ShotSpotter Trapped in Subpoena War From Data Hungry Attorneys

ShotSpotter is swimming in subpoenas from attorneys trying to build up or tear down criminal cases, leaving its legal team racing to respond as courts across the country decide whether its data can be used as evidence in trials.

The Fremont, Calif.-based company is served with subpoenas “at least several times a week,” Tom Chittum, ShotSpotter’s senior vice president for analytics and forensic science, said in an interview. So far, the company has been subpoenaed to produce data in more than 250 criminal cases in at least 22 states, he said.

ShotSpotter, which recently rebranded as SoundThinking Inc., contracts with local governments across the country to identify possible gunshots using a network of microphones and other sensors. However, that has led to police arriving on the scene to make arrests for unrelated crimes like drug possession or driving under the influence. That’s putting the technology company in the middle of a festering legal battle between prosecutors, who rely on the surveillance data to establish probable cause for police stops, and defense attorneys, who say their clients’ constitutional rights are being violated.

University of Florida Levin College of Law professor Tracey Maclin said both sides are probably correct, for now. The defense bar would be “derelict in its duty” not to subpoena ShotSpotter data if doing so could help their clients. But as cases are decided by trial courts, both prosecutors and defense attorneys will gain a better understanding of how judges will treat ShotSpotter data, which may lead to a decrease in the subpoenas, he said.

Until then, Chittum relies on an in-house team to deal with the subpoena volume and one outside firm to help. ShotSpotter gave all of its subpoena work that was handled outside the company to Cooley LLP until about a year ago, when it switched to Crowell & Moring LLP. Crowell & Moring partner Warrington Parker led the charge for ShotSpotter during an Illinois appellate court pre-trial hearing in May.

Caught Between Courts

Attorneys for people charged with crimes other than weapons violations following ShotSpotter alerts argue their clients’ Fourth Amendment rights were violated because the police didn’t have reasonable suspicion to stop the defendants. Therefore, anything that happened after the stop can’t be used by prosecutors. ShotSpotter data is too unreliable for courts to rely on when ruling on criminal cases, the defense attorneys argue.

“Research shows that ShotSpotter often alerts to a vehicle backfiring and similar noises, so police should use it only to trigger an investigation, not end one,” Vanderbilt Law School professor Christopher Slobogin said in an email. “For the same reason, if the subpoenas directed at ShotSpotter are designed to get evidence that a shot occurred at a particular time and place, defense attorneys can very plausibly argue that, given the flaws in the technology, a reasonable doubt exists as to whether that is so,” he said.

Cook County, Ill., public defender Brendan Max said he has issued many subpoenas to ShotSpotter at the behest of his clients. However, judges didn’t have the chance to rule on enforcing them because prosecutors voluntarily withdrew that evidence when the subpoenas were challenged by ShotSpotter.

The rulings judges have handed down have been inconsistent and conflicting, leaving a patchwork across the country.

In a March 2022 ruling, California Superior Court Judge Morris Jacobson permitted a ShotSpotter subpoena to be enforced. However, the judge agreed with ShotSpotter that some requests made in the subpoena were overbroad or unduly burdensome and ruled those portions of the subpoena weren’t enforceable.

In New York, a county judge threw out a conviction based on ShotSpotter evidence, ruling the evidence shouldn’t have been allowed at trial.

"[S]ubpoenas have been going up in the last year, and even more so in the last six months. Prior to that, many defense attorneys were not clued in on what to ask for,” Max said. “Now, many of us know. I get consult emails and phone calls from attorneys around the county every week or so now, and they are seeking assistance on what to demand via subpoena in Shotspotter cases.”

ShotSpotter has received court rulings in at least eight states allowing its data to be used as evidence in criminal trials. But defense lawyers said they will continue pressing Fourth Amendment concerns if prosecutors continue their push to use ShotSpotter data in court.

Unlike DNA, which had been rigorously tested before it could be used as evidence, ShotSpotter data is relative untried and unverified, several lawyers said.

“I don’t think it should be used in the courtroom. I don’t think there’s been any vigorous testing that is absolutely reliable on a scientific basis,” Benjamin Burger, a Legal Aid Society staff attorney in New York, said in an interview.