By: Sy Ray, Director of Market Planning, LexisNexis Risk Solutions
This article originally appeared in Associate, Volume 24, Number 1, Q1 2022, The Magazine of the FBI National Academy Associates. FBINAA.org
Over the last 25 years, I have investigated, peer-reviewed, and consulted on thousands of criminal investigations in which mobile device records were obtained for their evidentiary value, providing the driving force in securing convictions. Conversely, I have seen the records exonerate an individual who was thought to have committed the crime, but ultimately did not. By utilizing evidence-based policing, we can develop best practices when analyzing mobile device records while ensuring exculpatory evidence is preserved and identified.
Evidence-Based Policing - “The use of the best available research on the outcomes of police work to implement guidelines and evaluate agencies, units and officers.”
The evidence-based policing (EBP) concept of encouraging law enforcement agencies to adopt problem-solving philosophies based on the best available evidence to create policies and procedures ensures effective and unbiased investigative processes.
Mobile Device Records – Third party records maintained in the normal course of business by telecommunication providers and obtained by law enforcement in reference to a criminal investigation by a probable cause-based search warrant.
Mobile Device Records provide incredible insight on trends and anomalies related to who someone communicates with, the frequency of that communication, travel patterns, detailed location information, and periods of no activity that, when combined, provide a detailed pattern of that person’s life.
Exculpatory Evidence – “Evidence that tends to clear an individual from alleged fault or guilt.”
This type of evidence is evidence that would indicate a particular person did not commit a crime or was not in the area where the crime was committed. All criminal justice practitioners can support the philosophy that law enforcement should make every effort to identify and preserve exculpatory evidence when it is known it does or may exist.
Establishing Evidence-Based Policing Best Practices
Can we apply the evidence-based policing philosophy to the exculpatory nature of mobile device records to establish a best practice? The simple answer is yes, but the moral answer driven by ethical investigative practices requires it.
The first step to institute such a practice will require a clear explanation of why mobile device records provide empirical exculpatory evidence. All of this is related to pattern of life. Pattern of life is the ability to analyze sufficient data to visualize routines. Routines can include call, text, and data patterns that identify a particular individual’s behavior and interactions that are unique to the individual. Routines can include location data that identifies travel and stationary patterns that are unique to a particular individual’s behavior. A detailed routine can establish the identity to the mobile device user. If users change, the behavior pattern associated with the device changes. It is a digital fingerprint.
Mobile device records are extremely powerful evidence, but only evidence of device usage, not necessarily who was using the device. It is the process of analyzing and developing distinct patterns of life that can be associated to a unique individual that provides the “who.” Without this analysis, we are only left with “what.” To associate a particular user to a specific device, we must analyze and develop a unique pattern of life that can be associated to the user. The pattern of life will always exist and like a fingerprint; it will always be unique to a specific individual. This preciseness provides incredible value to the evidentiary nature of the records. More importantly, this evidence can be both inculpatory (a person committed a crime) or exculpatory (a person didn’t commit a crime).
To develop best practices associated with geolocation and call detail record evidence, we must clearly define what is required to establish a sufficient data sample that reveals a reliable “pattern of life.”
By identifying the necessary requirements to develop a pattern of life, we can move onto the evidentiary concerns associated with digital data. This data is digitally stored and maintained by communication service providers in the normal course of business. Within the normal course of business, the communication providers will purge the data at some point. This evidence has a shelf life. Therefore, establishing and following required best practices is critical to the exculpatory nature of digital evidence. Failure to do the simple task of record preservation could result in evidence suppression, or even worse, a wrongful conviction.
The following case summaries provide real-life examples illustrating the need to establish best practices associated with the methodologies discussed:
Gaining Insight into Mobile Device Records is Critical
I spent a considerable amount of time researching recent evidence-based policing trends and law enforcement policies and procedures involving exculpatory evidence to write this article. I had an idea of what I wanted to communicate, but the more articles I came across in my research, the more this article changed, evolved, and revealed itself to me. It was during my basic research I saw the hidden topic, in plain sight. Evidence-based policing models must include insight on mobile device records and the undeniable exculpatory nature the records may have.
There is no denying mobile device records provide an unbiased view into the finite details of a person’s day to day life. When properly obtained and analyzed they provide extremely powerful evidence that can lead to a conviction or an exoneration. Additionally, this evidence has a limited shelf life and will be destroyed if not properly preserved. Knowing this, I have developed “Best Practices” to help provide guidance to investigators.
By providing this basic model, we are creating the first step in establishing evidence-based policing “Best Practices.” This method is critical to criminal investigations in which mobile device records are obtained for evidence – and can mean the difference between innocence and guilt.
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