffe e , e e ce fc e ad be f e ability is

de a ed e a c . Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct.

App. 2012), trans. denied.

The proponent of expert testimony bears the burden of

establishing the foundation and reliability of the scientific
principles. There is no specific test that must be considered in
order to satisfy Rule 702(b). Rather, reliability may be
established by judicial notice or, in its absence, by sufficient
foundation to convince the trial court that the relevant scientific
principles are reliable. In determining whether scientific
evidence is reliable, the trial court must determine whether the
evidence appears sufficiently valid, or, in other words,
trustworthy, to assist the trier of fact.

Id. at 787-88 (citations and internal quotation marks omitted).

[10] Prior to admission of Exhibit 180, the State elicited extensive testimony from

Greene. O e e f G ee e e d ca e e explained how the

2
J d e c a e ge G ee e e a e e b e S a e ad ed a contained
evidence pertaining to ShotSpotter.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 6 of 9
 ShotSpotter system operates to inform local law enforcement of any shots fired

in their jurisdiction. Specifically, he explained how the system generates

reports pinpointing the location of gunshots within twenty-five meters. As

noted above, Exhibit 180 is a ShotSpotter report prepared by Greene with

regard to the August 1 incident and it is clear by the trial court d

determined Exhibit 180 would e a d a e de a d g

e e . T . a 272. T e ef e, c a J a e , e a

court properly assessed the reliability of the ShotSpotter evidence prior to the

admission of Exhibit 180.

[11] I add , e e R e 702 e ded e ea ece a

b de e ced e e d g f a c . Turner v. State, 953

N.E.2d 1039, 1050 (Ind. 2011) (citation and internal quotation marks omitted).

Rather, the intent of Rule 702 is to liberalize the admission of reliable scientific

evidence and therefore the evidence need not be conclusive to be admissible.

Id. In the event shaky but reliable scientific evidence is admitted, the

a ae ea f a ac g c e de ce b [ ]g c -

examination, presentation of contrary evidence, and careful instruction on the

b de f f.... Id. (alteration in original) (citation omitted). For

example, by cross-examining the witness, the opposing party has the

opportunity to expose the differences between the actual evidence and the

scientific theory. Id. a 1051. T ed a e g e eg a e e

ad b f e e de ce. Id. To the extent Johnson argues the evidence

lacked reliability, the trial court concluded the evidence was reliable and would

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 7 of 9
 a e de a d g G ee e e . Even assuming the

e de ce a a , the trial court correctly noted Jo reliability

concerns went to the weight of the evidence, not its admissibility. Johnson had

a full opportunity to attack the credibility of the evidence in an attempt to

diminish any weight it carried with the jury. We conclude the trial court did

not err in admitting Exhibit 180.

[12] Further, and assuming the trial court erred, we conclude any error was

harmless. See Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014)

( Errors in the admission or exclusion of evidence are to be disregarded as

harmless error unless they affect the substantial rights of a party. ) (citation

omitted). Exhibit 180 merely shows a shooting occurred near 301 North

Lafayette Street, and at trial, the State admitted numerous other ShotSpotter

exhibits also showing a shooting occurred near 301 North Lafayette Street;

Johnson does not challenge the admission of these other exhibits on appeal. In

addition, many witnesses testified they heard a shooting occur, Stephen testified

Johnson shot him, the green SUV had numerous bullet holes, and Sharpe was

killed by a gunshot. This evidence undoubtedly indicates a shooting occurred.

Exhibit 180 is no different and its admission did not prejudice Johnson.

Conclusion
[13] The trial court did not abuse its discretion in admitting evidence. Accordingly,

e aff J c c .

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 8 of 9
[14] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1603-CR-672 | November 22, 2016 Page 9 of 9
 SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEFORE THE HONORABLE LINDA H. COLFAX, JUDGE PRESIDING

DEPARTMENT NUMBER 26

---oOo---
PEOPLE OF THE STATE OF CALIFORNIA,)
)
Plaintiff, ) SCN 226661
) Court No. 16015117
vs. )
) 402 HEARING
MICHAEL D. REED, )
)
Defendant. )
__________________________________)

Reporter's Transcript of Proceedings

Monday, June 5, 2017

APPEARANCES OF COUNSEL:

For Plaintiff:
George Gascón, District Attorney
850 Bryant Street - Suite 300
San Francisco, California 94103
BY: CHRISTOPHER ULRICH, Assistant District Attorney

For Defendant:

JEFF ADACHI, PUBLIC DEFENDER

555 Seventh Street - Suite 205
San Francisco, California 94103
BY: MICHELLE TONG, Deputy Public Defender

Reported by: Teanna L. Ward, CSR No. 11918, RPR

 I N D E X

Monday, June 5, 2018

PEOPLE'S WITNESS PAGE VOL.

GREENE, PAUL
Cross-Examination by Ms. Tong 6 1

E X H I B I T S

EXHIBITS DESCRIPTION IDEN EVID VOL.

C Enlargement of the 15 1
visual wave lengths
for audio clip 41334

D Enlargement of page 25 1
14
 66

1 Monday, June 5, 2017, 1:47 p.m.

2 ---oOo---
3 THE COURT: Let's go back on the record in our trial matter,

4 People vs. Michael Reed.

5 Counsel are present. Mr. Reed is present.

6 I have had an opportunity to review your pleadings, as well

7 as the testimony in the ShotSpotter 402, as well as arguments by

8 counsel. And the motion to exclude the testimony is denied.

9 Mr. Greene will be permitted to testify in the trial.

10 (Whereupon, the ShotSpotter 402 hearing was concluded.)

11 ---oOo---

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Footnotes
1 The record shows that the surveillance videos were admitted as Exhibit 2, however, they were submitted with Jones'
appeal, and therefore were unavailable for Samelton's appeal.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.
 1 SUPERIOR COURT OF CALIFORNIA

2 COUNTY OF SACRAMENTO

3 HONORABLE ERNEST W. SAWTELLE, JUDGE, DEPARTMENT 19

4 ---o0o---

5 THE PEOPLE OF THE STATE OF CALIFORNIA, )

)
6 Plaintiff, )
)
7 -vs- ) No. 17FE007924
)
8 RICKEONEICO KEGAN WILLIAMS, )
)
9 Defendant. )
________________________________________)
10

11 ---o0o---

12 WEDNESDAY, APRIL 4, 2018

13 ---o0o---

14 REPORTER'S TRANSCRIPT OF

15 KELLY-FRYE HEARING AND COURT RULING

16 ---o0o---

17 APPEARANCES:

18 For the People:

19 ANNE MARIE SCHUBERT, District Attorney for the

County of Sacramento, State of California
20 By: SYDNE CHRISTENSEN,
Deputy District Attorney
21

22 For the Defendant:

23 PAULINO G. DURAN, Public Defender for the

County of Sacramento, State of California,
24 By: GREG FOSTER,
Assistant Public Defender
25

26 ---o0o---

27

28 ELESE M. TALONE, CSR NO. 6925

 1 I N D E X

3 Page Ref.

5 WEDNESDAY, APRIL 4, 2018 1

6 Kelly-Frye Hearing 1

8 PAUL GREENE, People's Witness;

9 Direct examination by Ms. Christensen 16

10 Cross-examination by Mr. Foster 52

11 Redirect examination by Ms. Christensen 93

12 Recross-examination by Mr. Foster 95

13

14 Argument by Ms. Christensen 98

15 Argument by Mr. Foster 102

16 Court's ruling on Kelly-Frye hearing 104

17 Court denies motion 105

18

19 Court Reporter's Certificate

20

21 --o0o--

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 1 PEOPLE'S EXHIBITS ID/REF EVD

2 1 Document 2 113

3 2 Document 2 113

4 3 Document 2 113

5 4 Document 2 ---

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 1 DEFENSE EXHIBITS ID/REF EVD

2 A Document 59 113

3 B Document 59 113

4 C Document 67 113

7 --o0o--

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 104

1 MS. CHRISTENSEN: Yes.

2 MR. FOSTER: Yes.

3 THE COURT: All right. The Court has listened to this

4 witnessed in both direct and cross.

5 And as I mentioned earlier, I had also read the

6 transcript of this same witness's testimony in San Francisco

7 Superior Court back in June of 2017. And in fact he was

8 cited in that Nebraska Supreme Court case for his testimony

9 related to that case.

10 In addition, there were other experts that testified

11 in Contra Costa County, that was in Exhibit Number 2 I

12 think, from 2016 dealing with similar issues, just not

13 the -- it wasn't this witness.

14 But when you listen to it all, I'm not sure I really

15 needed to hear all the testimony I did today. Nothing I

16 heard on direct or cross, either one, radically altered the

17 Court's information that the Court had already from reading

18 the other transcript.

19 And that is that when it comes down to it, you know,

20 there is really nothing new here. You know, speed of sound

21 is not new. Acoustics are not new. Acoustic location is

22 not new. Audio recordings sure is heck aren't new.

23 Microphones, multi-lateration is not new.

24 And I mean, cell phones use this, a lot of the same

25 technology all the time. We have a Third DCA case, I

26 can't -- escapes me at -- name of it at the moment but

27 recently published the Third DCA indicating there is no

28 Kelly-Frye issue with regard to cell phone triangulation.

SACRAMENTO OFFICAL COURT REPORTERS 104

 105

1 And -- and we're -- we're doing something similar to this

2 in -- in here.

3 So I think it seems clear to the Court that this is

4 not new or novel scientific procedures being used in this

5 case with the ShotSpotter technology.

6 It's -- it's perhaps a -- a -- they put a lot of old

7 knowledge, old tech -- information together in one clever

8 application. But -- but I don't think that its component

9 parts can by any stretch of the imagination be considered

10 new or novel. They're clearly accepted in the -- in the

11 community. I think the -- in the scientific community that

12 is.

13 The -- the witness is more than qualified to give an

14 expert opinion in this case and he did. I didn't think he

15 was -- there were any questions really that he was

16 particularly stumped on that I heard.

17 I know that there were some questions about

18 questioning his mathematical background and there were a

19 couple questions that were asked that he did not know the

20 answer to. But I do not think that that was -- would

21 suggest that he didn't understand, wasn't qualified as an

22 expert in this system and in the various component parts

23 that make up the system. So I think he was properly

24 qualified.

25 And -- and I think his testimony bears out that all of

26 the correct procedures were used in this case so the motion

27 to exclude this is denied.

28 And that least was what, you still plan on calling

SACRAMENTO OFFICAL COURT REPORTERS 105

 106

1 this witness as a witness, correct --

2 MS. CHRISTENSEN: Yes.

3 THE COURT: -- at trial?

4 So is there any issue that we still have outstanding?

5 MS. CHRISTENSEN: I do not believe so, your Honor.

6 THE COURT: Mr. Foster?

7 MR. FOSTER: The only thing that I brought to the

8 Court's attention Monday was my client stipulation to --

9 THE COURT: Yes.

10 MR. FOSTER: -- the felony element of the 29800

11 charge. I do still need a couple minutes to chat with him.

12 THE COURT: Okay.

13 MR. FOSTER: I think we could probably still get

14 through voir dire and I think we could probably just

15 characterize it as unlawful possession of a firearm or -- or

16 in some generic fashion if we're not able to handle that --

17 THE COURT: For the 29800 violation in Count 5, right?

18 MR. FOSTER: Yes.

19 THE COURT: So normally, well, the jury would always

20 know that he's convicted of a felony, right?

21 MR. FOSTER: Correct.

22 THE COURT: You would just stipulate to the type or

23 the -- in the CALCRIMS the parties stipulated or he was

24 convicted of a felony.

25 So I can't remember how we -- so what you're saying is

26 your client is willing -- so that the People don't have to

27 prove that, your client is willing to admit that he was

28 convicted of a felony in the past.

SACRAMENTO OFFICAL COURT REPORTERS 106

 107

1 I think you specifically mentioned the 211, the

2 robbery, from January 30th of 20 -- of 2000 and 9, right?

3 MS. CHRISTENSEN: Correct.

4 THE COURT: That's the one that was elected in Count

5 5.

6 MS. CHRISTENSEN: Yes.

7 MR. FOSTER: And just so we're clear, that's -- I

8 propose that we handle it that way. I still need to confer

9 with him. He's down at the branch. It makes it difficult

10 sometimes but we'll have an answer to that sooner than

11 later.

12 I don't think that we need an answer to that before

13 jury selection because it can be identified simply as

14 possession of a firearm with a prior felony conviction or

15 some generic term, something like that.

16 THE COURT: Right.

17 So long as we address that issue certainly before we

18 get to jury instructions or so the People can prove it if

19 they need to.

20 You do have a 969 (b) packet or certified --

21 MS. CHRISTENSEN: I do, yes.

22 THE COURT: Okay. So as long as we have that, we can

23 deal with that at any time. So I won't tell the jury that

24 he was previously convicted of a felony.

25 And, of course, I am bifurcating the prior convictions

26 that have been alleged.

27 I think that covers everything.

28 So tomorrow jury instructions or jury selection. I've

SACRAMENTO OFFICAL COURT REPORTERS 107

 108

1 got a panel set up to be outside the doors at 9 o'clock.

2 And I have your witness list I think already.

3 MS. CHRISTENSEN: Yes. I do believe I inadvertently

4 left Paul Greene off of it so I apologize for that, and I

5 would ask that the Court add him on to that.

6 THE COURT: Last name spelled G-r-e-e-n-e?

7 MS. CHRISTENSEN: G-r-e-e-n-e.

8 THE COURT: Okay. Okay. So I'll add him.

9 Mr. Foster, normally, if you're -- if you would like

10 me to, I would just advise the jury that during the process

11 of selection I have a -- I have a Power Point that I use

12 that goes through.

13 And one of the points would be that the defendant is

14 in custody in this matter and will be a sheriff's deputy

15 sitting behind him at all times. Jury's ordered to

16 disregard that not consider it for any purpose.

17 Do you want me to say that to the jury or not?

18 MR. FOSTER: I do.

19 THE COURT: Okay. I will do that then.

20 And otherwise, I go over my Power Point. I do the 100

21 series and give them general admonitions about things.

22 I usually go through and talk to all of the jurors

23 before you talk to 'em. I will have gone over some of the

24 law. I will have gone over general types of things in this

25 case.

26 There is not anything very specific, right? I mean,

27 there is not -- there is none -- there is no particular

28 issue except for maybe there is the issue of sexual assault,

SACRAMENTO OFFICAL COURT REPORTERS 108

 109

1 right?

2 MS. CHRISTENSEN: Potentially, yes.

3 THE COURT: I don't know how much to explore that

4 really. I don't want to make too big of a deal since that's

5 not really -- there is no charge on it, but I think probably

6 should address it just in case there are people who are

7 victims of that so I will.

8 MS. CHRISTENSEN: And I will note -- and I don't know.

9 It's just because of the time that we're in. All of the

10 allegations deal with a firearm.

11 And I'm happy to address it all on my own and to do

12 that in voir dire, but I'll just give the Court ahead --

13 heads -- a head's up. If you don't do it, I definitely will

14 just because I think that is a hot ticket item right now and

15 unfortunately all the counts involve a firearm.

16 THE COURT: It is -- it's not the type of -- you know,

17 it's not like a school shooting.

18 MS. CHRISTENSEN: Right.

19 THE COURT: He's not shooting at anybody. It's more

20 on the street. And I don't know how much that will inflame

21 a jury at this point. But you're right, guns are always a

22 big topic right now.

23 Mr. Foster, what about the issue of either one of you

24 think you need to address anything to do with the Clark

25 shooting or there is no -- there is no real police

26 involvement initially, right, in any of this?

27 MS. CHRISTENSEN: I mean, my concern, it is Sacramento

28 Police Department officers that I will be calling which are

SACRAMENTO OFFICAL COURT REPORTERS 109

 110

1 the same officer -- you know, it's the same department

2 obviously involved in the Stephon Clark incident that we are

3 dealing with right now.

4 Not initially. I mean, initially it's all civilians,

5 right, but there is a potential for impeachment and all of

6 that is going to be with law enforcement officers. So they

7 do come out. The law enforcement officer are the ones that

8 collect the shell casings. So I mean, there is law

9 enforcement involved in it of course.

10 THE COURT: Right.

11 Do you want to handle that on your own or -- there,

12 something either one of you want me to ask about it?

13 MR. FOSTER: I think we've covered that issue

14 historically for years in terms of evaluating witness

15 credibility regardless of their occupation.

16 THE COURT: I hit that one pretty hard always and we

17 go over anybody's hesitating on it. I talk 'em through it

18 and see where they are.

19 If their attitude is if they're law enforcement,

20 they're gonna favor them, I usually kick 'em. If there

21 their attitude is law enforcement so don't believe 'em,

22 I kick 'em. So same thing.

23 Most people are in -- somewhere in between all that

24 and they're gone. I don't think going to be a huge issue

25 but we'll -- so I'll address it in that way and I won't

26 specifically mention Steven (sic) Clark shooting. I know

27 it's a hot topic but somebody else might. One of the jurors

28 that is might bring it up.

SACRAMENTO OFFICAL COURT REPORTERS 110

 111

1 And if they do, I guess we'll just, you know, have to

2 deal with it on the fly and see how it -- how it goes. I

3 don't want to spend a lot of time with that.

4 Do you agree with that, Mr. Foster?

5 I mean, I don't want to inflame the jury about that

6 issue. It is separate but it could come up. And if I does,

7 I'll try to address to it a degree and then try -- I don't

8 want to turn this into a voir dire about that. I don't

9 think that's relevant here to this type of case. We don't

10 really have any accusation that would -- that should bring

11 up those types of pages I don't believe.

12 Do you -- do you disagree with me on that?

13 MR. FOSTER: I do not.

14 THE COURT: Okay. So --

15 MS. CHRISTENSEN: I don't.

16 I think if something comes up, it's a potential that

17 I'll ask about it. But I do the -- in fact, definitely

18 don't want to spend a lot of time. I don't want to delve

19 into it.

20 THE COURT: All right. We'll try to handle it with

21 tact if we can.

22 Mr. Foster, do you have any sense of how long you

23 would need to talk to the jury?

24 MR. FOSTER: Assuming there is no super-outlandish

25 responses, you know, 20, 20, 30 minutes at most.

26 THE COURT: Okay. That sounds reasonable.

27 So both of you --

28 MS. CHRISTENSEN: I'm right around the same, yes.

SACRAMENTO OFFICAL COURT REPORTERS 111

 112

1 THE COURT: All right. Well, we'll bring them in

2 tomorrow morning at nine and we should be finished by the

3 end of the day I think.

4 Both parties have 20 preemptory, right?

5 MS. CHRISTENSEN: Yes.

6 THE COURT: Okay. Anything else?

7 MS. CHRISTENSEN: No, thank you.

8 THE COURT: All right. We'll see you guys tomorrow at

9 nine.

10 MS. CHRISTENSEN: Thank you.

11 THE COURT: Well, the exhibits that were marked I

12 think we should -- they weren't addressed but I think they

13 need to -- they need to stay because there's a pending --

14 there could be an appellate issue on tell Kelly-Frye. These

15 were all motions but they're exhibits obviously for the

16 Kelly-Frye hearing.

17 MS. CHRISTENSEN: I can. And that's fine. I can have

18 an additional copy for -- the CD marked for the trial

19 purposes. I have no objection to that.

20 THE COURT: So A, B and --

21 MS. CHRISTENSEN: I believe it's A and B. And for me

22 it's one and two were used. I'm happy to withdraw three.

23 We never addressed it at all.

24 THE COURT: In other words, so Exhibit Number 3 will

25 be withdrawn. People's Exhibit Number 1 and 2 --

26 And Defense Exhibits A, B and C -- let me ask, Mr.

27 Foster.

28 Mr. Foster, do you want A and B in? Do you want

SACRAMENTO OFFICAL COURT REPORTERS 112

 113

1 these? You marked these two exhibits A and B or do you want

2 C in or do you want any of it in?

3 MR. FOSTER: A B and C, please.

4 THE COURT: Okay. A, B and C will be admitted and the

5 Court will just keep those for purposes of any appellate

6 purposes they might have.

7 And People's 1 and 2 and they're withdrawing number

8 three.

9 MS. CHRISTENSEN: Yes.

10 THE COURT: So that's the order.

11 Thank you.

12

13 (proceedings concluded)

14 --o0o--

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SACRAMENTO OFFICAL COURT REPORTERS 113

 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Shooting Description
At 21:09:38 (9:09:38 PM) hours on April 01, 2016 ShotSpotter detected a Multiple Gunshot
incident in Rochester, NY. ShotSpotter recorded the incident as Flex ID #140660 and
located it at 9 Immel St.

Incident Time Analyzed

The spool data were reviewed for 21:09:38 hours on April 01, 2016.

Position With Respect to the Coverage Area

Figure 1 – ShotSpotter Coverage Area displays the ShotSpotter coverage in Rochester, NY
at the time of the incident. The red dot indicates the location of the shooting incident, the
red dashed line denotes the boundaries of the ShotSpotter coverage area, and the triangle
symbols represent the sensors that participated in detecting the incident.

Figure 1 - ShotSpotter Coverage Area Rochester, NY

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 1
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Auto-detected by ShotSpotter? Yes

About ShotSpotter
ShotSpotter was installed in Rochester, NY in 2006. ShotSpotter has three primary
components: acoustic sensors, a Location Server application, and the ShotSpotter Flex
user interface. The ShotSpotter Location Server is operated by SST, Inc. and runs on a
virtual server hosted at a remote facility, the ShotSpotter Flex user interface resides on a
PC at the customers dispatch facility, and the acoustic sensors are deployed in
geographic areas that are designated by the customer.
Each sensor is triggered by impulsive sounds in its environment. The acoustic
measurements of these impulsive sounds and the exact time that they were detected
are transmitted to the Location Server as possible gunshot sounds. The Location Server
analyses the data received and determines if the impulsive sound can be located and
classified as gunfire. If the impulsive sound can be located and classified as gunfire it
reports the incident to the SST Service Operations Center where a human operator
reviews the incident for classification accuracy. The reviewed gunfire incident is then
published to the customers user interface. The user interface, referred to as the Flex
Alert Console, provides an actionable view of the incident with an emphasis on the time
and location that the shooting occurred. Gunfire incidents are typically detected,
located, reviewed, and published to the customer in less than 60 seconds.
The firing of a gun or an explosive device creates a loud, impulsive sound that can, under
optimum environmental conditions, be detected above urban background noise up to two
miles away from the firing incident location. Thus, the operation of ShotSpotter is
understandably subject to the laws of physics and acoustic propagation.
ShotSpotter detects and properly geo-locates (provides latitude and longitude) 80% of
detectable outdoor incidents within the coverage area, accurate to within a circle whose
radius is 25 meters. SST, Inc. does not guarantee 100% detection because real world,
urban environments may contain intervening buildings, topography, foliage, periods of
increased traffic or construction noise, and other urban acoustic noises that may either
prevent the sound of a gunshot from being detected by the sensors(s), or may change or
modify the audio characteristics of the sound of a gunshot so that it no longer matches
the sensor(s) detection parameters.
Other factors, such as obstructed or attenuated muzzle blast, weapon discharge in an
enclosed space, or if the weapon discharged is of .22 or smaller caliber, may also prevent
the sensor(s) from not detecting all, or some shots fired.

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 2
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

        Analysis

Figure 2 – Incident review At 21:09:38 on April 01, 2016, ShotSpotter detected and located
a Multiple Gunshot incident in Rochester, NY. Below is a table which shows the timeline of
the incident being updated.

Figure 2 – Flex ID #140660 Incident review timeline

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 3
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Figure 3 – Address Location displays the locations calculated by ShotSpotter. The address
of 9 Immel St was read from either a database of parcel information provided by the city or
county and uploaded into ShotSpotter or from the map provider. The red dot indicates the
location of the shooting incident as calculated by ShotSpotter in real-time and reported to
the ShotSpotter operator.

Figure 3 – Flex ID #140660 Flex Location

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 4
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Table 1 – Timeline of Discharge of Shots: The following table shows the time of discharge
for each of the rounds which comprise this shooting event. The times listed below are the
time the system calculated the trigger was pulled based on the environmental conditions at
the time of the event. These times precede the time at which the system notified the
ShotSpotter Operator listed because of small radio, computational, and network delays. All
times are obtained from system and sensor clocks that are synchronized to GPS time,
which is in turn synchronized with the atomic clock at the National Institute of Standards and
Technology in Boulder, CO. 

Shot Time
1 21:09:35.122
2 21:09:37.377
3 21:09:37.723
4 21:09:38.057
5 21:09:38.325
Table 1 – Shot timeline, Flex ID #140660

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 5
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Figure 4 – Individual Shots Fired The following image plots the location of each round fired
in Google Earth. This image is created by post-processing the archived data. Post-
processing is a “manual” re-evaluation of the archived data through software tools that
duplicate the real-time location algorithms that are a resident part of the ShotSpotter
Location Server. Post-processing can be selectively performed on subsets of the raw data
so that noises from different sources can be isolated for analysis.
In the image below the red dots indicate the location of each of the rounds fired. The
locations calculated in post-processing are not identical to, but are typically within normal
limits of what the ShotSpotter calculated in real-time. The yellow circle indicates a 25m
margin of error radius for gunshot incidents that occur within the boundaries of the coverage
area depicted on page 1 and is present in the image for reference only.

Figure 4 – Individual Shot Locations, Flex ID #140660

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 6
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

    Multilateration:

The source of a pulse (a sound that goes bang, boom, or pop) is located using a
mathematical process called multilateration. Multilateration requires a minimum of three
sensors that surround the source to accurately report the time that a pulse is detected.
Each participating sensor will detect that pulse at slightly different times. The Location
Server calculates the time differences between pairs of sensors to generate a curve called a
hyperbola. All of the resulting hyperbolae are then plotted onto a map. The spot where the
hyperbolae intersect is where ShotSpotter locates the shot. When more than three sensors
participate in the detection, Location Server performs automatic calculations to find a
solution that minimizes the error to the greatest extent possible.

Figure 5 – Multilateration plot Flex ID #140660 was detected by six sensors.

Figure 5 - Multilateration, Flex ID #140660

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 7
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

        Site-specific Acoustics 
The sound of these shooting events can be heard on many sensors. Below are pictorial
representations of the audio clips and a link to the corresponding .wav file for three sensors
close to the incident. The depicted audio waveforms and audio clips represent 8.0 seconds
of audio that was manually downloaded from each participating sensor. (Double-click on the
speaker icons to play the audio from each sensor.)

Sensor 10 (211m)

Sensor 8 (329m)

Sensor 28 (466m)

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 8
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

        Conclusion 

At 21:09:38 (9:09:38 PM) hours on April 01, 2016 ShotSpotter detected a Multiple Gunshot
incident in Rochester, NY. ShotSpotter recorded the incident as Flex ID #140660 and
located it at 9 Immel St.

After review, the locations and times of five rounds fired were calculated.

Acoustical data analysis of a gunfire incident is complex and not comprehensive. The
conclusions above should be corroborated with other evidentiary sources such as
recovered shell casings, and witness statements.

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 9
 
 City : Rochester, NY
Zone : 281
Reference Date : 01 APR 2016
 
  Customer’s Ref. #: CAD#
Detailed Forensic Report Report Date : 07 APR 2016

Certification and Acknowledgement

Certification A notary public or other officer completing this certificate 
verifies only the identity of the individual who signed the 
I, Paul C Greene, declare that I am the document to which this certificate is attached, and not the 
Lead Customer Support Engineer at truthfulness, accuracy, or validity of that document 
SST Inc. I have personal knowledge
of the matter referred to in this report, Arizona All-Purpose Certificate of
and, if called as a witness, could and
would testify thereto. I declare that the Acknowledgement
above is true and correct. State of Arizona )
County of Cochise )
Executed this of __, 20 ___, On

at , .
before me ______________________________,
Notary Public personally appeared Paul C Greene
who provided to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the same
in his authorized capacity, and that by his
Paul C Greene signature on the instrument the person, or the
entity upon behalf of which the person acted,
executed the instrument.
SST, Inc.
I certify under the laws of the State of Arizona that
7979 Gateway Blvd. the foregoing paragraph is true and correct.

Suite 210 Witness my hand and official seal.

Newark, CA 94560-1156
+1 (510) 794-3162 Signature
+1 (650) 887-2106 fax Notary Public
[email protected]

Copyright © 2016 SST, Inc. ™. All rights reserved, ShotSpotter Flex™, ShotSpotter®, ShotSpotter Gunshot Location System® and the ShotSpotter logo are registered trademarks of SST, Inc. ™. SST and
ShotSpotter technology is protected by one or more issued U.S. and foreign patents (http://www.shotspotter.com/patents), with other domestic and foreign patents pending. All other company and product
names mentioned herein may be trademarks of their respective companies.
Report File Name: ROC-W-2016-04-01.140660.doc 10
 
Exhibit 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 1 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 2 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 3 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 4 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 5 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 6 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 7 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 8 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 9 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 10 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 11 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 12 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 13 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 14 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 15 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 16 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 17 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 18 of 19
Document title: Police Are Telling ShotSpotter to Alter Evidence From Gunshot-Detecting AI
Capture URL: https://www.vice.com/en/article/qj8xbq/police-are-telling-shotspotter-to-alter-evidence-from-gunshot-detecting-ai
Capture timestamp (UTC): Fri, 06 Aug 2021 02:33:16 GMT Page 19 of 19
Exhibit 20
Document title: Gig Work Sucks, Just Ask Uber and Lyft Drivers
Capture URL: https://www.vice.com/en/article/g5gkvx/gig-work-sucks-just-ask-uber-and-lyft-drivers
Capture timestamp (UTC): Wed, 25 Aug 2021 21:50:47 GMT Page 1 of 27
Document title: Gig Work Sucks, Just Ask Uber and Lyft Drivers
Capture URL: https://www.vice.com/en/article/g5gkvx/gig-work-sucks-just-ask-uber-and-lyft-drivers
Capture timestamp (UTC): Wed, 25 Aug 2021 21:50:47 GMT Page 2 of 27
Document title: Gig Work Sucks, Just Ask Uber and Lyft Drivers
Capture URL: https://www.vice.com/en/article/g5gkvx/gig-work-sucks-just-ask-uber-and-lyft-drivers
Capture timestamp (UTC): Wed, 25 Aug 2021 21:50:47 GMT Page 3 of 27
 Gig Work Sucks
July 29, 2021 ·

·1

·2

·3

·4

·5

·6

·7

·8

·9

10· · · ·Gig Work Sucks, Just Ask Uber and Lyft Drivers

11· · · · · · · · · · · · · 7/29/2021

12

13

14

15

16

17

18
· · https://www.vice.com/en/article/g5gkvx/gig-work-sucks
19· -just-ask-uber-and-lyft-drivers

20

21

22

23

24

25

U.S. LEGAL SUPPORT

866-339-2608
 Gig Work Sucks
July 29, 2021 2

·1· · · · · · SPEAKER:· If you'd tried catching an Uber

·2· recently, you may have noticed that prices and wait
·3· times are worse than they've ever been.· Ride share
·4· companies like Uber and Lyft didn't fare well during the
·5· pandemic and now that restrictions are easing drivers
·6· aren't coming back.
·7· · · · · · SPEAKER:· Ride share companies like Uber and
·8· Lyft are pumping millions into new and return employee
·9· incentives.
10· · · · · · SPEAKER:· If I don't accept a Door Dash order
11· I'm not penalized like Uber would be.· So if you don't
12· accept so many Uber trips, Uber like to penalize you.
13· Honestly, I don't think I'll ever go back to Uber unless
14· they pay their drivers more.
15· · · · · · SPEAKER:· But as more drivers like Selesky
16· (phonetic) switch over, those who bank on a ride home
17· from apps like Uber and Lyft are finding themselves
18· stranded.
19· · · · · · BEN MAKUCH:· Motherboard staff writer Edward
20· Ongweso, Jr. spent some time talking to Uber drivers to
21· find out what's going on.· He's here with us today to
22· tell us what he found out.· Here's a preview.· Uber and
23· Lyft can't find drivers because gig work sucks by
24· Matthew Gault and this is Cyber.
25· · · · · · Ed, thank you so much for being on the show

U.S. LEGAL SUPPORT

866-339-2608
 Gig Work Sucks
July 29, 2021 3

·1· · · · · · EDWARD ONGWESO, JR.:· Thanks for having me on

·2· the show.
·3· · · · · · BEN MAKUCH:· So why are gig workers checking
·4· out?
·5· · · · · · EDWARD ONGWESO, JR.:· It really comes down to
·6· the word sucking, like working conditions are horrible,
·7· the pay is horrible, and before the pandemic workers
·8· were checking out because of concerns about safety,
·9· concerns about pay, concerns about stability, their own
10· mental and physical health.· And then as the pandemic
11· started to rage, as the company failed to provide PPE,
12· as it, you know, fumbled its sick pay policies and tried
13· to deny extension of relief to workers as they felt
14· overwhelmed with whether they were going to qualify for
15· unemployment as something that Uber and Lyft have
16· opposed in courts previously, they simply said that it
17· was not worth it, and a lot of workers ended up not
18· coming back, and this is on top of the fact that most
19· drivers leave Uber and Lyft every year.
20· · · · · · BEN MAKUCH:· There's a lot to unpack there,
21· but I want to kind of lay this foundation at the top.
22· So there's a reason that Uber was so cheap for so long,
23· right, and it's part of the company's long-term growth
24· model.· This is something you've written about
25· extensively.· Will you kind of give us the cliff notes

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 Gig Work Sucks
July 29, 2021 4

·1· version of that?

·2· · · · · · EDWARD ONGWESO, JR.:· Right.· Uber and Lyft,
·3· ride hail companies in general where when they entered
·4· the market were faced with a problem, right.· Taxi
·5· services already exist, and they provide rides at a
·6· price that's regulated.· How are we supposed to
·7· undermine them if it's going to cost you probably more
·8· to do those rides if it's not going to have a guarantee
·9· by the state to have them priced at that point or have
10· the cost come in at that point.
11· · · · · · So they got venture capital subsidies,
12· money from investors to provide rides at lower
13· prices, for a short amount of time provide drivers
14· with more money than they would normally get on
15· average working, and the goal was we are going to use
16· these below cost prices, predatory prices to attract
17· customers at an unnatural rate, and we are going to
18· use it to undermine competitors who don't have
19· billions of dollars investment money backing them so
20· that we can get rid of them.· And when all is said
21· and done, we'll be able to hike prices and the
22· customers will have nowhere to go and we can end the
23· subsidies.· We can finally earn a profit.
24· · · · · · BEN MAKUCH:· But nobody saw a global pandemic
25· coming.· It's a little disruptive to that, right?

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·1· · · · · · EDWARD ONGWESO, JR.:· Right.

·2· · · · · · BEN MAKUCH:· So how did the pandemic affect --
·3· you've already talked about it a little bit, but how did
·4· the pandemic affect I think the drivers primarily I'm
·5· interested in?· How did it affect the drivers?
·6· · · · · · EDWARD ONGWESO, JR.:· Yeah.· You know, a lot
·7· of drivers that I spoke to and have spoken to since the
·8· pandemic started just felt that like Uber and Lyft
·9· didn't really care about them.· They were not getting
10· PPE.· The main places where they would have green light
11· hubs, green light centers where you go to get onboarded,
12· where you go to have questions, where it's really the
13· only place you're likely to interface with a human being
14· were closed.· And then the companies announced that they
15· were closing a significant amount of them permanently.
16· So you're not providing PPE for drivers, you're not
17· providing new guidance or input, you're giving them
18· delayed messaging about CDC guidelines to be followed
19· and sometimes contradictory.· You're also not providing
20· for them adequate relief so that they don't have to
21· drive.· A lot of drivers felt like their options were to
22· starve or to risk infection, right, because there was no
23· paid sick leave and when there was, it was incredibly
24· low paltry sums.· You know, I had drivers who talked to
25· me about how if they calculated everything that Uber

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·1· took from them over the years, one driver's example, it
·2· was like 60,000 pounds over six years, and they were
·3· only getting offered a few hundred dollars for paid sick
·4· leave.· It was nowhere near enough needed to make ends
·5· meet, let alone not be forced to keep working.· And so a
·6· lot of drivers were considering leaving left because of
·7· frustration, left because of inability to actually, you
·8· know, stomach staying around or risk infection.· Some of
·9· them reported highlighting the Cares Act and the
10· guidelines that allowed for independent contractors like
11· Uber and Lyft drivers as they are currently
12· misclassified to claim helped, you know, make that final
13· push that a lot of drivers needed, even though they knew
14· it was unsafe, even though they knew they were at risk,
15· they could not bring themselves to quit because they
16· were making money.· They were the primary, you know,
17· wage earner for their household or the caregiver for
18· their family.· They needed that job even though it could
19· kill them.
20· · · · · · BEN MAKUCH:· Is Uber doing anything now or
21· Lyft doing anything now to try to lure drivers back?
22· · · · · · EDWARD ONGWESO, JR.:· Yeah.· They're rolling
23· out incentives, right, and this is an interesting thing
24· because for a long time the companies already -- they
25· were spending hundreds of millions of dollars in

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·1· incentives for drivers, and they've cut those incentives

·2· over the years in addition to cutting the base pay raise
·3· for drivers.· So this massive incentive program is
·4· actually just like a return, not even really a return to
·5· the norm, but could be seen as like an attempt to get
·6· back to what drivers might have been compensated if the
·7· base rates weren't cut, but if they also didn't have
·8· those stupendous driver incentives that were around for
·9· the first few years of Uber and Lyft.
10· · · · · · BEN MAKUCH:· Sort of these weird stories where
11· so much of Uber's behavior, I guess, just doesn't make
12· any sense to me, maybe because I've worked for a living
13· too long.· So another aspect of this that I thought was
14· really strange was that in New York City Uber recently
15· actually locked out employees from using the app.
16· · · · · · EDWARD ONGWESO, JR.:· Right.· In 2019 going
17· into 2020, the early parts of the pandemic Uber and Lyft
18· via I believe at the time when it was still around were
19· faced with a predicament which is that New York City
20· passed a bunch of rules that to put a wage floor, put a
21· cap on licenses but not cars.· And so as a result they
22· were also required to reduce the amount of dead head
23· time, the amount of time drivers spent without a
24· customer in the back.· All of this would result in an
25· increase in driver working conditions and pay, but that

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·1· goes against the point of Uber, Lyft and other ride hail
·2· companies which is they're operating at a loss, right,
·3· not in the hope that one day they'll be able to make a
·4· profit because they've locked in the customers, so they
·5· need to reduce drive costs and labor costs as much as
·6· possible.· So they came up with a pretty ridiculous and
·7· exhaustive quota system that would dictate the terms in
·8· which you were allowed to go online by forcing you to
·9· make X amount of trips, and if you do the math, the
10· trips would basically come out to you having to drive 60
11· hours a week with a significant amount of those hours
12· during peak traffic times for you to be able to get the
13· privilege to schedule next week's hours at ideal driving
14· times so then you would be able to rest easy a little
15· bit, and a lot of drivers were simply unable to do that,
16· got locked out, and by locked out basically the app does
17· not allow you to drive during hours that others would
18· drive because they've set those hours.· And so you're
19· just given or relegated with low need, undesirable hours
20· where you're not going to get much business and
21· effectively fired because if you're going to be driving,
22· you know, for this company, you're doing it because you
23· have a good idea of when to drive, where to drive, how
24· you'll make that money back.· But if you're being forced
25· to drive at certain times and you're not making ends

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·1· meet and you're just piling up costs on your car you
·2· quit, all right.· And so they didn't fire tens of
·3· thousands of drivers, but they forced tens of thousands
·4· of drivers to quit because the other option was to just,
·5· you know, put miles on the car and eat into the gas tank
·6· every single day.
·7· · · · · · BEN MAKUCH:· So where do Uber drivers and Lyft
·8· drivers go after this?
·9· · · · · · EDWARD ONGWESO, JR.:· You know, that is a good
10· question because one of the problems is -- one of the
11· problems remains that since we don't actually have in
12· this country a real social safety net, we don't actually
13· have any real mechanism to absorb people into jobs that
14· would give them dignified working conditions and pay,
15· many of them may ultimately end up going back into the
16· work and they're scared of that.· A lot of the drivers
17· spoke to or insisted that they would never return,
18· right, but also these are people who over the years have
19· wrestled with quitting and not quitting and ultimately
20· may not have to return because they have families at
21· home and also families overseas that they're sending the
22· money to, right, so a lot of them will try to do work
23· elsewhere in ways I think mirrors the mass -- I don't
24· know if it's a mass exodus, but the amount of people
25· quitting, right, the large numbers of people quitting

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·1· retail jobs, restaurant jobs and not wanting to come

·2· back.
·3· · · · · · The question, I think the real question is,
·4· okay, if you don't come back, then what are you going
·5· to do.· A lot of people drive also because they love
·6· it, right.· You know, a lot of people in New York
·7· City and San Francisco and these major cities, they
·8· drive because they enjoy talking to people or they
·9· enjoy the sort of freedom that you might have.
10· You're just cruising around with someone and you're
11· picking people up and dropping them off.· To lose
12· that is going to be devastating for a lot of people.
13· They may try to work with other apps, may try to work
14· with taxi companies, may try to work with the company
15· later, or they may try to exit into another industry.
16· But then there's also the concern this is a problem
17· across the economy.· You're allowed to be treated
18· like shit and paid like shit.
19· · · · · · BEN MAKUCH:· Yeah.· I mean, this is one of the
20· reasons I really wanted to talk to you about, that this
21· is a phenomenon that's not relegated to just Uber,
22· right?· We've got this gig work epidemic in the country
23· that is really -- I mean, as somebody that worked retail
24· for ten years, I look at gig work and I'm like I can't
25· even -- I was already scraping by and barely able to do

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·1· it, you know, 40 or 50 hours a week when I was a retail

·2· employee, and they treat people like shit.· I can't
·3· imagine working for one of these companies, like
·4· technically not even being an employee, right.
·5· · · · · · So one of the threads here I've been seeing
·6· in the coverage of this, this is part of the bigger
·7· story in the American economy.· Millions of Americans
·8· have survived the pandemic and realized for one
·9· reason or another what we were doing for a living for
10· one reason or another was not working out.· So where
11· do you see this going in the next year?
12· · · · · · EDWARD ONGWESO, JR.:· It really depends on the
13· decisions that are made to either increase wages or give
14· people a chance to choose jobs that they want and enter
15· industries that they want or to change labor laws so
16· that people are not being treated like shit at their
17· workplaces.· I mean, there are a lot of jobs right now
18· that the way they're constructed and the way that the
19· law has eroded, managers and employees think it is fine
20· for the conditions to be horrible and for the pay to be
21· horrible and for the turnover to be high, right.
22· · · · · · We don't have to have warehouse jobs or
23· front facing retail jobs or, you know, restaurant
24· jobs that pay you starvation wages and work your body
25· to the bone to the point where you cannot work there

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·1· because you will get an injury or because you'll have

·2· a breakdown or some other problem, right.· But the
·3· question is, is there any interest in doing that? I
·4· think a lot of people do view these sort of
·5· conditions as immutable, as facts in life, right.
·6· Part of working retail, you know, is getting harassed
·7· where people are getting dominated or submitting to
·8· the domination by a boss.· Restaurants, I worked at
·9· restaurants for awhile, and that is pretty much like
10· you accept that that's just how it's going to be,
11· right.· For the duration of the time you're working
12· you put your head down.· It doesn't have to be that
13· way.· But I also don't know if we're going to be able
14· to change those sort of larger issues structurally
15· right now, things like the proactive stalled and it
16· doesn't look like there's a way to get it passed in
17· the senate because a lot of the legal reforms could
18· also be struck down in the courts which are dominated
19· by right wing reactionary judges or case precedent
20· that is anti-worker in general and because we also
21· have a supreme court where it would end up ultimately
22· that is pretty anti-worker.
23· · · · · · There are ways that I can envision ways,
24· laws, reform that we can pass, questions like one,
25· can they actually get passed in Congress, and then

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·1· two, can they survive scrutiny in the courts.· At

·2· this time right now that may not actually be the
·3· case.
·4· · · · · · BEN MAKUCH:· There's something that I hear,
·5· the argument on the other side that I often hear, and
·6· it's usually the one coming from somebody grilling.
·7· People are staying home because unemployment benefits
·8· are too good.· What do you make of this argument?
·9· · · · · · EDWARD ONGWESO, JR.:· I mean, that's a weird
10· way to say that people are staying home because their
11· pay is so bad.· I mean, that's really what you're
12· saying.
13· · · · · · BEN MAKUCH:· Right.
14· · · · · · EDWARD ONGWESO, JR.:· If unemployment is too
15· good that means that you're getting paid like shit, and
16· it's not high enough for you to consider going back, and
17· that is not -- it doesn't -- I don't understand why when
18· people think that they don't think like that isn't the
19· immediate thought that occurs to them because then the
20· question is we don't have a particularly generous
21· welfare system, so why are you getting paid more on
22· unemployment, which is a system that has been subjected
23· to horrendous cuts than the tax by conservatives and
24· right wingers and even liberals over the past few
25· decades.· I think it's a stupid take.

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·1· · · · · · BEN MAKUCH:· I also think people don't

·2· understand how much goes into just being on
·3· unemployment, like how much of a job it actually is.
·4· That's a whole different podcast.
·5· · · · · · EDWARD ONGWESO, JR.:· No, but I think you're
·6· right.· It is -- like these are -- it's a process that
·7· demeans you each time, the constant paperwork, the
·8· constant need to prove that you're actually looking for
·9· a job, right.· Also the restrictions for people who are
10· on other welfare programs, like food stamps.· There are
11· restrictions what you can actually use them for. I
12· mean, all of this, it's not like just free money that's
13· being doled out.· I think that's another thing that
14· people who have never been on it don't get.
15· · · · · · BEN MAKUCH:· Yeah.· All right.· So to bring
16· this back around to Uber, does Uber ultimately survive
17· this labor shortage do you think, or do they have to
18· change, do they have to give people more money and they
19· have to go more into the red?
20· · · · · · EDWARD ONGWESO, JR.:· It's interesting because
21· I think it's pretty clear that investors don't really
22· care about risk finances, nor does Uber really care
23· about pretending like there's a real act of
24· profitability that doesn't involve massive amounts of
25· wealth transfer from the workers and consumers, right.

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·1· But there is a real question of like if it can turn

·2· around the labor shortage, right, can it, you know, what
·3· Uber might think it needs to do is increase incentives,
·4· right, and that might increase, you know, drivers and
·5· retain drivers a little bit longer, but will that
·6· actually get more people hired, I don't know.· And
·7· there's also the question of, you know, Uber has a
·8· turnover rate that's above 95 percent and it's had that
·9· for almost every single year it's existed.· What if it
10· has just actually depleted the labor pool of people who
11· are willing to work for it.· That's a question that I
12· don't know if we are going to be able to answer until it
13· actually happens, right.· But, I mean, Uber could
14· survive it.· Uber has survived pretty horrendous
15· scandals, crises in every step of its existence, mainly
16· because of how promising the returns are going to be for
17· investors if it does get a monopoly.
18· · · · · · BEN MAKUCH:· All right.· Thank you so much for
19· coming onto Cyber and walking us through this.· His
20· latest article on this is Uber Lyft, can't find drivers
21· because gig work sucks.
22· · · · · · EDWARD ONGWESO, JR.:· Thanks for having me on.
23· It was great talking with you.
24· · · · · · (Music)
25· · · · · · BEN MAKUCH:· Hello, everyone.· I am Matthew

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·1· Gault and this is Cipher.· It's that part of Cyber where
·2· we decipher the week's biggest tech stories.· With me as
·3· always is staff writer Lorenzo Franceschi-Bicchierai.
·4· Sir, how are you doing?
·5· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· I'm doing
·6· well, thanks.· How are you, Matt?
·7· · · · · · BEN MAKUCH:· I'm doing all right.· I got a
·8· little bad news about a sick cat yesterday, but I'm
·9· doing okay.· I don't want to bring the show down, so
10· let's jump right into these oh, these stories are all
11· kind of depressing.
12· · · · · · All right.· So let's just get into it.· So
13· police are telling ShotSpotter to alter evidence from
14· gunshot detecting AI.· Lorenzo, what is ShotSpotter?
15· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Oh, that's a
16· very good question because that's really the heart of
17· this story.· What is ShotSpotter, how reliable it is and
18· should police use it for court cases.
19· · · · · · My understanding of ShotSpotter is that
20· it's technology that relies on sort of a network of
21· microphones installed in neighborhoods which previous
22· models were reporting has shown that they are
23· predominantly black and latino communities, you know,
24· showing clear bias from the police on where to put
25· these systems, and this network of microphones

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·1· records, you know, ambient noise and is designed to

·2· detect when a gunshot goes off.
·3· · · · · · The technology relies on algorithms.
·4· There's also some human review which is, you know,
·5· not automatic.· I think it just comes into play if
·6· there's some issue and this is the story here.
·7· · · · · · This story centers around the case in
·8· Chicago where a 60-year-old man is accused of
·9· murdering a 25-year-old.· The accused claims that he
10· wasn't, you know -- the other man was shot in a
11· drive-by shooting and he just picked him up and
12· brought him to the hospital, and the key evidence in
13· the case is a report from a ShotSpotter that places
14· the shooting at a certain location.· But it turns out
15· that the shooting was a little bit further, and the
16· defendant's lawyer essentially is arguing that this
17· technology is not reliable, should not be entered
18· into the case, and it's completely moot.· And what's
19· interesting here is that the prosecutors essentially
20· said you know what, we're not going to use this
21· evidence anymore.· You know, let's drop the evidence
22· which, you know, some of the experts interviewed in
23· the piece essentially argue that this is a clear sign
24· that the police does not want to talk about how this
25· technology works, does not want to really get into

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·1· how it was used in this case because if this was

·2· entered into evidence, then the defense would have
·3· had the right to really see all the nitty and gritty
·4· of how this worked.
·5· · · · · · And to Motherboard and Cyber listeners,
·6· this may sound familiar.· Years ago there were a lot
·7· of stories about sting rays, which are surveillance
·8· devices that the police uses to intercept text
·9· messages and locate people using cell phones, and
10· years ago there were many cases where the police also
11· dropped this kind of evidence in an attempt not to
12· disclose how the technology actually worked.
13· · · · · · BEN MAKUCH:· Yeah, and I want to highlight
14· something very specific from this story too that I
15· thought was really interesting.· It's not just that they
16· backed away -- in this particular case that they backed
17· away from using the evidence.· It appears based on
18· documents that the man's public defender was able to
19· turn up that someone had accessed the ShotSpotter data
20· and altered it so that something that had been
21· registered as a firework in the database was then called
22· a gunshot later, and they had also moved -- you said
23· this, but they specifically moved the location at which
24· that shot was heard.· And then as soon as someone called
25· them on it, they abandoned it completely.

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·1· · · · · · It's interesting when we have these new

·2· technologies, especially with forensic science where
·3· we have something that supposedly is going to tell us
·4· objectively what occurred and where we have to be
·5· very careful, especially when we're talking about
·6· sending people to jail for a very long time.
·7· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· And
·8· it's important to note that this is not the only case
·9· where evidence has been withdrawn and Todd, the author
10· of the piece, also delves into another case where a jury
11· acquitted a defendant because, you know, citing
12· ShotSpotter's unreliability.· So, you know, there's a
13· history of controversial use of this evidence.
14· · · · · · BEN MAKUCH:· All right.· Let's move on to the
15· next story.· Everyone loves AI, everyone hates malware.
16· Soon you may have malware in your AI if you don't
17· already.
18· · · · · · Researchers hid malware inside an AI's
19· neurons and it worked scarily well.· What's going on
20· here, Lorenzo?
21· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· This is
22· really interesting research from a Chinese university,
23· the University of Chinese Academy of Sciences.· The
24· researchers there found that they were able to
25· essentially embed malware with steganography, which I

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·1· think we talked about last week, into a neural network.

·2· So the idea here is that a hacker or a hacking group
·3· could recompile some sort of neural network model, add
·4· the malware in and hide it in and the model would still
·5· work.· You know, the AI would do the job it was designed
·6· to do, but the user would get infected with malware.
·7· And the researcher showed this by creating malware like
·8· this, and they ran it through some anti-virus scans that
·9· could not detect it, so their hypothesis is that this
10· could be one day maybe one way to infect people with
11· malware.
12· · · · · · BEN MAKUCH:· Right.· The idea here is kind of
13· these programs are so big and made up of so many
14· component pieces that it's fairly easy to slip in pieces
15· of bad code and remain undetected, right?
16· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· That's
17· correct.· It's just another way to, you know, trick
18· people into running malware essentially and, you know, I
19· think it relies on the fact that more and more companies
20· and developers are using this kind of software, and
21· perhaps they not as careful in checking into whether
22· it's malicious.· So as the researchers know, this could
23· be another avenue for interesting supply chain attacks.
24· · · · · · BEN MAKUCH:· Yeah.· I really enjoy -- you
25· don't really get pretty definitive statements from

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·1· researchers in a paper like this, but this stuck out to

·2· me.· As neural networks become more widely used, this
·3· method will be universal when delivering malware in the
·4· future.
·5· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· That
·6· remains to be said.· Rathamali de Leon, the author of
·7· the piece quotes an expert saying this may be a little
·8· overkill.· There are other ways to do it.· But, you
·9· know, if anything we've learned from this from cyber
10· securities that if it's possible and if researchers say
11· it's possible, eventually someone will use it.· It's
12· just a matter of time.
13· · · · · · BEN MAKUCH:· All right.· Let's move on to the
14· last story which is the one I really wanted to talk
15· about and is written by you.· Facebook says Death to
16· Khamenei posts are okay for the next two weeks, and this
17· is based on stuff that's going on in Iran.· Lorenzo, can
18· you kind of set this one up?
19· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· So last
20· week a lot of Iranians took to the streets to protest a
21· water shortage in a southwestern region in Iran.· These
22· protests then sparked more protests in Tehran over, you
23· know, the usual complaints that Iranians have which is,
24· you know, they're under authoritarian regime and a lot
25· of them were like chanting death to Khamenei, which is a

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·1· very common chant and, you know, while in Farsi it

·2· literally means death to Khamenei, given the context in
·3· English it would be more like down with, you know, down
·4· with Khamenei, fuck Khamenei.
·5· · · · · · ·So what was happening here was that
·6· Instagram was taking down a lot of posts that
·7· mentioned this chant or had the hashtag of the chant,
·8· and a bunch of internet activists and researchers
·9· that focused specifically on Iran noticed this and
10· reached out to Facebook and said hey, what's going on
11· here, you know.· Your content and moderation filters
12· are taking down important documentation of protests
13· in Iran.
14· · · · · · And Facebook's response was interesting
15· because they were like oh, yeah.· Our bad.· We are
16· reinstating the posts.· We understand that the chants
17· are, you know, in the context of protests are not
18· actually incitement of violence which is what
19· Facebook initially flagged this for, and then they
20· had this like really funny policy of saying yeah,
21· users can say death to Khamenei for the next two
22· weeks, but then we'll go back to the usual policy.
23· · · · · · BEN MAKUCH:· Is it possible that Facebook
24· would allow an extension to the death to Khamenei meme
25· if perhaps protests continued to pace for more than two

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·1· weeks?
·2· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· They
·3· said that, you know, it's subject to review.· What's
·4· really like the big question here is if Facebook really
·5· knew that these chants were okay, why did they not catch
·6· this earlier.· They also in the email that we got which
·7· was sent to these activists, Facebook said that they had
·8· made this exception, this specific exception for death
·9· to Khamenei chants before.· So again at some point in
10· their moderation filters, at some point in the process
11· maybe the algorithms flagged this, maybe a moderator
12· with not a lot of experience flagged this but, you know,
13· it seems like it's a small mistake but, you know, we
14· have to remember that Iran is a very closed society in
15· terms of internet access.· The government has a lot of
16· control over what people can do and cannot do on the
17· internet, and users turning to Instagram is one of the
18· very only ways for them to get some of this information
19· out which is heavily censored and you know, it's heavily
20· censored by the government usually.· In this case it was
21· censored by Instagram.
22· · · · · · BEN MAKUCH:· So I just want to highlight a
23· couple of things about this story.· I think it was
24· probably my favorite story of last week because it
25· touches on so many of the things that I'm constantly

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·1· thinking about, one of them being that we do live in a

·2· world where these big tech companies like Facebook, like
·3· Twitter have a certain amount of control over what the
·4· discourse is going to be like and how you're going to
·5· talk.· And here in the west, in America specifically we
·6· love to rail against this while simultaneously
·7· complaining that social media is ruining our lives even
·8· though we're all addicted to it and we're all using it.
·9· · · · · · In the view from an activist in Iran using
10· Facebook, using Instagram is much, much different I
11· think.· This is something we saw kind of starting in
12· the Arab spring and has continued on that the way
13· that people in Libya, in Iran and, you know, Eritrea,
14· I don't know if anyone is following what's going on
15· there right now, use the social media platforms is
16· much different in their relationship to censorship
17· and how Facebook moderates its content is much, much,
18· much different in other parts of the world.· And then
19· you also have this aspect to where like Facebook is
20· making political calculations when it decides what to
21· censor and what not to censor, right.
22· · · · · · It has to, to a certain extent, play nice
23· with Tehran, but it also knows that it gets a bunch
24· of juice and traffic from these activists.· So I just
25· think all of this stuff is very complicated and very

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·1· interesting, and there's not really easy answers.

·2· It's one of these areas where we are defining the
·3· bounds of what is acceptable in the moment every day.
·4· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· Those
·5· are really great points, and I think they're really
·6· relevant here because again for Iranians Instagram and
·7· Twitter, you know, back in the day during the so called
·8· green revolution, they were really tools to document
·9· what was happening, to show the world the atrocities of
10· the regime that otherwise were not coming out because,
11· you know, there's very few western journalists in Iran,
12· and the few that are there were either kicked out or,
13· you know, heavily censored.· So for them this is not
14· really just about political speech it's about, you know,
15· documenting crimes and abuse of power.· And all these
16· posts, all this documentation can just be taken offline
17· because Facebook does not know the context and the
18· political context of these posts.
19· · · · · · BEN MAKUCH:· Yeah.· I mean content moderation
20· for Facebook and Twitter I think is just a nightmare
21· they didn't really see coming, right, because like you
22· said the context in each individual country is so
23· completely different that it can be hard as a bay area
24· company to navigate all this stuff.
25· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Yeah.· And

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·1· it's very jarring that Facebook was basically like, you
·2· know, I think this chant is okay because the
·3· circumstances on the ground are bad.· But like some of
·4· the circumstances on the ground in Iran are bad all the
·5· time, so why shouldn't activists and opponents to the
·6· regime not be able to voice, you know, their anger
·7· online.
·8· · · · · · BEN MAKUCH:· Yeah.· You know, I'll have to
·9· punch out here because before I start talking about the
10· rohingya and get us into real trouble.· So with that,
11· Lorenzo, thank you so much for coming onto Cipher again
12· and walking us through all of last week's best tech
13· stories.
14· · · · · · LORENZO FRANCESCHI-BICCHIERAI:· Thanks, man.
15· Always a pleasure.
16· · · · · · (End of recording.)
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·1

·2· · · · · · · · · ·CERTIFICATE OF REPORTER

·3

·4· · · · · · I, Charlotte Crandall, certify that I was

·5· authorized to and did transcribe the foregoing audio

·6· recorded proceedings and that the transcript is a

·7· true and complete record of my stenographic notes

·8· from an audio recording and was transcribed to the

·9· best of my ability.

10

11· · · · · · Dated this 30th day of September, 2021.

12

13

14

15

16

17· · · · · · · · · · · ________________________________
· · · · · · · · · · · · Charlotte Crandall
18· · · · · · · · · · · Registered Professional Reporter

19

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July 29, 2021 ·1
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