The complexity of modern technology has certainly required courts to stretch the application of 4th Amendment principles beyond that ever contemplated by the quill-yielding Founding Fathers. I am certain James Madison never imagined that people would be posting pictures of themselves for a thousand of their closest “friends” to view when he was contemplating individual privacy rights. California, just recently in People v. Pride, 2018 DJDAR 268, followed suit with other state and federal jurisdictions in holding that there is no 4th Amendment violation when a suspect posts to social media and one of his “friends” is really an undercover police officer.
It seems like the issue should be a non-starter based on the suspect’s actions. How can one argue they expect a posting to be remain “private” when disseminated to a few hundred “friends”? A suspect clearly cannot control their friends’ further dissemination of the posting. And states have addressed this. In Everett v. State, 186 A.3d 1224, 1229, the Supreme Court of Delaware found that “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.” They noted that the detective did not request or access the information directly from Facebook, the third-party service provider, but rather that 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. Id. at 1229. The Everett court held that “the Fourth Amendment does not guard against the risk that the person from whom one accepts a “friend request” and to whom one voluntary disclosed such information might turn out to be an undercover officer or a “false friend.” Id. at 1236. The court affirmed found that this is not an expectation of privacy that the United States Supreme Court has said that society is prepared to recognize as reasonable. Id. at 1236.
Federal courts have held similarly. In United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y 2012), the court found that a “[Defendant’s] legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted-including sharing it with the Government.” Id. The defendant argued that he “believed that his Facebook profile would not be shared with law enforcement,” and although the court acknowledged Defendant’s impression, the court found that the defendant “had no justifiable expectation that his ‘friends’ would keep his profile private” because “those ‘friends’ were free to use the information however they wanted-including sharing it with the Government.” Id.
California followed a similar analysis in Pride. On May 25, 2017, D.C. was robbed by gang members at the Imperial Avenue trolley stop near Petco Park. During the robbery, one suspect yelled “This is West Coast” or “West Coast Crips” and the suspects stole victim’s shoes, hat, iPad, money, watch, and gold chain. D.C. described that the suspect who yelled out and stole his gold chain had a scar along his jawline. Based on victim’s initial description of West Coast Crips and the scar, a gang detective thought the suspect might be Pride. And this is why we love criminals… the detective found a video Pride posted on his social media account shortly after the robbery, with Pride wearing the gold chain saying, “Check out the new chain, dog.” Pride at 269. Pride was convicted of the robbery with a gang enhancement. Pride appealed claiming the admission of the video he posted on social media violated his rights under the 4thAmendment and ECPA (California’s Electronic Communications Privacy Act) because the detective obtained the video without a warrant by portraying himself as a friend to gain access to Pride’s social media account. Id. The detective had obtained the video by logging into an account which had been accepted by Pride as a “friend.” Id. at 270. The detective acknowledged that the social media account used sends messages only to friends’ accounts and that Pride did not send the video to the detective’s account knowing he was a detective. Id. The California court held that “Pride assumed the risk that the account for one of his “friends” could be an undercover profile for a police detective or that any other “friend” could save and share the information with government officials.” Id. at 271. Therefore, no 4th amendment violation occurred. Further, the court held that ECPA did not apply because the government did not seek to compel access to Pride’s electronic device or information on the device. Id. Instead, Pride voluntarily posted the incriminating video!
What does this mean for you? It is ok to be fake… in fact, be fake and popular! Expand your fake friend pool!
Additional note: Don’t forget privilege pursuant to Evidence Code section 1040. In Pride, the Court held an in camera hearing pursuant to Evidence Code 1040 where the officer asserted the privilege not to disclose official information about the methods for obtaining the evidence because disclosure would be against the public interest. The court allowed the privilege as to the name on the account, any URL’s or numbers associated with the account, and any other friends associated with the account. The defense was only allowed to elicit from the detective that he obtained access to the account by using a false name on an account.
