Law Enforcement Tracking

HOW LAW ENFORCEMENT CAN, OR CANNOT,
TRACK PEOPLE USING THEIR CELL PHONES,

iPADS, BLACKBERRIES, GPS, ETC.
Aaron Romano, Aaron Romano, PC, Bloomfield,
CT
DEBUNKING CELLULAR
TELEPHONE TRACKING:
HOW TO WIN YOUR CASE AND
MAKE THE PROSECUTOR CRY
Presented by Aaron J. Romano

The Law Office of Aaron J. Romano, P.C.
(860) 286-9026
www.AttorneyAaronRomano.com
Ubiquitous Usage
Over 80% of the U.S. population uses cell
phones.
http://ezinearticles.com/?Prepaid-Cell-Phones:-The-NewGrowth-Industry&id=6192322
In July 2012, a congressional inquiry found that

telecommunications carriers last year fielded
1.3 million requests for subscriber information,
including phone location data and text
messages, from law enforcement agencies
http://www.informationweek.com/security/mobile/losethe-burners-court-okays-prepaid-pho/240005614
2012, Aaron J. Romano, PC
Be Aware
What we WILL NOT cover:
Motions to Suppress
US v. Jones, 132 S.Ct. 945 (2012)
Attachment of GPS to vehicle was a search via
4th Amd
US v. Skinner, 690 F.3d 772 (6th Cir. 2012)
D had no reasonable expectation of privacy in
inherent location data broadcast from cellular
phone
Warrant Issues
18 USC 2701-2711
18 USC 2703(d)
Rule 41 Warrants
Court Orders - Real Time Tracking
1. Identify the Issues in cellular telephone

cases.
2. Understand the mechanics of cellular
phone tracking/ping from the prosecutors
perspective.
3. Destroy the evidence via pretrial motions
and/or trial.
4. Goal: To prove that cell site tracking is
unreliable or junk science.
Historical Data v.
Real Time Tracking
So How Does a Handset Connect with a Site?
Cell to Landline Connection
The cell phone uses the closest

cellular site available and therefore
can be used to accurately track the
user of the handset.
NOT TRUE!!!
A Scientific Challenge Will Prove:

CELL PHONE
RECORDS ARE
AN INACCURATE
MEANS OF
TRACKING THE
HANDSETS
MOVEMENT
Science is your
friend!
THE GOVERNMENTS EVIDENCE
VERIZON WIRELESS CELL SITE LOCATIONS
-85dBm Coverage Plot
CONTRACT
v.
PREPAID /
PAY AS YOU GO
EXPERTS
Law Enforcement
Sprint University
The Hired Gun
How Does a Cell Site Work?

Typically, there are 3 sectors,
each using a different frequency:
North
South East
South West
However, a cell site may have up

to 6 sectors, and often multiple
cell phone providers will rent out
space on the same cell site.
Sites can be omni-directional

Types of Cell Sites
The prosecutor claims your client was at the crime scene

based upon your clients cell phone records what do
you do?
Remember, the prosecutor must
first establish the cell phone
belongs to your client do not
make this part easy!
Attack the science of cell site
tracking.
Remember, cell phone

companies are not in
the business to help
the
police
track
criminals; they want to
ensure
maximum
coverage
to
their
customers.
This means that many
cell sites have the
ability to connect to a
single phone.
No-drop coverage by
passing a call from one
cell site to the next
strongest signal.
Therefore, coverage
must overlap.
Cell phones are 2-Way

radios
A handset seeks the site in its
network with the strongest
signal, usually the nearest
available site.
If the nearest site is
unavailable, the phone seeks
the next strongest signal,
usually the next nearest site
Manfred Schenk, Defense Expert
Typical Case:
The cellular telephone

records place your client at
the scene of the murder
CLIENTS STORY
S.O.D.D.I.
Some Other Dude Did It

But my guy puts himself at the

scene!!!
Gain credibility with the jury
Showcase your winning personality and scientific
knowledge
Destroy the expert by making him agree
Your weak defense now becomes credible
Confuse the prosecutor throw them off your trial
strategy - make them work!
Why is the prosecutor using junk science if their
case is so strong?
Never underestimate the creativity of a jury
Defenses
Who had the phone?
Prove the defendant had
phone at the time.
Was it a shared phone?
Investigation Tips
Call the telephone numbers on the detail sheets
Determine if people in the records know the
defendant should they testify?
Determine if people in the records had contact
with the defendant via telephone that day/night
Examine clients phone contacts if available
Nicknames for telephone numbers
Examine phone contacts of other parties if

available (friendly witnesses)
Nicknames for telephone numbers
Contract v. Prepaid/Pay as you Go

Do not let the prosecutor say a prepaid phone is a drug dealer
phone.
Its Simple Economics

Fastest Growing Market =$ Savings for Prepaid
news.com/story/46270.php
http://www.cellular-
In 2008 about 50 percent of new cell phone users signed up

for prepaid cell phone service. The next year, in 2009, about
80 percent of phone subscriber growth came from prepaid
plans. http://ezinearticles.com/?Prepaid-Cell-Phones:-The-New-Growth-Industry&id=6192322
Industry predicts 33% of cell phone users will be prepaid by
mid 2013
Prepaid cell phones make up 25% of the cell phone market
http://www.dailykos.com/story/2012/10/09/1142021/-Prepaid-Phone-Users-Unpollable-Add-4-5-to-Obama-in-All-Polls#
More than one million wireless subscribers in Chicago are on a

prepaid plan http://dialog.scarborough.com/index.php/a-look-at-mobile-payment-plans-for-non-creditconsumers/
Only you can make the decision about how to challenge the evidence
pretrial v. trial.
There is no doubt that cell phone site tracking is an innaccurate
method of locating the handset.
Do you want to raise it by way of a Daubert hearing?
U.S. v. Evans Granted
State v. Davis Denied
This could be a good opportunity to get discovery and a trial run at the
Governments expert.
If you dont think the judge will keep out the cell site evidence,
however, you may not want to reveal your strategy pre-trial.
Should you retain your own expert, or simply destroy theirs?
Potential Legal Issues

Is the evidence relevant? (Fed. R. Evid. 402)
Is the maker of the call provable? (Fed. R. Evid. 104 (b))
Is probative value substantially outweighed by danger of
unfair prejudice, confusing the issues, misleading jury? (Fed.
R. Evid. 403)
Lay witness allowed?
If an expert is required, what expertise?
Fed. R. Evid. 702 and 703: given the potential unreliability
inherent in opinions as to handset locations based upon
stored cell site data, and the disparity in accuracy using
GPS/Trilateralization type methods, are such opinions
admissible?
See Blank law review article, pp. 12-36.
First Line of Defense
Object to the Expert
Voir Dire the Expert

Challenge Expertise
Sprint Unversity
Memberships Paid? Requirements?
Look Up Memberships for articles (Cellular
Telecommunications Industry Association (CTIA))
Prepare for learned treatise exceptions for trial and
get him/her to adopt author of treatise
Have your Expert present

At pretrial hearing
You may or may not want to present him/her
They will assist in cross prep/trial
Cross-Exam of Expert
Pretrial Motion
Trial
Intimidate the witness

Make him cry
Train the expert
Prep for use of your
expert
Be Nice
Use expert to
showcase your
expertise
Get him to agree with
softball questions
Educate the Jury
Be the teacher
Use demonstrative
evidence
General to Specific
Challenge the Assumptions

TEACH YOUR FACT FINDER:
Cellular records can only tell you how the call
was made not where the handset was.
The area within which the handset made the call
to the site is too large to pinpoint the location of
the handset.
Strongest signal is not necessarily the closest
site.
Cell Coverage In Theory

Cell Site
(Tower)
The
cellular
aspect
relates to
the system
of cell sites
or towers,
which cover
cells (areas
of coverage
overlap of
neighboring
sites).
Cells:
Sector A North
Sector B
Southwest
Sector C Southeast
Area of Coverage 1
Cell Site
Assume:
Omni-Directional
Tower
Radius 10mi - 35mi
10 mile
radius
Area = r
314 sq. mi. = 3.14 x (10x10)
MATH 101
Area of a circle: A=r
Radius = 10 Miles
3.14 x 10 x 10 =
314 sq. miles
Even if it is a three-sided
site and the direction is
known 314/3 =
104.67 sq. miles
MATH 102
Acres:
1 Square Mile = 640 Acres

314 sq. mi. x 640 = 200,960 acres
Square Feet:
1 Square Mile = 27,878,400 Sq Ft
If the handset takes up 1 sq. ft. of space

there are 27,878,400 possible locations
within 1 sq. mi. where the handset can be
located.
Within 314 sq. mi. there are
8,753,817,600 possible locations
The bigger the number, the more you make

your point:
The range of the site is too large to pinpoint
with any degree of accuracy where the handset
is located.
THE POSSIBILITIES ARE ENDLESS

Just think, the average plot of
land per house in a suburban
area is 1/3 of an acre.
Thats 602,880 potential
occupancy locations! Plus all
the roads, yards, and spaces in
between.
Now, in an urban area, imagine
a ten story apartment building,
with ten units per floor Just do
the math!
Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (2 mi radius)
Hyatt Hotel 2 Fountain Plaza, Buffalo, NY (10mi)
Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2 mi)
Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2mi)
Hyatt Hotel, 2 Fountain Plaza, Buffalo, NY (31.2 mi)
Defense Expert: Cell Tower

Range
A CELL TOWER SIGNAL

CAN REACH A TOTAL OF
31.2 MILES!!!
(See State v. Davis
MMX-CR08-0185484-T,
N.T. 11/29/2010 at 2930)
That is a total area of

2,800 square miles!
Which is the
equivalent of
1,792,000 acres!
How to Create the Map

Radius Diagram:
http://www.freemaptools.com/ra
dius-around-point.htm
Google Earth
HANDSET WILL BE IN RANGE OF THE

SITE INDICATED IN THE RECORDS
It will also be in range of multiple other sites

There is no correlation between the closeness of
the site used by the handset compared to the other
sites within its range
Many factors affect the choice of cell site, not

just distance. These factors include:
Make and model of the phone

Wattage output of the phone
Generation of the phone
Bandwidth of the phone
Call Made Indoors v. Outdoors
Call Made in urban v. rural
environment
Topography of the area site is
located.
Location of site urban or rural
Number of antennae on site
Height of the antennae on sites
Location of antennae on sites
Direction of antennae on sites
Range of Sites
Weather conditions
Angle of antennae on site
Height of the site
How high site is above sea
level
Fractional percentage of
channel assignments of site
Number of cell phone
providers utilizing a site
Number of cell phone
providers within a call region
Performance of maintenance
on sites
Wattage output of site
Site Traffic
Multiple Factors May Cause

Service Interruptions
Cellular Sites are designed to overlap to
ensure coverage
If carriers have dropped calls, customers
will change carriers
Can you hear me?
The Most Coverage is desirable to
consumer
INVESTIGATE SITES
Urban cell sites may
not be towers at all
The term cell tower
conveys the image
that it towers over
its surroundings and
therefore is obstaclefree
Cross-Examination Re: Factors
Strongest Signal
Handset making or
receiving a call
Cell Sites:
The opinion
offered will be
the caller is in
the red zone.
Is it reliable?
Closest Site
1. Cell site out of service
maintenance
2. Cell site handling the
maximum number of
calls already
3. Cell site is obstructed
4. Cell sites antenna is
facing in the wrong
direction.
5. STRONGEST SIGNAL
Government expert wont have

information regarding the cell
sites.
Ever Wait in Line at the Bank?
Cell Site #1
Coverage Area #1
Cell Site #2
Coverage Area #2
If all sites are

equidistant
to
which
site
will the
handset
connect?
Assume: HANDSET IS
STATIONARY
VARIABLES ARE CONSTANTLY CHANGING
Handset will connect

with different sites,
creating the illusion of
movement
The Assumed Range

of the Sites May be
Greater than the
Communication
Potential of the
Handset
Handset
10 mi.
314 sq. mi.
Assume:
Omni-Directional
Site
Radius 10mi - 35mi
Equidistant Sites
314 sq. mi.

10 mi.
10 mi.
314 sq. mi.
314 sq. mi.
10 mi.
A=r
Use Formula for
Area of Coverage
X 4= 1,256 sq.
miles
-95dBm Coverage Plot
Propagation Map Problem

MIL if prosecutor seeks to use in
evidence
Keep Out!
Does not reflect sites at time of
incident
Creates illusion of little to no
overlapping coverage
Smarter Investigation?
Examine the Assumptions
Anticipating challenge to coverage area
No data to support conclusions
Real time Location

Increased Accuracy
Compare to demonstrate inaccuracy of site
tracking to finder of fact
Location Determination
Handset Accuracy
Determinations, (usually
via a GPS chip in the
phone): usually accurate
within 50 feet.
Network Accuracy
Determinations (usually
using trilateralization):
accuracy can be within
100 feet.
Network Accuracy
Time Difference Of
Arrival (TDOA) to each
of 3 cell sites translates
to a circular distance
from each
Angle of Arrival (AOA)
uses TDOA from at least
2 towers & direction of
signal
Not Good Enough for 9-1-1? Not

Good Enough for Conviction!
The Wireless Communications and Public Safety Act of
1999 directed the FCC to make 9-1-1 the universal
emergency number for all telephone services.
Enhanced 9-1-1 (E9-1-1) automatically reports the
telephone # and location of 9-1-1 calls made from
cellular phones using GPS location.
The Wireless Communications and Public Safety act of
1999 requires all cell phones manufactured after 2006
to include a GPS chip.
AN AARON
ROMANO TRIAL
TIP
This would be a good time to lean
over to the prosecutor and
whisper, My client has agreed to
accept a dismissal.
Congratulations!
You have now made the prosecutor cry
List of PDF Documents
Sample Subpoena to Obtain Cell Phone Records

Transcripts
Motions
Opinions on Daubert/Frye Hearings
List of contacts for cellular companies
Cherry Biometrics
Michael Cherry & Manfred Schenk
http://www.cherrybiometrics.com/
Contact Information
Law Office of Aaron J. Romano, P.C.

The Winton Building
45 Wintonbury Avenue, Suite 107
Bloomfield, Connecticut 06002
www.AttorneyAaronRomano.com
(860) 286-9026
Aaron J.286-9028
Romano, PC
Fax:2012,
(860)
AARON J. ROMANO, P.C.

BY: Aaron J. Romano, Esquire
Firm Juris No.: 415829
Bloomfield, CT 06002
Tel: (860) 286-9026
___________________________________
DOCKET NO.
:
Attorney for DEFENDANT

SUPERIOR COURT
STATE OF CONNECTICUT
JUDICIAL
MIDDLESEX
DISTRICT
v.
AT MIDDLETOWN
AUGUST 23, 2010
OF
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS MOTION IN LIMINE TO PRECLUDE
ADMISSION OF CELLULAR TELEPHONE TOWER PING EVIDENCE
I.
Introduction
Pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution,
Article First, Sections Eight, Nine, and Ten of the
Connecticut Constitution, and State v. Porter, 241 Conn. 57 (1997), the defendant,
by and through undersigned counsel, hereby respectfully moves this
court to preclude the admission of cellular telephone tower ping evidence.
II.
Argument
A. Cell Phone Records are Not Relevant Evidence
As the proponent of the cell tower evidence, the State first must prove the
preliminary fact that a ping registered at a particular tower from a specific cell phone at
a particular time is relevant. The appropriate rules for determining the preliminary fact of
relevancy for this issue are found in Conn. Code Evid. 4-1. Relevant evidence is
defined as evidence having any tendency to make the existence of any fact that is
material to the determination of the proceeding more probable or less probable than it
would be without the evidence. Conn. Code Evid. 4-1.
In order to inculpate defendant by offering his cell phone ping as

circumstantial evidence of his location against him before the jury based on the towers
location, the State first must prove the preliminary fact that there is a repeatable nearly
1:1 causal correlation of cell phones signals being routed to the geographically nearest
cell tower. [emphasis supplied] Otherwise, what tower handles the cell phone call is
irrelevant, and the use of a cell tower ping to prove a suspects location would be grossly
and dangerously misleading to the trier of fact. The jury necessarily would speculate on
whether the a ping always hits the closest cell tower, or whether it can be a ping
transferred for myriad technical reasons from another cell tower, or whether the
temporary topography of the cell phone and topography of the tower was a factor in that
tower being chosen by the cell phones electronic query rather than another tower closer
by. To allow such speculation violates the due process clauses of the Connecticut and
federal constitutions.
At this juncture, the defense can find no foundation for the States argument that
phone use necessarily means that the phone is close to the area of the cell tower.
B. Under The Laws Of Physics And Mathematics, Finding The Location Of
A Particular Cell Phone Requires Triangulation Between The Phone And At
Least Two Other Reference Points.
The State alleges that the signal hits the nearest cell tower invariably, and
invariably the person must have been in the vicinity of the cell tower while using the
phone. Unfortunately, thats not the way it works, nor has the State laid a foundation for
representing thats the way it works.
The theory relied upon by the State is known as Cell Of Origin positioning, or
COO. It is considered the worst means of locating a cell phone, and is rife with
potential for reaching a false conclusion.
The only method that does work is the
mathematical tracking of a person to a certain location, known as triangulation.
Crude COO positioning considers the location of the base station to be the
location of the caller. This is not very accurate, as the majority of mobile network cells
are projected from an antenna with a spread of 120 (i.e. three mounted on a mast to give
complete coverage) giving a signal coverage area with the base station at one corner,
rather than the center. Omni-directional cells may be used in rural locations (which
typically have large ranges and hence uncertain locations for phones within them) and in
cities (where they may have ranges of a few hundred meters to several miles depending
on the coverage). The underlying issue is that mobile phone networks are optimized for
capacity and call handling rather than locating phones. (emphasis supplied). A cell
phone is a radio - an extremely sophisticated radio, but a radio nonetheless. To send and
receive calls, text messages, or e-mail, cell phones communicate with radio towers,
known as cell towers. The cell towers are distributed throughout a coverage area; cell
phone users are often in range of more than one.
The Global System for Mobile Communications (GSM) adopted by 80 percent
of the worlds telecommunications administrators, including the United States, relies on
the fact that the phones constantly measure the signal strength from the closest 6 base
stations and lock on to the strongest signal (the reality is slightly more complex than this
and includes parameters that each individual network can optimize, including signal
quality and variability. Most networks seek to optimize for minimum power
consumption, but the overall effect approximates to each phone trying to find the
strongest signal at any given moment. However, it is the momentary strength of the
signal that causes the cell phone to interface with a particular cell tower. All networks
generate 'splash maps' predicting signal coverage when planning and managing their
networks. These maps can be processed to analyze the area which will be dominated by
each base station and to approximate each area by a circle (the actual area of coverage
may not be exactly where predicted... and in any case will be an irregular shape, rather
than a circle). The accuracy of network-based techniques varies, with cell tower
identification i.e., the evidence offered in the earlier trials without objection as the
least accurate and triangulation as the most accurate.
What has not been provided to the defense is the data necessary to triangulate the
location where the cell phone really was. Since the end of 2005, the telephone carriers
have been required to comply with a Federal Communications Commission regulation
called e911.
The e911 system is predicated upon calculating TOA (Time of Arrival
Signal), TDOA (Time Differential of Arrival) and/or AOA (Angle of Arrival), all of
which have importance in determining the true whereabouts of the cell phone.
As noted, supra, cell phones attempt to connect with the strongest signal at a
given moment, not the closest. At least hypothetically, a strong emitting tower would
attract signals from farther away, depending on the location of the cell phone. The
attempt to use the pings off the transmitters upon which the State is relying in trying to
pinpoint defendants location, is strongly opposed. The federal telephonic standard for
The FCC regulation is attached at the end of this points and authorities.
The Court should note that the only time when cell carriers must exercise the
ability to pinpoint a cell phone location is when a subscriber calls 911. In
other words, the cell companies have the computers to do the math of
comparing multiple signal strengths, locations, elevations, etc. to find someone
in an emergency, but they only are obligated to participate in tracking if the call
source is a 911 Call. Assuming that the State has turned over all the cell
phone information provided them by the carriers, the data provided does not
answer the question, Where was the cell phone when juxtaposed against it was
first pinged?
4
locating a cell phones point of origin is triangulation. 2 CFR Part 9.5, which required
compliance to be implemented by the phone companies on December 31, 2005.
C. Its the Undersigneds Belief that No Published Connecticut Case Has

Ruled Upon The Admissibility Of A Cell Tower Ping As A Basis To Infer
A Suspects Location At A Given Time.
There is only one published California case involving the use of cell tower
evidence to identify the location of a murder suspect at a given time, and in that case,
appellate counsel did not argue against admitting the cell tower evidence, and as a
consequence, the Court of Appeal noted the fact but ignored the issue. People v. Martin,
(2002) 98 Cal. App. 4th 408, 119 Cal.Rptr.2d 679. Inter alia, the defendant confessed,
and the principal issue on appeal was a Sixth Amendment argument involving whether
defendants girlfriend was a governmental agent when she secured defendants postarraignment confession.
D. A Porter Hearing is Required to Determine the Validity for the
Assertion that the Ping is an Accurate Indicator of the Defendants
Location
The question of how a signal transmitted by a cell phone is selected by a
particular cell tower is purely a question of science and engineering. However, it is not
something so pedestrian that we take its daily use for granted and know how it works.
Thus, the bald assertion that the ping is an accurate indicator of the defendants
location should be subject to a Porter hearing. The test articulated in State v. Porter, 241
Conn 57 (1997) applies not only to scientific evidence, but to innovative scientific
techniques as well. Hayes v. Decker, 263 Conn. 677 (2003). Porter, supra, is applicable
in situations in which the ordinary juror must sacrifice his independent judgment in
deference to the expert or that creates an aura of mystic infallibility surrounding
scientific techniques, experts and fancy devices employed. State v. Hasan, 205
Conn. 485 (1987).
5
An analysis pursuant to Porter is fundamentally a two part inquiry: (1) Is the

evidence scientifically valid, and (2) Can the reasoning be applied to the facts of the
present case? Porter, supra at 63-64.
The primary factor in determining scientific
validity is whether the scientific principle has gained general acceptance in the relevant
scientific community. See State v. Reid, 254 Conn. 540 (2000). As to the second factor,
relevance demands that the scientific evidence, no matter how valid, must be applicable
to the facts at issue. Hayes v. Decker, 263 Conn. 677 (2003). Upon objection by the
opposing party, the proponent of the scientific evidence bears the burden
of
demonstrating its admissibility. State v. Torres, 85 Conn. Conn. App. 303 (2004).
The States methodology in asserting defendants presence within a short distance
of the accident scene based on a cell tower ping is a misapplication of information
creating a half truth. At best, the ping off the cell tower means that defendant may
have been there or may not have been there.
The methodology used by the State the Cell of Origin methodology to
determine location is not accepted in the scientific community because it is inaccurate
and prone to error based on numerous variables. It is not accepted as accurate by the
regulatory bodies that oversee cellular telecommunciations, as Congress and the FCC
have mandated a program relying on 6 separate points to be measured and fed through
computers to be available to triangulate (perhaps sextengulate?) the location of the
cell phone.
Accepting thus far without any foundation that a cell tower location equals a
cell phones location raises a question of admissibility, not just one of weight. One can
say that a scale is inaccurate, and the Court could respond, That goes to weight rather
than admissibility, counsel [the pun was inadvertent], but if someone attempts to weigh
himself by standing on a hay stack, his opinion of his weight should not be admitted since
the haystack was not created for the purpose of weighing people. In the latter scenario,
presumably the Court asks: Can you explain to me how your standing on a haystack
allows you to form an opinion about how much you weigh?
The cell towers were not manufactured to act as surveillance tools. They were
created to move packets of information as swiftly as possible and at the cheapest possible
power output and cost possible from one cell tower to another, to allow companies to
maximize their profits without wasting (from their perspective) transmission power and
excessive bandwidth. It may be facile to point out that with GPS (global positioning
satellite) technology, we can find our location not just to degrees latitude and longitude,
but to minutes and seconds of those degrees, where a century ago navigators literally
relied upon the ancient astrolabe, quadrant, sextant and an extremely accurate and durable
time piece to compute over several hours for information we now get in less than 30
seconds, and which we can effortlessly repeat.
The FCC has forced the phone companies to reallocate their cell towers to assist
police. To that end, a standards committee agreed that six (6) cell towers would be
sufficient to accurately track down the 911 callers location. Based on that data, a phone
company computer quickly processes a great deal of trigonometry
to inform a police
dispatcher where the caller appears to be.

The technology breakthrough that has allowed cell phones to add GPS, email,
messaging and other services has been a radical increase in transmission bandwith, an
increase known colloquially as G3. The jury should not be allowed to believe that
finding a cell phone location is a simple task, because it is not. The espoused position
As the Court and counsel may recall from their school days, a navigator, using a sextant,
undertakes a series of observations, all of which involve the creation and measurement of
artificial triangles. He then takes the figures measured by the sextant from his observations,
performs several trigonometric equations that results in his deriving the ships latitude. Cell
towers, in effect, are the telecommunications era version of a sextant. Pinging off one (1) cell
tower without at least a second (although the federal government insists on six) cell tower
being used as a reference point precludes the application of trigonometry.
that the State has suggests that a belief that a cell tower operates as a RADAR. It does
not. 2
The evidence and methodology purported by the State and used to substantiate the
conclusion that a ping off a cell tower is indicative of the defendants location is faulty
and misleading. To permit its admission would be a clear violation of the defendants
constitutional rights.
III.
Conclusion
The cellular ping is a linchpin in the States already weak case, and it cannot be
fastened carelessly. It is respectfully submitted that the State be required at a Porter

Hearing outside the presence of the jury, to lay a foundation for the assertion that the
ping is such an accurate indicator of defendants location that we are all willing to bet a
mans life on that proposition.
RESPECTFULLY SUBMITTED
BY THE DEFENDANT
By:
Aaron J. Romano, Esq. Juris No. 415829
Tel: (860) 286-9026
Fax: (860) 286-9028
RADAR measures the distance to an object by transmitting a short pulse of radio signal
(electromagnetic radiation), and measuring the time it takes for the reflection to return. The
distance is one-half the product of round trip time (because the signal has to travel to the target
and then back to the receiver) and the speed of the signal. Since radio waves travel at the speed
of light (186,000 miles per second or 300,000,000 meters per second), accurate distance
measurement requires high-performance electronics.
In most cases, the receiver does not detect the return while the signal is being transmitted.
Through the use of a device called a duplexer, the radar switches between transmitting and
receiving at a predetermined rate. The minimum range is calculated by measuring the length of
the pulse multiplied by the speed of light, divided by two. In order to detect closer targets one
must use a shorter pulse length. N.B.: Cell towers are not designed as Radars.
CERTIFICATION
Pursuant to Practice Book 10-12 through 10-17, and 11-1, this 23rd day of August
2010, the undersigned hereby certifies that this document complies with all format
provisions and further certifies that a copy of the foregoing was delivered in hand to all
counsel of record: Russell Zentner, Esq., Office of the States Attorney- Part A, One
Court Street, Middletown, CT 06457-3374.
Aaron J. Romano, Esq.

Comm. of Superior Court
10

Firm Juris No.: 415829
Tel: (860) 286-9026
___________________________________
DOCKET NO.
:
SUPERIOR COURT
JUDICIAL DISTRICT OF MIDDLESEX
v.
AT MIDDLETOWN
AUGUST 23, 2010
Defendant.
Pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution,
and State v. Porter, 241 Conn. 57 (1997), the defendant,
by and through
undersigned counsel, hereby respectfully moves this court for an order precluding the admission
of cellular telephone tower ping evidence. The defendant submits a memorandum of law
contemporaneously herewith in support of the foregoing motion.
BY THE DEFENDANT
By_________________________________
Tel: (860) 286-9026
Fax: (860) 286-9028
CERTIFICATION
Pursuant to Practice Book 10-12 through 10-17, and 11-1, this 23rd day of August 2010, the
undersigned hereby certifies that this document complies with all format provisions and further
certifies that a copy of the foregoing was delivered in hand to all counsel of record: Russell
Zentner, Esq., Office of the States Attorney- Part A, One Court Street, Middletown, CT 064573374.

DOCKET NO.
SUPERIOR COURT
JUDICIAL
MIDDLESEX
v.
AT MIDDLETOWN
AUGUST 23, 2010
DISTRICT
OF
Defendant.
O R D E R
AND NOW, to wit, this
day of
, 2010, it is hereby ORDERED
AND DECREED that Defendants Motion in Limine to Preclude Admission of Cellular

Telephone Tower Ping Evidence is GRANTED/DENIED.
BY THE COURT:
__________________________
J.

Juris No.: 415829
Tel: (860) 286-9026
___________________________________
DOCKET NO.
:

SUPERIOR COURT OF CONNECTICUT
JUDICIAL DISTRICT
v.
OF MIDDLESEX
OCTOBER 18, 2010
Defendant.
DEFENDANTS BRIEF IN SUPPORT OF
States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution, and
State v. Porter, 241 Conn. 57 (1997), the defendant,
by and through undersigned
counsel, hereby respectfully moves this court to preclude the admission of cellular telephone tower
ping evidence.
I.
FACTS
On or about August 23, 2010 the Defendant filed a Motion in Limine to preclude admission
of cellular telephone tower ping evidence, as well as a memorandum of law in support thereof.
On or about October 4, 2010 and October 5, 2010, a Porter hearing was held to determine if the
States supposition, that the location of a single cell phone tower indicated the location of the
defendant, was based on valid scientific principles. The State presented expert witnesses Gary
Pellegrino, Alexis Eon, telephone records, and a calculation of distance between two different towers
and the lex loci delicti. The Defendant presented expert witness Manfred Schenck. As per the
request of the Court, the Defendant now submits this brief in support of his pending motion.
II.
ARGUMENT
The Court is the vanguard against the admission of junk science, both to protect the
constitutional rights of the defendant and to uphold the sanctity of the judicial process itself. In
response to the undeniable concern that defendants may be subject to the deleterious effects of
illegitimate theories masquerading as concrete scientific methodologies, the Connecticut Supreme
Court formulated guidelines for the admission of scientific evidence. The test articulated in State
v. Porter, 241 Conn 57 (1997) applies not only to scientific evidence, but to innovative scientific
techniques as well. Hayes v. Decker, 263 Conn. 677 (2003). Porter, supra, is applicable in
situations in which the ordinary juror must sacrifice his independent judgment in deference to the
expert or that creates an aura of mystic infallibility surrounding scientific techniques, experts
and fancy devices employed. State v. Hasan, 205 Conn. 485 (1987).
Upon objection by the opposing party, the proponent of the scientific evidence bears the
burden of demonstrating its admissibility. State v. Torres, 85 Conn. Conn. App. 303 (2004). An
analysis pursuant to Porter is fundamentally a two part inquiry: (1) Is the evidence scientifically
valid, and (2) Can the reasoning be applied to the facts of the present case? Porter, supra at 63-64.
The primary factor in determining scientific validity is whether the scientific principle has gained
2
general acceptance in the relevant scientific community. See State v. Reid, 254 Conn. 540 (2000).
As to the second factor, relevance demands that the scientific evidence, no matter how valid, must
be applicable to the facts at issue. Hayes v. Decker, 263 Conn. 677 (2003).
Notably, although it is the States burden to prove the validity of the scientific evidence on
which it relies, the State never articulated precisely what scientific principle it was attempting to
utilize. The Defendant is forced to presume that the State was attempting to establish an unassailable
correlation between the location of the cell phone tower a call pinged off of and the defendants
location, thereby permitting the State to propound that the defendants exact location could be
determined from the location of a single cell phone tower. This deceptively facile premise is not
based on any scientific principles and distorts the actual use of cell phones, which is to be
communication, not tracking, devices. Porter Hearing N.T. 10/22/10 at p. 121.
The States postulation implies that the only factor upon which utilization of a particular cell
phone tower depends on is the distance between the cellular handset and the cellular tower. This is
simply untrue. Not only is location of the cell tower not indicative of the callers location, the ability
of a cell phone handset to ping off a cell tower depends on a multitude of factors, completely
independent from distance, including but not limited to:
the make and the model of the cellular phone
the wattage output of the cellular phone
the generation of the phone
the bandwidth of the cellular phone
whether the phone call was made inside or outside
whether the phone call was made in an urban or rural environment

3
the topography of the area a cell phone tower is located
whether the cell tower is located in an urban or rural environment
the number of antennas on the cell tower
the height of the antennas on the cell tower
the location of the antennas on the cell tower
the direction of the antennas on the cell tower
the angle of the antennas on the cell tower
the number of cones on a cell tower
the height of the cones on the cell tower
the direction of the cones on the cell tower
the angle of the cones on the cell tower
the height of the cellular tower
how high the cellular tower is above sea level
the fractional percentage of channel assignments of the cell tower
the number of cellular phone providers utilizing a tower
the number of cellular phone providers within a call region
the performance of maintenance on the cellular towers
the wattage output of the cellular tower
the range of the cellular tower
the weather conditions

There was no evidence presented that the State had even considered these various factors
when asserting its claim that the defendants location could be derived from the tower locations.
4
Rather, the State blithely professed its baseless conclusion and expected the Court to unquestioningly
accept the same. When asked by defense counsel, the States expert, Mr. Pellegrino, acknowledged
that all of the factors articulated above could impact the communication of the cellular handset with
a particular cellular tower, but was unable to testify as to the specific effects in this case, as neither
he nor the State possessed the requisite information. Porter Hearing N.T. 10/22/10 at pp. 87-92.
Instead of valid scientific evidence, the State presented the Court with Verizon Billing
Records for a target phone number and propagation maps, ultimately not admitted into evidence, that
the State had requested Verizon prepare for the purposes of this litigation. Billing records are
generated for the sole purpose of business record keeping. Id. at p. 123. They are not maintained
as a tracking log of the user of a particular cellular handset. Id. Similarly, the positioning and usage
of cellular towers is not determined in an effort to aid the State in the tracking of a defendant; they
are situated so as to best insure that calls go through. Id. at p. 95. Moreover, the propagation maps
submitted by the State portrayed only the select number of cell towers- those that the State requested.
There are potentially hundreds of cell towers in that given area, many with overlapping coverage.
Id. at p. 61. What the State does not want to admit is that cellular towers are a flexible resource,
designed for telephone companies seeking profit, not for the police to determine location. Cell
phones were not intended to be used as tracking tools, and so any attempt to use them as such in the
manner expressed by the State is inherently corrupt. The States use of maps and numbers cannot
disguise the fact that there is no objective scientific data to support its erroneous contention.
The States position is entirely undermined by the expert testimony presented at the Porter
hearing. As expounded by both Mr. Schenk and the States expert, the location of a cell tower does
not correlate with the location of the cell phone user. Id. at pp.104, 144. Even the States own expert
5
was forced to contradict the States conclusion given the unreliable methodology the State employed:
Attorney Romano: Okay. So, what were talking about here when you talked about
the tower communicating with the cell phone, and the tower records themselves,
were not talking about a closest tower, were talking about this cell tower with the
best signal, right?
Mr. Pellegrino: Thats correct. Porter Hearing N.T. 10/22/10 at p. 104.
As Mr. Schenk testified, a cell tower signal can reach 31.2 miles; that is a total area of
twenty eight hundred square miles in which a caller could feasibly be located. Id. at pp. 129-130.
Twenty eight hundred square miles is more than half the size of the Connecticut1, and a larger area
than either that of the states of Delaware2 and Rhode Island3. Therefore, for the State to allege that
a persons location can be determined with any sort of specificity from the location of a single cell
tower is preposterous. When asked by defense counsel about the potential rate of error for the
tracking scheme proposed by the prosecutor, Mr. Schenk replied that he was unable to answer that
question. When asked to state the reason he was unable to answer, Mr. Schenk responded: Well
because nobody has done it whatever. So, nobody has measured as to what the potential error is
because its, because a tracking, one particular signal source is inherently inaccurate and not
possible. Porter Hearing N.T. 10/22/10 at p. 132.
About Connecticut, http://www.ct.gov/ctportal/cwp/view.asp?a=843&q=246434

(Last visited Oct. 17, 2010).
Delaware Geography, http://portal.delaware.gov/delfacts/geo.shtml (Last visited Oct.

17, 2010).
Our Geography, http://sos.ri.gov/kidszone/geography/ (Last visited Oct. 17, 2010).

6
Although there is the possibility that cell towers could be used to determine a range of
location if a trilateralization calculation is done, the State failed to even do that. Trilateralization
requires three cell towers and would still only result in an approximate, not an exact, location.
However, the State did not utilized three towers. Id. at p.123. Instead, the State would like the Court
to accept that location can be determined using just one cell tower. There is a reason that no
commercial industries, such as the trucking industry, use the system proposed by the State to
determine location. Id. at p.132. This is because it is inescapably inaccurate. If the method
proposed by the State worked, other areas, not merely law enforcement, would employ the technique
as a reliable tracking method.
The only accurate way to determine location is through the use of a Global Positioning
System (GPS). Id. at pp. 121-122. Unlike cellular phones, GPS operates using satellites. Pursuant
to FCC regulations, cell phones are now required to contained GPS chips as part of an E911
initiative. Id. at p. 83. This is so that emergency responders can accurately locate a caller in distress.
If the methodology proposed by the State was at all accurate, there would be no need for the
government to require GPS chips in phones. Id. at p. 85. A methodology that has been determined
by independent government agencies not to be able stake a callers life on, should not now be
accepted as reliable enough to risk a defendants liberty.
III.
CONCLUSION
The State would like the Court to accept that a Defendants location can be determined based
on the location of a single cellular tower. This proposition is based on junk science and is in fact
entirely refuted by valid scientific principles and the prevailing technological industry standards.
Simply put, a cellular phone is a communication device, not a tracking device. Any attempt to use
7
it as such distorts both science and law. The supposition propounded by the State should not be
permitted by the Court and any evidence regarding cell phone tower pings is appropriately
excluded.
BY THE DEFENDANT
th
this 18 day of October, 2010
By_________________________________
Tel: (860) 286-9026
Fax: (860) 286-9028
CERTIFICATION
Pursuant to Practice Book 10-12 through 10-17, and 11-1, this 18th day of October 2010, the
certifies that a copy of the foregoing was delivered in hand/via first class united states mail/via
facsimile to all counsel of record: Russell Zentner, Esq., Office of the States Attorney- Part A, One
Court Street, Middletown, CT 06457-3374 (860) 343-6427.


Juris No.: 415829
Tel: (860) 286-9026
___________________________________
DOCKET NO.
:

SUPERIOR COURT OF CONNECTICUT
JUDICIAL DISTRICT
v.
OF MIDDLESEX
OCTOBER 18, 2010
Defendant.
DEFENDANTS REPLY BRIEF IN SUPPORT OF
States Constitution, Article First, Sections Eight, Nine, and Ten of the Connecticut Constitution, and
State v. Porter, 241 Conn. 57 (1997), the defendant,
by and through undersigned
counsel, hereby respectfully submits his reply brief in response to the States Memorandum of Law
in Opposition to Defendants Motion in Limine to Preclude Admission of Cellular Tower Ping
Evidence.
The States memorandum unequivocally demonstrates its inability to grasp the purpose of
the Porter hearing as well as the flawed logic upon which it attempts to base a baseless conclusion.
The Defendant will address the States contentions in the order each is presented in the States
memorandum.
The State devotes a large portion of its brief expounding on the qualifications of its expert
witnesses. The Defendant does not dispute Mr. Pellegrinos academic qualifications, despite the
noticeable absence of any higher level degrees in mathematics and/or the sciences. The Defendant
merely demonstrated through basic cross-examination that Mr. Pellegrinos generalizations regarding
cell tower routing were substantially undermined by his inability to answer any specific questions
relating to the cell towers and cellular handset in question. Porter Hearing N.T. 10/4/10 at pp. 87-92.
Further, Mr. Pellegrino agreed with the Defendants ultimate conclusion, and the very purpose in
holding the Porter hearing- that signal strength, which determines the cell tower that is utilized, is
not itself determined by proximity of the cell tower to the caller. Id. at p 104. The States
proposition ignores the realistic possibility that the nearest available cell tower may be five, ten or
twenty miles away from the cell phone that is placing the call. The States postulation only works
when a nearby tower is available. The availability of towers depends on a multitude of factors, as
articulated by the defendant, and beyond volume, which is the only factor aside from distance that
State concedes impacts tower selection.
Additionally, the State argues fervently for the validity of the Verizon records. This is a
wasted effort as the Defendant has never put the accuracy of the business records in dispute, and
moreover, the business records themselves have no bearing on the Porter hearing. The purpose of
having a Porter hearing was to address the scientific validity of the tracking method proposed by the
State, not the record keeping abilities of a telecommunications carrier. All the billing records do
2
demonstrate is that the State only considered the location of a single cell phone tower in deriving the
unsubstantiated conclusion that the location of the cell tower equated to the location of the
defendant.
The observation that the State deems most important, the principle of cellular
itself...generally accepted within the wireless industry has nothing to do with the evidence that the
State is attempting to admit. The principle to which the State is referring, as clearly stated in its
question is: The principal [sic] you described where I make a phone call and the, describe again the
principal [sic], I make a phone call, the tower picks it up, the tower, strong signals pick it up and then
it goes to the switching center and it looks for the number that Im trying to call. That whole
procedure you described, is that a principal [sic] thats generally accepted within the wireless
industry? Porter Hearing N.T. 10/4/10 at p. 26. The principle that the States Attorney describes
is the principle of cellular communication itself- which is completely distinct from the cellular
tracking that the State posits. There is no debate regarding how a cell phone works as a
communication device. The Porter hearing was necessary to determine if the cellular phone, a
communication device, could be used as a tracking device in the manner alleged by the State. The
answer is that as proposed by the State, it cannot. Even the principle as articulated, however
inarticulately posed by the States Attorney, describes cellular tower selection as dependent on signal
strength, which is not dependent solely on distance between the caller and the tower. The State
cannot simply ignore the postulations of its own expert and substitute distance for signal strength
to arrive at a conclusion that is presumptively illogical.
The State aptly notes that use of a particular tower indicates that a caller was within the
coverage area of that tower. States Brief at p. 8. However, as demonstrated by defense expert
3
Manfred Schenk, the coverage area of a tower can be twenty eight hundred square miles. Porter
Hearing N.T. 10/4/10 at pp. 129-130. That is hardly an exact location, irrespective of the States
misguided attempts to attribute any measure of definitiveness to its assertion. The State presents Mr.
Schenk lack of familiarity with the specific towers at issue as some sort of failing on Mr. Schenks
part. States Brief at p. 12. As an initial matter, such a supposition avoids the legal reality that it is
the States burden to prove the validity of the methodology it is employing, not the Defendants
burden to prove why the methodology is technology unsound, although it is apparent in this case.
That State even admits, through the testimony of its expert, that an exact location cannot be
determined based on the location of a cell tower. Porter Hearing N.T. 10/4/10 at p. 74. Yet, the State
wants to draw its ultimate conclusion, that the defendants location can be determined based on a
methodology that it admits is not accurate.
The State would like to scorn the importance of distinguishing between GPS and the cellular
tracking method proposed by the State, however the essence of the argument is found in the
comparison of accuracy. GPS is now required in cellular phones because cellular phones without
GPS chips remain simply communication devices. With the addition of GPS they are now activated
as location devices. Barring a GPS chip, there is no possible way that a cell phone, as a
communication instrument, can function as a reliable tracking device. If this were not the case, there
would be no reason for the FCC to require that cellular phone be equipped with GPS chips for the
purpose of emergency location. Porter Hearing N.T. 10/4/10 at p. 83.
Accepting, but not at all conceding, that the location of cellular towers could accurately
indicate location, a trilateralization calculation would have to be done. This requires three cellular
towers and was not performed by the State. Porter Hearing N.T. 10/4/10 at p. 123. The States
4
proposition is that single cellular tower correlates with a defendants location. The methodology
proposed by the State is not accepted, not within the cell phone community and not by the United
States Government. It should not now be accepted by this Court.
The testimony by Verizon representative Alexis Eon had absolutely no relevance to the Porter
hearing. Porter Hearing N.T. 10/4/10 at pp. 146-185. As previously articulated, the purpose of the
Porter hearing is to examine scientific methodologies, not to review billing records. Ms. Eon is a
keeper of records; she has no background in pattern recognition and/or cellular technology. The
question is not one of interpreting call detail records, States Brief at p. 10, but whether a
defendants location can be construed from the location of a cell tower.
The States argument regarding Mr. Schenks testimony reveals exactly how confused the
State is as to the very use of cellular devices as tracking implements. The State postulates: Mr.
Schenk testified, in much detail, regarding the theory and principle behind both GPS and E911
technology. Both technologies are inapposite to this Hearing because the State is not asserting that
either technology was used. States Brief at p. 11. This is precisely what is so problematic with the
evidence that the State is attempting to introduce. If the State had based its conclusion of the
defendants proximity to the home invasion on either GPS and/or E911 technology, there would not
be a debate regarding junk science. Instead, the State hazards, without any scientific basis, that
tower location and handset location are interchangeable variables within the schema of cellular
communication.
Finally and in a desperate effort to discredit the defense expert, the State implies that Mr.
Schenks lack of affiliation with either Verizon wireless and/or CALEA represents a weakness.
States Brief at p. 11. Rather, Mr. Schenk is a pattern recognition scientist, with degrees in higher
5
education, trained to work for the military on trident nuclear submarines and NASA on the Apollo
lunar lander. Porter Hearing N.T. 10/4/10 at pp. 112-113. As the Defendant noted in his brief, the
only context that attempts to use this sort of tracking system is criminal prosecutions. All other
commercial industries and scientific communities eschew this practice because it is unreliable in
practice and unsound in technique. Even police departments employ GPS technology with their own
employees. Any affiliation with either organization would only serve to detract from Mr. Schenks
credibility and objective assessment of the offered evidence.
Although the State may consider most pertinently that Mr. Schenk conceded that a
particular cell tower was used to connect a particular call. Similarly, the State considers it pertinent
that Mr. Schenk testified that billing records have to accurate to bill customers properly. States Brief
at p. 12. This characterization perverts the truth-seeking mission of Porter hearing. It is irrelevant
whether a call was re-routed or billing records are accurate. The focus of the inquiry is not
whether a specific tower was used; the proper focus of the inquiry is whether the State can
legitimately assert that the use of that particular tower correlates with the defendants location.
The State begins to touch upon the actual issue towards the end of its brief when it comments
that the importance of cell tower location is that the caller must be in the coverage range of the
tower. States Brief at p, 14. However, as explained by Mr. Schenk, the coverage area of a given
tower can be twenty eight hundred square miles. Porter Hearing N.T. 10/4/10 at pp. 129-130.
Attempting to pinpoint a location within that radius cannot be done with the methodology proposed
by the State.
The States conclusion that the cell phone user traveled from the Middletown area, to the
Hartford area, back to the Middletown area, over to the Middlefield area and then back to the
6
Middletown area, States Brief at p. 17, cannot possibly be substantiated by the methodology the
State proposes. A linear progression cannot be inferred from the location of individual cell towers.
As defense counsel elicited from the States expert, an individual could be traveling straight in one
direction, with cell phone calls registering from one tower, enter a valley in which a different tower
is used, exit the valley, at which point the initial tower is again utilized. It might conceivably seem
as though that person made a u-turn if only cell tower location was examined, when in fact that
person had never altered course. Porter Hearing N.T. 10/4/10 at p. 97.
The State may be able to establish that a specific cell tower was used at a specific time. What
they have not been able to establish is that there is any scientific evidence that equates tower location
with caller location. Until the State can satisfy the first prong of the Porter test, that the evidence is
scientifically valid, the question of relevance is moot.
To address the States contention that this is an issue of weight, not admissibility, the
Defendant takes this opportunity to reiterate the argument he raised in his Motion in Limine.
Accepting thus far without any foundation that a cell tower location equals a cell phones
location raises a question of admissibility, not just one of weight. One can say that a scale is
inaccurate, and the Court could respond, That goes to weight rather than admissibility, counsel
[the pun was inadvertent], but if someone attempts to weigh himself by standing on a hay stack, his
opinion of his weight should not be admitted since the haystack was not created for the purpose of
weighing people. In the latter scenario, presumably the Court asks: Can you explain to me how
your standing on a haystack allows you to form an opinion about how much you weigh?
The State would present the Court with a bald conclusion regarding location without ever
delving into how this conclusion was obtained. The cell towers were not manufactured to act as
7
surveillance tools. The State has been unable demonstrate how they are able to now be used as such
with any measure of scientific validity.
BY THE DEFENDANT
th
this 18 day of October, 2010
By_________________________________
Tel: (860) 286-9026
Fax: (860) 286-9028
CERTIFICATION
Pursuant to Practice Book 10-12 through 10-17, and 11-1, this 18th day of October 2010, the
certifies that a copy of the foregoing was delivered in hand/via first class united states mail/via
facsimile to all counsel of record: Russell Zentner, Esq., Office of the States Attorney- Part A, One
Court Street, Middletown, CT 06457-3374 (860) 343-6427.

Case: 1:10-cr-00747 Document #: 97 Filed: 07/25/12 Page 1 of 11 PageID #:193
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
vs.
JOSE ANTONIO LOPEZ and
ANTONIO EVANS
)
)
)
)
)
)
No. 10 CR 747-2,3
Judge Joan Humphrey Lefkow
GOVERNMENTS CONSOLIDATED MOTIONS IN LIMINE

The UNITED STATES OF AMERICA, by its attorney, GARY S. SHAPIRO, Acting
United States Attorney for the Northern District of Illinois, respectfully submits its
consolidated motions in limine seeking pretrial rulings on the admissibility of certain
evidence and the propriety of certain arguments, as set forth below. The indictment in this
case charges defendants Jose Antonio Lopez and Antonio Evans with conspiracy to commit
kidnapping, in violation of Title 18, United States Code, Section 1201(c) (Count One) and
kidnapping, in violation of Title 18, United States Code, Section 1201(a)(1). More
specifically, the indictment alleges that beginning no early than in or about early April 2010,
and continuing until at least April 25, 2010, in Cicero and Chicago, in the Northern District
of Illinois, defendants, along with co-defendant Jerry Zambrano, did conspire with each other
and others to knowingly and unlawfully seize, confine, kidnap, abduct, carry away, and hold
for ransom or reward another person, namely Minor A, and to use means, facilities, and
instrumentalities of interstate commerce in committing and in furtherance of the offense,
namely, telephones operated on the interstate network of AT&T, a telephone service
provider.
I.
Admissibility of Cell Site Evidence and Analysis

At trial, the government intends to introduce cell site records for phones connected
to Lopez, Evans, and co-defendant Jerry Zambrano, who has pleaded guilty and is expected
to be a government witness at trial. Cell site records reflect the location of the cell tower and
antenna face used at the start and end of a cellular telephone call. These records are
commonly used by law enforcement to analyze the past use of a cellular phone and thereby
obtain information about a subjects whereabouts, activities, and patterns of behavior.
The governments position is that the cell site records themselves are business records
under Federal Rule of Evidence 803(6). In the event the parties do not stipulate to that fact,
the government intends to call a witness from Sprint Nextel to testify that the cell site records
produced to the government during the investigation are business records kept in the ordinary
course of Sprint Nextels business, that the records are made at or near the time of the
activity, and that Sprint Nextels regular business practice was to keep the records.
After admitting the cell site records themselves into evidence, the government intends
to call FBI Special Agent Joseph Raschke as a witness. Agent Raschke is expected to testify
about exhibits that he prepared based in part on the cell site records. These exhibits are maps
reflecting: (1) the location of cell towers used by phones connected to Lopez, Evans, and
Zambrano during various points of the conspiracy; (2) a comparison of the locations of some
of the cell towers to other locations relevant to this case, including the location of the
kidnapping, the location of where the victim was held, and the location of pay phones used
to make ransom calls; and (3) estimated ranges around the cell towers used by phones
2
connected to Lopez, Evans, and Zambrano.
Drafts of the maps created during the
investigation in this case have been produced to the defendants. Finalized versions to be
used as trial exhibits will be turned over when completed.
With respect to Agent Raschkes map containing information about the location of
cell towers, Agent Raschke will testify that, in creating the maps, he used the cell site records
themselves and Google Maps or a similar program to determine the locations of the cell
towers that phones connected to Lopez, Evans, and Zambrano used during the kidnapping.
In addition to illustrating the location of the cell towers, some of the charts will also compare
the cell tower locations to other locations relevant to this case, such as the location of pay
phones used for ransom calls, the location of the kidnapping itself, or the location where
evidence presented at trial will show that Minor A was held captive.
This portion of Agent Raschkes testimony is not expert testimony because Agent
Raschke is merely creating maps with locations of cell towers compared to other locations.
Such testimony would be appropriate lay opinion testimony. See United States v. Lee, No.
07-3985, 07-4642, 07-4687, 2009 WL 2219273, at *6 (3d Cir. July 27, 2009) (allowing lay
person to testify about map prepared using GPS program because program relies on a tool
used in everyday life, and requires no specialized training or knowledge.); United States v.
Thompson, No. 09-4154, 2010 WL 3529305, at 858 (3d Cir. Sept. 13, 2010). Indeed, some
court have taken judicial notice that the mapping tools are accurate. See United States v.
Stewart, No. 3:07cr51, 2007 WL 2437514, at *1 n.2 (E.D. Va. Aug. 22, 2007); United States
v. Lente, 759 F. Supp. 2d 1305, 1317 n.7 (D.N.M. 2010), reversed on other grounds, 647
F.3d 1021 (10th Cir. 2011).
For some of the maps, however, Agent Raschke will estimate the ranges of the cell
towers used by phones connected to Lopez, Evans, and Zambrano. Agent Raschke is
expected to testify, based on his training and experience in cell site and cellular record
analysis, that he can estimate ranges around cellular towers based on the proximity of the
towers to other towers in the area. Agent Raschkes maps will illustrate that, on a number
of occasions, pay phones used to make ransom calls were within the estimated ranges of cell
towers phones connected to Lopez and Zambrano used to make or receive calls shortly
before or after ransom calls.
Because part of Agent Raschkes testimony that involves expert testimony under Rule
704, on the date of the filing of this motion, the government has provided defense counsel
with a letter disclosing Agent Raschke as an expert witness on cellular record analysis. A
copy of the letter provided to defense counsel is attached as Exhibit A. This is appropriate
expert testimony under Federal Rule of Evidence 702 because: (1) Agent Raschke will be
testifying based on specialized knowledge and his training and experience; (2) the testimony
will be technical and will aid the trier of fact to determine issues in this case, namely, various
defendants locations at or around the time of ransom calls and other significant events; (3)
the analysis is based on sufficient facts or data, namely the cell site records; (4) the testimony
is the product of reliable principles and methods, as will be established by Agents Raschkes
testimony; and (5) Agent Raschke has reliably applied the principles and methods to the facts
4
of the case. Accordingly, the government seeks a pre-trial ruling as to the admissibility of
the exhibits that Agent Raschke is preparing and as to his testimony.
II.
Motion to Bar Evidence or Argument Related to Penalties Faced by Defendants

The government respectfully moves this Court to preclude defendants from
introducing evidence, making argument, or otherwise mentioning the potential penalties

faced by defendants if convicted. The Seventh Circuit has unequivocally held that arguing
punishment to a jury is taboo. See, e.g., United States v. Richardson, 130 F.3d 765, 778 (7th
Cir. 1997) vacated in part on other grounds, 526 U.S. 813 (1999); United States v. Lewis,
110 F.3d 417, 422 (7th Cir. 1997); see also United States v. McKenzie, 922 F.2d 1323, 1327
(7th Cir. 1991) ([t]he sixth amendment requires that a jury determine questions of guilt or
innocence; punishment is the province of the Court.).
Argument or evidence concerning punishment is improper because the law is wellsettled that the potential penalty faced by a defendant is irrelevant to the jurys determination
of guilt or innocence. See, e.g., Shannon v. United States, 512 U.S. 573, 579 (1994) (It is
well established that when a jury has no sentencing function, it should be admonished to
reach its verdict without regard to what sentence might be imposed.) (quoting United
States v. Rogers, 422 U.S. 35, 40 (1975)); United States v. Frank, 956 F.2d 872, 879 (9th Cir.
1991) (It has long been the law that it is inappropriate for a jury to consider or be informed
of the consequences of their verdict); United States v. McCracken, 488 F.2d 406, 423 (5th
Cir. 1974) (Except where a special statutory provision mandates a jury role in assessment
or determination of penalty, the punishment provided by law for offenses charged is a matter
5
exclusively for the court and should not be considered by the jury in arriving at a verdict as
to guilt or innocence.). Mention of the potential penalties faced by defendants would serve
only the improper purpose of jury nullification. See, e.g., United States v. Reagan, 694 F.2d
1075, 1080 (7th Cir. 1982) (The authorities are unequivocal in holding that presenting
information to the jury about possible sentencing is prejudicial. (quoting United States v.
Greer, 620 F.2d 1383, 1384 (10th Cir. 1980)).
The government is not suggesting through this motion that evidence of penalties faced
by co-defendant Jerry Zambrano should be barred in the event Zambrano testifies as a
government witness. Instead, the government seeks an order precluding defense counsel
from mentioning or introducing evidence regarding any of the range of penalties defendants
may face if convicted.
III.
Right of Minor A and his Father Not to Be Excluded From Trial

Pursuant to 18 U.S.C. 3771(a)(3), the government moves this Court for an order
allowing both Minor A and his father to be present during the trial in this case. Federal Rule
of Evidence 615 provides that at a partys request, courts must order witnesses excluded so
that they cannot hear other witnesses testimony. Rule 615 recognizes numerous exceptions,
including for a person authorized by statute to be present. Fed.R.Evid. 615(d). Section
3771(a)(3) provides a statutory basis for Minor A and his father to be present at trial in this
case. That statute states that crime victims have [t]he right not to be excluded from any such
public court proceeding, unless the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if the victim heard other
6
testimony at that proceeding. In addition, 3771(b)(1) provides that [b]efore making a

determination described in subsection (a)(3), the court shall make every effort to permit the
fullest attendance possible by the victim and shall consider reasonable alternatives to the
exclusion of the victim from the criminal proceeding. The reasons for any decision denying
relief under this chapter shall be clearly stated on the record.
In this case, the government expects both Minor A and his father to testify at trial.
Although the government has not specifically asked them whether they would like to be
present for all aspects of the trial, the government believes that they will want to be present
for the trial in its entirety because Minor A and his father have attended nearly every hearing
for this case thus far, even routine status hearings.
Moreover, with respect to concerns about Minor A or his father potentially changing
their testimony, they are both expected to be among the governments first witnesses at the
trial. Moreover, they have also both been interviewed by the government on numerous
occasions about the kidnapping and ransom calls, and the government has provided reports
of those interviews to the defendants. Thus, no showing can be made by clear and
convincing evidence that the testimony of Minor A or his father would be materially altered
if they heard other testimony at trial.
Finally, there are no constitutional concerns with allowing Minor A and his father to
be present for the trial because there is no due process right to have witnesses excluded. As
the Seventh Circuit has held:
A refusal to exclude (separate) witnesses until they testify is not a denial of

due process. Separation or sequestration of witnesses, on which see Geders
v. United States, 425 U.S. 80, 87 (1976); Fed.R.Evid. 615, is a longestablished and well-recognized measure designed to increase the likelihood
that testimony will be candid. But the due process clause does not incorporate
every refinement of legal procedure designed to make trials fairer or more
accuratenot even one hallowed by time. See, e.g., Watson v. Camp, 848 F.2d
89 (7th Cir. 1988). It forbids only egregious departures (illustrated by
Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985)) from accepted standards of
legal justice. Hill v. United States, 368 U.S. 424, 428 (1962).
Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir. 1988); see also United States v. Edwards, 526
F.3d 747, 758 (11th Cir. 2008) (refusing to exclude victim-witness based on 18 U.S.C.
3771(a)(3), noting that a -criminal defendant has no constitutional right to exclude witnesses
from the courtroom.).
Accordingly, the government seeks a ruling from the Court that Minor A and his
father can be present during all parts of the trial they wish to attend.
IV.
Allegations of Witness Wrongdoing Not Involving Dishonesty

The government has produced to defense counsel, and will continue to produce to
defense counsel as necessary, materials setting forth potential impeachment material for some
witnesses in this case. In an abundance of caution, the government has produced various
materials that do not constitute admissible impeachment, including criminal history reports
of some government witnesses. Of course, the mere fact that the government has produced
to the defense a fact or an allegation does not render it admissible at trial. By this motion,
the government moves this Court to preclude defense counsel from introducing at trial,
during the cross-examination of government witnesses, improper impeachment questioning

or evidence.
A.
Arrests
The government will disclose to defense counsel the rap sheets and criminal histories
of witnesses it may call at trial (and it will continue to do so if that list changes). Some of
these witnesses have been arrested on prior occasions. Evidence of a prior arrest should be
precluded in accordance with the strictures of Rules 609 and 608. Federal Rule of Evidence
609 allows for the admission of a witnesss felony conviction for purposes of impeachment
under certain specified circumstances. Under the Rule, [f]or the purpose of attacking the
credibility of a witness, evidence that a witness other than an accused has been convicted of
a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under which the witness was convicted .
. . Fed. R. Evid. 609. By its express terms, Rule 609 permits evidence only of convictions,
not arrests.
Nor are arrests admissible under Fed. R. Evid. 608(b). Rule 608(b) provides that
specific instances of past conduct may be inquired into on cross-examination if and only if
they concern the witnesss character for truthfulness.1 Courts have not construed Rule 608(b)
to permit cross-examination on prior arrests absent special facts bearing on the witnesss
character for the specific trait of truthfulness. By way of example, one of the witnesses the
Even then, these past instances may not be proved by extrinsic evidence. See Fed. R. Evid. 608(b).
government intends to call at trial has a prior arrest for retail theft. The fact of the arrest, and
any questions about the conduct underlying the arrest, should be barred because retail theft
is not a crime involving dishonesty. See, e.g., Clarett v. Roberts, 657 F.3d 664, 669 (7th Cir.
2011) (Retail theft lacks an element of an act of dishonesty that is common to crimes of this
type. As such, [t]his circuit generally does not count retail theft as a crime of dishonesty
for purposes of Rule 609(a)(2).) (quoting Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir.
2008)).
Thus, unless defendants can demonstrate that the conduct underlying any arrest
implicates a witnesss character for truthfulness (an inquiry that should be done outside the
presence of the jury), defendants should be precluded from inquiring into the conduct.
B.
Other Bad Acts By the Witnesses
To the extent they are known, the government has disclosed, and will continue to
disclose to defense counsel, bad acts by its witnesses known to the government. Under
Rules 611 and 608(b), defendants are permitted to inquire into specific bad acts of the
witness only if these acts are probative of truthfulness. So the Court can make the
appropriate rulings, the government requests that defense counsel identify the prior conduct
about which they intend to cross-examine a given witness and demonstrate how that conduct
is probative of truthfulness. This should occur outside the presence of the jury and before a
witness testifies at trial, to prevent jury nullification and/or undue prejudice.
10
CONCLUSION
For the foregoing reasons, the government respectfully requests that the above
motions in limine be granted.
Respectfully submitted,
GARY S. SHAPIRO
Acting United States Attorney
By: /s/ Jason A. Yonan
JASON A. YONAN
SAMUEL B. COLE
Assistant U.S. Attorneys
219 S. Dearborn Street, 5th Floor
Chicago, Illinois 60604
(312) 353-5300
Dated: July 25, 2012
11

EASTERN DIVISION
vs.
ANTONIO EVANS
)
)
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No. 10 CR 747-3
Judge Joan Humphrey Lefkow
REPLY IN SUPPORT OF GOVERNMENTS

CONSOLIDATED MOTIONS IN LIMINE
The UNITED STATES OF AMERICA, by its attorney, GARY S. SHAPIRO, Acting
United States Attorney for the Northern District of Illinois, hereby presents this reply brief
in support of the Governments Consolidated Motions in limine. Defendant presents
objections to two of the four motions in limine that the government has filed. Specifically,
defendant objects to the governments motions related to the admission of cell site evidence
and analysis and allegations of witness wrongdoing not involving dishonesty.
I.
Motion to Admit Cell Site Evidence and Analysis

The government filed a motion in limine regarding the admission of cell site evidence
and analysis for defendant as well as co-defendants Jose Lopez and Jerry Zambrano. Since
the government filed its motion, a change of plea date was scheduled for Lopez, and it does
not appear he is going to trial in this case. The vast majority of cell site evidence and
analysis the government intended to admit in this case related to the use of cellular phones
by Lopez and Zambrano. If Lopez is not a defendant at trial, the government does not intend
to seek admission of most of that evidence in a trial solely against defendant, although it
reserves the right to do so based on how the trial progresses. Instead, the cell site evidence
and analysis the government seeks to admit against defendant is discussed below.
First, as the government stated in its motion, much of FBI Special Agent Joseph
Raschkes testimony will be not be expert testimony at all. In particular, as part of his
testimony, Agent Raschke will review maps he created that contain information about the
location of cell towers and other locations relevant to this case. One such chart will contain
the location of the victims home near where the kidnapping took place compared to the
location of a cell tower that defendants phone used shortly before the kidnapping. A draft
of that chart has been produced to the defendant. In connection with the chart, Agent
Raschke is expected to testify that the cell tower defendants phone used is the cell tower
closest to the location of the kidnapping. That is not based on any expert testimony or
specialized knowledge, but instead based on Agent Raschkes review of the cell site records
produced in this case and on a review of other cell towers in the area. Agent Raschke may
also include in his chart the distance between the tower and the location of the kidnapping,
which again is not based not on any specialized knowledge but instead on the mapping
program tools he used to create the map.
Agent Raschke will also testify concerning maps illustrating cell phone towers that
defendants phone used on April 23, 2010, and April 24, 2010, compared to other locations
in this case, including the location where the victim was held and a cell tower that a Cricket
phone used for a ransom call from that location. Drafts of such charts have been produced
to the defendant. Again, this is not expert testimony.
2
Only three parts of Agent Raschkes testimony regarding the charts is expert
testimony based on specialized knowledge. First, Agent Raschke will testify that a cell
phone uses a cell tower that: (1) is in the vicinity of where the cell phone is being used; and
(2) operates on the particular cell phone network of the cell phone service provider. Contrary
to defendants claim, Agent Raschke will not testify that a cell phone always uses the tower
closest to it. Instead, as the government previously disclosed, Agent Raschke will testify that
a number of factors determine what cell tower a cell phone uses, including the location and
proximity of the tower and network traffic.
Second, Agent Raschke will also estimate coverage ranges around cell towers that
defendants phone used. As the government disclosed to defendant, Agent Raschke
estimated network coverage ranges around the cells towers based on comparing the distance
between other towers in the area and using his training and experience on network operation,
network coverage, and network set-up, which is detailed below.
Agent Raschkes
estimations have been produced to the defendant as part of many of the charts that the
government has turned over.
Specifically, with respect to the maps regarding the location of where the victim was
held, the government intends to show that, during the time period relevant to this case,
defendants phone primarily used two cell towers near the location where the victim was
held. Agent Raschke is expected to testify that the location where the kidnapping victim was
held lies in the coverage overlap area between these two towers. Agent Raschke is expected
to testify that a cellular phone will often use two different cell towers when the location in
which the phone is used lies in an area where the towers overlap in coverage.
Third, Agent Raschke is expected to testify that the calls from defendants phone, and
the call from the Cricket cell phone, could have come from the location where the victim was
held ransom in this case. This testimony is based entirely on the charts already produced
which include the location of the cell towers, the estimated tower ranges, and the location
where the victim was held. So, the government has already fully disclosed the substance of
Agent Raschkes testimony and his methodology and defendants objections to the amount
of the governments disclosures should be overruled.
To the extent defendant objects to Agent Raschkes testimony as unreliable, such
objection should be overruled as well. To determine reliability, the court should consider
the proposed experts full range of experience and training, as well as the methodology used
to arrive at a particular conclusion. United States v. Pansier, 576 F.3d 726, 737 (7th Cir.
2009). Agent Raschkes experience in cellular phone analysis and investigation is extensive.
His curriculum vitae, which was provided to the defendant, shows that:
*
Agent Raschke has received over 350 total hours of instruction in the use of
cellular phones in investigations, including:
---
--
One week of FBI Training in 2009 related to cellular historical and real
time analysis;
Two weeks of training in 2009 regarding cellular telephone network
theory in emerging technology support;
One week of training in 2009 with FBI wireless intercept tracking
team/cellular technology training, which included in-person training
from engineers from cellular telephone providers such as Sprint/Nextel,

Verizon, and AT&T;
--
Training at a wireless telecommunications working group in April

2012, which included in-person training from cellular telephone
providers such as Verizon, U.S. Cellular, and T-Mobile;
--
One week of FBI training in 2012 regarding advanced cellular

historical and real time analysis.
Agent Raschke has instructed approximately 700 law enforcement officers

from various agencies in basic techniques for utilizing cellular phones in law
enforcement investigations, including the Chicago Police Department, Cook
County States Attorneys Office, FBI Chicago Division, and other suburban
police departments.
Agent Raschke has been qualified as an expert witness in historical cell site
analysis on four occasions in the Cook County Circuit Court in September
2010, May 2011, November 2011, and February 2012.
Contrary to defendants argument, Agent Raschke is more than qualified enough to

provide the testimony detailed above. Agent Raschkes curriculum vitae shows his extensive
experience, training, and expertise in historical cell site analysis and investigation.
The government has also set forth the methodology Agent Raschke used for
determining those portions of his testimony that can be construed as expert testimony, and
that methodology is reliable. Indeed, Agent Raschkes methodology is similar to that
deemed acceptable in United States v. Benford, No. 09 CR 86, 2010 WL 2346305, (N.D. Ind.
June 8, 2010). The court in Benford analyzed many of the same issues relevant to this case.
Specifically, the court allowed testimony and charts about a coverage area of a cell tower.
The witness in Benford created a map with a number of circles representing the approximate
locations where Benfords cell phone was used. [The witness] testified that in order for a cell
5
phone to connect with a cell site, it would have to be within the cell sites coverage area.
Id. at *3. The government seeks to have Agent Raschke provide similar testimony in this
case. The court in Benford found that such testimony was sufficiently relevant and reliable
under Daubert. Id. at *4.
Finally, there can also be no dispute that Agent Raschkes testimony and charts are
relevant. His testimony and charts will be relevant to determining defendants whereabouts
during the kidnapping and ransom in this case and will also corroborate testimony expected
from other government witnesses about defendants actions and whereabouts.
II.

Defendant also objects to portions of the governments motion seeking to preclude
improper impeachment related to bad acts by government witnesses under Federal Rules of
Evidence 608(b) and 611. In his response, defendant states that he does intend to question
one potential government witness about the fact that he was a drug dealer. Defendant asserts
that such testimony is relevant to the witness bias and motive to testify against defendant.
Without knowing more about defendants reasoning for presenting this testimony, the
government is unable to determine whether it would object to this line of questioning.
Accordingly, the government submits that, before engaging in this questioning, defendant
should have to identify outside the presence of the jury the prior conduct he intends to
explore on cross-examination and demonstrate how that conduct is probative of matters
relating to bias or motive.
GARY S. SHAPIRO
Acting United States Attorney
By:
Dated: August 6, 2012
/s/ Jason A. Yonan

JASON A. YONAN
SAMUEL B. COLE
Assistant U.S. Attorneys
219 South Dearborn Street
(312) 353-5300
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JERRY ZAMBRANO, et al.,
(ANTONIO EVANS)
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 10 CR 747
Judge Joan H. Lefkow
DEFENDANT EVANS RESPONSE TO THE

GOVERNMENTS CONSOLIDATED MOTIONS
IN LIMINE AND REQUEST FOR A DAUBERT HEARING
Defendant, ANTONIO EVANS, by and through his attorneys, PATRICK W. BLEGEN
and DANIEL A. RUFO, respectfully submits the following responses to the governments
consolidated motions in limine (Docket No. 97) and requests a Daubert hearing regarding the
admissibility of historical cell site data and cell tower range estimates.
I.
Admissibility of Cell Site Evidence and Analysis

The governments motion in limine states that it intends to introduce historical cell site
records reflecting the location of cell towers and antennas used during certain cellular phone
calls. The government also intends to call FBI Special Agent Joseph Raschke as an expert
witness to testify regarding exhibits he prepared based on the historical cell site records. Id.
Specifically, the government expects Agent Raschkes exhibits to reflect: (1) the location of the
cell towers used by certain individuals involved in this case; (2) a comparison of the locations of
certain cell towers to other locations the government believes are relevant to this case; and (3)
estimated ranges of certain cell towers utilized by phones connected to certain individuals
involved in this case. Id.
The defense objects to the admission of records related to historical cell site information
and to Agent Raschkes testimony. Defendant submits that the government has provided
insufficient detail of its expert testimony under Federal Rule of Criminal Procedure 16(a)(1)(G).
And, the government has not established that its proposed expert testimony meets the strictures
of Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993). As such, Defendant requests a Daubert hearing prior to the admission of testimony
related to cell site information and estimated ranges.
The government has provided the defense with an expert disclosure letter detailing Agent
Raschkes testimony.1 The letter states that Agent Raschke will identify the location of cell
towers used by certain individuals in this case, and their relation to other locations the
government believes are relevant. Agent Raschke will also testify based on his training and
experience, about why a cellular phone may use one or more towers during the duration of a
particular call, including because of things like the proximity of the tower and the level of use of
towers in the area. Id. Furthermore, Agent Raschke will provide testimony that he estimated
the ranges around the cell towers based on his training and experience performing cell site
historical analysis. (Exhibit A, p. 2). The letter states that Agent Raschkes estimated ranges
are based on the proximity of the towers to other towers in the area, and the estimated network
range for each tower. Id. No other detail regarding the relevance of the location of the cell
towers or of the methodology or reasoning for the estimated cell tower range is provided.
Federal Rule of Criminal Procedure 16(a)(1)(G) requires the government to provide a
summary of any expert testimony it intends to use and must describe the witnesss opinions, the
The governments disclosure letter is attached hereto as Exhibit A.
bases and reasons for those opinions, and the witnesss qualifications. While the government has
given a list of subjects about which Agent Raschke will testify, it has not met the requirements of
Rule 16. First, the government has not provided the defense with certain of Agent Raschkes
opinions, for instance, why a particular phone may use one or more towers during a particular
call.2 The letter merely states that Agent Raschke will testify about the topic, but omits any
expert opinion. Second, and more critically, the government has provided no bases or reasons
for Agent Raschkes expert testimony regarding the estimated ranges of cell towers. The
government has merely stated that Agent Raschke is capable of estimating ranges, and described
that ranges are based on certain factors. No reasoning is found anywhere in the governments
letter. The defense submits, therefore, that the letter cannot be considered a proper expert
disclosure as it lacks the required information under Rule 16.
The governments motion in limine regarding Agent Raschkes testimony is similarly
lacking in detail. This lack of detail in the governments disclosure and motion runs afoul of
Federal Rule of Evidence 702 and the Supreme Courts pronouncements in Daubert. Federal
Rule of Evidence 702 provides that an expert may testify in the form of an opinion or
otherwise if: (1) the experts knowledge will aid the trier of fact; (2) if the testimony is based on
sufficient facts or data; (3) if the testimony is the product of reliable principles and methods; and
(4) the expert has reliably applied the principles and methods to the facts of the case. The
government has not established that Agent Raschkes testimony meets these requirements. As
noted above, the government has not so much as provided the methodology for Agent Raschkes
The governments tendered discovery includes charts created by Agent Raschke illustrating the estimated ranges of
certain cell towers. The defense assumes that these charts constitute Agent Raschkes opinion on the estimated range of the
towers. No methodology is provided, however, as to how these estimates were reached.
opinions, let alone whether such methodology has been reliably applied to the facts of this case.
Without such information, this Court cannot determine that Agent Raschkes testimony is
admissible and the governments motion in limine should be denied.
Furthermore, the governments proposed testimony does not meet the requirements of
Daubert. In Daubert, the Supreme Court held that district courts are the gatekeepers to the
admissibility of scientific evidence under Rule 702. Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 597 (1993). The Court required that such scientific evidence be both relevant and
reliable. Id. This gatekeeping responsibility, as well as the relevance and reliability
requirements, were subsequently extended to all expert testimony in Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 150 (1999).
Beginning first with the testimony regarding the locations of cell towers and their
relation to purportedly relevant locations, it appears that the government has made the
assumption that a cell phone call must necessarily utilize the nearest tower and that the
individual making the call must therefore be within a certain geographic range. But the
government has provided no basis or methodology for this theory. Without providing any
support, the location of cell phone towers, especially in comparison to purported relevant
locations, is irrelevant. The government cannot simply admit evidence regarding the cell phone
tower used during a certain call and leave the jury with the inference that the tower used is the
tower nearest to the phone. Rather, the government must demonstrate that this is, in fact, how
cell phones work. Nothing in its disclosure letter or motion in limine provides any detail
regarding how the evidence is relevant or reliable. Rather, the evidence is highly prejudicial
because the jury will intuitively assume that the nearest tower is the tower used by a cell phone.
The government has also provided no methodology for Agent Raschkes estimate ranges
of cell towers. In Daubert, the Supreme Court laid out non-exhaustive general criteria for
assessing the reliability and validity of an experts testimony including whether the experts
methodology in question can or has been tested, whether it has been subjected to peer review and
publication, the methodologys known or potential error rate and the existence and maintenance
of standards controlling its operation, and whether the methodology has attracted widespread
acceptance within a relevant scientific community. Daubert, 509 U.S. at 593-4. By not detailing
any methodology that Agent Raschke will employ, this Court can make no finding as to whether
the methodology is reliable.
The government has only stated that Agent Raschke can estimate cell tower ranges based
on his experience and training. For the above reasons, such an assertion is insufficient. This
Court should deny the governments motion in limine seeking pre-trial determination as to the
admissibility of Agent Raschkes testimony and his exhibits.
In light of the above, the Defense requests that Agent Raschkes historical cell site data
be precluded from admission and that Agent Raschke be prohibited from testifying.
Alternatively, the defense requests a Daubert hearing on the issue of the admissibility of
historical cell site data and estimated ranges, as the testimony is neither reliable nor relevant.3
Since receiving the governments expert disclosure, counsels research has not uncovered a circuit court
case in which the admission of historical cell site data, along with the governments theory that cell phone calls
always utilize the nearest cell tower, was held to meet Daubert standards. Furthermore, the defense has found no
circuit court case stating that estimating cell tower ranges meets Daubert standards. Counsel have uncovered district
court cases, including United States v. Benford, 2010 WL 2346305 (N.D. Ind. June 8, 2010), in which similar
evidence was held admissible. But, Benford appears to utilize a different methodology than the government has
here.
Counsel have researched these issues and have also been in contact with an expert in the field of historical
cell site data and have learned that the governments theories are unsupportable. Counsel have learned that cell
phones do not necessarily utilize the nearest cell tower and that the actual determination of which cell tower is used
is complex and hinges on a multitude of factors. Furthermore, counsel have learned that the governments charted
II.
Motion to Bar Evidence or Argument Related to Penalties Faced by Defendants

The defense does not intend to make any argument regarding the potential penalties faced
by Defendant. However, as the government has noted, it is proper for the defense to elicit
evidence of penalties faced by any cooperating government witnesses.
III.
Right of Minor A and his Father Not to Be Excluded From Trial

At this time, the defense has no objection to the presence of Minor A and his father
during the trial. However, the defense submits that a blanket pre-trial ruling permitting those
individuals to attend any part of the trial they wish is premature. The defense would request that
the Court permit the defense to object or seek to exclude Minor A or his father should an issue
regarding their presence arise; i.e., should a risk arise that either Minor A or his fathers
testimony would be materially altered if the individuals heard each others testimony at the trial.
18 U.S.C. 3771(a)(3).
IV.

The government requests that the Court preclude the defense from introducing at trial any
improper impeachment or evidence, including evidence of prior arrests or evidence of other bad
acts not probative of truthfulness. The defense does not intend to engage in any improper
questioning or elicit improper evidence. Moreover, the defense does not intend to use any
witnesss arrest history or other bad acts in an improper manner under Rule 608(b).
However, the defense does intend to question Jerry Zambrano, the governments
cooperating witness and co-defendant, about the fact that he is a drug dealer. Such evidence is
relevant and probative for several reasons unrelated to Rule 608(b), including Zambranos bias
cell tower ranges, purportedly setting geographic boundaries for the utilization of cell site towers are unsupported by
fact and do not rest on sound methodology.
against Evans and his motive to testify. While the defense does not wish to fully divulge the
details of its defense to the charges, it should suffice to say that evidence of drug dealing
between Zambrano and Defendant Evans is relevant to show why the two individuals were in
communication with one another aside from their alleged participation in a kidnapping.
Furthermore, Zambrano has claimed in statements to the FBI that Evans stole a large quantity of
marijuana from him. The fact that Zambrano possessed a large quantity of marijuana will reveal
to the jury that Zambrano was a drug dealer. But more importantly, evidence of such an incident
is relevant to demonstrate Zambranos bias as a witness and his motivation to implicate Evans in
a kidnapping. As the Seventh Circuit has long said, [b]ias is always relevant, and parties should
be granted reasonable latitude in cross-examining target witnesses. United States v. Manske,
186 F.3d 770, 777 (7th Cir. 1999) quoting United States v. Frankenthal, 582 F.2d 1102, 1106 (7th
Cir. 1978).
Zambranos drug dealing is also admissible as reverse 404(b) evidence. While Rule
404(b) is generally used to show a defendants prior bad acts for proof of something other than a
defendants propensity to commit a crime, a defendant can seek to admit evidence of a witnesss
crime if it tends to negate the defendants guilt. United States v. Seals, 419 F.3d 600, 606 (7th
Cir. 2005) citing United States v. Della Rose, 403 F.3d 891, 901 (7th Cir. 2005). Furthermore,
reverse 404(b) evidence is held to a lower standard than normal 404(b) evidence because there
is no risk of prejudice to a defendant. Id. citing United States v. Stevens 935 F.2d 1380, 1404 (3rd
Cir. 1991). Under 404(b), evidence of Zambranos drug dealing is admissible to show his
motive to testify, his knowledge of Defendant, and the reason for communications between
Zambrano and Evans. The defense submits, therefore, that it should be permitted to explore the
drug dealing history of Zambrano. Such evidence is relevant and is not barred by Rule 608(b),
404(b) or any other Rule of Evidence.4
s/ Patrick W. Blegen
PATRICK W. BLEGEN, One of the
Attorneys for Defendant, Antonio Evans.
BLEGEN & GARVEY

53 West Jackson Boulevard, Suite 1437
(312) 957-0100
The defense does not intend to argue that Zambrano is not to be believed simply because he is a drug
dealer. Such an argument would be counter-productive as the evidence of Zambranos drug dealing will also reveal
that Evans was involved with drugs.
CERTIFICATE OF SERVICE
I hereby certify that foregoing was served on August 3, 2012, in accordance with
Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF)
pursuant to the district courts system as to ECF filers.
s/ Patrick W. Blegen
BLEGEN & GARVEY
53 West Jackson Boulevard, Suite 1437
(312) 957-0100
Case: 1:10-cr-00747 Document #: 111-1 Filed: 08/03/12 Page 1 of 2 PageID #:289
EXHIBIT A
Case: 1:10-cr-00747 Document #: 111-1 Filed: 08/03/12 Page 2 of 2 PageID #:290
EXHIBIT A

EASTERN DIVISION
vs.
ANTONIO EVANS
)
)
)
)
)
)
)
Case No. 10 CR 747-3

Judge Joan H. Lefkow
OPINION AND ORDER

This matter is before the court on the governments motion in limine to admit cell site
evidence and analysis through the testimony of Special Agent Joseph Raschke. (Dkt. #97.) On
August 17, 2011, defendant Antonio Evans and two co-defendants were charged with conspiracy
to kidnap in violation of 18 U.S.C. 1201(c) (Count I) and kidnapping in violation of 18 U.S.C.
1201(a)(1) (Count II).1 (Dkt. #41.) The kidnapping allegedly took place on April 23 and 24,
2010. The government proposes to call Special Agent Raschke to testify about the operation of
cellular networks and how to use historical cell site data to determine the general location of a
cell phone at the time of a particular call. Applying a theory called granulization, Special
Agent Raschke proposes to testify that calls placed from Evanss cell phone during the course of
the conspiracy could have come from the building where the victim was held for ransom.
On August 21 and 23, 2012, this court held an evidentiary hearing pursuant to Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993), to determine whether the governments proposed evidence
The two co-defendants, Jerry Zambrano and Jose Antonio Lopez, pleaded guilty on April 27,
2012 and August 7, 2012 respectively. (See Dkt. #95, #115.)
and analysis are admissible. After the hearing, Evans moved for disclosure of expert evidence
under Federal Rule of Criminal Procedure 16. (Dkt. #122.) For the reasons set forth herein, the
governments motion in limine (dkt. #97) will be granted in part and denied in part and Evanss
motion (dkt. #122) will be denied as moot.
LEGAL STANDARD
The admission of lay witness testimony is governed by Federal Rule of Evidence 701,
which limits lay opinion testimony to that which is (1) rationally based on the witnesss
perception; (2) helpful to clearly understanding the witnesss testimony or to determining a fact
in issue; and (3) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702. Fed. R. Evid. 701. The admission of expert opinion testimony is governed
by Federal Rule of Evidence 702 and Daubert. See Bielskis v. Louisville Ladder, Inc., 663 F.3d
887, 893 (7th Cir. 2011). Rule 702 states that a witness who is qualified as an expert by
knowledge, skill experience, training or education may testify in the form of opinion or
otherwise provided that (1) the experts scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the
testimony is based on sufficient facts or data; (3) the testimony is the product of reliable
principles and methods; and
(4) the expert has reliably applied the principles and methods to the facts of the case. Fed. R.
Evid. 702. To admit expert testimony under this rule, the court must determine that (1) the
witness is qualified; (2) the experts methodology is scientifically reliable; and (3) the testimony
will assist the trier of fact to understand the evidence or to determine a fact in issue. Myers v. Ill.
Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).
In Daubert the United States Supreme Court set out four factors the court may consider
when assessing the reliability of an experts methodology, including (1) whether the theory is
based on scientific or other specialized knowledge that has been or can be tested; (2) whether the
theory has been subjected to peer review; (3) the known or potential rate of error and the
existence of standards controlling the theorys operation; and (4) the extent to which the theory
is generally accepted in the relevant community. Daubert, 509 U.S. at 59394; see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
The Rule 702 inquiry is a flexible one. Daubert, 509 U.S. at 594. As such,
[d]eterminations on admissibility should not supplant the adversarial process; shaky expert
testimony may be admissible, assailable by its opponents through cross-examination. Gayton v.
McCoy, 593 F.3d 610, 616 (7th Cir. 2010). The proponent of the testimony bears the burden of
proving that the proffered testimony meets these requirements, and the Seventh Circuit grants the
district court wide latitude in performing its gate-keeping function. Bielskis, 663 F.3d at 894
(internal quotation marks and citation omitted).
BACKGROUND
The government has obtained what it alleges are the call data records for the phone
registered to Evans during the time of the alleged conspiracy. The data contained in these
records includes the date and time of calls originating from Evanss phone, the duration of each
call, and the originating and terminating cell tower (also known as cell site) used by the phone to
place the call. Using these records, Special Agent Raschke testified that he could apply the
granulization theory to estimate the general location of Evanss phone during the time calls were
placed. To understand the theory of granulization it is necessary to understand how a cellular

network operates.
According to Special Agent Raschke, when a cell phone is in idle mode, it regularly
communicates with cell towers in its network. Using radio frequency waves, the phone tries to
determine which cell tower has the strongest signal. In urban areas, cell towers are often located
on top of buildings or water towers. A cell tower emits radio frequency waves in all directions,
providing cell phone coverage in a 360 degree radius around the tower. Three antennas typically
comprise each tower; each antenna covers a 120 degree area. When a cell phone places a call, it
typically connects to the tower in its network with the strongest signal. This is usually the tower
nearest to the phone, although a variety of factors including physical obstructions and
topography can determine which tower services a particular phone. Once the call reaches the
tower, this interaction is recorded by the network provider. The call then proceeds to a mobile
switching center, which may choose to reroute the call to a different tower based on network
traffic. The call may also be rerouted to a different tower if the caller changes location during
the duration of the call. These data are recorded by the network and maintained as call data
records.
To determine the location of a cell phone using the theory of granulization, Special Agent
Raschke first identifies (1) the physical location of the cell sites used by the phone during the
relevant time period; (2) the specific antenna used at each cell site; and (3) the direction of the
antennas coverage. He then estimates the range of each antennas coverage based on the
proximity of the tower to other towers in the area. This is the area in which the cell phone could
connect with the tower given the angle of the antenna and the strength of its signal. Finally,
using his training and experience, Special Agent Raschke predicts where the coverage area of
one tower will overlap with the coverage area of another.
Applying this methodology, Special Agent Raschke testified that he could estimate the
general location of Evanss cell phone during an 18 minute period (from 12:54 p.m. to 1:12 p.m.)
on April 24, 2010, during which time Evanss phone used two cell towers to place nine calls.
According to Special Agent Raschke, based on his estimate of the coverage area for each of the
antennas, the calls made from Evanss phone could have come from the location where the
victim was held for ransom. In support, the government proposes to admit summary exhibit 6,
which is a map of the two towers used by Evanss phone and a drawing of the estimated
coverage overlap of the two towers. The building where the victim was held falls squarely
within the coverage overlap of the two towers. (See Govt Summ. Ex. 6.) In addition to this
exhibit, the government also proposes to introduce maps indicating the location of cell towers
used by Evanss phone in relation to other locations relevant to the crime (Govt Summ. Exs.
15),2 maps showing the topography of the area between the two towers indicated in summary
exhibit 6 (Govt Summ. Ex. 78), and a listing of the total number of calls placed by Evanss
phone during the relevant time period that originated or terminated with one of the two towers
(Govt Summ. Ex. 9).3
Government summary exhibit 1 also contains a line from the location of one of the cell towers
used by Evanss phone to the location where the victim was kidnnapped, demonstrating the close
proximity of the two locations.
3
The government has also moved to admit the call data records under the business record
exception to the hearsay rule. See Fed. R. Evid. 803(6). Assuming the proper foundation is laid, these
records are likely admissible. See United States v. Graham, 846 F. Supp. 2d. 384, 389 (D. Md. 2012)
(stating that historical cell site location records are created by cellular providers in the ordinary course of
business).
ANALYSIS
I.
Admissibility of maps containing cell tower locations and other locations relevant to
the crime
As an initial matter, the government argues that a portion of Special Agent Raschkes
testimony is admissible under Rule 701, specifically, his testimony concerning maps he created
indicating the location of certain cell towers used by Evanss phone during the course of the
conspiracy in relation to other locations relevant to the crime. (See Govt Summ. Exs. 15.) The
court agrees that using Google Maps to plot these locations does not require scientific, technical,
or other specialized knowledge and that these exhibits are admissible through lay opinion
testimony under Rule 701.
The relevancy of these exhibits, however, is primarily based on the premise that a cell
phone connects to the tower in its network with the strongest signal, and the tower with the
strongest signal is usually the one closest to the cell phone at the time the call is placed.
Although this is the general rule, there are a variety of factors that determine the tower to which
a cell phone will connect. See Aaron Blank, The Limitations and Admissibility of Using
Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 RICH. J. L. & TECH.
3, at *7 (Fall 2011) (identifying factors that affect a towers signal strength to include the
technical characteristics of the tower, antennas and phone, environmental and geographical
features and indoor or outdoor usage); Matthew Tart et al., Historic cell site analysis - Overview
of principles and survey methodologies, 8 DIGITAL INVESTIGATION 1, 186 (2012) (In a perfectly
flat world with equally spaced and identical masts, a mobile phone user would generally connect
to the closest mast. In the real world, however, this is not necessarily the case.). Indeed,
Special Agent Raschke himself testified that topography, physical obstructions and the signal
strength of other towers can impact whether a cell phone connects to the tower closest to it.
Lay witness testimony is admissible under Rule 701 when it is rationally based on [a]
witnesss perception or based on a process of reasoning familiar in everyday life. Fed. R.
Evid. 701 & advisory comm. notes (2000 amends.); see also United States v. Conn, 297 F.3d
548, 554 (7th Cir. 2002) (Lay opinion testimony is admissible only to help the jury or the court
to understand the facts about which the witness is testifying and not to provide specialized
explanations or interpretations that an untrained layman could not make if perceiving the same
acts or events. (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).
Understanding how the aforementioned factors affect a cell phones ability to connect a
particular tower, however, cannot be said to be within the perception of the untrained layman.
Rather, this type of understanding demands scientific, technical, or other specialized
knowledge of cellular networks and results from a process of reasoning which can be mastered
only by specialists in the field. Fed. R. Evid. 701 & advisory comm. notes (2000 amends.);
Conn, 297 F.3d at 554 (Expert opinion . . . brings to an appraisal of those facts . . . that the lay
person cannot be expected to possess.)4 Special Agent Raschke may therefore provide lay
As recently explained by the Seventh Circuit,
[a] law-enforcement officers testimony is a lay opinion if it is limited to what he observed

. . . or to other facts derived exclusively from [a] particular investigation. On the other hand,
an officer testifies as an expert when he brings the wealth of his experience as [an] officer
to bear on those observations and ma[kes] connections for the jury based on that specialized
knowledge.
United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012) (internal quotation marks and citations
omitted); see Compania Administradora de Recuperacion de Activos Administradora de Fondos de
Inversion Sociedad Anonima v. Titan Intl, Inc., 533 F.3d 555, 561 (7th Cir. 2008) (Testimony based
(continued...)
7
opinion testimony concerning (1) the call data records obtained for Evanss phone and (2) the
location of cell towers used by Evanss phone in relation to other locations relevant to the crime;
but if he wishes to testify concerning (1) how cellular networks operate, i.e., the process by
which a cell phone connects to a given tower or (2) granulization theory he must first meet the
demands of Rule 702 and Daubert.5
II.
Admissibility of testimony concerning how cellular networks operate and the theory
of granulization under Rule 702 and Daubert
A.
Whether Special Agent Raschke is qualified to testify as an expert
Special Agent Raschke testified that he has been a member of the Federal Bureau of
Investigation for 14 years and currently serves on the agencys Violent Crimes and Fugitive Task
Force. He has received over 350 hours of training and instruction in the use of cellular phones
and investigations and spends approximately 70 percent of his time in his current position
analyzing cell phone records. He has instructed approximately 700 officers in basic techniques
for utilizing cell phones in investigations and has been qualified as an expert in the use of
historical cell site data in five state court cases in the past two years. (See Govt Ex. CV.)
(...continued)
solely on a persons special training or experience is properly classified as expert testimony, and therefore
it is not admissible under Rule 701.)
5
On this point, the court respectfully disagrees with those courts that have allowed law
enforcement officers to provide lay opinion testimony as to how cellular networks operate or the use of
call data records to determine the location of a cell phone. See, e.g., United States v. Feliciano, 300 F.
Appx. 795, 801 (11th Cir. 2008) (allowing officer to provide lay opinion testimony based on his
particularized knowledge garnered from years of experience in the field, but relying on Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir. 2003) for a position
that has been called into doubt in this district, see Chen v. Mayflower Transit, Inc., 224 F.R.D. 415, 419
(N.D. Ill. 2004)); United States v. Henderson, No. CR 10-117 BDB, 2011 WL 6016477, at **45 (N.D.
Okla. Dec. 2, 2011) (allowing agent to provide lay opinion testimony that cell phone records identif[y]
the cell tower that was nearest to the location of the cell phone at the time a particular call was made or
received).
Special Agent Raschke testified that he has received training from Sprint-Nextel on how their
cellular network operates and is familiar with the operation of this and similar networks. He also
stated that he has successfully used historical cell site data on a number of occasions to locate
people (both dead and alive) in the course of other FBI investigations.
Based on this testimony, the court is satisfied that Special Agent Raschke is qualified to
testify as an expert concerning the operation of cellular networks and granulization theory. See
United States v. Allums, No. 2:08CR30 TS, 2009 WL 806748, at **23 (D. Utah Mar. 24,
2009) (holding that FBI agent was qualified to provide expert testimony on historical cell site
analysis where he underwent two official FBI training courses on how cell technology and cell
networks function, five training courses on radio frequency theory, and was obtaining a masters
degree in geospatial technology); see also United States v. Schaffer, 439 F. Appx. 344, 347 (5th
Cir. 2011) (finding that lower court did not err in allowing FBI agent to provide expert testimony
where agent taught courses on historical cell site analysis, his students had qualified as experts,
and he had used the technique without error on at least 100 occasions).
B.
Whether Special Agent Raschkes testimony concerning how cellular

networks operate is admissible under Rule 702
Rule 702 instructs that when a qualified expert provides testimony regarding general
principles, without trying to apply those principles to the facts of the case, the experts testimony
need only (1) address a subject matter on which the factfinder can be assisted by an expert; (2)
be reliable; and (3) fit the facts of the case. Fed. R. Evid. 702 advisory comm. notes (2000
amends.). Here, testimony concerning how cellular networks operate would be helpful because
it would allow the jury to narrow the possible locations of Evanss phone during the course of
the conspiracy. Although Special Agent Raschke is not an engineer and has never worked for a
9
network provider, he has received extensive training on how cellular networks operate and is in
regular contact with network engineers. He also spends a majority of his time analyzing cell site
records, which requires a thorough understanding of the networks themselves. The court
concludes that his testimony on this subject is reliable. Finally, it is undisputed that a phone
registered to Evans used certain cell towers to place a number of calls during the course of the
conspiracy and, as such, Special Agent Raschkes testimony on this topic fits squarely within the
facts of this case.6
C.
Whether Special Agent Raschkes testimony concerning the theory of

granulization is admissible under Rule 702
Special Agent Raschke testified that using a theory of granulization he can estimate the
range of certain cell sites based on a towers location to other towers. This in turn allows him to
predict the coverage overlap of two closely positioned towers. Special Agent Raschke testified
that he has used this theory numerous times in the field to locate individuals in other cases with a
zero percent rate of error. He also testified that other agents have successfully used this same
method without error. No evidence was offered, however, beyond Special Agent Raschkes
Evanss proposed expert, Manfred Schenk, contested Special Agent Raschkes opinion
regarding which cell towers get recorded in the call data records. According to Schenk, the only cell
tower that gets recorded is the tower that ultimately services the call (i.e., the tower assigned by the
mobile switching center, not the tower that the phone initially connects to before being routed to the
mobile switching center.) This factual disagreement goes to the weight not the admissibility of Special
Agent Raschkes testimony. See, e.g., Traharne v. Wayne Scott Fetzer Co., 156 F. Supp. 2d 717, 723
(N.D. Ill. 2001) (Factual inaccuracies are to be explored through cross-examination and go toward the
weight and credibility of the evidence not admissibility. (citing Walker v. Soo Line R.R. Co., 208 F.3d
581, 58689 (7th Cir. 2000)). The same is true for the line connecting the location of the kidnapping to
the cell tower used by Evanss phone on April 23, 2010 contained in summary exhibit 1. Evans is free to
solicit on cross examination factors other than proximity that may have caused Evanss phone to connect
with that particular tower.
10
testimony, to substantiate the FBIs successful use of granulization theory or its rate of error in
the field.
Despite Special Agent Raschkes assurances, the court remains unconvinced that
granulization theory is reliable. First, in determining the coverage overlap of the two towers
used by Evanss cell phone on August 24, 2010, Special Agent Raschke assumed that Evanss
cell phone used the towers closest to it at the time of the calls. But as previously discussed, there
are a number of factors that could have caused Evanss phone to connect to these towers even
though another tower was closer. For example, a building could have obstructed the phones
access to the closest tower7 or the call could have been rerouted due to network traffic. Special
Agent Raschke acknowledged these factors but did not fully account for them in his analysis.
Rather, he relied on his training and experience to estimate the coverage overlap between the
two. Estimating the coverage area of radio frequency waves requires more than just training and
experience, however, it requires scientific calculations that take into account factors that can
affect coverage. Special Agent Raschke presented no scientific calculations and did not consider
a variety of relevant factors. Although the call data records upon which he relied are undisputed,
the link between those records and his conclusions is deficient. See United States v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003) (It is critical under Rule 702 that there be a link between the
facts or data the expert has worked with and the conclusion the experts testimony is intended to
Special Agent Raschke testified that he has driven this area many times and there are no
buildings that would obstruct cell phone access to nearby towers. It is unclear when he drove this area
and whether he drove it with the specific purpose of determining whether any such obstructions exist. Cf.
Allums, 2009 WL 806748, at *1 (finding methodology reliable where agent drove around cell towers
using a cell phone from defendants provider and device called a Stingray to determine the approximate
range of coverage for each tower).
11
support. . . . The court is not obligated to admit testimony just because it is given by an expert.
(internal citation omitted)).
Second, the granulization theory remains wholly untested by the scientific community,
while other methods of historical cell site analysis can be and have been tested by scientists.
See, e.g., Matthew Tart et al., Historic cell site analysis - Overview of principles and survey
methodologies, 8 DIGITAL INVESTIGATION 1, 193 (2012) (reviewing techniques for collecting
radio frequency data for historic cell site analysis and concluding that [a]rea [s]urveys around
the location of interest . . . provide the most accurate and consistent method for detecting
servicing [c]ells at a location). The Seventh Circuit has stated that [a] very significant Daubert
factor is whether the proffered scientific theory has been subjected to the scientific method.
Chapman v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002). This is because the scrutiny of
the scientific community . . . increases the likelihood that the substantive flaws in methodology
will be detected. Daubert, 509 U.S. at 593; see also Charles Alan Wright et al., 29 FEDERAL
PRACTICE & PROCEDURE - EVIDENCE 6266 (1st ed.) ([J]udicial interference with the jurys
power to weigh [expert] evidence may be warranted where expert testimony is based on
emerging scientific theories that have not gained widespread acceptance within the scientific
community.). Granulization theory has not been subject to scientific testing or formal peer
review and has not been generally accepted in the scientific community. These factors weigh
against a finding of reliability.
Given that multiple factors can affect the signal strength of a tower and that Special
Agent Raschkes chosen methodology has received no scrutiny outside the law enforcement
community, the court concludes that the government has not demonstrated that testimony related
12
to the granulization theory is reliable. As such, testimony concerning this theory, along with the
estimated range of coverage for each of the towers indicated on summary exhibit 6, will be
excluded under Rule 702 and Daubert. Because summary exhibits 7 through 9 do not contain
estimated ranges of coverage, they will be admitted.
CONCLUSION AND ORDER

To summarize, the governments motion in limine to admit cell site evidence and analysis
(dkt. #97) is granted in part and denied in part. Special Agent Raschke is qualified to provide
expert testimony concerning how cellular networks operate. Based on this testimony, summary
exhibits 1 through 5 and 7 through 9 are admissible at trial. Special Agent Raschke may not
testify concerning the theory of granulization, which the court finds to be unreliable. In addition,
the estimated coverage areas contained in summary exhibit 6 must be removed before the court
will admit this exhibit. Evanss motion for disclosure of expert evidence under Rule 16 (dkt.
#122) is denied as moot.
Dated: August 29, 2012
Enter:___________________________
JOAN HUMPHREY LEFKOW
United States District Judge
13
SrPERI)F. (erRT GA 9
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SUPER-lOR C00RT
GEOGRAPHICAL AREA #9
A T MIDDLETOWN
NOVEMBER 1, 2010
RtrLING ON THE ADMISSIBILITY OF STATE'S CELLULAR TOWEREv(DENCE
PROCEDURAL HISTORY
The matter pres,:ntly before the court is the admissibility of the state's proposed cellular
II
signal transmission and tower evidence C'cell-site data"). This matter arises from an alleged home
. invasion that occurred c'n September 29,2008 at 462 Main Street, Middlefield, Connecticut On
October 23,2008,
was arrested in connection with this home invasion and charged
with the follo\\1ng crimes: (1) conspiracy~ (2) home invasion; (3) burglary in the first degree
badEy injury; (4) burgla::-y in the tust degree ~ at night; (5) assault in the tirst degree; (6) kidnaping
in the fIrst degree - physical injury; and (7) accessory to larceny in the second degree.
The defendant's motion in limine, dated August 23, 2010) objected to admission ofthe cellsite data evidence alld demanded a Porter hearing. The court granted this motion and a Porter
hearing was held on October 5,2010. Both the state and the defense offered testimony afexpert
witnesses} entered exhitits, and thereafter filed briefs with the court articulating their respective
positions. These briefs are dated October] 8, 2010. Oral argument was heard by the court on
OCT.Ober 27, 2010.
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DISCUSSION
The state seeks to admit data which, it contends. would reveal the general vicinity of where
a ceO phone was located at a particular point in time by identifying which cell tower conummicated
with the cell phone while it was turned on.' The defendant argues that the proffered evidence is
neither reliable nor rek:ant, and that the coun, in perfonnance of its gatekeeper function must not
permit it to be presented to the jury. The state takes the contrary position, emphasizing that they
invasion, on
Septembe~
29, 2010 at 1:33 am. The state argues that this is evidence of the
defendant's general vicinity tending to disprove his alibi defense, dated July 19, 2009, wherein the
defendant claims to have been at 96 Hendricxscn Avenue, Hartford, Connecticut on the night in
question.
"[WJhether the proffered ev'idence \\,111 'assist the trier of fact' ... entails a two part inquiry:
whether the reasoning 01' methodology underlying the [scientific theory Or technique in question]
is scientifically valid ane
.. _whether that reasoning or methodology properly can be applied to the
facts in issue. In other wmds, before it may be admitted, the trial judge must find that the proffered
scientific evidence is beth reliable and relevant." (Citations omitted; internal quotation marks
omined.) State v. Porter, 241 Conn. 57, 63-64, 698 A.2d 739 (1997), cert denied, Porter v.
The state ",rill attempt at lrial to prove that the target cell phone at issue belonged to the defendant.
2
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Connecticut, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). The Supreme Court
adopted a non-exclusive list of factors for judges to consider in determining whether scientific
evidence should be admitted: "(1) whether it can be, and has been, tested; (2) whether the theory
or technique has been subjected to peer review and pUblication; (3) the known or potential rate of
enor, including the existence and maintenance of standards controlling the technique's operation:
and (4) whether the technique is, in fact, generally accepted in the relevant scientific community."
Id., 64.
The court also emphasized that "it is proper for trial judges to serve as gatekeepers for
scientific evidence because a relevance standard of admissibility inherently involves an assessment

ofthe validity ofthe proffered evidence. More specifically. if scientific evidence has no grounding
in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful
way be relevant to resolving a disputed issue." rd., 74. "So long as the methodology underlying
a scientific opinion has tle requisite validity, the testimony derived from that methodology meets
the Daubert threshold for admissibility, even if the judge disagrees with the ultimate opinion arising
from that methodology, and even
if there are
other methodologies thal might lead 10 contrary
conclusions. Thus, a judge should admit scientific testimony when there are good grounds for [the]
expert's conclusion, even if the judge thinks that there are better grounds for some alternative
conclusion." (Emphasis in original; internal quotatior, marks omitted.) Id., 81-82.
In the present case, the court tinds that the state's cell-site data evidence meets the threshold
for admissibility under Purfer and must not be excluded on that basis. What this dala might reveal
about the defendant's general vicinity on September 29,2009 is relevant to this case, especially in
light of his alibi defense, Further, as explained in detail below, the state's presentation at the
11 i
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II! I
hearing
S\i{ti ~, .... .f
addressed the reliability factors articulated by the Supreme Cowt.
Alt,ltough the derellJant presented evidence that the cell-site data is dependant on a number of
I
I,
factors, this alone does not render the methodology underlying such evidence unreliable or
:I
ilrelevant. It is merely information that the jury must consider when weighing the evidence during
their deliberations.
The state's firs t witness at the Porter hearing, Gary Pellegrino, is the president of
Commt1ow Resources, a consultant for the v:ireless industry, and has over forty years ofexperience
in telecommunications, working at Bell Atlantic and Verizon Wireless, among others. R.T.
10/4/2010 p. 5. l\1r. Pellegrino also helped to develop the first standard for the Comnnmications
Assistance for Law Enforcement Act, which interconnects switching systems with real time
infonnation to lawful a1.;.thorized agencies." R.T. 10/4/2010 p. 6
Mr. Pellegrino testified that the "mobile switching center" is the brains of the wireless
device: and that there are many "cell-sites," or towers, that communicate with the mobile switching
center. R.T. 10/412010 p. 7_ \Vhen a call is made from a ceUularphone, the system authenticates
the user and looks for the best serving tower, closest to the mobile phone by signal strength, to
cormect the caJl. R.T. 10/4/2010 p. 8. Every time a call is placed from a mobile device, a record
is created at the moment ':he caller hits the send button and again at the time the call is ended. R. T.
10/4/2010 p. 18. This record is called the "call detail record" and contains much information,
including the target num')er, which is the Verizon phone in question, the call direction, meaning
whether it was incoming or outgoing, the date and time the call was made, the duration of the cali,
and the first and last serving cell-sites. (State's Exhibit 1). Pellegrino testified that these records
are derived from the ';autcmatic message accounting records." These are Verizon' s billing records,
11/.1 ,!010
12,
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nx
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141 006/(108
'itP,: . ,i, \.,iT.'R'I GA 9
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11
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which are kept ill r~~l t, r. - and are their highest priority in terms of accuracy and record-keeping.
R. T. 10/4/2010 p. 2) Pellegrino further testified that the manner in which cellular telephones
comm.....'l.i;::';Jh:: with mo'Jile switching centers and towers, and the recoId-keeping practices he
,I
\ I
de::.crioed, are all generally accepted m the telecommunications industry. R. T. 10/4/2010 pp. 25-26,
i:Ii He stated, "Tnat's the principal of cellular in itself."

!I
R.T. 10/4/2010 p. 26.
The state also c(tlled Alexis Eon, a seventeen year employee ofVerizon WiFeless~ whose
[I
duties include record-keeping and appearing in court on the company's behalf.
Ms. Eon
corroborated the testimony given by Mr. Pellegrino v.itb regard to creation and content ofthe call
detail record and noted lhat this record is kept in the ordinary course of business. R. T. 10/4/2010
p.
147-148~
162-169.
~:he
also testified about the specific cellular phone at issue in this case.
Referencing the "subscr:.ber record'; (State's Exhibit 2), she noted the telephone number assigned
to the mobile phone at issue and pointed out that this phone was a prepaid device. RT. 10/4/201 0
pp. 150-151. Ms. Eon te;;;tified that the device in question was activated on September 9, 2008 and
turned. off on January 31,2009, RT. 10 /4/2010 p.lSl. She also testified that the phone number
on the subscriber record matched the target number on the call detail record. R.I. 10/412010 p.
160, 166. Finally, Ms. Eon testified as to the locations ofcertain cellular towers, most notably that
oftower 146, which is locatedat393 Jackson Hill Road, Middlefield, Connecticut. R.T.I0/4/2010
p.180,
The court, having reviewed the credible evidence, exercises its gatekeeper function and
finds that the evidence i:; both reliable and relevant for the following reasons. The process by
which a cell tower receive:s signal, and the process by which that infoTIllation is recorded, is reliable
and constitutes the genenuly accepted practice throughout the telecommunications industry. This
,L.L
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,il.l)
S[PERII)R (CrRT GA 9
L;, l-i LU, 860 3-lJ 6566
14I00i.(I08
methodology is the very science upon which cellular communication and billing are based. The
fact that this methodology has not received peerreview, or been studied for potential rates oferror,
is not fatal. These comiderations are only a few of many that the court must take into account
when deciding whetheno admit evidence under Porter. Further, the Supreme Court has stated that
"general acceptance in 1he relevant scientific conununity will continue to be the significant, and
often the only, issue.... [I]n many cases, its presence may alone be sufficient to admit the
evidence." (Internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 84-85. Finally,
this data is relevant to tr,e extent that the call detail record indicates that the cell phone in question
was within range of a cellular tower in Middlefield, located approximately one half mile from the
site ofthe home invasion, on September 29,2010 at 1:33 am. Accordingly, the court finds that this
evidence '\\ill assist the trier of fact.
There are no published COlUlecticut decisions on point for the issue ofwhether cell-site data
is admissible under Porrer. The court is aware, however, that this evidence has been admitted by
other judges of the
Supl~rior
federal courts who
hav(~
Court. Moreover, this court's decision is in line with a number of
chosen to admit cell-site data evidence at trial. See. United States v.
Benford. United. States District Court for the Nor1hem District ofIndiana, No. 2:09 CR 86 (June
8, 2010, Moody, J.) (holding that cell-site evidence presented through expert testimony is
sufficiently relevant and reliable Wlder Dauberr, which was the standard adopted by the
Connecticut Supreme Court in Porter); United Stales v. Allums, United States District Court for
the District of Utah, No. 2:08 CR 30 (March 12, 2009, Stewart, J) (finding that cell-site
methodology was sufficiently reliable under Daubert, despite the fact that a number of factors,
including weather, may cause a cell tower at a much longer distance from the cal1er to pick up the
11:01:2010 12:1! FAX 860 313 6566
srPEREIR
corRI
GA 9
[4]008:008
signal); United Slales v. Afendoza-Morales, United States District Court for the District ofOregon,
No. 05-98-01-RE (December 12,2007, Redden, J.) (finding that evidence regarding cell phone
tower locator systems that locate approximately where an outgoing call was made, was admissible
under Daubert).
The court acknoY'.rI.edges testimony by the defendant's expert, Manfred Schenk, which noted
that cell-site data is dependant upon a number of variables-wattage output of the tower, weather,
typography, anterma height-that may ultimately cause a call signal to be transferred to a tower.
R.T. 10/4/20 lOp. 126. This testimony, however, does not impact the reliability or relevance of the
methodology underlying cell-site evidence. These issues go to the weight ofthe evidence, and not
to its admissibility. The factors that may affect cell-site evidence are a proper topic for
cross-
examination, not a grOlUlds for keeping the evidence out altogether under Porter.
III
For the foregoing reasons, the defendant's motion to exclude the cell-site evidence is
denied.
SO ORDERED
BY THE COLTRT,
~,
~~
VflES!,
PETER EMMETT
JUDGE
()~~ L)~O\O
NO: CR09-630158
SUPERIOR COURT
JUDICIAL DISTRICT
OF HARTFORD
v.
AT HARTFORD, CONNECTICUT
ROGEAU COLLINS
MARCH 17, 2011
BEFORE THE HONORABLE THOMAS V. OKEEFE, JR., JUDGE
A P P E A R A N C E S :
Representing the State:

ATTORNEY THOMAS GARCIA
Hartford States Attorneys Office
101 Lafayette Street
Hartford, Connecticut 06106
Representing the Defendant:
ATTORNEY AARON ROMANO
45 Wintonbury Avenue
Suite 107
Bloomfield, Connecticut 06002
Recorded and Transcribed By:

Lori Van Buren
Court Recording Monitor
101 Lafayette Street
Hartford, Connecticut 06106
3
1
ATTY. ROMANO:
THE COURT:
ATTY. GARCIA:
tap then for later on?
5
6
THE COURT:
call.
THE COURT:
ATTY. ROMANO:
10
through the later.
11
ATTY. GARCIA:
12
THE COURT:
I just --
I dont think Ill be able to get
Okay.
So probably just ---
You anticipate a long cross if we
get to proceedings in front of the jury?

ATTY. ROMANO:
15
THE COURT:
16
ATTY. ROMANO:
19
Correct.
It doesnt sound like it.
14
18
Should I have Jim Stephenson on
Well we left it where he would be on
ATTY. GARCIA:
17
For cellular matters?
Cell site -Yes.
Could be.
It could
possible take us to early afternoon.

THE COURT:
Okay.
Well thats how well work
it, okay.
20
ATTY. GARCIA:
Okay.
21
ATTY. ROMANO:
Thank you, Judge.
22
you quizzed me.
23
THE COURT:
I know a lot of stuff that doesnt
really mean a lot.
25
ATTY. ROMANO:
27
How did you --
You didnt even let me open up.
24
26
Thank you.
Okay.
13
Ill let you know.
I brought the calendar in and
everything for you.

THE COURT:
I know.
All right.
Recess.
4
1
(Recess.)
THE COURT:
One of the jurors tells the clerk
that theres been a death in his family and cannot
continue, so well deal with that first.
ATTY. GARCIA:
THE COURT:
Whats the name?
THE CLERK:
Jason Posniak, number 11.
THE COURT:
Okay.
ATTY. GARCIA:
10
Certainly.
He should be excused.
Im in agreement with that
certainly.
11
ATTY. ROMANO:
12
THE COURT:
Yes.
Have a seat right there.
We have to
13
make a record of all the proceedings and the clerk
14
tells me theres been some sadness in your family.
15
MR. POSNIAK:
16
THE COURT:
Close friend.
Okay.
And we all have been through
17
these things as we get older, more of these things
18
happen and we understand thats why we have
19
alternates, were going to excuse you from service on
20
the case, okay.
21
MR. POSNIAK:
22
THE COURT:
23
happened.
Appreciate that.
Were all very sorry that this
Time heals all wounds.
24
MR. POSNIAK:
Yes.
25
THE COURT:
26
you for your service.
27
and tell them youre excused, okay.
I hope.
So have a good day.
Thank
You can report back upstairs
5
1
MR. POSNIAK:
THE COURT:
Thank you.
If you have anything in the jury
room, you can go in and get it and say goodbye.
Thank you.
Do we still have the names?
THE CLERK:
No.
THE COURT:
Okay.
Not the small pieces of paper.

Well make out some new ones
of the alternates, draw a lot.
THE CLERK:
David Andrews.
THE COURT:
Very good.
All right.
Let me
10
switch gears here, cell site information and its
11
admissibility.
12
13
Offer of proof.
ATTY. GARCIA:
The State intends to offer cell
site information.
14
THE COURT:
15
ATTY. GARCIA:
There will be --
16
ATTY. ROMANO:
Your Honor, if I may, the witness
17
All historical though?
in the courtroom so perhaps --
18
ATTY. GARCIA:
19
THE COURT:
Okay.
If you could just step outside while
20
we make this argument?
21
historical cell site information.
22
ATTY. GARCIA:
Thank you.
Im sure its all
There are call record, call
23
detail records for three different phone numbers, 1-
24
860-922-0 --
25
THE COURT:
So three numbers.
26
ATTY. GARCIA:
27
THE COURT:
Three different phone numbers.
Yes.
6
1
2
ATTY. GARCIA:
One is phone number 860-922-0723,
the phone number associated with the decedent.
THE COURT:
So thats Dixons, yes.
ATTY. GARCIA:
The next number would be 860-838-
7346, that is the cell number associated with Adrian
Dean.
THE COURT:
ATTY. GARCIA:
Who?
Adrian Dean, who is the co-
defendant to Mr. Collins.
10
THE COURT:
Yes.
11
ATTY. GARCIA:
And the final phone number that
12
records would be coming in on, if I can just have a
13
moment, would be 860-726-5447, which would be the
14
defendants phone number.
15
THE COURT:
All right.
So you want to -- this
16
witness will testify that these -- first I dont know
17
if you own a number or not, but ownership of the
18
numbers?
19
ATTY. GARCIA:
He will be testifying to
20
ownership as to Dean and this -- well actually with
21
respect to the Dean and Collins numbers, those are
22
both boost phone numbers.
23
THE COURT:
What are they?
24
ATTY. GARCIA:
Theyre boost phones.
Theyre
25
pre-paid phones, so youre not subscribing, you do
26
not actually have to provide your accurate identity,
27
you can provide any name you want.
7
1
THE COURT:
I get it.
ATTY. GARCIA:
So the names that are listed in
the subscriber history are actually Dean Adrian as
opposed to Adrian Dean and Casey Chapman.
taking the witness a little out of order based on
scheduling.
THE COURT:
ATTY. GARCIA:
Okay.
Were
Lets concentrate on his --
Im just trying to explain why
the names are the way they are.
I had anticipated
10
calling Detective Kovanda first to testify to search
11
warrants that were obtained for the various numbers
12
and why.
13
difficulties weve run into, we werent able to get
14
him on prior to this witness, Im confident that he
15
would be able to tie this all together.
Because of some of the scheduling
16
THE COURT:
Okay.
17
ATTY. GARCIA:
So we first have the call detail
18
records, one component of course is calls that were
19
placed between numbers and the time of the call, the
20
date of the call, et cetera.
21
22
THE COURT:
Wait a minute, calls between
numbers.
23
ATTY. GARCIA:
24
THE COURT:
Between certain numbers.
I got it.
25
many times before.
26
ATTY. GARCIA:
27
THE COURT:
I have it.
Ive had this
Sure.
I just want to make a record, calls
8
1
2
3
between numbers, time of calls.

ATTY. GARCIA:
nature.
THE COURT:
besides time --
Duration of calls, things of that
Duration of calls, and what else
ATTY. GARCIA: Okay.
Within the records, within
the records it also shows the originating cell tower,
which would be the first tower that a call is routed
through as well as the last cell tower, which would
10
be the last tower that handled the particular call.
11
And I think that is the area that is the subject of
12
counsels request for a Porter Hearing.
13
expect to elicit as testimony from this witness is
14
that both Adrian Deans phone and the phone
15
associated with Rogeau Collins were pinging off of
16
certain towers between the hours of roughly 9 p.m.
17
and midnight on March 9th of 2009.
18
THE COURT:
19
ATTY. GARCIA:
20
THE COURT:
21
ATTY. GARCIA:
What I
9 to 12.
Approximately 9 to midnight.
What else?
As a component of the records or
22
what are called direct connect calls, which is
23
essentially a walkie-talkie type of feature and what
24
the record would show is that there were direct
25
connect phone calls that were transmitted through
26
particular towers that show a progression north from
27
Hartford to Bloomfield by both Dean and Collins and
9
1
then show a progression after approximately 10:30
p.m., 10:33 p.m. is the northern most call, and then
after that there is any progression of phone calls
that work back to Hartford.
relevant to show the movement of the individuals not
trying to use the records to locate them to a precise
address, for example 101 Lafayette Street, it is to
show movement and the course of the investigation,
just again to expand on the relevance, both co-
So I think it would be
10
defendants when confronted with the phone records
11
then acknowledged their presence in Bloomfield and
12
ultimately the defendant acknowledged his presence at
13
the crime scene at Reservoir 3, which will come in
14
through his statement that will be introduced by
15
Detective Kovanda.
16
corroborate some of this movement. So again, Im not
17
trying to use it as a GPS device to locate him to a
18
specific location and specifically to locate him at
19
Reservoir 3, but simply to show the movement north
20
and then the movement south and things of that
21
nature.
22
23
THE COURT:
So this would in essence
What -- all right.
Want to respond?
Let me hear, its your motion, right?
24
ATTY. ROMANO:
25
THE COURT:
Yeah.
Well, you know --
Why dont you tell me what you
26
believe the test is for a Porter Hearing?
27
call so what standard am I using?
Its my
What should -- I
10
1
got Porter right in front of me, but I want you to
educate me.
ATTY. ROMANO:
THE COURT:
5
6
Let me have a moment, Your Honor.
Okay.
Same issue as the case in
Middletown?
ATTY. ROMANO:
Same issue and it was a similar
offer of proof, I mean, the challenge here, Your
Honor, is number one, it hasnt been accepted -- it
has not been accepted to say that someone can be
10
located at a particular area, so Im delighted by the
11
fact that posing counsel is stating that he does not
12
intend on using this as a substitute for GPS.
13
Because often times what happens is the individual or
14
the party that wants to introduce this evidence is
15
attempting to do that.
16
is a range that the cell phone communicating with the
17
tower is within the range of the tower, I have to
18
concede that.
19
views that, how they interpret that evidence, and the
20
problem is with the range of this cellular telephone
21
and the range of the tower, heres the difficulty,
22
Your Honor, the way cell towers are designed -- let
23
me back up for a minute.
24
described as such because it is designed using cells,
25
if we can imagine that.
26
be circular, they could be conical types of ranges
27
that each tower has with the antennae and the
I have to concede that there
The question becomes is how the jury
A cellular network is
So there are -- they could
11
1
cellular handset then communicates with those towers
to connect the telephone calls.
overlap.
that there is not a break in coverage.
cellular telephone is such --
Cellular networks
And the reason they overlap is to insure
THE COURT:
ATTY. ROMANO:
So the
Can you hear me now?

Yes.
The cellular telephone is
essentially a substitute for a landline and in order
to insure that you dont loose that landline or if we
10
look it at that way, that direct connection, it has
11
to have overlapping coverage.
12
becomes and Ill pose this -- and I can pose this to
13
the expert, if you have an individual standing in one
14
spot in the center of a circle and equally distant
15
from that individual area series of cell towers,
16
which cell tower is that handset going to choose?
17
Theyre all equally distant at this point.
18
is the closest cell tower?
19
around the individual, so if the State is going to
20
say that theres northern movement or theres
21
movement in one direction, that isnt necessarily the
22
case.
23
networks are designed and how they communicate with
24
towers.
25
deals with overlapping cellular networks, you can
26
have an individual whos standing in one spot and
27
there could be several towers, lets say four towers,
So the question
So what
Now we have a circle
If you take a look at the way the cellular
Ill give you another example.
That just
12
1
and each one is progressively distant from the other.
Now there are a number of different variables, I even
spoke to the expert briefly this morning about it and
he agreed with me that there are a number of
different variables that would affect the manner or
the choice of the tower with the handset.
tower number one, which may be closest, may be the
closest tower and we would assume that the telephone,
that the cellular telephone is going to communicate
So while
10
with that one because its the closest one, there may
11
be an obstruction, the tower itself may have an
12
antennae or an antenna thats focused in a different
13
direction so its not going to choose the closest
14
tower, so we go to the next tower.
15
topography that may prevent the cellular telephone
16
from choosing that tower.
17
out and there could be another variable.
18
into those variables; the problem here is we cannot
19
predict movement based on that because there are too
20
many variables.
21
is the State is saying we want to use these cell
22
tower records and without a doubt Im telling you,
23
Im conceding that the cellular telephone
24
communicator or it utilized that tower to connect
25
that call, but that is not the closest tower, theyre
26
not going to be able to prove its the closest tower.
27
And if they cant prove its the closest tower and
There may be
We go to the third tower

We can go
And essentially what ends happening
13
1
they want to offer it to show distance or proximity
or show a range of movement, a leap-frogging type of
movement in a single direction, its a false premise
that its based on and thats the problem with it.
If they want to show that the calls were made, fine.
I have no doubt that the call records or business
records, they should come in, the problem is the
confusion that the cell tower identification is going
to have for the jury because theyre proposing to use
10
it in that manner where theyre going to show the
11
direction going one way or the other and its not
12
necessarily the closest tower and it cant
13
necessarily prove that way.
14
is GPS and Ill -- the Court could probably take
15
judicial notice of this, there is no industry in the
16
world that utilizes cellular tower identification to
17
utilize or identify proximity of an individual.
18
19
20
THE COURT:
The best way to do that
Well you never know who has the hand
held device.
ATTY. ROMANO:
Lets just assume for a moment
21
that a trucking industry, okay, needs to know where
22
all their trucks are at.
23
THE COURT:
Yeah.
24
ATTY. ROMANO:
I know they use GPS.
Theyre going to use GPS.
And
25
you know what, Judge, the federal government, the FCC
26
mandated that all telephones be equipped with GPS
27
because once cellular telephones became so common, 9-
14
1
1-1 calls were being received and the cellular --
what would happen is when you make 9-1-1 call from a
landline, it identifies the number and so if youre
theres a hang up, the 9-1-1 operator can go ahead,
call back and identify where that person is.
to the GPS being installed on the phones mandated by
the FCC, calls were being made 9-1-1 calls that were
hang up calls and the only way to identify where that
person was, was using a cell tower, but the cell
Prior
10
tower alone cant identify where that person is due
11
to the problems with identifying the range of the
12
individual to the cell tower and the proximity, there
13
is just no correlation between it.
14
was, they asked the industry for opinions, the
15
industry came back they said were not equipped to do
16
it, this was back in 2006.
17
mandated that all telephones be equipped with GPS.
18
Now while me all have cellular telephones, we may not
19
have a GPS option on it, so were not going to use
20
it, you know, you can buy a telephone and it says GPS
21
equipped so you can go ahead --
22
THE COURT:
23
ATTY. ROMANO:
What the FCC did
And after 2006, the FCC
Im not gong to use it.

Well, the point is that some
24
people buy those telephones, I have a Blackberry, my
25
Blackberry can go ahead, I can substitute as a GPS
26
and find out how to get to Niantic if I have a client
27
down there.
15
1
2
3
THE COURT:
Yeah.
I understand all that.
Get
to the point.
ATTY. ROMANO:
The point is, every cellular
telephone has GPS in it so that if there is a 9-1-1
call, that that individual can be identified, their
location can be identified within several feet even
though were not utilizing it that very moment as a
GPS unit.
cellular tower technology being utilized to identify
The reason being is no where, no where is
10
proximity, its GPS.
11
confuse the jury, the science itself is not accepted
12
for that purpose.
13
THE COURT:
And the problem is its going to
How many towers are we talking about
14
as part of your offer of proof?
15
have more weight if we were talking about one tower.
16
ATTY. GARCIA:
Your argument would
There are going to be nine towers
17
that come into play, let me just double check, here
18
are nine towers that come into play, towers that are
19
located in Hartford and Bloomfield, I believe one is
20
located in Simsbury, Connecticut.
21
raised certainly some very good questions in terms of
22
cross-examination, but were talking about a Porter
23
Hearing and whether the underlying science is
24
reliable in terms of the mechanics and the physics or
25
whatever field were dealing with in terms of
26
transmitting cell phone towers.
27
Jensen will readily acknowledge what variables can be
I mean counsel has
I think that Mr.
16
1
involved, but I also --
THE COURT:
What are his qualifications?
ATTY. GARCIA:
Hes employed by Sprint Nextel.
He is with their trial team; essentially what they do
is go around the country testifying in cases like
this.
cell phones.
GPS for example.
specific employer he had, but he worked with law
Hes been trained in the basic operation of

Hes familiar with the utilization of
He also prior to this, I forget the
10
enforcement in electronic surveillance and things of
11
that nature, so hes certainly technically familiar
12
with the area.
13
THE COURT:
Okay.
14
ATTY. GARCIA:
And what I expect him to testify
15
to is under normal circumstances, all things being
16
equal, what a cell phone is going to do is respond to
17
the strongest signal, which again, all things being
18
equal is the closest tower.
19
acknowledge that things such as clutter, terrain, by
20
a cell phone track of traffic may affect the tower
21
that you hit and can discuss how calls are handed out
22
from one tower to another.
23
THE COURT:
24
ATTY. GARCIA:
He will readily
Okay.
The States position is the
25
science itself, that the cell phone companies are
26
relying on to conduct their business is sound; we
27
have a number of cell phone companies that were using
17
1
this nationwide.
all.
hit, its certainly an area that can be explored on
cross-examination, but I dont think its an area
thats open for the subject of a Porter Hearing and
the Court certainly can consider whether this has
been admitted in the past, or we refer to the hearing
in Middletown, a full Porter Hearing was held in
Middletown and the evidence was admitted, and I think
10
I dont think its confusing at
The jury will hear that certain towers were
the Court can take notice of that.
11
THE COURT:
How long did that take?
12
ATTY. ROMANO:
Well if were going to go that
13
route, the Court could also take judicial notice that
14
the jury --
15
16
17
THE COURT:
Im not taking judicial notice of
anything.
ATTY. ROMANO:
In that case, the jury completely
18
-- we essentially argued the matter before the jury
19
and they completely discounted the evidence and it
20
resulted in an acquittal.
21
before that jury and they knew enough to complete
22
discount that --
23
THE COURT:
You know what; Im not going --
24
different set of facts.
25
ATTY. ROMANO:
26
27
So that evidence came
The hearing took; it might have
taking a whole day.

THE COURT:
This is about the science, what did
18
1
2
you want to say?

ATTY. ROMANO:
So as to whether or not the
evidence is scientifically valid, one of the primary
factors in determining the validity is whether or not
its gained general acceptance and its reliability.
There is no general acceptance here.
offer of proof that is generally accepted.
8
9
THE COURT:
Theres been no
It might not have general acceptance
in other disciplines where like you said the trucking
10
the industry, monitoring of parolees and the likely,
11
you have to know exact.
12
acceptance in the Courts though.
13
ATTY. ROMANO:
14
THE COURT:
It has pretty much general
And therein lies --
As a matter of fact the federal
15
courts are even, theyre passed the question of the
16
Porter Test because of the rapid development in
17
technology, theyre struggling with how to fashion
18
procedures with regard to 4th Amendment issues and
19
peoples rights of privacy. Theyre way past what
20
youre talking about now.
21
in the courts.
22
least four or five cases where this exact same
23
testimony has been allowed and I didnt find it
24
confusing, its a circumstance.
25
equipped to conduct a cross-examination.
26
27
So its generally accepted
And Ive sat on cases that -- at
ATTY. ROMANO:
And you seem well
Barely, but if I may, Your Honor,
and therein lies the problem, it seems as if just
19
1
because it is done doesnt mean that its right.
were dealing with someones liberty, were dealing
with something a lot graver then the location of a
truck.
then a location --
6
7
If
Were dealing with someone a lot more graver
THE COURT:
You really do want to use that
example.
ATTY. ROMANO:
THE COURT:
Right.
But what Im saying --
Im aware of my responsibilities as
10
a Judge with regard to the -- your clients
11
constitutional rights.
12
ATTY. ROMANO:
And what Im suggesting to the
13
Court is the evidence that comes in to demonstrate a
14
location or proximity, it has to be one that is of a
15
very high regard and I understand that you heard it
16
offered in other cases, I dont know if attorneys
17
have proposed Porter Hearings for that every
18
evidence, I think perhaps the attorneys themselves
19
have felt as if it is at times, not done anything, or
20
who knows if they even brought it through.
21
can answer to the point you inquired about how many
22
towers are going to be used.
23
is, Your Honor, we dont have a propagation map to
24
determine the overlapping areas of coverage to see
25
why the choice was made for those towers as opposed
26
to other towers that also had that same coverage
27
area.
But if I
The problem with that
So to just say its seven towers puts the cart
20
1
before the horse.
Now were accepting its those
seven towers that were the closest towers.
to the Court, there are more then seven towers in the
area between Hartford and Bloomfield.
have to do in making this determination for a Porter
Hearing is we know there must be and Im sure the
gentleman from Springfield go ahead and testify,
theyre going to be 30, 40, 50, maybe 100 towers.
the question becomes why those towers as opposed to
I submit
So what we
And therein lies the problem.
So
10
any other tower?
11
dont have no propagation map thats been turned over
12
to me during discovery, we just have whats prepared
13
for the Court or prepared for the jury is these seven
14
towers were used and these are where those towers are
15
located, we dont have any information about any
16
other towers anywhere else.
17
cross-examination cant be made because I cant
18
demonstrate theres a tower just a half mile away,
19
why wasnt that tower chosen?
20
THE COURT:
Okay.
21
ATTY. GARCIA:
22
THE COURT:
We
And so an effective
I don't need a response.
Okay.
If there was evidence that the phone
23
associated with the defendant was pinging off a tower
24
in the Bronx, you would be urging me to allow it,
25
even if it was one tower.
26
science, not about anything else.
27
Porter hearing is denied.
So this is about the

Motion for a
Ill note your exception.
21
1
ATTY. ROMANO:
Okay.
THE COURT:
ATTY. ROMANO:
Yes, sir, Your Honor.
ATTY. GARCIA:
The State is ready.
THE COURT:
We ready?
All right.
Ive been jumping around
between very complicated self-defense questions from
a jury, give me five minutes here and Ill be right
back.
(Recess.)
10
ATTY. GARCIA:
11
THE COURT:
12
ATTY. GARCIA:
13
16
Yes.
I just wanted to provide the
cautionary instruction to the witness.
14
15
Could I just have a moment?
THE COURT:
Okay.
Ready for jury?
I guess we
are?
ATTY. ROMANO:
Yes, Your Honor.
And what we can
17
do when Tom wants to go ahead and introduce those
18
records, obviously my Porter motion would have
19
encompassed --
20
THE COURT:
21
ATTY. ROMANO:
22
It was denied.
And it would have encompassed the
cell tower information thats on there.
23
THE COURT:
Right.
24
ATTY. ROMANO:
25
THE COURT:
26
ATTY. ROMANO:
27
THE COURT:
So its coming in full --
Ill note your continuing objection.

Yeah, I mean --
Okay.
Thats what you wanted me to
22
1
do, right?
ATTY. ROMANO:
Well we could do it now or we
could kind of according to that, your ruling, I dont
have any objection for them coming in under business
record exception.
THE COURT:
Very good.
ATTY. ROMANO:
However, my request would be that
redaction, of course, would be cell tower information
on there.
And I guess the redaction request could be
10
made instead of we know what your ruling was on a
11
Porter Hearing, but perhaps I can make it under 4.1
12
or 4-2 or 3, which would be relevance and then the
13
confusion.
14
THE COURT:
I mean I heard the argument.
15
ATTY. ROMANO:
16
THE COURT:
Yes.
Do you want to add anything to it?
17
All right.
Its denied under those sections of the
18
Connecticut Code of Evidence.
19
ATTY. ROMANO:
It might be 4-3 also, Your Honor.
20
ATTY. GARCIA:
I understand that theres no
21
objection to these being marked as full exhibits
22
then.
23
foundation, I think, with the witness.
I obviously will still do the business record
24
THE COURT:
Okay.
25
ATTY. ROMANO:
Thats what Im getting at so
26
when we get to that juncture, my objection is noted
27
now and we dont have to note it in the presence of
23
1
the jury.
THE COURT:
Okay.
Under 4.1 Relevance and 4.3
Confusion, I considered your objection and Ill deny
it.
5
6
All right.
Were ready for the jury.
ATTY. ROMANO:
Honor, 4-1 is the definition of relevance.
THE COURT:
ATTY. ROMANO:
Im sorry it was 4-2, 4-3, Your
Okay.
So its 4-2, 4-3.
Ill assume
the same ruling?
10
THE COURT:
Yeah.
11
(The jury enters the courtroom.)
12
THE COURT:
You can have a seat.
One of the
13
jurors, a close friend had a death in the family and
14
he was upset and distracted by it and asked to be
15
excused, so I excused him.
16
important alternates are.
17
to deal with, I had some involvement with another
18
case next door, which took a little time and I also
19
dealt with matters in this case that I had to outside
20
your presence.
21
I listen to the radio, we all listen to the radio,
22
and lately theres be a lot of talk about state
23
workers, Im a state worker and they dont work that
24
hard, so I dont want anybody sitting there thinking
25
that I start work at 11:00 every day, no, were
26
trying to make this easier for you, so I guess that
27
point is for my benefit.
So now you see how

So thats one thing I had
Why did I tell you all that, because
And were ready for the
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
next witness.
ATTY. GARCIA:
Thank you, Your Honor.
calls Dan Jensen.

THE COURT:
All right.
The State
25
1
D a n
J e n s e n, of Overland Park, Kansas, having
been called as a witness, was duly sworn by the Court, and
testifies as follows.
THE COURT:
All right.
Just a point for the
jury, you might want to know what happened to Jim
Stephenson, well he works here in Connecticut and we
can bring him back and forth to fit our schedule, as
you know this gentleman is from Kansas and has a
schedule and for that reason, were taking him out of
10
order, okay.
Is that enough of a clarification?
11
ATTY. ROMANO:
12
THE COURT:
Yes.
So were not done with the
13
ballistics witness, hell be back, but were going to
14
take this gentleman because hes from Kansas.
15
ahead.
16
17
ATTY. GARCIA:
Go
Thank you, Your Honor.
DIRECT EXAMINATION BY ATTY. GARCIA:
18
Good morning, Mr. Jensen.
19
Good morning.
20
By whom are you employed?
21
Sprint Nextel.
22
How long have you been employed by Sprint Nextel?
23
For about 8 years.
24
And what do you do for Sprint Nextel?
25
My official title is records custodian and we respond
26
to legal demands such as subpoenas, search warrants, and
27
court orders looking for information on either customers or
26
1
network information.
those records.
3
4
And time to time I testify in court to
Prior to becoming employed by Sprint Nextel, who were
you employed by?
I was a college student.
Could you describe for the jury your training and
experience as it relates to the field of cell phone
technology?
My first 3 years I spent as an electronic
10
surveillance technician working with law enforcement on real
11
time tracking and real time surveillance of cellular phones
12
and other mobile devices for emergency circumstances like
13
kidnappings, hostage situations, fugitives things like that.
14
Since then, I moved into my current position for the past 5
15
years.
16
radio frequency and the technologies that both the Sprint
17
and the Nextel network uses.
18
to 100 hours in whats called Sprint University, its an
19
internal training program for employees on a variety of
20
subjects from again radio frequency to our networks how
21
records are stored.
22
on the job training in all those subjects as well.
23
Ive had approximately 200 hours in training in
Ive also had an additional 90
Ive also had throughout those 8 years
Based on your training and experience are you
24
familiar with the way cell phone calls are transmitted
25
throughout both the Sprint network and other cell phone
26
networks?
27
Yes.
27
1
2
3
Could you describe to the jury what happens when a
cell phone call is actually placed?

A
Well once your phone has been powered up and it
registers with our network and has been authenticated on our
network to be able to make and receive calls, making sure
that your bill is paid, your phone would then go into just
an idle mode where its just listening to one cell site on a
frequency much like your car radio listens to a frequency.
And its just listening to for any incoming calls or an
10
incoming text message or any updates that the phone may
11
need.
12
an outgoing call, the user can dial in a phone number or go
13
through their contact list, find someone and hit either a
14
talk or a send button, which sends an origination message to
15
the cell site or the cell tower, that the phone is currently
16
listening on, basically starting the call set up process.
17
At that point the call would either go off network to
18
another wireless or landline carrier, or it may stay on the
19
Sprint or the Nextel network if theyre calling another one
20
of our customers.
21
to either pick up the phone or the phone call may go to a
22
voice mail.
23
connection is established and conversation can begin.
24
the same as going back for an incoming call.
25
26
27
At that point, the phone also has the ability to make
At that point, that person has the option
If they pick up the phone, obviously a
When those calls are transmitted through the system,
is a record being kept of those calls?

A
And
Yes.
28
1
And how is that record kept?
Thats stored electronically and its made at the
3
4
5
time of the call at one of our phone switches.

Q
And are those records that you then use for purposes
of billing or deducting minutes from a subscribers account?
Yes.
You talked about the phone idling and seeking out a
signal, where would that signal be coming from?
From nearby cell sites or cell towers.
10
And would it be safe to say that you have a number of
11
cell sites scattered around the country?
12
Yes.
We do.
13
In terms of reaching out and picking up a signal,
14
what determines what signal is picked up by a particular
15
cell phone?
16
17
18
19
The overall received signal strength that phone is
receiving at that time.

Q
And typically all things being equal, would the
strongest signal normally be the closest tower?
20
Thats what I would expect, yes.
21
Are there other variables that can influence what
22
tower may be hit?
23
Yes.
24
And what are those variables?
25
Topography, the lay of the land, whether its very
26
flat land or hilly or mountainous region could effect it, as
27
well as what we call clutter, and that would be any other
29
1
objects such as buildings or manmade structures, tress,
foliage, anything else that may obstruct or interfere or
absorb that energy.
So just to clarify, if there were an obstruction that
was blocking the signal of say what could be the closest
tower, then another signal might be picked up, would that be
fair to say?
Yes.
So it would be a different tower?
10
Yes.
11
Would the volume of cell phone traffic in a
12
It could.
particular area also possibly play a role?
13
Yes.
14
Would that be typically more common in densely
15
16
It could.
populated urban areas?

A
Yes.
17
ATTY. GARCIA:
18
THE COURT:
19
20
If I may approach?
Yes.
BY ATTY. GARCIA:
Q
Mr. Jensen, Im showing you whats been marked as
21
State's Exhibit 74 through 80, do you recognize those
22
documents, sir?
23
Yes.
I do.
24
And what do you recognize those to be?
25
All the documents except for the last one are
26
business records make by Sprint Nextel, including call
27
detail records as well as subscriber information for some of
30
1
our customers and a large list of the locations of our cell
sites.
few of our cell sites from that large cell site list.
The very last document labeled 80 is a summary of a
ATTY. GARCIA:
At this point Im going to offer
74 through 79 as full exhibits.
THE COURT:
Ill note the previous discussion on
the matter, they are full exhibits.
the jury whose name was picked to become a regular
member of the jury, did we?
10
ATTY. GARCIA:
11
THE COURT:
What was the name?
12
THE CLERK:
David Andrews.
13
THE COURT:
Mr. Andrews.
14
15
16
We didnt tell
I dont believe we did.
All right.
Youre a
regular member of the jury now.

BY ATTY. GARCIA:
Q
Mr. Jensen, Im going to give you whats been marked
17
as State's Exhibit 79 full exhibit and States Exhibit 80
18
for Identification, first with respect to Exhibit 79, could
19
you explain what that exhibit is?
20
This is a 101 page document.
This includes the
21
locations of the cell sites for the New York market and
22
these are the cell sites off of the Nextel network.
23
though were one company, we still maintain two separate
24
networks so I want to be clear that were talking about the
25
Nextel network for this list.
26
27
And you indicated that State's Exhibit 80 for
Identification is a summary taken from that list?
Even
31
1
2
3
4
Yes.
Its just a small amount of the cell sites from
the larger list.

Q
Have you had a chance to compare States Exhibit 80
with States Exhibit 79?
Yes.
And based on your review is the information contained
in States Exhibit 80 an accurate reproduction of the
information with respect to each tower -- the selected
towers as it appears in States Exhibit 79?
10
Yes.
11
ATTY. GARCIA:
12
15
Id offer that as a full exhibit
as well then.
13
14
It is.
THE COURT:
All right.
And its a full exhibit.
BY ATTY. GARCIA:
Q
With respect to State's Exhibit 80, and Ill return
16
it to you, theres obviously an abundance of information
17
there, we could just go across that exhibit, theres a
18
column labeled LAC, what does that refer to?
19
LAC stands for location, area code, and this just
20
gives me a location within the United States where thats
21
located at.
22
23
24
25
The next column is CID, what does that column
indicate?
A
It stands for cell ID, and this narrows down to the
exact cell site and sector for the cell site for that call.
26
So that would be a particular tower that is used?
27
Yes.
32
1
2
3
4
5
6
7
8
And the next column over is labeled Site, what is
that, thats an alpha numeric code?

A
Yes.
This is a site ID for that particular cell
site.
Q
The fourth column is labeled SW-name, what does that
indicate?
A
It stands for switch name and this will tell me which
phone switch is responsible for that cell site.
10
itself?
11
And how does a phone switch relate to the cell tower
A phone switch is another piece of network hardware
12
that helps deliver calls to and from subscribers.
13
were to maybe think about an old movie or TV show where you
14
see someone working at a phone company and theyre switching
15
wires in and out of all those holes, thats what switching
16
is, its switching one customer line to another customer
17
line to help connect the call.
18
for recording call detail records, incoming and outgoing
19
calls, it helps process the calls through the network as
20
well as it also keeps the recordings of voicemails and other
21
data.
22
23
24
25
If you
The switch is responsible
Moving again to the right, the next column is labeled
latitude, whats described there?

A
This is the latitude of the GPS antenna at the actual
cell site.
26
And to the right of that is longitude?
27
And this would be the longitude for that GPS antenna
33
1
at that cell site.
So it would be fair to say when you combine those two
columns, that that gives the GPS coordinates for the
particular tower?
Yes.
Next column over is labeled ACG, what does that
indicate?
8
9
code for that particular cell site.
10
11
Access controller gateway, and this is the gateway
So if theres a particular code, it would then
correspond to that tower?
12
Yes.
13
The column labeled sector?
14
This will tell me which sector for identifying, if
15
you wish to identify down to the sector or the side of that
16
cell site, this will tell you which sector youre looking
17
at.
18
Does each sector then cover a different area range?
19
For the most part, yes.
20
And finally the column labeled UANC, what does that
21
22
indicate?
A
That stands for urban area network code, and this is
23
just a code that tells me a general location within the
24
United States of where that cell site is located.
25
Now Im going to show you whats been marked as
26
State's Exhibit 74, could you describe what that record is,
27
sir?
34
1
2
3
4
These are call detail records for a number that uses
the Sprint network.

Q
And what is the number associated with those call
detail records?
860-922-0723.
And again, as with States Exhibit 80, there are a
number of columns, if I can just walk you through them.
first column is labeled calling number, what does that
indicate?
10
11
This is the phone number thats actually placing the
phone call.
12
The column over is called number?
13
This is the phone number that was called for that
14
15
particular call.
Q
Within that -- if there is a prefix, for example,
16
prefix 11 before a particular number, what does that
17
indicate?
18
The
That would indicate that this was an incoming call to
19
this Sprint subscribers phone number and that that call was
20
routed or sent into that customers voice mail.
21
Moving one more column to the right, we have a column
22
labeled dialed digits, how does that differ from called
23
number, if at all?
24
Typically the two columns would match up as far as
25
the digits in each field, but this is what the -- our
26
network interpreted as being punched into the handset to
27
actually start the call.
35
1
2
3
One column over, column labeled MR number, what does
that indicate?
A
This stands for mobile role number and this will tell
me whether this Sprint subscriber was placing an outgoing
phone call or was receiving an incoming phone call.
And the column labeled start date?
This is the date and the time that the call came on
8
9
10
to the Sprint network and it always listed in military time.

Q
Its listed in military time and is that hours,
minutes, and seconds?
11
Yes.
12
Next column over is end date, what is indicated
13
there?
14
Just the date and the time that the call ended.
15
And again in military time, hours, minutes, and
16
seconds?
17
Yes.
18
The duration of the call, how is that recorded?
19
In the next column duration and this is always listed
20
It is.
in seconds.
21
The repoll number on the next column?
22
Repoll number will tell me which phone switch
23
actually handled that phone call.
24
Next column over, first cell?
25
This will tell me which cell site or cell tower was
26
used when the call first started or first came on to the
27
Sprint network.
36
1
2
3
4
5
6
7
8
And finally the last column labeled last cell, what
does that indicate?

A
This will tell me which cell tower was being used
when the call ended from our network.

Q
Now showing you whats been marked as State's Exhibit
75, what is that exhibit, sir?

A
This is subscriber information for one of our
customers as well as forty pages of call detail records.
Are those records in a somewhat different format?
10
Yes.
11
And whats the reason for that?
12
The records we just talked about in the 7-page
They are.
13
document were records from the Sprint phone network.
14
records would show call detail records, but from the Nextel
15
network.
16
we still maintain two separate cellular networks.
17
networks use different technologies and have different
18
reporting systems, so while it is the same type of
19
information, its just in a little different format.
20
21
These
I mentioned earlier even though were one company,

The two
Can you tell from those records, if thats whats
known as a boost phone?
22
Yes.
It is.
23
First of all, what is a boost phone?
24
Boost phones, which is owned by Sprint Nextel, are
25
all prepaid phones, meaning you pay up front before your
26
phone is activated.
27
So theres not a contract with Sprint Nextel, its
37
1
merely buy minutes and then have them deducted as you use
them?
Thats correct.
Would a boost phone account -- withdrawn.
With a
subscriber account, do you require that the subscriber
provide identifying information and billing address?
For a postpaid account, yes, we do.
Okay.
No.
10
So if a person wishes to have their address and name
11
How about for a prepaid account like boost?

We do not.
listed in the record, it would be?
12
Yes.
13
And if not, what would the default be?
14
For the address, the default address would be a PO
15
16
17
Box in Irvine, California.

Q
Are there any steps taken to verify identity when
someone activates a boost phone?
18
No.
19
What is the name associated, the subscriber name
20
associated with this particular record?
21
Adrian Dean.
22
And what would be the boost phone number associated
23
with that record?
24
860-838-7346.
25
Sir, Im going to refer you now in State's Exhibit
26
27
75, page 18?

A
Okay.
38
1
And Im also going to refer you -- withdrawn.
The
bottom line of page 18, is there a connection shown between
the number ending in 7346 and the number you previously
testified to 0723?
Yes.
And what is the time and date that that call was
placed?
The call was placed at 8:57 p.m. on March 9th of
2009.
10
If I can ask you now to turn to page 19?
11
Okay.
12
The first five calls listed there, what numbers are
13
involved in those five calls?
14
860-838-7346 and phone number 860-922-0723.
15
And what would the time range be beginning with the
16
first call to the last of those five calls?
17
9:07 p.m. and the last call at 9:16 p.m.
18
And if we could move down to the middle of the page,
19
about the middle of the page, a call labeled at 9:44 p.m.,
20
what numbers were connected there?
21
860-838-7346 and 860-922-0723.
22
And who would have initiated that particular -- which
23
number would have initiated that particular call?
24
860-922-0723.
25
Turning your attention now to State's Exhibit 74 on
26
27
page 4 of 7?
A
Okay.
39
1
2
If I could refer you to the bottom of the page, three
lines from the bottom of the page, code 11 is indicated?
Yes.
Thats the prefix before the number.
I believe you
previously testified that this is an indication that that
call then would go to voicemail?
Yes.
Looking at State's Exhibit 74, from that point all -
on the call that was connected to voicemail at 22:06:10,
10
from there on, did all the calls to that number go to
11
voicemail?
12
Yes.
13
Referring to the front page of State's Exhibit 75,
14
theres a number that appears toward the bottom of the page
15
under the heading of UFMI, effective date range, what does
16
that refer to, sir?
17
UFMI stands for urban fleet member ID and this is
18
more of the technical term for the push to talk phone number
19
or direct connect phone number for this phone.
20
So that would be more like a walkie-talkie function?
21
Yes.
22
Is it necessary to dial a number with that function?
23
Yes.
24
And how is that done?
25
Very similar through a typical phone call, its just
26
when you use the push to talk function on these phones, like
27
you said, its similar to a walkie-talkie, its only one way
40
1
communications, so one person speaks and the other person
can listen.
you normally do on a phone call.
4
5
6
7
8
9
You dont have that two-way conversation like
I show you now whats been marked as State's Exhibit
76, and what are those records, sir?

A
These are the direct connect call detail records for
the phone number listed in Peoples Exhibit 75.

Q
And those would be the direct connect calls
associated with the number ending in 7346?
10
Yes.
11
And are those in a different format then the regular
12
phone calls?
13
Yes.
14
Im going to refer you to the screen and just pulling
15
out a column labeled ACG, I believe you previously explained
16
it, could again explain how this column relates to the phone
17
calls?
18
Yes.
Before in the large 101-page document, one of
19
the columns listed in there was labeled ACGID, access
20
controller gateway, which is a unique identifier number for
21
each individual cell site.
22
the call detail records, from ACGID, this tells me which
23
controller, which gateway was actually used to complete this
24
direct connect call.
25
go to the cell site list to figure out which cell site was
26
actually used for that direct connect call.
27
From this column labeled here in
So you could take that information and
And moving over to the final column on that page,
41
1
direct connect number, what is indicated there?
2
3
phone number that was called for each individual phone call.
4
5
This would be the phone number or the direct connect
Sir, Im now handing you whats been marked as
States Exhibit 77, do you recognize that exhibit, sir?
Yes.
What do you recognize that to be?
This subscriber information for a Sprint Nextel
9
10
customer as well as 28 pages of call detail records for that

same customers phone.
11
And what is the number associated with that record?
12
860-726-5447.
13
Is this also a boost phone?
14
Yes.
15
And what is the subscriber name associated with that
16
account?
17
Chasy or Casy, its spelled C-h-a-s-y, Chapman.
18
And is there also a direct connect phone number
19
associated with that account?
20
Yes.
21
And what would that direct number be?
22
174*313*13714.
23
Im now showing you whats been marked State's
24
Exhibit 78, do you recognize that, sir?
25
These are the direct connect call detail records for
26
the subscriber number listed in the previous exhibit number
27
77.
42
1
2
If I can refer you now back to the direct connect
records, Exhibit 76, on page 2?
Okay.
Beginning at 9:46:30 p.m., is there a direct connect
call between the direct number associated with phone number
7346 and States Exhibit 78, which I just handed you, the
direct connect calls for Chasy Chapmans number?
Yes.
There is
And starting at 9:46:30 on March 9, 2009, on to page
10
3, how many direct connect calls were completed between
11
those two numbers?
12
I count 24 phone calls.
13
Referring you now to State's Exhibit 78, the direct
14
calls associated with Chasy Chapman, beginning on March 9,
15
2009 at 9:34:02 p.m., do we see direct connect calls between
16
the Chasy Chapman number and the Adrian Dean number?
17
Yes.
18
And how many calls starting between 9:34 and 11:58:22
19
20
p.m. are there?

A
I count 12 phone calls.
21
ATTY. GARCIA:
22
Your Honor?
23
24
25
26
27
If I could just have a moment,
THE COURT:
Sure.
BY ATTY. GARCIA:
Q
Sir, Im going to refer you just once more up to the
screen, can you see that okay?

A
Yes.
43
1
And as we read across the screen, the first column
would be the date; the second column would be the time of
the call thats been placed, is that correct?
Yes.
The third column would be the duration of the call in
seconds?
Yes.
Column number 4 then would just be the urban network
code, where we see the number 6?
10
Yes.
Thats correct.
11
And then the next column over, it starts out with
12
321, there are a series of calls at 321, that would be the
13
tower that is being hit with the direct connect call?
14
Yes.
15
And then last two columns would be the number that is
16
17
being connected with, is that correct?

A
Thats correct.
18
ATTY. GARCIA:
19
20
I have no further questions at
this time.
CROSS-EXAMINATION BY ATTY. ROMANO:
21
Sir, do you have the exhibits in front of you?
22
Yes.
23
Okay.
I do.
Great.
So lets do this, lets just walk
24
through each one individually numerically and just and get
25
these straight.
26
morning, sir, sir?
27
Yes.
The first one you have is number -- good
44
1
Good morning, Im sorry.
Good morning.
Now what is the first number on the exhibit?
Number 74.
Okay.
And number 74 is the call detail records for
which number are we dealing with?
860-922-0723.
Excellent.
Now I think --
ATTY. ROMANO:
10
May I approach the witness, Your
Honor?
11
THE COURT:
Sure.
12
ATTY. ROMANO:
13
exhibit, Your Honor?
14
THE COURT:
Thank you.
15
16
May I view the
Sure.
BY ATTY. ROMANO:
Q
Okay.
Sri, now I believe the prosecutor referred you
17
to a time frame -- well first of all, 922-0723, do you see,
18
I hate to do this to you, but do you see any calls to or
19
from on this call detail record anywhere in the seven pages
20
thats made to 860-726-5447?
21
22
Its going to take us some time, but yeah, I can do
that.
23
Okay.
24
Okay.
25
I think 5447, thats one of the other exhibits?
26
Oh, it is?
27
Yes.
45
1
What was the last four?
ATTY. GARCIA:
In the interest of saving time,
Im willing to stipulate to the fact that there are
no calls connected between those two numbers.
THE COURT:
Thats your belief also?
ATTY. ROMANO:
Yes.
If there can be a
stipulation by and between counsel that in this
exhibit that there is no telephone call between the
call detailed or the telephone number for 860-922-
10
0723 and telephone number 860-726-5447, in either one
11
of those exhibits, there is no communication or no
12
cell phone calls made between those two numbers.
13
Thats so stipulated?
14
ATTY. GARCIA:
15
THE COURT:
16
17
18
Yes.
Yes.
proven, as a fact.
The jury can consider that as
The lawyers agree to it.
BY ATTY. ROMANO:
Q
Now in fact there is communication between the number
19
ending in 0723, which you have before you as Exhibit 74, is
20
that correct?
21
Yes.
22
Okay.
23
And the call detail records for the number
ending in 7346?
24
Correct.
25
Okay.
26
Yes.
27
Thats 7246?
And that would be Exhibit 75, correct?
Now the prosecutor referred you to
46
1
dates and times on Exhibit 75.
telephone number 860-838-7346, those would be the records
for that number, correct?
Yes.
All right.
And Exhibit 75 is the
And its a rather large document, call
detail records dating back from March 6 from all the way to
March 12, six days?
Yes.
Now he referred you to the date March 9th, is that
10
right, do you recall that?
11
Yes.
12
I believe he referred you specifically to -- he may
13
have referred you to a time, was it 9:07 p.m.?
14
That was one of the times, yes.
15
Okay.
Now in terms of calls that were made between
16
that telephone number ending in 7346 and telephone number
17
5447, do you know what the longest conversation that
18
occurred on March 9th starting from that time on was between
19
those two numbers?
20
Between the two numbers you mentioned and starting at
21
9:07 p.m. until the end of that day, March 9th of 2009, I
22
only show one phone call between those two numbers, which
23
was for zero seconds.
24
Okay.
25
ATTY. ROMANO:
26
THE COURT:
27
BY ATTY. ROMANO:
Courts indulgence.
Take your time.
47
1
Now you did testify as to when youre taking a look
at the call detail records there's that column that says
duration?
Yes.
Now the clock begins to tick as soon as the call is
6
7
connected, is that correct?

A
If youre talking only about the Nextel network
records on these types of call detail records, the timing
would start when our network, the Nextel network receives an
10
answer connect message, which is basically its being
11
answered by a person or its being answered by a voicemail
12
or an answering machine system.
13
Okay.
Because if we take a look at the call detail
14
records, if you just take a look for instance on that first
15
page, the larger exhibit for 7346, we see calls that are 4
16
seconds in duration, 2 seconds in duration, 3 seconds in
17
duration.
18
necessarily picking up on the other end for 2 seconds and
19
then hanging up or is it actually where one dials and one
20
views on your cell phone that its connecting, connecting,
21
connecting, and then it connects and at that point, once it
22
connects, thats when the clock starts to tick?
23
So are you suggesting that an individual is
For an outgoing phone call, the timing for the
24
duration would start counting once our network received an
25
answer connect message whether it was a person answering the
26
phone or answering machine or a voicemail picking up, it
27
doesnt tell me which, but that type of -- whether its
48
1
answered by a person or a machine, at that point it would
send an answer connect message to the Nextel network and our
network would start the clock.
Okay.
So you cant tell from these call detail
records whether or not the person on the other end or the
caller or the telephone number rather on the other end
actually picked up the phone or it went to a voicemail,
thats what youre saying?
Outgoing calls, thats correct.
10
For incoming calls theres a different indication,
11
thats the 11 in front of the telephone number and then it
12
also identifies it as being a routed call, thats correct?
13
14
15
16
17
18
19
Thats for the Sprint network, which reports
differently then the Nextel network.

Q
Okay.
So the telephone calls that were dealing with
that are on the Nextel network which numbers are those?

A
The number were talking about right now 860-838-7346
and 860-726-5447.
Q
Now in terms of the difference between the networks,
20
what is the difference between the networks, why are they
21
treated differently?
22
Theyre treated differently because the two
23
technologies are completely separate.
The wireless portion
24
the technologies are completely incompatible and so we have
25
to keep them basically separate.
26
two different cell phone companies, but were all -- well we
27
are one company, but the technologies are completely
Its almost as if theres
49
1
different and thats why you see the difference in reporting
and the difference in technology.
Are the cell towers that are used the same cell
towers or are they different cell towers because of the
technology difference?
6
7
8
The antennas may be on the same cell tower, but they
are different antennas.

Q
All right.
Lets talk a little bit about the
cellular technology itself, lets begin with the telephone,
10
itself, you describe telephones have different technologies
11
and you describe one being on Nextel network and one being
12
on the Sprint network, whats the difference between a
13
cellular handset technology?
14
Well as far as their design, its by company.
15
Different features for different things, but are you talking
16
about making phone calls?
17
Yes.
Im talking about making phone calls, so one
18
is, I would imagine on the IDEN type of phone and the other
19
would be CDMA, is that correct?
20
Thats correct.
21
So can you describe for the jury the difference
22
23
between an IDEN and CDMA?

A
The Sprint network uses CDMA technology, which stands
24
for Code division multiple access and that just describes
25
what we do to the radio frequency.
26
access portion means that we can have many users on the
27
network at one time.
We -- the multiple
The code division portion specifies
50
1
that we take radio frequency and we divide that frequency up
into different codes called Walsh codes and we assign each
user a different Walsh code on that frequency when theyre
making a call.
stands for integrated digital enhanced network.
network that the Nextel network uses or the type of
technology.
access.
time division, we take a radio frequency and we divide that
On the IDEN network, which is IDEN, it

This is the
This uses TDMA, which is Time division multiple
Multiple access portion meaning the same, but the
10
frequency up into time slots and we assign each user a
11
different time slot when theyre on a phone call.
12
kind of the basic differences between the wireless portion.
13
Once you get down to the landline portion, when its
14
actually on a wire, the differences arent that different.
15
The phone switches are made by the same venders and our
16
phone calls are carried out the same way.
17
Thats
So what you described is the IDEN and the CDMA are
18
the radio propagation signals how they differ from one
19
another in terms of communicating cell phone towers,
20
correct?
21
22
signal.
23
The handset with the cell phone tower?
Well the radio modulations, how we modulate the radio
All right.
And how does that effective the
24
difference between the range of the handset if its a CDMA
25
handset or its an IDEN handset, I would imagine each cell
26
phone has a particular ring?
27
Its not really the cell phone, it would be the cell
51
1
tower and it would depend on the frequency that the cell
tower is using.
Okay.
So youre saying that the cell tower itself
puts out a signal or are you saying the phone, you described
when you power up the phone, that the phone begins searching
for a tower, right?
Yes.
Okay.
9
10
11
So the phone has to have some kind of power or
some kind of signal to be able to go ahead and grab a

signal, if you would, right?
A
No.
At that point, the phone is just receiving; its
12
just listening for all the different frequencies and their
13
signal strength.
14
Okay.
So the phone itself, the wattage of the phone
15
makes no difference in terms of how it functions or how it
16
communicates with the tower?
17
It does once it starts transmitting.
18
Okay.
19
correct?
20
Yes.
21
All right.
So different phones have different wattage,
They do.
Do you have any information about the
22
type of wattage of phones that were used for these telephone
23
numbers?
24
No.
25
Okay.
26
27
Now all phones, you would agree with me, past
2006 are equipped by law with a GPS chip, correct?

A
I know that they do now, but I dont know the exact
52
1
2
year, I dont work with the handsets too much.

Q
All right.
But it sounds like you have some
familiarity with it, that they are all equipped GPS chips
and thats for E911 purposes, correct?
Thats correct.
Okay.
Well the FCC sets standards that cell phones have to
Can you explain to the jury what E911 means?
be able to be located by GPS means by a certain accuracy at
a certain percentage of the time, so if you call 911, and
10
they try and reach out and find you for an emergency, that
11
they have to be able to find within a certain amount of
12
space an accuracy reading in meters, you have to be able to
13
find that phone a certain percentage of the time for their
14
emergency procedures.
15
Okay.
So prior to this chip being mandatorily
16
installed in telephones, people were calling in to 911 and
17
it was the cell phone tower that was being registered by
18
911, correct?
19
20
21
If they -- if a 911 center had whats called Phase
One, then yes, the cell tower should be registered.

Q
And I guess the problem with that was the cell tower
22
itself doesnt locate an individual for 911 purposes,
23
theres no way that emergency responders can find that
24
person just based on a cell phone tower location, correct?
25
26
27
They could find, they couldnt pinpoint it, but they
could narrow it down pretty well.

Q
It would be narrowed down to the range of the tower
53
1
itself, right?
Yes.
Okay.
So the tower itself depending on the tower,
the tower strength could be greater on one angle, correct?
Greater than?
Well lets take a look at a tower, right, the tower
is comprised of lets simplify it and say its a pole that
extends high up into the sky, right?
Okay.
10
And on that tower theres several antennae, correct?
11
Yes.
12
The antennae that actually communicate with the cell
13
phone handset, correct?
14
Yes.
15
All right.
Now an antennae itself can be
16
omnidirectional, which means from all -- from a 360 degree
17
angle it can go out and it can communicate and send out
18
signals, correct?
19
It can, yes.
20
And some towers are designed so that theyre
21
unidirectional and they may only send out a signal in one
22
direction, correct?
23
Correct.
24
They could be bidirectional so they could be sending
25
out in two opposite directions, correct?
26
Correct.
27
All right.
So for example, hypothetically, 911
54
1
receives a telephone call, this is before the GPS, they know
its on tower 3, but without having any information as to
whether or not that tower is omnidirectional,
unidirectional, bidirectional and where those antennae are
facing you cant really pinpoint where the person is, can
you?
Thats correct.
So what the U.S. Government did is to insure the
9
10
safety of all citizens is to insure that a GPS chip is

installed in phones, right?
11
Yes.
12
And that would be the best way to locate an
13
individual, right?
14
Through GPS, yes.
15
Now all phones are equipped with that GPS chip for
16
E911 purposes, right?
17
Yes.
18
Were not talking when were talking about a GPS
19
chip, were not talking about a GPS function that one may
20
purchase in a phone and then use that to travel or find
21
directions from one place to another; were talking about
22
something different, right?
23
24
25
No.
That chip would be used for finding directions
or things like that.

Q
Right.
But were not talking applications; you can
26
have a phone without a GPS application, all right?
Lets
27
assume that you go into a store, you buy the simplest phone
55
1
there is there, the $20 phone in the box, right?
Okay.
On it theres no GPS application, youre not buying
it so you can go from point A to point B and look up a
direction, okay?
Okay.
And some of those phones dont have that application
8
9
10
11
12
which would be a program loaded on that phone, right?

A
Again, I dont work with handsets enough, but we
could say that.

Q
All right.
But the point is that the GPS chip is
still going to be in that phone, right?
13
Yes.
14
For the E911 purposes?
15
Yes.
16
Okay.
So a cellular network itself is designed as
17
call cellular because it actually is comprised of like
18
different cells, right?
19
Yes.
20
Just like human cells in the body, right?
21
Theres different cell sites, but I wouldnt compare
22
23
it to the human body.

Q
Okay.
All right.
The point is that a cellular
24
network is designed to be just as efficient as a land line,
25
you dont wan calls to be dropped, right?
26
Well, we would like that to never happen, yes.
27
Thats the business that the cellular companies are
56
1
in to insure that calls are being connected, right?
That would be a big part of the focus, yes.
If calls are being dropped, people are going to
switch to another network, right?
I would assume so.
All right.
So in order to insure that theres going
to be a continuum in that telephone call once it begins and
once it ends, the coverage areas of towers must overlap,
correct?
10
They dont have to.
11
They dont have to, but then there would be a break
12
in coverage, wouldnt there?
13
There would be a possible dead zone, yes.
14
Okay.
So to insure that there are no dead zones, if
15
a company was interested in keeping its customers, it would
16
go ahead and have some overlap with those tower coverage
17
areas, correct?
18
Sure.
19
And that would be a good business model for a company
20
that wanted to insure that his calls wouldnt be dropped,
21
right?
22
I would think so.
23
All right.
One of the things that you mentioned was
24
traffic or actually one of the things the prosecutor
25
mentioned was traffic on a cellular tower as a factor that
26
may affect the way a cell phone communicates with a tower,
27
do you recall that?
57
1
Yes.
All right.
So another reason why a cell phone
company might want to have overlapping areas of coverage is
to insure if the traffic gets too heavy on one cell tower,
another can pick it up and the person can be in the same
coverage area, correct?
Thats true.
All right.
Did the State or did you provide the
State with whats called a propagation map?
10
No.
11
Can you explain to the jury what a propagation map
Propagation maps would show the estimated coverage
12
13
is?
14
range of a particular cell side.
15
area, show where our cell side or cell sites are located at
16
and showed the estimated range for each individual cell
17
site.
18
19
It would have a map of an
I noticed one of the exhibits is a list of cellular
sites?
20
Yes.
21
Its a paper list that shows where theyre located,
22
right?
23
Yes.
24
Okay.
25
On that list does it tell us the range of
those towers?
26
No.
27
On that list does it tell us if those towers overlap
58
1
with one another?
No.
Is there any information or data about traffic that
you provided the prosecutor with?
No.
For March 9th or March 10th or for any of the dates I
these records?
No.
So we talked about how the cellular tower one of the
10
effective designs would be to have overlapping areas of
11
coverage, we covered that, right?
12
Yes.
13
All right.
Lets talk about the towers themselves.
14
We mentioned that the towers have antennae and the antennae
15
communicate with the cellular handsets and it could be 36o
16
degree, it might be 90 degree, correct?
17
Yes.
18
And we don't know from the data that we have the
19
signal strength of the tower, correct?
20
Correct.
21
So you can't adequately determine what the range of
22
anyone one of those cell phone towers in that book, in that
23
large book that was provided to you by the -- or you
24
provided the prosecutor with is, correct?
25
Not specifics, no.
26
Specifics, Im talking about at all, is there a way
27
that you can provide the jury with any information as to the
59
1
range of any of those towers in that document?
No.
Not specifically.
Generally then?
Yes.
Please, tell them generally how you can go ahead and
do that?
Well nationwide our cell sites would have an average
maximum distance from anywhere from 2 to 10 miles, which
would again depend on the factors that we talked about
10
earlier, the design of the cell sites, the locations of the
11
surround cell sites, topography, and clutter.
12
So 2 to 10 miles is the range, correct?
13
Again, nationwide an average maximum range without
14
15
knowing anything about the cell sites.

Q
Okay.
And average maximum range, but for these cell
16
towers or lets talk about the cell tower sites that the
17
prosecutor provided you in that summary, those seven cell
18
tower sites, any information about the ranges on those
19
towers?
20
No.
21
Any information about the direction, the angle where
22
those antennae were placed on those towers?
23
No.
24
Do you have any information about the topography
25
where that range was facing?
26
No.
27
Any information about those towers whether or not
60
1
they were shared or rented space or theyre purely Nextel
towers or Sprint towers?
Well theyre purely Nextel towers.
Okay.
Im sorry; I want to back up, Nextel antennas.
Okay.
So towers themselves, the location of the
tower, a tower may be shared be several cell phone
companies, correct?
It could be.
10
And then the antennae that are on those towers cold
11
be assigned to different companies, correct?
12
Yes.
13
Okay.
And the bandwidth space on each antenna could
14
therefore be subdivided and then rented out to other
15
companies as well, correct?
16
No.
17
Okay.
We would own the spectrum.

How do you determine the range in terms of the
18
spectrum that youre talking about, how many calls can go
19
through any particular tower?
20
21
22
It would depend on the tower set up.
Its different
from one to another.

Q
So in terms of the maximum amount of calls or
23
capacity for each tower, do you have any information about
24
those seven cell phone towers that the prosecutor gave you
25
in summary in terms of how many calls, what maximum capacity
26
is with any one of those towers?
27
No.
61
1
2
So you mentioned some factors that may affect a
towers ability to connect with a handset, correct?
Yes.
All right. Some things you may not have mentioned
would be the fact and whether or not a handset is indoors or
outdoors, correct?
7
8
9
Thats correct.
No, actually thats not correct,
because I did talk about structures.

Q
Okay.
So the nature of the structure whether or not
10
its a car or whether or not the structure of the building
11
itself could affect the way that the handset communicates
12
with the tower, correct?
13
Yes.
14
How about repairs of towers?
15
What about them?
16
If the tower is being repaired, then obviously that
17
18
19
20
tower will not be utilized at that time, correct?

A
If we do take it complete off air, then you have that
tower not being able to take or receive phone calls.

Q
So the handset thats seeking that closest tower
21
would not go to that tower if that actually in fact was the
22
closest tower, it would go to a different tower because that
23
tower was under repair, correct?
24
It may go to another tower, yes.
25
Now when repairs are being made it would -- could be
26
that the company would want to insure that its customers
27
would not loose their communication, correct?
62
1
Sure.
So they would want to make repairs on off peak hours
to their cell towers, correct?
Yes.
Wouldnt you agree with me that the times that the
prosecutor gave you would be off peak towers?
No.
No?
No.
10
Please explain?
11
Off peak hours are service windows are typically from
12
13
14
15
1:00 to 3:00 a.m. in the morning.

Q
Okay.
So youre saying that repairs would be done at
1:00 to 3:00 a.m. in morning normally?

A
Typically in my experience thats the absolute least
16
amount of traffic is during that timeframe and so if you had
17
to take a tower off air that would be the best time to do it
18
because you dont want to have angry customers, people
19
missing calls, things like that.
20
Now in his case, would these towers, these seven
21
towers and the data that you have with respect to the dates
22
and times that the prosecutor gave you, do you have any
23
information at all with respect to towers being down?
24
No.
25
Okay.
You dont have any information as to any
26
obstructions between the tower and a handset for any of the
27
times in these records and the towers that are included in
63
1
that summary or at all, correct?
Thats correct.
So what you were saying was ideally what the cell
phone looks for is the strongest signal, right?
Yes.
So due to all these variables that you discussed that
the prosecutor brought up, and some of the variables that we
discussed, a cell phone isn't always going to go ahead and
communicate with the closest tower, correct?
10
Correct.
11
And you would agree with me that variables exist in
12
our lives, our everyday life, theyre common, correct?
13
You talking about cell phones or just life in
14
general?
15
Strike that.
Life in general, would you agree that
16
there are always things outside of our lives that are going
17
to affect us in a variety of different ways, no day is the
18
same there, ever, right?
19
I guess.
20
All right.
And so no individual when theyre
21
communicating on that cell phone with that cell phone
22
handset and theyre traveling, the conditions are going to
23
constantly be changing around them, the variables will
24
constantly be changing, correct?
25
The could be.
26
Okay.
27
Unless of course I think the prosecutor may
have used the term, correct me if Im wrong, an ideal
64
1
setting, an ideal setting would be a flat plain, no
obstructions, an individual outside where the weather is
perfect and the signal -- and theyre in direct line of
sight of the cell phone tower, right?
That would be a good condition.
All right.
What Id like to do is go through a
couple examples, some hypotheticals with you, if I can.
Your Honor, could we have the easel and then have some
paper, if I could approach.
10
THE COURT:
Sure.
You going to take a few
11
minutes to set up, the jury hasnt been out here that
12
long, but Ive been involved in cases since actually
13
before 10:00, so well take a little break.
14
recess this until 12:20, a ten minute break.
15
talk about anything youve heard so far, you can
16
retire.
17
(The jury exits the courtroom.)
18
THE COURT:
19
(Recess.)
20
THE COURT:
21
ATTY. ROMANO:
22
All set?
Yes.
Only question for Your
Honor is do you have a laser pointer available?

THE COURT:
24
ATTY. GARCIA:
Yes.
26
27
Dont
Recess.
23
25
We will
I dont, but we might have one.

Give me a second, I may have one.
I do.
ATTY. ROMANO:
sure.
Okay.
Great.
Can I just, I just want to make
65
1
THE COURT:
Okay.
All right.
THE COURT:
All right.
including the alternates.
continue cross-examination.
The jury is back,
6
7
Were ready.
Were ready to go,
BY ATTY. ROMANO:
Q
So sir, what weve done is weve set up an easel next
to you, okay, and hopefully well go through some
hypothetical examples of how cell towers may communicate and
10
that kind of thing, okay.
11
Okay.
12
I did my best, so excuse the artwork there.
So for
13
the purposes of this hypothetical, on this first page we
14
have what looks like a V, okay, its two straight lines and
15
then V in the middle, you recognize that?
16
the black line that goes into a V and then it continues on.
17
Okay.
18
Okay.
On the bottom,
Now lets assume for a moment that were in a
19
car and the car is traveling from the right hand side to the
20
left hand side, okay, so that V, that black line actually
21
represents a road, all right?
22
Okay.
23
And lets assume that the road, because its in a
24
valley, goes down into the valley and then comes out and it
25
continues, so the driver is on the telephone at that point,
26
hes on a cellular telephone.
27
One second, is this an overview from above or side
66
1
view?
Its a side view, its a slice.
Okay.
4
5
So the car is driving down into the valley,
okay.
Q
Exactly.
Okay.
So you mentioned topographical
issues with respect to communication with cell phone towers
and handsets, that was one of the issues that you brought up
on direct and we talked about it as well, correct?
Yes.
10
One of the things that cell phone company would do to
11
insure that a call would not be dropped in an area like this
12
where theres a valley is to actually place a tower right be
13
the valley so that coverage area would maintain in that
14
area, so there wouldnt be a loss of coverage for that
15
individual who was driving in that straight line, correct?
16
They might.
17
Okay.
So for the purposes of this hypothetical, you
18
have an individual driving on this side and theyre driving
19
left, they go down in the valley, so now theyre covered at
20
first by cell phone tower 1, you agree with me, thats the
21
one.
22
extending across a horizontal area and cover -- this is the
23
area of coverage for that cell phone tower, were assuming
24
that theres an antenna right there and the antenna is
25
covering all this area here.
Theres a cell phone tower here and the signal is
26
Okay.
27
Now the company, because they want to make sure that
67
1
their customers are happy when they go into this valley
place a tower here, I know its very lightly marked as 2,
you see that there?
Yes.
Okay.
Now 2 is the tower or the antenna on that
tower extends into the valley to insure that the coverage
are or the call is not lost whenever anyone enters that
valley.
Okay.
10
Would that be consistent with how telephone
11
companies, cellular companies might go ahead and set up
12
their towers to insure that coverage is not lost?
13
14
15
In this hypothetical, I dont think you really need
Okay.
to.
Well assuming that over here the coverage area
16
is extending here, the antenna is not covering the entire
17
coverage area here; youre going to have --
18
Well it could.
19
We could assume its a mountain, mountainous region,
20
so you go up and then you loose the coverage there, we can
21
do it that way too.
22
down and youre going down into the valley, youre loosing
23
that signal from one, right?
24
25
26
27
But for purposes of this, if you go
For this example, we can say that, but its not --
okay.
Q
Okay.
So explain to us then how a cell company would
go ahead and insure that there would be coverage, you talked
68
1
about topographical areas where people might loose or there
might be signal strength loss with a area, a valley would be
a common occurrence, right?
It could be.
Okay.
So would you agree with me that cell phone
company in order to insure there would be coverage there in
the valley might go ahead and place a tower to insure there
would be coverage in that valley and its not lost?
They might.
10
All right.
Lets assume for the purposes that that's
11
what this company did, okay?
12
from the right to the left and theres a continuing now,
13
okay, so they go cell tower one, now covered by cell tower
14
two, and up and now theyre back at cell tower one, you
15
understand that?
16
Yes.
17
All right.
So the individual is traveling
So if you took that as an example and you
18
wrote that down on paper, one, two, one, that might appear
19
as if that person made a U-turn, might it not?
20
paper alone.
Just on
21
The person may have.
22
Or the person may have continued in a straight line,
23
but on paper the record itself, you couldnt tell if they
24
made a U-turn, you couldnt tell if they were traveling in a
25
straight line?
26
27
Exactly, you couldnt say for sure that the phone was
even traveling at all.
69
1
Without knowing more then whats on paper, you cant
know what direction that person is traveling based on this
hypothetical, right?
Based on going from one antenna to another antenna
and back to the other antenna, no, I wouldnt be able to say
for sure.
Because number one originally was had the strongest
signal strength then number two had the strongest signal
strength, and when they exited number twos region, number
10
11
one then returned to the strongest signal strength.

A
The phone may have never moved and that could happen
12
or the phone cold move a great distance and that could
13
happen.
14
All right.
So you describe even the fact that phone
15
may not move and it may appear as if it moved because of
16
cell site change, right?
17
Thats correct.
18
So that has to do with those variables that you
19
discussed, correct?
20
Yes.
21
And without knowing what variables apply for this
22
case, we dont know what direction someone was traveling in,
23
do we?
24
For this case it shows much more then just one or two
25
cell sites being used, so you can show once you have more
26
information to work with, you can show more.
27
Well with these calls, we have a beginning and we
70
1
have an ending, but we dont know in between what direction
this person was traveling, correct?
3
4
5
6
Thats correct for one phone call, but we also have
40, 28 pages worth of cell site data.

Q
Sure.
And each telephone call has its own two cell
site data thats there, correct?
Correct.
And each time that cell site is mentioned there is no
recognition of any of those variables that could alter the
10
way the cell phone handset is going to choose which tower to
11
use, right?
12
Correct.
13
All right.
14
approach?
15
16
17
18
So lets go to the second example, may I
THE COURT:
Sure.
BY ATTY. ROMANO:
Q
Okay.
Heres the second example, looks like a bulls
eye, right?
19
Yeah.
It does.
20
My best efforts at drawing circles, so what we have
21
here lets assume for a minute in the center of that bulls
22
eye labeled H is the handset, okay?
23
Okay.
24
Now we have concentric circles, we have circles that
25
are so that each one is consecutive greater outside --
26
placed greater outside that H, okay.
27
minute that those circles themselves are indicative of the
Now lets assume for a
71
1
distance, so we have number one, lets call that number one,
the numbers indicate cell towers, okay?
Okay.
So number one, heres the cell tower, and you can
tell from the circle, number one is closest to H, right?
Yes.
And then we see number two, and we see thats the
next circle out, we can tell that number two is the next
closest tower to H, right?
10
Yes.
11
Okay.
12
We see number three and we can tell that
number three is then the next closest tower to H, right?
13
Yes.
14
And then we see number four and number four is the
15
next closest tower after one, two, and three, right?
16
Yes.
17
All right.
So lets talk about the choice of cell
18
towers for H.
19
proposition that the prosecutor gave you, we have an open
20
field, the weather is perfect, theres no obstructions
21
between the two -- the handset and the tower --
22
In the ideal world, right, thats the
ATTY. GARCIA:
Im going to object to the
23
characterization that being the proposition the
24
prosecutor gave him.
25
all things being equally is what it is.
26
27
THE COURT:
BY ATTY. ROMANO:
I think what I asked him was
Okay.
Well accept that correction.
72
1
choose?
4
5
All things being equal, okay, which tower would I
I would expect you to choose the tower labeled as
number one.
Q
Okay.
And thats assuming -- lets assume right now
-- and thats assuming number one would be the closest,
right?
Yes.
Okay.
10
11
12
Lets assume for a minute number one is under
repair, now which tower would H communicate with?

A
It still can be number one, just because a cell site
is under repair doesnt mean its completely off line.
13
Its under repair, its down.
14
Okay.
Its completely down, its off air, I would
15
expect it again to use the closest cell site, which in this
16
case would be number two.
17
All right.
And lets assume for a moment that there
18
is an obstruction between cell site number two and H that
19
prevents a strong signal, a line of site propagation, radio
20
frequency propagation between the handset and the -- which
21
tower would it choose then?
22
It could still choose two or maybe three.
23
Okay.
So three may actually have a stronger signal
24
given those two hypotheticals, one is under repair, two,
25
theres an obstruction, now its going to choose three,
26
right?
27
Not necessarily, it could choose three.
73
1
2
It could choose three, if three presented as the
strongest signal, right?
Correct.
All right.
Now lets talk about another variable
that might prevent the handset from choosing three, you came
up with several, can you come up with one?
this, sir, number three, the antenna angle on number three
faces a different direction, so the antenna angle while
theres a cell site there and theres a cell tower there,
Well lets do
10
the angle of the antenna faces absolutely the opposite
11
direction.
12
with?
13
14
So then which cell site would H communicate
So number one is off line, number two has one antenna
and its --
15
No.
16
Oh, okay.
Faces the cone; the conical angle for that antenna
17
18
19
Number two has that obstruction.

And number three has an antenna that faces
--
faces the opposite direction.
20
So it only has one antenna?
21
It has one antenna.
22
Again, it could still choose two.
Theres a chance
23
that number three may get some energy over there to the
24
handset, and theres a slight possibility that number four
25
could be used.
26
27
Four might actually have the strongest signal in that
hypothetical, correct?
74
1
I dont know.
Theres so many variables that you
dont know about that.
If so far away, I mean how far away
is four from the handset?
Were not even -- were not even gauging?
Okay.
Thats something you have to know, are we
talking 50 miles or are we talking 4 miles?
I dont know.
Well --
With the these cell towers, are we talking about four
10
11
What did we talk about in this case?
miles or are we talking about 50 miles?

A
I dont know how far apart these cell towers are,
12
theres a list of 101 cell towers.
13
where each one is placed and the distances between them.
14
I dont know exactly
And you dont have a propagation map for all the cell
15
towers that could have coverage for these handsets that
16
theyre talking about, right?
17
Yeah.
18
But you dont know the distances just like were
19
going through this hypothetical here; you really cant go
20
through a hypothetical with these telephone records, can we?
21
Well the records are hypothetical, they records are,
22
you know, business records from my company.
23
hypothetical.
24
Right.
This is a
But in terms youre talking about variables
25
and how variables come into play with a handset choosing a
26
tower, we dont know what those variables are for this case
27
too?
75
1
Thats correct.
Lets go on to the next example.
All right.
Now
weve got the handset in the middle and weve got four
towers and theyre all equally distant to that handset,
which tower is the handset going to communicate with?
The one thats providing the strongest signal.
What happens if theyre all 10 miles away and all
things are equal?
10
signal.
11
Can you tell me which one that might be then?
12
No.
13
14
It would be the one thats providing the strongest
And this is a map of five dots, you cant, you
have to have more information.

Q
Now in terms of the coverage areas that you talked
15
about, you mentioned that some cell phone towers, you said
16
the average coverage might be 2 to 10 miles, that was
17
average, it could be more, could be less, correct?
18
Average maximum.
19
Average maximum, it could be more, it could be less,
20
right?
21
It could be.
22
Okay.
23
What is the maximum that you know about for
cell phone towers?
24
The maximum that Ive seen personally was about 6 to
25
7 miles.
26
You just said the average was 10?
27
No.
I said the average maximum nationwide could be
76
1
2
anywhere from 2 to 10 miles.

Q
Okay.
The average maximum nationwide 2 to 10.
use 10 as an example, okay, for the purposes of this
hypothetical?
Okay.
ATTY. ROMANO:
THE COURT:
ATTY. ROMANO:
Im going to have to be over at
the easel?
THE COURT:
11
ATTY. ROMANO:
12
THE COURT:
14
May I approach, Your Honor?
Sure.
10
13
Lets
Whats that?
I am going to have to over there.
Thats okay.
BY ATTY. ROMANO:
Q
Lets assume for the purposes of this hypothetical
15
heres the tower, okay, and we have -- this is an
16
omnidirectional tower, so its got an antenna that has 360
17
degree coverage, okay?
18
Okay.
19
And were talking about a 10 mile radius, so we go
20
out 10 miles, right.
21
assume that thats a perfect circle, okay.
22
calculate the area of coverage by using one of the basic
23
formulas in geometry, right?
24
find out the area, the full area of coverage, it would be pi
25
times r squared equals area, remember that?
26
27
Im going to go all around, lets
ATTY. GARCIA:
Now we would
That would be -- if want to
The State will stipulate that
thats a correct formula, Your Honor.
77
1
2
3
ATTY. ROMANO:
All right.
BY ATTY. ROMANO:
Q
Lets take the 10 miles, this is the radius of the
circle, correct, well assume thats the radius and this is
equal distance, right.
and wed multiply that by pi, pi, lets assume without it
going all the different, you know the different numbers we
can go down, is 3.14, right?
Yes.
10
All right.
So 10 times 10 would be 100, right,
So the total area would be 314 miles
11
squared, square miles, right.
12
assume that the tower has a 10 mile range is going to have a
13
full coverage of 314 square miles, all things being equal,
14
right?
15
16
17
I just dont get this.
So each tower itself, lets
I dont understand what
youre trying to?

Q
Were talking about the area of coverage for -- lets
18
back up, okay.
You said that cell phone towers communicate
19
with handsets, right?
20
Yes.
21
And the towers permit a signal, right?
22
Yes.
23
And that signal has a range, right?
24
Yes.
25
And that range could have a nationwide maximum
26
27
between 2 and 10 miles, correct?

A
Sure.
78
1
So lets assume that it's 10 miles for this example?
Okay.
Now that range is 10 miles extending in one
direction, right?
Okay.
Now lets assume that the tower is omnidirectional
meaning it extends 360 degrees, okay?
Okay.
Now if were going to calculate the full area of
10
coverage, not just a straight line, but the actual square
11
mileage for that tower coverage, were going to have to do a
12
mathematical calculation, you would agree with me?
13
If you wanted to do that, yes.
14
Okay.
15
And that would be the accurate mathematical
calculation to make, correct?
16
Yes.
17
Okay.
So the fact that someone in a cell phone
18
record comes up with tower A or tower B or tower C, with
19
that assuming that its 10 mile range, they could be
20
anywhere within 314 miles of that tower, correct?
21
22
23
For this extreme hypothetical, then yes, I would
agree with that.

Q
And we could go ahead and we could do the math or 6
24
miles out, 6 mile radius, we could do the math for 5 mile
25
radius, et cetera, correct?
26
You could.
27
All right.
We have absolutely no data regarding the
79
1
cell phone tower ranges in this case, correct?
Again, yes.
We do not.
Now are you aware of any industry -- strike that.
Isn't it true that in private industries, when theyre
trying to determine locations of -- when theyre trying to
determine a location, the use GPS, shipping industry,
correct?
I dont work in shipping.
Airplanes, correct?
10
I dont work in the airline industry.
11
Daddys trying to keep track of their daughters on
12
their cell phones?
13
Im not a daddy and I dont have -- I dont do that.
14
Are you aware of any industry whatsoever that you
15
uses purely cell phone towers to go ahead and locate objects
16
or find proximity of objections, any industry at all?
17
I can speak in the cellular industry we have.
18
Okay.
But if youre trying to locate the precise --
19
well you keep track of that because thats the billing
20
records, correct?
21
These records are mainly used for billing, yes.
22
Right.
So youve got to know if someone goes outside
23
a network or outside a range or if theyre roaming, et
24
cetera, correct?
25
Im sorry, we would have to?
26
You might, if thats part of the cell phone plan, if
27
they get billed extra for roaming?
80
1
2
3
4
We would get roaming information from the other
carriers.
Q
Okay.
For the U.S. Government, they have passed
legislation
ATTY. GARCIA:
question.
Objection to the form of the
Counsel is testifying.
ATTY. ROMANO:
THE COURT:
Government set up --
Overruled.
10
ATTY. ROMANO:
11
THE COURT:
12
ATTY. ROMANO:
13
14
15
Its cross-examination.
The question the U.S.
Ill rephrase it.
Okay.
Ill rephrase, I was going to
strike it.
BY ATTY. ROMANO:
Q
When the U.S. Government considered the importance of
16
individuals being able to communicate with 911 operators,
17
they abandoned --
18
ATTY. GARCIA:
19
Objection.
Assumes facts not in
evidence.
20
ATTY. ROMANO:
21
beginning, Your Honor.
22
We talked 911 legislation in the
THE COURT: The way the government acted is
23
obvious, they wanted to know where 911 calls were
24
coming from, so overruled.
25
26
27
Go ahead.
BY ATTY. ROMANO:
Q
right?
And it wasn't good enough for the U.S. Government,
81
1
Im sorry, what wasnt good enough?
Merely --
ATTY. GARCIA:
THE COURT:
8
9
10
Calls for speculation
and a conclusion.
Objection.
Enough, the answer is obvious.
Overruled.
BY ATTY. ROMANO:
Q
It wasn't good enough for the U.S Government to just
locate someone for 911 based on the cell tower, was it?
A
I wasnt involved -- I dont work for the U.S.
11
Government, I wasnt involved in the decision and I dont
12
know.
13
Legislation was passed to insure that each and every
14
cell phone had the GPS chip in it so they could be located
15
in an emergency telephone call, correct?
16
I believe thats what they said, yes.
17
And thats to go ahead and protect every single
18
person that has a cell phone to insure their safety,
19
correct?
20
The way I understand it, no.
21
Calling 911 isnt a safety issue?
22
You didnt mention calling 911; you just mentioned
23
24
25
the safety of every person.

Q
I talked about people with cell phone handsets that
are now equipped with GPS to insure E911 capability, okay.
26
Okay.
27
And thats to insure the safety of every individual
82
1
who owns a cell phone, right?
Well isnt it to insure that they could be located.
Right.
Now I don't mean to be flippant with this
question, okay, on any of these records is there any
evidence of the content of any conversations that anyone
had?
No.
8
9
10
ATTY. ROMANO:
No further questions.
REDIRCT EXAMIANTION BY ATTY. GARCIA:

Q
First with respect to towers, if a cell phone call is
11
transmitted through a particular tower, would it be accurate
12
to say that that phone is within the range of that tower?
13
Yes.
14
Does the wattage of the phone itself play any role in
15
which tower is hit when a call is initiated or received?
16
It can.
17
We talked a little bit about clutter, and when were
18
referring to clutter is that referring to buildings, trees,
19
things of that nature?
20
Yes.
21
How tall would a building need to be, if you know, to
22
23
be big enough to provide interference?

A
Well any, I mean, it could be extremely small, one
24
story.
25
obstruct the energy, obstruct or interfere or absorb it.
26
27
It really doesnt matter, anything that would
Okay.
Depending on where the phone is in relation to
that particular building?
83
1
That would be a factor, yes.
And are you familiar with the topography of the
Connecticut River Valley?
No.
Between Hartford and Bloomfield?
No.
And weve talked a lot about or Attorney Romano
Im not.
talked a lot about locating a person, fair to say that if a
person strikes a tower the only thing you could really say
10
is that theyre within range of that tower?
11
Yes.
12
To know exactly where they were, youd need more
13
information?
14
Yes.
15
For example that person telling you where they were?
16
Well that would help.
17
ATTY. GARCIA:
I have no further questions.
18
ATTY. ROMANO:
Just very briefly.
19
20
RECROSS-EXAMINATION BY ATTY. ROMANO:

Q
What are the ranges of any of these towers in that
21
entire book that you got, the prosecutor marked as an
22
exhibit?
23
I dont have it.
24
How about the seven towers that he gave you as a
25
summary?
26
27
I dont know.
ATTY. ROMANO:
No further questions.
84
1
ATTY. GARCIA:
THE COURT:
3
4
5
No further.
All right.
Now this gentleman is
from Kansas, can we let him?

ATTY. GARCIA: Im perfectly willing to have him
excused?
ATTY. ROMANO:
THE COURT:
THE WITNESS:
ATTY. ROMANO:
Yes, sir, Your Honor.
Thank you.
Have a good trip back.
Thank you.
Your Honor, may I address the
10
Court briefly.
If I could just have those items
11
marked and moved in as full, Your Honor?
12
ATTY. GARCIA:
13
THE COURT:
14
No objection.
Okay.
Defendants number, how many
are there, three?
15
ATTY. ROMANO:
16
THE COURT:
Four.
Theyll be numbered in order; well
17
take care of that.
Anything else, should I let the
18
jury go?
19
Ill bring you back and well talk about the schedule
20
in a minute.
21
and then well bring you right back.
22
within the next two or three minutes, okay.
Actually, why doesnt the jury retire and
Okay.
You can just retire for a moment
23
24
THE COURT:
25
26
27
Certainly
Is it your preference to adjourned
for the day?

ATTY. ROMANO:
Im done, if thats okay with the
Judge, that would be my request, okay with the Court,
85
1
2
3
I mean.
ATTY. GARCIA:
Honor.
THE COURT:
you know, what?
Thats fine with State, Your
How much you want me to tell them,
ATTY. ROMANO:
Tell them scheduling issues and
well continue tomorrow and well deal with the next
witness.
9
10
THE COURT:
Yes.
ATTY. GARCIA:
I think thats fine.
They know
11
that youre involved in another trial as well, so I
12
dont think they would attach significance one way or
13
the other.
14
THE COURT:
Yeah.
We kind of blocked out today
15
for this fellow and some people thought it might be
16
longer, okay.
We can have them back.
17
18
THE COURT:
Have a seat.
The jurys returned,
19
including the alternates.
You all ready know because
20
I told you that I worry about what you think about
21
this system and me.
22
Judge OKeefe doesnt care about the time that youre
23
devoting to this case, because its very valuable to
24
you and I dont want you to think that I dont care
25
about that.
26
to let you go early.
27
very happy.
I dont want you think that
Today, for very solid reasons, Im going

Now that might make some of you
It doesnt put us behind schedule, I
86
1
didnt pick the jury but the lawyers told me what the
schedule of the case is, were probably on schedule
or ahead.
to be through early today.
but please dont think we dont appreciate the time
youre devoting to the case.
considerations, a lot of them involving this witness
where we kind of had to block out the day, okay.
Well resume with Mr. Stephensons testimony tomorrow
Like I said, it might make somebody happy
10
morning at ten oclock.
11
ATTY. GARCIA:
12
THE COURT:
If thats the case, fine,
There are scheduling
Yes.
I hope that pleases you, the whole
13
picture, okay.
Dont talk about -- Im going to let
14
you go for the rest of the day.
15
way lawyers tell people that theyre done for the
16
rest of the day.
17
read anything in the paper about the case, dont
18
Google any legal terms, dont text each other, dont
19
let anybody talk to you about the case, you know,
20
some people might figure out what case youre on and
21
try to talk to you, just say listen, I cant talk to
22
you, Ill tell you everything about the case when
23
its over, okay.
24
people devoted, Im talking about everyone, theres a
25
lot of people invested a lot of effort and time into
26
this case and you wouldnt want that to be wasted
27
because of something that you did, you know, I
I guess thats the
Dont talk about the case, dont
As you can see, you know, a lot of
87
1
explained how terrible that could be.
day here on March 17th and well see you tomorrow
morning, okay.
THE COURT:
ATTY. ROMANO:
Anything else?
Thank you for your courtesy, Your
Honor.
ATTY. GARCIA:
fasting this afternoon?
10
So have a nice
THE COURT:
No.
I assume Your Honor will not be
Everyday is Saint Patricks Day
11
for me, so nothing special about the day.
12
adjourned.
13
14
15
16
17
(Adjourned.)
So were
NO:
CR09-630168
SUPERIOR COURT
JUDICIAL DISTRICT
OF HARTFORD
v.
AT HARTFORD, CONNECTICUT
ROGEAU COLLINS
MARCH 17, 2011
C E R T I F I C A T I O N
I hereby certify the foregoing pages are a true and

correct transcription of the audio recording of the abovereferenced case, heard in Superior Court, Judicial District of
Hartford, Hartford, Connecticut, before the Honorable Thomas V.
OKeefe, Jr., Judge, on the 17th day of March, 2011.
Dated this 10th day of January, 2012 in Hartford,

Connecticut.
_______________________________
Lori Van Buren
Court Recording Monitor
Docket No. HHDTo:
Sprint Spectrum, L.P.

Sprint Corporate Security
6480 Sprint Parkway
Overland Park, KS 66251
SUBPOENA DUCES TECUM
GREETINGS: BY THE AUTHORITY OF THE STATE OF CONNECTICUT, you are

hereby commanded to appear before the
Hartford Superior Court, Hartford Judicial District, 101 Lafayette Street, Hartford, CT 06106 on
November 1, 2012 at 9:00 a.m., or to such day thereafter and within sixty days hereof on which said
action is legally to be tried, to testify what you know in a certain Criminal Action pending in said
Court, between
State of Connecticut
Plaintiff,
v.
Defendant.
AND you are further commanded to bring with you and produce at the same time and place
the incoming and outgoing call history and the incoming/outgoing text message details of phone
number (860) 728-92 , under the name of
(account holder:
),
between January 1, 2012 and the present,
to be used in evidence in the trial thereof.
HEREOF FAIL NOT, UNDER PENALTY OF THE LAW.
To any proper officer or indifferent person to serve and return.
Dated at Bloomfield, Connecticut, on October 16, 2012.
Aaron J. Romano, Esq. (Juris No. 415829)

Commissioner of the Superior Court
Any and all questions regarding this subpoena may be directed to Aaron J. Romano, P.C., 45
Wintonbury Avenue, Suite 107, Bloomfield, CT 06002 T:(860) 286-9026/F:(860) 286-9028.

Law Enforcement Tracking

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HOW LAW ENFORCEMENT CAN, OR CANNOT,

TRACK PEOPLE USING THEIR CELL PHONES,

Presented by Aaron J. Romano

In July 2012, a congressional inquiry found that

2012, Aaron J. Romano, PC

1. Identify the Issues in cellular telephone

2012, Aaron J. Romano, PC

So How Does a Handset Connect with a Site?

2012, Aaron J. Romano, PC

Cell to Landline Connection

2012, Aaron J. Romano, PC

The cell phone uses the closest

A Scientific Challenge Will Prove:

THE GOVERNMENTS EVIDENCE

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

VERIZON WIRELESS CELL SITE LOCATIONS

-85dBm Coverage Plot

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

How Does a Cell Site Work?

However, a cell site may have up

Sites can be omni-directional

Types of Cell Sites

2012, Aaron J. Romano, PC

The prosecutor claims your client was at the crime scene

Remember, cell phone

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

Cell phones are 2-Way

2012, Aaron J. Romano, PC

Manfred Schenk, Defense Expert

2012, Aaron J. Romano, PC

The cellular telephone

Some Other Dude Did It

But my guy puts himself at the

2012, Aaron J. Romano, PC

Examine phone contacts of other parties if

Contract v. Prepaid/Pay as you Go

2012, Aaron J. Romano, PC

Its Simple Economics

In 2008 about 50 percent of new cell phone users signed up

More than one million wireless subscribers in Chicago are on a

2012, Aaron J. Romano, PC

2012, Aaron J. Romano, PC

Potential Legal Issues

First Line of Defense

Object to the Expert

Voir Dire the Expert

Have your Expert present

Intimidate the witness

2012, Aaron J. Romano, PC

Challenge the Assumptions

Cell Coverage In Theory