Social Media Arrests: Criminal Charges Based On Content Itself – No Warrant Necessary
Law Enforcement Monitors Facebook, Twitter, YouTube, and Other Social Media for Investigation – and Now as Basis for Arrest
Twitter, Facebook, YouTube, Snapchat, Google+, Pinterest, LinkedIn, Periscope, Instagram: what’s your social media preference? Odds are very high that you use some form of social media, no matter what your age, what kind of work you do, or where you live. Social media is a big deal for all of us — we communicate with our friends with it; we share our lives; we check the news; we document things we want to remember.
And it has not been news for those involved in criminal defense work that the police and the prosecutors are more than happy to have this public access into people’s lives, so easy to use that they can surf around a suspect’s social media while at their desk, drinking coffee. Easy peasy.
And legal — there’s not a need for a search warrant here, this is public stuff. No expectation of privacy for someone who chooses to post a tweet or upload an image or video for all to see.
Look: the Police Read Facebook and Watch YouTube, Too
When federal or state or local law enforcement want to delve into the activities of someone they suspect is involved in criminal activity, it’s not like it happens on “Law & Order: SUV” each week. Well, some of it might be — but today, there are special efforts made within these agencies to monitor social media and gather information to support arrests and criminal convictions based upon what the police officers see on their screens.
This can happen not only from their surfing the web via their own accounts, but also from being given access to social media through the account of a “Facebook friend,” etc. If the “friend” gives the police officer the ability to read the suspect’s “private” information, then there’s no constitutional protection here. At least, not according to at least one federal judge up in New York.
Several years ago, that judge ruled that the suspect’s expectation of privacy over things he published as “private” on his Facebook account ended when he shared those “private” posts with his friends.
Why? Because he could not limit what the friends did with those posts — they could publish them on billboards on the interstate if they wanted. He lost control of their privacy when he shared them with these third parties. So, the court reasoned, it was fine and dandy for the police to use these posts in their criminal investigation which led to his arrest.
For more, read the case of Melvin Colon here, United States v. Meregildo, 883 F.Supp.2d 523, 525 (S.D.N.Y. 2012) — a case whose reasoning has been approved and followed by courts all over the country.
Today, law enforcement agencies all over the State of Texas as well as the rest of the country have units assigned specifically to tracking online activity, including social media accounts. It’s legal and it’s commonplace for police officers to create their own fake online accounts, filled with phony personal data, to help them snoop. There’s a huge list of examples of this stuff on Wikipedia if you’re interested.
Bottom line: law enforcement can and does use social media in its efforts to track down criminals and discover crime.
However, the news today is that we’re entering another chapter in police use of social media, because now people are getting arrested specifically for what they have published in their social media channels. This is making social media the basis of the criminal charge, not just using social media to try and find a criminal or to investigate a suspected crime.
New Chapter: Social Media Content That Directly Results in Arrest
After the tragic shooting of five officers in our local Dallas Police Department along with the injuries sustained by seven others that day, there was an outpouring of grief and a reaching out in condolences to the DPD itself as well as to the family and friends of those who had been harmed or killed that day.
It was a sad day, a sad time for our city.
However, there were some who took to social media in anger. Across the country, there were folk who commented on social media in recalcitrant ways. And law enforcement was reading their feeds — and some of these people were arrested.
Remember: they were arrested specifically for what they published on their social media channel.
The Kentucky State Police arrested a man named Willa Letedea a couple of weeks ago for his Facebook post, charged with a crime under Kentucky state law that is a misdemeanor – a third degree terroristic threat, according to local news reports by WPSD Channel 6 News.
According to news reports, his post on Facebook was a threat against the police, and it was considered serious enough that the local police felt it supported an arrest. Note: in the courtroom after his arrest, the judge revoked Letedea’s bond after he reportedly told the judge that his constitutional rights were being disregarded.
Last month, members of the Detroit Police Department initially arrested one man for his Facebook post, where he characterized the man who shot dead the five Dallas Police Department officers as a “hero.” His comments on Facebook were considered a terroristic threat according to Detroit Police Chief James Craig.
However, efforts by the Detroit Police Department’s Counter-Terrorism Unit eventually resulted in not just one but four people being arrested for what they had published on Facebook. Police Chief Craig explained to reporters for the local NBC station that each individual had published commentary on their Facebook accounts that the police considered to be specific threats against police officers, and therefore legally a basis for arrest.
Also in July 2016, a man was arrested by members of the Norwalk Police Department for his Facebook posts, and charged with the crime of inciting injury to persons and property according to reports from the local Fox station. The post allegedly stated that the man who shot the Dallas Police Officers was a hero, and encouraged others to follow suit.
What does this mean, from a criminal defense perspective?
There is now precedent for law enforcement not only to monitor social media accounts without the owner’s knowledge but to use the contents of that account — even if the owner has labelled it as “private” — to form the basis of an arrest of that person.
Hate speech may be argued to be protected by the First Amendment, but that argument has not prevented these arrests from happening. And remember, the police have monitored the accounts as well as made these arrests all without a search warrant.
It is not okay to try and incite violence or to urge harming anyone. We’re not focusing upon the substance of these social media posts. We’re focusing on the procedure here.
The point here is that in taking action against what these police officers have determined to be terroristic threats, there is now precedent for the police to do this in the future – and this should be carefully considered.
See, for example, our earlier post:
Federal Child Pornography Charges Often Involve Federal Surveillance of Online Communications, Personal Email Records, Stored Computer Files
What’s Next? Government Control of Social Media?
Here’s a new development in police involvement in social media that should give us all pause. This week, the Baltimore County Police Department were called to an apartment where a young woman named Korryn Gaines had locked herself inside, with her 5 year old little boy and a shotgun. She had done this after police officers had shown up at her door to take her into custody, serving their arrest warrant.
Ms. Gaines fought against being arrested and she not only refused to comply, she created a “stand off” with the police and she started video-taping what was going on, including her talks with the police officers at her door, and posting her videos to Facebook and Instagram. She was communicating with people on these channels as things progressed, and some folk on Facebook encouraged Ms. Gaines not to comply with law enforcement.
The police figured this out somehow, and contacted both Instagram and Facebook administrative offices and Ms. Gaine’s Facebook account and Instagram feed were taken offline. This is called a “deactivation request.”
Sometime afterward, this 5-hour standoff ended up with shots fired, and the death of Korryn Gaines.
For more information, check out our web resources as well as Michael Lowe’s Case Results and his article,
Dallas Criminal Lawyer, Michael Lowe, Pre-Arrest Criminal Investigations
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