State Court Says Cop Posing As A Facebook Friend To Snag Criminal Evidence Isn't A 4th Amendment Violation

from the of-course-it-isn't dept

Getting roped in by your public Facebook posts isn't a Fourth Amendment violation -- not even if the viewing "public" contains undercover cops. The Delaware Supreme Court [PDF] got to wrestle with an interesting question, but the public nature of conversations prevents the Fourth Amendment from being much of an issue. [h/t Eric Goldman]

Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett’s house, where officers discovered evidence that prosecutors subsequently used to convict him.

Everett posted pictures of cash and weapons. As a convicted felon, he certainly wasn't supposed to be in possession of the latter. There's a discussion of privacy settings in the court's decision, but it only shows nothing conclusive was determined by the lower court. Apparently, Everett did set his account to "Friends-only" at some point, but that most likely did not occur until after the photos used to obtain a search warrant had already been viewed.

Ultimately, the court decides the privacy settings don't really matter -- at least not as far as Everett extended them. It would have still allowed the detective to see the photos Everett posted, given that the law enforcement officer was already a Facebook friend.

Attempting to claim his privacy was violated by the three-year subterfuge, Everett's challenge partially hinged on a key omission from the detective's warrant affidavit. The detective never informed the judge he had spent three years pretending to be Everett's friend to gather probable cause for a search. If nothing else, this seems like a waste of law enforcement resources, given the only charge Everett was convicted for was firearms possession. Then again, surveillance through a Facebook account is a largely passive enterprise.

The lower court found the omission did not affect the warrant's validity and the state Supreme Court agrees. Then it moves on to address the larger issue: is a fake friend a privacy violation?

We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.

This is true across all communications platforms, including personal conversations and snail mail. The expectation of privacy the sender might have can be "violated" at any time by the recipient of the communications. Even if the recipient is a cop pretending to be a Facebook friend, the privacy of communications is only as solid as the other participant.

The court also notes this isn't even comparable to wiretapping. The detective did not intercept private communications or otherwise place himself between Everett and message recipients. Everything gathered to support the warrant was visible to Everett's Facebook friends. Any one of them could have turned the photo over to police without violating Everett's privacy. The detective's passive monitoring of a Facebook account doesn't change the equation much.

One cannot reasonably believe that such “false friends” will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.

[...]

If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement—or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”

That's how it works. Communications are public, to a certain extent. The government can't access certain conversations you have with others without a warrant, but nothing says it can't pretend to be another person to be invited into incriminating conversations. Posting photos to Facebook isn't a private act, even if the settings only allow "friends" to view them. The subterfuge deployed makes it seem like more of a privacy violation than it actually is. What this should be is a cautionary tale, rather than an indictment of the Fourth Amendment's limitations. If someone doesn't want evidence of criminal activity used against them, they should probably keep that information to themselves, rather than post it on social media sites.


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  • identicon
    Pixelation, 6 Jun 2018 @ 9:36pm

    One of the few times

    One of the few times I agree with the outcome. That's what you get for "friending" someone you don't know. I guess he'll have lots of "friends" in jail.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2018 @ 4:42am

    In other words

    Cops lie and everyone is expected to know they are full of shit.

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 7 Jun 2018 @ 2:18pm

      Re: In other words

      > Cops lie and everyone is expected to know they are full of shit.

      But no condemnation for a piece of shit convicted felon amassing a new cache of weapons with which to do crime?

      reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 7 Jun 2018 @ 5:30am

    Not really different from a detective posing as a criminal in real life and becoming friends, then Terrance Everett saying come over and see this or whatever the case.

    It's what ya get for trying to show he world how Gangsta you are.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 7 Jun 2018 @ 5:31am

    Once again...

    Once again, making a fuss because something common in the real world is instead put into the electronic world. How is this any different from a cop going undercover? Certainly a policeman undercover does not need a warrant every time he goes into a suspect's house as a guest. Nor does he need a warrant to look in the host's fridge when he decides he needs a beer while undercover. And so on...

    The invite to everything (granting permission) was there the moment the "victim" accepted the friend invite. Somewhere in this is a moral.

    reply to this | link to this | view in chronology ]

  • identicon
    John E Cressman, 7 Jun 2018 @ 5:54am

    No different

    I see no differenece between this and a regular CI or undercover cop.

    Just goes to show... always know who your friends are.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2018 @ 6:26am

    3 years of taxpayer money wasted for one friend less perp
    Some racket they got going . No wonder crime never ends when you got the govt stringing it out for years .
    Undercover for years ? might as well throw the cop in jail along with real ? criminal .

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 8 Jun 2018 @ 1:30pm

      Re:

      3 years of taxpayer money wasted for one friend less perp

      You think this cop was doing nothing but following this guy on Facebook for those three years? How much money would have to be spent catching someone illegally possessing firearms before it's a waste?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2018 @ 6:37am

    Seems this opens a door for the public to claim it is not illegal for them to have aliases online and is an argument against real id.

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 7 Jun 2018 @ 8:39am

    Facebook ToS

    Making fake or impersonating profiles violates their terms of service. So where does Facebook stand when it comes to undercover police or a licensed PI.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2018 @ 10:58am

    Many states have attorney ethics opinions on this very issue. If an attorney, defense or prosecutor does this, or allows his or her agent to do it, or orders someone to do it, the evidence CAN be surpressed, and the attorney (defense only, prosecutors have immunity) can be disciplined.
    But I agree that it is not a privacy violation. No different than an undercover operation.

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 7 Jun 2018 @ 2:16pm

    Undercover

    > The lower court found the omission did not affect the warrant's validity and
    > the state Supreme Court agrees. Then it moves on to address the larger
    > issue: is a fake friend a privacy violation?

    How is this even an issue? This is just basic police undercover work. How is faking a Facebook friend any different or more legally iffy than faking being a *real* friend?

    When FBI agent 'Donnie Brasco' spent years undercover making friends with mob figures and gathering evidence against them, no one questioned whether it was okay for a cop to pretend to be their friend. Why should adding "on the internet" suddenly call those undercover techniques into question?

    reply to this | link to this | view in chronology ]

  • identicon
    ROGS, 12 Jun 2018 @ 3:06am

    This is why they create new categories of crime~assembly, association, speech crimes~because most policing is just intergenerational coercive control of the poor.

    Its called organized gang stalking: the process where ever fatter police catch criminals they create out of thin air, after databasing and warehousing them from birth.

    Here, the Intercepts Alice Sperri covers this new criminalization well:

    New York Gang Database Expands 70%


    https://theintercept.com/2018/06/11/new-york-gang-database-expanded-by-70-percent-under-mayor-bil l-de-blasio/

    reply to this | link to this | view in chronology ]

  • icon
    baran (profile), 12 Jun 2018 @ 7:06am

    nakliyat

    goods

    reply to this | link to this | view in chronology ]


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