State Court Says Cop Posing As A Facebook Friend To Snag Criminal Evidence Isn't A 4th Amendment Violation
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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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Court Calls Out Cops For Altering Interrogation Transcript To Hide Suspect's Request For A Lawyer
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The opening of this recent decision [PDF] by the Maryland Court of Special Appeals is eye catching. It quotes Breaking Bad prequel, Better Call Saul. More specifically, it quotes Jimmy McGill, who gradually morphs into the more-huckster-than-lawyer Saul Goodman over the course of the series. The case has to do with a murder suspect's request for a lawyer, one that was ignored by law enforcement. The quote sets the stage, letting readers know anyone accused of anything by law enforcement is better off exercising their right to be represented. (h/t Keith Lee)Craig Kettleman: I just think I'd look guilty if I hired a lawyer.James McGill: No, actually it's getting arrested that makes people look guilty, even the innocent ones, and innocent people get arrested everyday. And they find themselves in a little room with a detective who acts like he's their best friend. “Talk to me,” he says, “Help me clear this thing up. You don’t need a lawyer, only guilty people need lawyers” and BOOM! Hey, that’s when it all goes south. That’s when you want someone in your corner. Someone who will fight tooth and nail. Mynor Vargas-Salguero was arrested and convicted of second-degree murder, robbery, and theft. The lower court sided with the government, finding his demands for a lawyer "ambiguous." The Appeals Court disagrees, finding it clear enough, especially when the recording of the interrogation is compared to law enforcement's transcript of the recording's contents.That's where the real ambiguity lies. Or rather, there doesn't seem to be much ambiguous about law enforcement's attempt to retcon the post-arrest questioning to make Salguero's request for a lawyer vanish into the ether.There was a language barrier but not an insurmountable one. Salguero's first language is Spanish but he knows some English. Two of the detectives present spoke Spanish. One spoke only English. Occasionally, translation was needed for the single English-only speaker in the room. But, for the most part, the interrogation flowed. The detectives told Salguero he wasn't being charged with anything, despite hauling him in with an arrest warrant. Salguero made it clear he wasn't interested in talking if he didn't get a lawyer.The first demand came early in the interrogation when the detectives tried to determine Salguero's daily routine.[DETECTIVE DELEON]: Okay. Tha—that’s why I asked you.A: At 5:30 my ride wakes me up, there at the house where I live—lived right now with my sister, that I just moved in. [DETECTIVE DELEON]: Right.A: And I go to work. That’s all I have to say to you. And if you accuse me of something I better want an attorney. (underlining added). The detectives apparently understood this as a request for a lawyer. But they forged ahead with the interrogation after a brief pause. One of them acknowledged this during the interrogation, but that was conveniently left out of the transcript prepared for the court.A: Right. Ask me whatever you want.[DETECTIVE BELLINO]:Okay. Maybe…A: People confuse me and—this has to be this way, man.[DETECTIVE BELLINO]: Hold up, just a moment ago you said you wanted a lawyer but you’re willing to talk to us right now, right? The footnote exposes the alteration by law enforcement.The bolded text represents the words Mr. Vargas-Salguero spoke during the interrogation—as the circuit court and we can see on the video—that the police left out of the transcript they prepared and submitted to the court.[...]The record does not reveal, nor do the police explain, why their transcript deviates from the interrogation. The discrepancies were not identified to the circuit court, and the court made no findings about them; the court reviewed both the transcript and the video, and thus could consider the full interrogation, but didn’t address the differences. We cannot help but notice, however, that the officers’ transcript omitted words Mr. Vargas-Salguero in fact said at two critical points in the interrogation, and that the omitted language bears directly on whether the officers understood that Mr. Vargas-Salguero invoked his rights to counsel and to remain silent. Here is the second critical point where the transcript deviated from the video:A: In what moment did – did – I don’t want to say anything else now. Because I have nothing else to say. I have nothing else to tell you. Me, killing a poor man. (unintelligible.)[DETECTIVE BELLINO]: Go ahead here.[DETECTIVE DELEON]: Here.A: There, what? Go ahead, what? What you got in there? What do you say? I don’t see anything there. Nothing.[DETECTIVE BELLINO]: Look are you willing to talk to us? I thought you said you didn’t want to talk. Do you want to talk to me? Are you willing to talk to me?A: Yeah. The cop version:The police-prepared transcript says only “I understand you want to talk.” The transcript also fails to show what actually occurred during this moment. The Spanish-speaking detectives chose not to translate this assertion of Salguero's right to remain silent for Detective Bellino. Instead, the Detective DeLeon decided to stand back and let Bellino keep hammering away at Salguero in the suspect's non-native language.The government argued Salguero's statement was ambiguous. The court points out it wasn't -- not when the context is considered.Now back to Mr. Vargas-Salguero. The condition “if you accuse me of something” in the first half of his statement had indisputably been met, at least in the way that a normal person—and a reasonable police officer—would consider himself “accused of something.” At the time he made these statements, he had been arrested at his home in the middle of the night pursuant to an arrest warrant, issued by a court, that included serious crimes, and was being questioned in an interrogation room by three detectives. He mentioned (and lamented) several times that he felt like he could be going to jail for a crime he didn’t commit. It doesn’t matter for these purposes whether the charging documents had triggered his Sixth Amendment rights (we’ll deal with those below), or that the detectives claimed that he wasn’t being accused of anything. Maybe he “sought to couch [his] request [for an attorney] in polite or (more likely, given the context) deferential terms,” Ballard, 420 Md. at 493, but he was there because he had been, and was being, accused of serious crimes.With that condition met, Mr. Vargas-Salguero’s statement that he’d “better want an attorney,” the officers’ translated understanding of his statement in Spanish, sufficiently invoked his desire for an attorney. Other cases have held “I think I want an attorney” or “I’d rather have an attorney” was sufficient. See, e.g., Harris, 305 S.W.3d at 489 (suspect invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel, 506 S.E.2d at 23 (suspect invoked right to counsel by stating “I think I would rather have an attorney here to speak for me”). This statement was at least as strong as those. Furthermore, the detectives' own actions indicate they at least thought Salguero had exercised his right to demand an attorney. They stopped the interview and stepped out of the room to discuss his "if you accuse me of something…" statement before apparently deciding they might be able to get away with ignoring his request. Detective DeLeon's statement -- conveniently excised from the official transcript -- further indicates he understood Salguero's statement to be a request for a lawyer. ("Hold up, just a moment ago you said you wanted a lawyer…")The same goes for Salguero's right to remain silent. This was invoked when he said he had nothing more to say and pushed back from the table. This statement -- made in Spanish -- went conveniently untranslated and the Spanish-speaking detective too pushed back from the table to let the single non-Spanish person in the room override the invocation of a Fifth Amendment right.The Appeals Court reverses the lower court's decision and sends it back, pointing out it clearly erred by allowing the government to submit an illegally-obtained confession as evidence. No evidence is as harmful to a criminal defendant as a confession, so there's no chance the lower court can claim the two violations of Salguero's rights were "harmless."The examination of the transcript and the recording by the Appeals Court clearly indicates why all in-custody interrogations should be recorded. Relying only on a version of events written by those with a stake in the outcome results in the sort of malfeasance exposed here. The court won't go as far as to accuse law enforcement of lying, but it does make it clear it will trust videotape more than it will trust cops.
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