Fourth Amendment

With "Friends" Like These…

"When a person voluntarily accepts a 'friend' request on Facebook from an undercover police officer, and then exposes incriminating evidence...the Fourth Amendment [does not] protect against this mistaken trust."

|The Volokh Conspiracy |

From yesterday's Delaware Supreme Court decision in Everett v. State:

When a person voluntarily accepts a "friend" request on Facebook from an undercover police officer, and then exposes incriminating evidence, does the Fourth Amendment protect against this mistaken trust? We conclude that it does not….

At some point during 2012 or 2013, Detective Bradley Landis of the New Castle County Police Department began monitoring Everett's Facebook page using a fake profile, including a fake name and pictures. Detective Landis regularly monitored Everett's page between one to three times per week for at least two years. During this monitoring, Detective Landis used the fake profile to send Everett a "friend request." Everett accepted the "friend request." …

On November 4, 2015, Detective Landis saw a photo on Everett's Facebook page that was posted at 5:00 AM that morning. The photo … showed a nightstand with several items on top of it: a handgun, a Mercedes car key, a large amount of cash, a pay stub, two cell phones, and a framed photograph of Everett wearing a black T-shirt and a red necklace. Although Everett was not in the Photo, the caption read: "Just getting in for the night, how I sleep every night."

On that same day, November 4, 2015, Detective Landis applied for a warrant to search Everett's house. In the application, Detective Landis swore that he:

  • observed Everett's Facebook page and the Photo "while browsing Facebook";
  • knew the Facebook page was Everett's because Everett posteddaily self-filmed videos and photographs at various locations, and he was familiar with Everett from previous contacts and criminal investigations;
  • personally saw Everett operate a tan Mercedes on multiple occasions;
  • was aware that Everett was a person prohibited from possessing deadly weapons, including firearms, due to numerous violent felony convictions;
  • was aware that Everett was currently on federal probation for conspiracy to possess with intent to distribute more than 500 grams of cocaine and cocaine base, and that Everett would be on federal probation until January 2020;
  • was aware that Everett was currently being supervised by the Delaware Probation and Parole Sex Crimes unit;
  • contacted Everett's probation officer to verify Everett's address and then drove past Everett's residence and observed a tan Mercedes parked out front;
  • observed distinguishing features on the handgun upon closer examination of the Photo and, after additional investigation on the Smith & Wesson website, determined that the firearm in the Photo was in fact a Smith & Wesson.

The search warrant, which was both authorized and executed on November 5, 2015, allowed police to conduct a daytime search of Everett's residence to collect DNA samples and/or a deadly weapon. During the search of Everett's home, police recovered a loaded nine-millimeter Smith & Wesson handgun; the handgun's original box with a serial number matching the Smith & Wesson handgun; clothing, including the black T-shirt and the red necklace that Everett was wearing in the Photo and other Facebook photos; and Everett's pay stubs.

Police arrested Everett on November 17, 2015. A Grand Jury indicted him on December 21, 2015, for one count of Possession of a Firearm By a Person Prohibited …, and one count of Possession of Ammunition By a Person Prohibited …. According to the indictment, Everett was a "person prohibited" because he had previously been convicted of two felony counts of Reckless Endangering (first degree) and one felony count of Possession with Intent to Deliver a Controlled Substance….

Everett's … central argument is that Detective Landis's monitoring of his Facebook page constituted an unlawful, warrantless "search" and, thus, any information seized pursuant to it must be suppressed as the fruit of the poisonous tree in violation of the Fourth Amendment ….

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.

The United States and Delaware Constitutions protect the rights of persons to be secure from "unreasonable searches and seizures." A search does not occur "unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.'" … "[W]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."

Although Delaware courts have not confronted whether law enforcement officers violate the United States Constitution or the Delaware Constitution by monitoring information that people make accessible to them when they are undercover, or to other Facebook "friends" who are cooperating with law enforcement, cases from other jurisdictions suggest that a Facebook user does not have a reasonable expectation that information that he shares online with his "friends" will not be revealed by them…. [T]the "false friend" cases appear to rely on the logic of Hoffa v. United States, which observed that "no interest legitimately protected by the Fourth Amendment is involved" when the defendant invited a cooperating witness who was wearing a wire into his hotel suite where the witness then recorded defendant's incriminating statements. The United States Supreme Court noted that the cooperating witness neither "entered the suite by force or by stealth," nor was he a "surreptitious [eavesdropper]." Rather, the witness "was in the suite by invitation, and every conversation which he heard was either directed at him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that [the witness] would not reveal his wrongdoing." …

Here, we need not explore the edges and boundary lines defining a person's legitimate expectation of privacy in information shared with third parties such as Internet providers or social media platforms such as Facebook, Twitter, and Snapchat. Rather, we resolve the case on narrow grounds—namely, 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." 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….

Our own Orin Kerr, Fourth Amendment expert, and native son of Delaware, is cited in the opinion, for a somewhat different, though related, proposition.

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  1. EV, not sure if you know about this, but Trump just signed the Right to Try act. I seem to recall that you advocated something similar back in the day, Medical self-defense? or something like that. Anyway, I would be interested on your take on the bill that actually passed, if you are inclined to write about it.

    http://tinyurl.com/ybg4g5hu
    (whitehouse.gov)

  2. So by logic you could circumvent the 4th amendment entirely by turning everything into an undercover sting?

    1. Sure. You don’t have to fall for it.

  3. But is Detective Landis in trouble with Facebook for violating their terms of service by using a fake name, when real names are required?

    1. Some have argued that violating a TOS constitutes a violation of the Computer Fraud and Abuse Act, but I don’t believe that’s a commonly held belief.

      1. There’s a provision in the CFAA that exempts law enforcement activity.

        After all, everyone knows that when the government does it it’s always the most morally and logically correct course of action.

    2. Sure, in the sense that Facebook can kill off the account or even deny Landis the right to every use their services again. Doesn’t help the defendant though . . .

  4. I agree with the court’s ruling. “Friend” someone on Facebook at your own risk. But it looks like the the officer himself was not sure of this.

    “Detective Landis swore that he:

    observed Everett’s Facebook page and the Photo “while browsing Facebook”;”…

    No. That’s not really truthful. He observed E’s FB page after becoming Facebook friends while using a fake identity. Why not put that in your application for the warrant? Why hide the fact that there was (lawful, apparently) deception that had been used to gain access to the info in E’s FB account? Leaving out that info sure makes the cop look guilty (in terms of the admissibility of the evidence), so why not be open and honest when swearing out the underlying facts for the warrant?

    [Only written partly tongue-in-cheek.]

  5. I don’t have a problem with the tactic of creating the fake profile.

    I do have a problem that the officer monitored the site, “. . . for at least two years.”

    That is long-term electronic surveillance of a specific individual–which should kick in 4A protection.

    “Because electronic surveillance is a search under the Fourth Amendment, it is subject to the same warrant requirements as other searches. To obtain a warrant, the government must show probable cause to believe a search is justified, describe in particularity the conversation to be intercepted, and provide a specific time period for the surveillance, among other requirements.”

    (spaces added) https://www.law. cornell.edu/wex/ electronic_ surveillance

    1. This is not electronic surveillance, it’s monitoring what a person voluntarily posts on the internet. Heck, the 3PD probably means there’s no REP in that content anyway.

      By your standard, I’ve been electronically surveilling Eugene and Orin for like 5 years!

      1. Good point so I guess we have to determine whether there is a legal difference between electronic surveillance and simply monitoring.

        The officer took definite steps to hide his identity so it’s not like he was in the open.

        1. So have you and I on this blog, since we’re posting here pseudonymously 😛

          In any event, I don’t see that there is anything to determine. Monitoring someone’s public online activity is not a search.

      2. Not the same. You are not (I assume) a law enforcement official, nor are you looking for illegal as a goal, both of which are the case here.

        Long-term surveillance of any type, of anyone, for any reason, by law enforcement should require a warrant, IMHO.

  6. If you don’t know the person who wants to be your “friend,” why risk it? Who knows what information they want to gather from you.

    It’s like people on Facebook suffer from reverse paranoia – the think nobody is out to get them.

    1. No kidding. If, hypothetically, I knew I were committing a felony, I’d be darned sure not to display any evidence of it online, or even talk about it after the fact. I’d even be wary of mentioning it specifically after the statute of limitations had expired.

      This is, of course, all very hypothetical.

    2. Indeed, this is one of those things that makes an older generation scratch its head.
      I’ve actually gotten a “wrong number” text from someone asking to buy weed.

      1. This wasn’t Facebook, but I once got some emails from some strangers asking how my Hawaiian vacation was doing (I wasn’t in Hawaii), and miffed I was too busy to reply to them. I could have run with that, but I just told them they had the wrong address.

  7. The Hoffa case was immediately what I thought of. Seems a pretty straight-forward application of that case in a new context, but it was worth a try. I’m surprised, ten plus years into Facebook, that we don’t have more definitive answers nationwide.

  8. I can see the fairly straightforward parallel with the Hoffa case, so I suppose I’m raising an eyebrow about that case rather than this one. In particular the notion that you can never have a reasonable expectation of privacy when you invite someone into your home, office, car, whatev – because the someone could be a police informant, or an actual police officer, or a cooperating witness etc. Since, on average, the people coming into your home won’t be police informers, police officers etc, at odds of several hundred to one against, I think it rather strange that a, say, 99.5% expectation of privacy doesn’t make it as far as “reasonable.”

    1. Because privacy isn’t against police officers, it’s against other people in general. If you voluntarily give up your privacy, for whatever reason, that’s on you.

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