The role of home devices in police investigations
If a smart speaker captures the audio of a serious crime, can it be used as evidence by the police and prosecution at trial?
By David Moser
Smart speakers like Amazon Echo and Google Home devices, are now found throughout an estimated 50 million American homes.  In theory, smart devices are only supposed to record the user’s command and the speaker’s response. Once a request is fulfilled, the device is expected to stop “listening,” but operating companies like Amazon and Google have not publicly disclosed the exact length of time a device continues recording once your request is completed. 
This raises the question: What if a smart speaker captures the audio of a serious crime? Can Alexa be used as evidence by the police and prosecution at trial?
Naturally, this has led to fascinating questions in the criminal arena.
While law enforcement would have a crucial piece of evidence to incriminate someone at trial if a smart speaker accidentally recorded a violent interaction or illegal request such as “Alexa, how do I bury a body?”, the quandary is what limits should the legal system place on law enforcement access, if any at all? Issues surrounding probable cause, privacy and Fourth Amendment restrictions can all be argued, however, there is a possibility that the use of these recordings in court can significantly influence criminal trials.
A recent example is the trial of Timothy Verrill in New Hampshire for a double murder.  Verrill, who is awaiting trial in October, stands accused of the brutal stabbing murders of Christine Sullivan and Jenna Pellegrini after Verrill became suspicious that one of the women was acting as a police informant who was snitching on his criminal activity. An Amazon Echo was located in the home near where the murders took place. Last November, upon a warrant requested by law enforcement, the judge hearing the case ordered Amazon to release hours of audio recordings captured on the device at or near the time of the murders. It is unclear if and to what extent the Amazon recordings will be used in trial as relevant evidence, but having access allows the prosecution the opportunity to review them for potential evidence.
At first, Amazon issued a statement following the judge’s order in the Verrill case refusing to release customer recordings without valid and binding authority.  The company, along with other tech giants like Google and Apple, have issued similar statements in the past, pushing back against warrants and data requests.  This ongoing resistance from tech companies could be a continual conflict between government and law enforcement agencies seeking access to essential data that can be used as evidence in criminal cases, and corporate entities focused on the privacy of their customers.
The Verrill murder case is among a number of other cases where smart speaker recordings have taken center stage. For example, in the case of James Bates, an Arkansas man accused of murdering a work friend who was found dead in a hot tub at Bates’ home, the police suspected foul play and charged Bates with murder.  The police received a warrant for any data recorded on an Echo speaker located in the home.  While Amazon resisted, Bates agreed to volunteer the Echo recordings. Interestingly, the case against Bates was later dismissed for lack of evidence. 
Another example is the case of Richard Dabate, a Connecticut man whose wife’s Fitbit was a key piece of evidence in his murder trial.  Dabate initially told law enforcement that his wife Connie was murdered by armed intruders invading their home. Further inquiry, however, revealed data on Connie’s Fitbit that tracked her movements around the house long after Dabate claimed the intruders had already taken her life. 
More than just portable speakers and wearable technology, data policing and prosecution covers almost any product with “smart” capabilities. Recent prosecutions have retrieved data from smart home utility meters, gathering significant evidence supporting a cover-up, such as a spike in water usage to wash away traces of blood just after a murder occurs. 
These examples highlight the new age of data policing and the debate between privacy versus criminal justice concerns. Judges may face a dilemma in deciding how easy or difficult it should be for law enforcement to access recordings on these personal gadgets. Ordinarily, police must demonstrate probable cause in order to search personal property, which is a pretty low threshold. Typically, courts find probable cause to allow police officers to search homes, cars and personal belongings located at or near crime scenes, but the new norm of smart devices in every home raises fresh privacy questions. Searching a house where a murder took place is one thing as there is unquestionably probable cause that the house may be scattered with physical clues linked to the crime. However, searching the recorded contents of a smart speaker that happened to be located at the scene of a crime, but which may not have been actually used and therefore recording, is a gray area that still poses a number of unanswered questions about privacy.
In practice, courts so far seem to be favoring access and finding probable cause to search these tiny data hubs but if tech companies continue to resist the government, the smart device debate could make its way up to the U.S. Supreme Court.
For now, it seems that law enforcement will continue to push for smart spies to act as evidence and influence criminal trials. One thing is for sure, the world will be watching the next time Alexa gets summoned to the witness stand.
1. Ferguson AG. Alexa, What Is Probable Cause? Slate, Nov 20, 2018.
3. Lieber C. Amazon’s Alexa might be a key witness in a murder case. Vox, Nov 12, 2018.
4. Wang AB. Can Alexa help solve a murder? Police think so — but Amazon won’t give up her data. Washington Post, December 28, 2016.
About the author
David Moser is an attorney with Isaac, Wiles, Burkholder & Teetor, LLC in Columbus, Ohio. A former county and city prosecutor, Moser is passionate about law enforcement topics ranging from misdemeanor enforcement to civil liability involved with uses of force. Moser practices in the Public Law Group and can be contacted for further questions at DMoser@isaacwiles.com.