Wednesday, May 3, 2017

Solving a Connecticut Murder One Step at a Time

Fitbit Helps State Police Build Their Case Bit by Bit

We live in a brave new world filled with constant tracking and surveillance by devices that silently record a virtual map of our daily lives. Discussions in this area typically focus on the ever-increasing loss of privacy brought about by the cell phones, apps, digital assistants (such as Amazon Echo and Siri), security cameras, and the like that create the map. But a recent murder charge in Connecticut highlights a positive aspect -- how law enforcement can now rely on this ever expanding virtual map (including in this case data from the victim's Fitbit) to help solve crimes and bring criminals to justice.

State Police arrived at the home of Connie and Richard Dabate on December 23, 2015, and found Connie dead, having been shot twice with a gun that her husband had purchased, with Richard tied to a chair with superficial wounds. He claimed that he had struggled with the intruder who shot Connie before scaring him off. (Sounds like the plot of the famous 1960s television show -- and hit movie in the 1990s -- called The Fugitive.) Police and the K-9 unit were not able to find evidence of an intruder.

After a lengthy investigation lasting almost a year and a half, police recently charged Richard with the murder of his wife. Reading the 48 page arrest warrant application is like reading a virtual reenactment of the lives of the husband and wife (and others) in the days leading up to and on the day of the killing. In addition to the Fitbit data, the investigators scoured alarm company records, video surveillance at the local YMCA where Connie exercised the morning of the murder, cell phone records, computers, Facebook postings, text messages and notes on Connie's cell phone, all in an exhaustive effort to reconstruct a timeline and understand what really happened that day. As you can imagine, all of this data revealed quite a bit, so to speak, including Richard's pregnant girlfriend and a troubled marriage. And it did not help that he contacted his wife's life insurer within days of her murder.

Among all of the sources of data, however, the Fitbit played a central role, because it presented a record of Connie's activity (apparently based in part on a report prepared by Fitbit) completely inconsistent with the one offered by Richard -- who, according to news reports, is a computer network administrator. Most tellingly, it shows Connie's Fitbit with activity an hour after the time that Richard said she was shot; the Fitbit was synchronizing that morning with the server at their home while she was present and with a mobile IP address when she was not. Indeed, it indicates that she moved over 1200 feet in the last hour before it stopped tracking movement and distance at 10:05 a.m., the presumed moment of her death. Other sources used to present the virtual map that morning included the YMCA surveillance video, the home alarm system data, and Connie's Facebook account, which was being used actively in that same hour before she was shot. Richard also is charged with making false statements about where he was the morning of the murder based in part on cell phone records.

While computers and phone records have been widely used by law enforcement for quite some time, this case highlights a growing trend to step up the use of every available digital tool to solve crimes, and it appears to be the first one using a Fitbit to support a murder charge. Another recent example involves a homicide investigation in Arkansas, in which Amazon initially objected to producing any recordings stored by its Amazon Echo home assistant, which records audio whenever it is queried. Only after the defendant waived his objection did Amazon agree to produce recorded information. No word yet on what, if anything, may have been recorded that may assist that criminal prosecution.

One can easily imagine all of the devices and apps that create our virtual map becoming part of the standard police checklist. Other examples include cell phone map apps to track movement by looking at what directions were requested, store apps that register your presence (like the Starbucks, CVS and other apps do), mobile payment apps to show where you have been, Uber records, and the location mapping feature in photo apps. Indeed, it is already a widely accepted law enforcement practice to obtain -- without a warrant -- cell site location information to track the movements of suspects. Whichever way you travel, there will be a very good record of your location and route if you have a cell phone because everywhere you go it is communicating your location to the nearest cell tower, and that information is maintained by the cell phone companies. (The Supreme Court currently has a case before it in which a defendant who was convicted in part based on such data is seeking review of the constitutionality of this practice and whether a warrant should be required pursuant to the Fourth Amendment.)

As noted above, the societal concern about our steadily eroding individual privacy is not always the primary focus of discussion when the digital device or information that has been seized as evidence in a post-crime investigation belongs or relates to someone other than the accused, because we tend to focus on whether the accused, as opposed to the victim, had a reasonable expectation of privacy in devices and information. But this case does highlight that we live in a world that seems a little less private with each passing day, and it implicates broad and important questions about the intersection of technology and our fundamental constitutional protections that protect liberty and privacy, such as the Fourth Amendment's protections against unreasonable searches and seizures. 

Richard Dabate is currently free on bail, and last Friday entered a plea of not guilty. His lawyers will, no doubt, seek to attack the use of the Fitbit data and other digital evidence. They will claim that it is not accurate; that it is unreliable; that it could have been fabricated and/or tampered with; that there was not a proper chain of custody; and that in the end it is all circumstantial evidence that cannot support a murder conviction. But these are not new arguments, and prisons are filled with people convicted based on circumstantial evidence.

Of course, unless and until he is convicted, Richard Dabate is presumed innocent. But if he is convicted, the only remaining question at sentencing will be whether the punishment Fitbits the crime.


  1. No question that technology has changed the "privacy landscape". The interesting issues in the CT case is whether the information of the victim's Fitbit device was uncovered pursuant to a warrant, and how the "reasonable expectation of privacy" is applied in the instance where it is the victim's device as opposed to the accused's. Interesting read, and the "punishment Fitbits the crime", was worth waiting for.

  2. Excellent discussion of the threats to privacy presaged years ago before all of these gadgets were invented.

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