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Name: People v. Franzen
Case #: H037217
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/06/2012
Summary

Internet data base (“Entersect”) which is used by police to identify a cell phone owner is not admissible under the “published compilation” exception to the hearsay rule. An undercover police officer arranged a purchase of methamphetamine after responding to an ad on Craig’s List. The officer received several telephone calls regarding the purchase and recorded the numbers from which the calls originated. When he arrived at a predetermined location, appellant and a male companion were there to make the sale. Appellant was arrested and convicted of various drug offenses. On appeal, she argued the trial court erred in admitting Internet evidence that she was the owner of the cell phone used in the sale transaction. Affirmed. The Entersect evidence was inadmissible hearsay because the data did not have the hallmarks of a “published compilation.” The hearsay exception provided in Evidence Code section 1340 requires: (1) a published compilation, (2) generally used in the course of business, (3) which is generally relied upon as accurate, and (4) which is a statement of fact rather than opinion. The Internet provides access to data “of all shades and degrees of accuracy, from the indisputably true to the inarguably false.” Information located on the Internet may be outdated yet continues to be reported. Here, there was a failure of proof regarding the use and reliance components of the exception, which not only requires substantial reliance, but also actual reliance on the information as accurate. Thus, the evidence was inadmissible. However, given appellant’s presence at the buy location and her possession of one of the cell phones used to arrange the sale, the admission of the evidence was harmless.

The trial court did not err in denying appellant’s Miranda motion. Appellant challenged the trial court’s admission of incriminating statements obtained in violation of Miranda. The officer who searched appellant before transporting her to jail saw a cell phone in appellant’s bra. When the phone rang, the officer said he would allow appellant to answer the phone after he completed questioning, to which appellant responded “it’s probably the guy looking for his money.” The officer asked “what guy?” Appellant said it was probably the man who gave her friend the drugs to sell. Although appellant was in custody, the statement was not elicited by an interrogation. Interrogation consists of express questioning, or its functional equivalent, by police, that is reasonably likely to elicit an incriminating statement. Here, the exchange was initiated by appellant and the officer’s response was neutral and not an interrogation.