The U.S. Court of Appeals for the Tenth Circuit on Thursday ruled that a 911 call was exempt from the prohibition on hearsay evidence, and was properly used to reach a conviction.

Daniel Lovato received a conviction and sentence of 100 months in prison plus supervised release from an incident on March 3, 2018. A driver in Colorado Springs called 911 to report seeing two men in a Honda shoot at another vehicle. The driver followed the car and stayed on the line for 13 minutes, describing the occupants, providing the location of the shooting and mentioning that the passenger was the shooter.

Shortly after the call ended, a police officer pursued the Honda. Lovato jumped out of the vehicle and the officer detained him. The officer found a pistol on Lovato, with a spent shell casing in the chamber that indicated a recent discharge. Lovato attempted to pin blame on the driver.

At the trial, the district court played the 911 call for the jury over Lovato’s objection that the recording was hearsay. The court found a “present sense impression” exemption, which allows for testimony given as an event occurs or immediately thereafter.

Writing for the three-member circuit panel, Judge Joel M. Carson said that the caller was a disinterested party whose testimony qualified for the exemption. The three to four minutes between the shooting and his account to the 911 operator was a “short delay [that] does not give rise to much opportunity for reflection or interpretation that could undermine the reliability of the statements.”

Carson also found the caller credible, writing that “The caller was not anonymous, but rather provided his full name, phone number, and home address during the call. The circumstances of the call, therefore, created a ‘disincentive for making false allegations,’ which increases the reliability of its collective statements.”

Judge Robert E. Bacharach, while agreeing with Carson’s conclusion, took issue with two components of the opinion. First, he did not believe that an analysis of the 911 caller’s credibility was necessary. Second, he felt that the court should have allowed Lovato to challenge the admissibility of individual statements within the 911 call, rather than the testimony as a whole.

“Until now, our court has never held that a district court can apply a hearsay exception to an entire conversation,” Bacharach wrote. He added that “a 911 call may contain statements that are present-sense impressions and statements that are not”.

The case is United States of America v. Daniel Lovato.