Municipality of Anchorage v. Baxley et. al. (No. 1) 

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MAGISTRATES' FINDINGS AND CONCLUSIONS

Each of the above defendants was charged with a speeding violation based on a PHOTO RADAR citation. The original citations were mailed out by a subcontractor of American Traffic Systems who caused the citations to be printed on a computer generated form based on a list of alleged violators furnished to them by American Traffic Systems. The original citations were not signed by an enforcement officer nor were they sent by certified mail. Accordingly they were illegal at the outset and were not legally sufficient to give the court jurisdiction over the defendants and had they chosen to ignore the citations nothing would have happened to them.¹

However, the defendants in this case chose to enter not guilty pleas and go to trial on their respective citations, thereby submitting themselves to the jurisdiction of the court. Each defendant entered not guilty pleas and their cases were set individually. Ultimately they were consolidated for trial on the court's own motion and came to trial on July 31, 1996. By that time a duplicate citation had been reissued, signed by Augie Henry, who was legally authorized to issue citations, and served on the defendants. Testimony in this case concluded on August 2, 1996.

In each of the cases an employee of American Traffic Systems testified that he had set up the vehicle containing the Photo Radar equipment in the prescribed manner on the dates of the alleged offences and that photographs were taken showing the defendants' vehicles and with the date and time and speed of the vehicle imprinted on the bottom of the photograph. There was no testimony of an actual observation by any witness that the defendants were in fact speeding. Rather, the Municipality relied exclusively on the validity of the photograph to prove its complete case. (The operator was there to protect the equipment, not to observe traffic and take notes.)

In advance of trial, the Municipality lodged various transcripts with the court. These included a transcript of the first photo radar trial to be heard by this court, MOA v. Gimelli, supra and a transcript of a hearing held on June 20, 1996 before a Municipal Court Judge of Commerce City, Colorado to determine accuracy and reliability of the PR100. The Municipality also lodged NCHRP Synthesis 219, entitled Photographic Enforcement of Traffic Laws, A Synthesis of Highway Practice, prepared by the Transportation Research Board, National Research Council and published in 1995. The Synthesis "documents the current state of the art and use of photo radar equipment." Synthesis, P.1. Ultimately the court took judicial notice of this document.

It is clear from reading this document that Photo Radar has been around for a number of years and although it is accepted in a handful of jurisdictions in the United States it is not widely accepted nationwide, as less than a tiny fraction of 1% use photo radar. As to those jurisdictions utilizing photo radar in the United States, the Synthesis indicated that they were operated by police officers who were observing traffic and taking notes.

In all of these jurisdictions "...equipment is installed in a patrol car and operated with an officer present who also makes notes on the speeding offences photographed." Id at P.15.

The officer present in the patrol vehicle observes the approaching traffic either through the rear view mirror or a video monitor and makes notes on the characteristics (e.g. make, model, color) of the vehicle photographed. These notes are sometimes used if court testimony is required for contested cases. Id. at P.18.
The origin of the requirement that a photograph of a vehicle which has been clocked allegedly in excess of the speed limit by a speed measurement device be corroborated by in court testimony of a police officer may be traced to the 1958 case of People v. Pett, 178 NYS 2nd 550 (cited in Synthesis, P. 29).

In stationary and moving radar trials in the State of Alaska, this court has required testimony by a trained police officer who is certified to operate the equipment. That officer has to first observe a speeding vehicle and formulate an opinion as to the speed of the vehicle before activating the radar. If the officer receives a reading consistent with his or here observations the officer will then pursue the vehicle and issue a citation. Radar is used as a corroborative device. This practice conforms to the general usage of radar nationwide.

An enforcement officer is trained to visually track a suspected speeding vehicle, make a mental estimate of the vehicle's speed, and then make a speed measurement. Synthesis at P.4.
The Municipality is asking the court to accept a system which fails to utilize trained police officers for the purpose of observing traffic and taking notes at the same time as the photos of the alleged speeders are taken; a system which fails to adhere to generally accepted techniques as defined by the Synthesis. Not only are they asking us to make a leap to a system not using law enforcement officers to make observations, but to a system not using anyone to make observations. This manner of usage is unique to this device and is in fact unprecedented in all of the fifty states. Andrew Conlon, an ATS representative, was interviews on the Dick Lobdell radio show on March 6, 1996 and he stated:
It is a new approach in that we provide all of the services including the staffing of the vehicles. It's a totally privatized circumstance...² In other cities, the typical situation is that our client is the, typically the law enforcement as opposed to the public works entity and it's usually staffed by those people. Exhibit 4. (See also Augie Henry comments, Exhibit 5.)
The principles behind photo radar are not in question. Broken down to its parts, photo radar combines doppler radar, a computer and still camera to gather evidence of speeding violations. Photo radar is a scientific measuring instrument that the Synthesis shows is not based on novel scientific theory. Since there is nothing in the record of this case to show that photo radar is less reliable than traditional "down the road" police radar, its general acceptance in the relevant scientific community (Frye test) need not be shown to secure the admissibility of photo radar evidence at trial. See Best v. Municipality of Anchorage, 749 P.2d 375, at 380 (Alaska 1988).

However, while admissibility of photo radar evidence under Frye is unquestioned, such evidence is still rendered inadmissible if not gathered in compliance with generally accepted techniques. Harmon v. State, 908 P.2d 434, 446 (Alaska App. 1995). As stated by the Alaska Supreme Court:

In DNA tests, as in other scientific tests, assuming general scientific acceptance, set procedures must be followed to ensure the validity of the tests. Compliance with these procedures must be shown. Mattox v. State, 875 P.2d 763, 764-765 (1994).

The Synthesis sets out techniques and procedures for the use of photo radar that have been employed in every jurisdiction studied therein, which techniques are identical to those used by police with regard to conventional doppler radar. An integral part of these procedures is the presence of a police officer making visual observations of approaching traffic and taking notes. The purpose of this requirement is to provide necessary corroboration of the radar/photo evidence. All radar is subject to spurious readings due to reflected radar energy and radio frequency interference from a wide variety of sources, e.g., garage door openers, cellular phones, microwave ovens, CB radios, police radios, airplane/airport radios and high tension power lines. An attentive and disinterested police observer is all that stands between a still photo of a vehicle with an erroneous assigned speed and the innocent motorist driving it.

The sole basis for dispensing with this decades old practice is the testimony of greatly interested witnesses. The Municipality has presented the testimony of Mr. Clint Davis and Mr. Robert Davies, the architect and the promoter of this photo radar device. They portray the PR100 as without equal in the field and nearly infallible. "It's quite markedly different in its field, sir yes. The ...radar itself is quite... quite different to any of the other systems." Gimelli Transcript P.162.³

Both Mr. Davis and Mr. Davies would have the court believe that any problem external to the device, the causation of which is unknown, would not survive the PR100's 19 quality control checks. These checks purportedly would void out the photo or result in no photo being taken at all. Yet the witnesses' obvious interests and inconsistencies and contradictions in their testimony call into question the trustworthiness of their presentation.

Although Mr. Clint Davis indicated to this court that he was not an employee of ATS, just six weeks earlier, in the Commerce City case, he identified himself as the President of ATS Mason. Commerce City Transcript P.4. He explained the discrepancy resulted from an error by the court reporter in Colorado. The court reporter did err in that she typed Mason instead of Mesa. On the vita for Mr. Davis lodged with the court with the notice of intent to call an expert witness he is listed as the President of ATS Mesa. It appears to the court that Mr. Davis wished to play down the substantial financial interest which he has in this case. It was clear from his testimony before the court in Commerce City that he was already using the Anchorage system as a selling point to other locations.

The Municipality utilized Mr. Robert Davies as an expert witness based on his experience as a police officer prior to his employment with ATS. In his testimony in Gimelli and the instant case, Mr. Davies cited a statement made by the Municipal Court Judge in Commerce City as proof that the use of the PR100 without a police officer taking notes is now approved elsewhere. Baxlev et.al., Tape 15-132, Log 263; Gimelli Tape 15-77. (The Gimelli transcript lodged was incomplete so the tape itself was reviewed.) He also testified that the Commerce City program is being run exactly the same as the Anchorage program with an ATS operator.

However, the transcript of the Commerce City hearing is replete with references by Mr. Davis to law enforcement's use of the system. In fact, it is clear that the court, when it approved the system, understood "the police will have the policy and they will have the same policy as they do right now with hand held." Commerce City, Transcript P.34.

In addition, in the Gimelli trial, Mr. Davies testified that he knew of only one occasion where the PR100 had taken a photograph showing a speed where there had been no car in the photograph.

"We were able to--and I -- I don't want you to think for a minute- I- I know you asked me earlier is this thing infallible and I said no, it's not. I don't want you to think for a minute that it- it's not capable of doing things wrong... We were upset to find a photograph come through with a speed on it and no car...not..no target, and it-- it just sort of made you cringe because the program was relied upon evidence that was better than that, plus this sort of thing could go out into the press and make bad press for us." Page 68 lines 3-8.
Although Mr. Davies testified in the Gimelli case that the above situation only happened one time, it was acknowledged by Mr. Davis in his testimony in Commerce City that it had happened more than one time but "less than six". In the instant case, he testified that there had been a few anomalies. This was in response to a question from Mr. Richard in regard to three or so times when the PR100 had taken a picture inappropriately. Both Mr. Davis and Mr. Davies would have this court believe that an error could never occur once you have a car physically present in the photograph. However, in Commerce City, Mr. Davis indicated that a photograph should be thrown out where a car is in the near lane in the proper position to be photographed but with a large truck and trailer in the far background. He indicated that it should be thrown out for dual reasons. Commerce City Transcript P.48,49.

Mr. Davis testified before this court that the microwave oscillator and antenna of the PR100 will continue to operate to as low as minus 80 degrees fahrenheit, yet the Synthesis indicates that the PR100 operating temperature for guaranteed range of validity is plus 20 degrees fahrenheit. Synthesis P.9,10. Further, when Mr. Davis testified in Commerce City, he testified to a range of "...minus 20 centigrade..." as the bottom end of the range. Commerce City Transcript p. 47. It appears that Mr. Davis tailored his testimony regarding the PR100's temperature capabilities to fit the climatic conditions of the jurisdiction in which he testified.

Both Mr. Davis and Mr. Davies testified that the PR100 is capable of taking photographs at the rate of two per second. The speed of the device is one of the reasons they cite as to why they should not be required to have police officers observe, (even though other jurisdictions require officers to monitor photo radar systems and take notes where "other manufacturers are involved"). When their representations are checked against the Synthesis we find that the PR100 is one of the slower ones (1.5 second repetition rate vs the Multanova .5) Synthesis Table 4.

ATS has run the Paradise Valley, Arizona photo radar program for 10 years, the longest running program in the United States. Exhibit 3. Mr. Davies testified in the Gimelli trial that Paradise Valley, Arizona had never required the presence of a police officer taking notes. However, this is totally contrary to the synthesis which indicates police were observing and taking notes. In order to make his testimony more palatable in this case he testified that he did not know what the practice used to be but they were not requiring the presence of police officers now.

The above examples of the conflicts in the testimony of the prosecution witnesses presents an overall picture of individuals who have a great deal at stake financially and who will testify to whatever it takes to convince the court in a given case. Obviously a favorable decision by this court could be cited elsewhere and would be of great value to American Traffic Systems in fostering the growth of a market for its product. Thus, the pecuniary interest of Mr. Davis and Mr. Davies goes far beyond the Anchorage program and would appear to be so great as to call into question their objectivity when discussing their product. This is not the sort of testimony that persuades this court to find the PR100 evidence of speeding admissible, the questionable reliability of the testimony renders it insufficient to sustain a conviction beyond a reasonable doubt in each of these cases. Accordingly, the court orders the cases against the above defendants dismissed.

Had the Municipality presented evidence consistent with the practices followed by other courts in the United States, such as evidence corroborated by the observations of a trained police officer observing traffic and taking notes, this court might well have reached a different result.⁴ However, this court cannot make a "leap of faith" based on the type of testimony that was presented here.

There were other issues both raised and unraised, which the court will not decide at this time, e.g., (1) the effect of the failure to provide a uniform system that guarantees that all persons will receive points and (2) whether the printing on the photos is inadmissible hearsay. In view of the above findings, the court declines to decide on these issues.

DATED this 1st day of October, 1996, at Anchorage, Alaska.

Geoffrey T. Comfort, Magistrate.
Ron Wielkopolski, Magistrate.
Roy V. Williams, Magistrate.

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¹ Augie Harvey, the photo radar program administrator for the city, testified in this case that summons would issue to be followed by warrants, although he admitted in MOA v. Gimelli (transcript lodged with the court by the Municipality) that none had been issued. In that case, he testified that 75% of the citations went out without his having seen them. He also testified that he only reviewed the ones where there was a question as to whether it should be issued. The Municipality concedes in their brief that ATS is not authorized to issue citations.

² ATS receives 70% of all revenues derived from the issuance of photo radar citations under the terms of its contract with the Municipality. Transcript, MOA v. Gimelli, P. 99.

³ The claim as to uniqueness is based at least in part on the narrow band projected across the road and the weakness of the signal sent out. However, in the Gimelli trial, Mr. Davies professed to know nothing of the Multanova, a widely used photo radar device with qualities similar to the PR100. Synthesis, Table 3. According to the Synthesis, the Multanova has only a one degree variation in the width of the radar beam from the PR100 and sends out a signal that is only half as strong and is therefore less likely to create a reflected reading or mirror effect.

   The PR100 and other photo radar devices are designed to operate with a narrow bean which is projected across the road at an angle of 22.5 degrees. According to the manufacturers specifications, as furnished to the Synthesis, the device is supposed to be effective against radar detector devices. However, Mr. Davies testified in the Gimelli trial that the PR100 could be detected by some radar detector devices as far away as 150 to 350 yards. (Based on tests conducted under his direction by the New Zealand police.) In an effort to understand how this could happen if the side lobes were working and keeping the radar in its narrow beam, the court asked Mr. Davis about the ability of radar detectors to pick up the PR100. Mr. Davis testified that it could only happen in heavy traffic where a part of the beam was bouncing from car to car down the road to trigger the radar detector. When Mr. Davies testified in this trial as to the manner in which the tests of the radar detectors was conducted, it was apparent that there was no stream of traffic and no reflective surfaces to trigger the devices. Exhibit 42. The site lobes obviously were not doing their job.

⁴ Although generally accepted practice requires the presence of a police officer taking notes, the purpose behind that requirement could possibly be satisfied had the Municipality taken and preserved a video tape of the events (including the audio doppler tone). If the Municipality presented a tape with a trained, sworn law enforcement officer who could view the video tape, listen to the audio doppler tone to confirm the absence of external interference, testify to a tracking history and otherwise corroborate the photo radar speed reading, this could obviate the necessity for a police operator to be present when the photograph was taken. This could also resolve other issues such as the failure of the Municipality to preserve potentially exculpatory evidence. See Municipality of Anchorage v Serrano, 649 P.2d 255 (Alaska App. 1982).

Rev: 1998.09.29