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State v. Pierce

Superior Court of Delaware

March 6, 2019

STATE of Delaware,
Steven PIERCE, Defendant.

         Submitted: February 8, 2019

Page 583

         Upon Defendant’s Motion in Limine to Exclude Expert Testimony, DENIED

         Annemarie H. Puit, Esquire, Matthew B. Frawley, Esquire, Jenna R. Milecki, Esquire (argued), Department of Justice, Wilmington, Delaware, Attorneys for the State.

         Eugene J. Maurer, Jr., Esquire, Elise K. Wolpert, Esquire (argued), Wilmington, Delaware, Attorneys for Defendant.


         Rocanelli, J.

         This is a murder case. The State alleges that Defendant, Steven Pierce, shot and killed his girlfriend, Heather Stamper, on July 9, 2016 in her Delaware City home. The State proposes to introduce evidence tracking Defendant’s movements for the 23-hour period before and after the approximate time of death. Defendant seeks to exclude the Google Wi-Fi Location Data[1] used to "geolocate" Defendant’s cell phone on the grounds that the proposed evidence is not sufficiently reliable under the Daubert standard and would mislead and confuse the jury. The State argues that the technology at issue is reliable and would be helpful to the finder of fact. The reliability of Google’s Wi-Fi Location Data is an issue of first impression in Delaware.

Page 584


         Defendant was indicted by the Grand Jury on December 5, 2016, and charged with Murder in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony for the intentional murder of Heather Stamper. The case was specially assigned to this Trial Judge. The trial was initially scheduled for January 2018 but was rescheduled when Defendant retained new counsel who was unavailable for that trial date.[2] A new trial date was set for August 2018.

         On June 5, 2018, Defendant sought permission of the Court to file two motions after the deadline imposed by the Court for pre-trial motions: a motion to suppress certain evidence and a Daubert motion. The Court did not address the motion to suppress because the parties reached an agreement that the State would not use the challenged evidence in the State’s case-in-chief. Regarding the Daubert motion, the Court conducted an office conference on June 28, 2018, at which time it became clear that resolution of the novel issue involved would require that the trial date be rescheduled again. Accordingly, the Court conducted a hearing on July 6, 2018 to address Defendant personally regarding his right to a speedy trial.

         The Court found that Defendant’s waiver of his speedy trial rights was knowing, intelligent, and voluntary. By Order dated July 6, 2018, the Court granted Defendant’s Motion to File a Daubert Motion Out-Of-Time, over the State’s objection. A new Trial Scheduling Order was issued, setting the date for trial as April 2, 2019, and setting forth deadlines for discovery and briefing in connection with Defendant’s Daubert motion.

         The Court conducted a Daubert hearing on November 27, 2018. In support of the reliability of the State’s proposed evidence, the State presented the testimony of Andrew Rist, an engineer, and Anthony Vega, a law enforcement officer. The State’s two witnesses were subject to cross-examination by Defendant. The parties submitted post-hearing briefs.


         According to the United States Supreme Court, in 2018, there were 396 million cell phone service accounts in the United States.[4] The High Court emphasized that there are more cell phone accounts in the United States than there are people.[5] The most popular mobile devices have one of two operating systems that control the functioning of the phone. For Apple phones, it is iPhone Operating System ("iOS") and for Google phones and many other phone manufacturers, it is Android.

         Defendant’s phone was a MetroPCS phone with the Android operating system. While there are similarities between Apple’s iOS and Google’s Android as it relates to capturing user data, the technology at issue in this case involves location data derived from communications between an Android mobile device and Google. (The data is referenced herein as "Google Wi-Fi Location Data"). Specifically, the subject of the Daubert motion in

Page 585

this case was the Wi-Fi-sourced geolocation information associated with a unique Google account transmitted from the Android operating system on Defendant’s mobile device and stored by Google.

         A cell phone using the Android operating system serves as a data collection device as it continuously collects and sends information to Google as "events" approximately every 10-20 minutes. Meanwhile, other programs on the phone are running, either actively by the cell phone user, or idly in the background. These applications often rely upon Google Wi-Fi Location Data to customize information sent by Google to the user.[6] With each event, there are various categories of information sent back to Google, including the device’s location history which is comprised of GPS, cellular data, and recognized Wi-Fi signals. Google collects and retains fairly detailed location information, including time-stamped barometer readings to determine the device’s altitude, such as the floor within a building, and Wi-Fi scans recorded with a time stamp for each location, noting latitude, longitude, and estimated accuracy.

         Google Wi-Fi Location Data is not considered first-generation technology for geolocation. Global Positioning System ("GPS"), a utility owned by the United States government, uses satellites for positioning, navigation, and timing ("PNT") services.[7] GPS receiver equipment is found in many mobile devices, including cell phones and vehicle navigation systems. Mobile devices exchange signals with GPS satellites and use the transmitted information to calculate the user’s position.[8] Under open skies, "GPS-enabled smartphones are typically accurate to within a 4.9 meter radius."[9] The accuracy of GPS can be compromised by many factors, including satellite signal blockage due ...

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