Friday, December 08, 2006

Prosecutors defend MySpace deception

Yesterday I pointed to this string on the Texas prosecutors user forum advocating that cops access juveniles' private MySpace pages by asking to become a defendant's "friend" without revealing their identity. In response I wrote, "If they have a need to see this girl's MySpace account, prosecutors should go to the judge and ask for a search warrant. And if they don't have probable cause to get a warrant, they shouldn't send cops surreptitiously lurking onto young girls' private MySpace pages, or anybody else's."

Today I find a couple of responses to the post on the prosecutors' site that merit discussion. One of the reasons I like to read the prosecutors' user forums is to play a game I call "count the red herrings." For example, how many red herrings can you identify in this statement from Williamson County prosecutor Stacey Brownlee?
Let me make sure I understand this...Its OK to set fire to things in a business with heavy holiday public traffic and then brag about it on a mostly public forum, but its "devious" to then look at that public forum to gather I remember why I moved to the Austin area!
Clearly, Ms. Brownlee, you don't understand; let's go over it again. No one has said it's okay to set fires in businesses. Don't be stupid. The juvenile defendants in question have confessed and will be prosecuted. And there's nothing "public," or even "mostly public" about a forum that you can't access unless someone invites. you. So I count 2 red herrings, in that paragraph, anyway. Here's another example, this time from Gretchen, who is an asstant DA:
gritsforbreakfast is seriously suggesting that if officers don't have full PC to begin with, then they shouldn't investigate information that leads them to believe a crime may be taking/have taken place? HUH? This is totally circular - "don't collect evidence because you don't have enough evidence to believe that evidence needs to be collected"
Of course, no one said that at all, and anyway that's not what's happening in this case. We're not talking about whether police can investigate. Of course they can. The question is whether they can mislead a child to access their private information. This red herring may fly with the prosecutor-dominated Texas Court of Criminal Appeal, but it also flies in the face of common sense. Here's the crux of Gretchen's argument:
Evidence has to come from somewhere, and if it's lawfully obtained, I don't see the problem. Consenting to be someone's friend on MySpace invites the evidence to be lawfully obtained. This is not "surreptitiously lurking onto ... private MySpace accounts..." - this is asking will you be my friend, and having them accept. Instead of investigating a 40-year-old pervert, you're investigating a teenager who's naive enough to put their illegal, immoral, and other activities on the internet.
"Lurking," of course, is internet slang for monitoring a blog but not commenting on it. In an earlier post on the string, Gretchen suggested that "you'd only have your investigator monitoring the site, not even necessarily engaging in conversation." So there's no question that she's encouraging cops to "lurk" on MySpace sites - the officer isn't joining to engage in friendly banter. But is it "surreptitious" lurking? I think so. As a commenter at TalkLeft put it
The investigator/cop is, basically, invited. But the invitation is secured under falsish pretenses.

Is evidence admissible if it's acquired by out-of-uniform cops knocking on the door to a house politely asking to come in, and the suspect lets them in without asking who they are? How about if the cops are disguised as something more innocuous, like, say girl scouts?
That's exactly right. It's a good analogy, I think. I'm not a lawyer and I don't know whether evidence obtained because an officer conducted a ruse at the doorstep would be admissable. But asking to be someone's "friend" is pretty similar to showing up at the front door dressed as a girl scout - the obvious hope is to mislead the person that the "friend" is innocuous so the officer can gather evidence they probably couldn't convince a court to let them have.

A Grits commenter suggested
another possible legal justification: because the child could refuse a new MySpace friend, "if he/she lets in the investigator, it's consent to search" The difference is, though, people consenting to searches typically KNOW they're giving consent to police. That's not the case here.

The investigator is pretending to be the child's friend, but actually gathering evidence aiming to prosecute them. That's not a "friend;" it's a legal foe in an adversarial court system misleading a child to access private information. IMO, unless the would-be "friend" discloses they're a police officer, they would be misrepresenting themselves under these circumstances.

My question: why all the skullduggery? We have a process for this. Why not just get a search warrant?

UPDATE: Brownlee's boss Williamson County DA John Bradley has chimed in with another suggestion containing at least the trappings of legal formality: "Use a grand jury subpoena. will accept it by fax. Contact them for their law enforcment packet that explains it all," he said. I'd be interested in seeing MySpace's law enforcement packet and knowing how often that's happening.

NUTHER UPDATE: David Curl, a Tarrant County prosecutor, adds this data in the prosecutors' comment string:
I thought Grit's search issue was interesting so I looked up some cases on the use of a ruse to make a warrantless search. Some creative cops out there:

United States v. Baldwin, 621 F.2d 251, 252-253 (6th Cir.1980) (“[A]n [undercover] agent may legitimately gain entrance into a house by misrepresenting his identity.");

People v. LaGuerre, 29 A.D.3d 820, 815 N.Y.S.2d 211, 214 (N.Y.App.Div.2006) (no due process violation when defendant voluntarily discarded chewing gum from which DNA sample was taken in the course of a police contrived "Pepsi Taste"), leave to appeal denied, 855 N.E.2d 805 (N.Y. 2006);

State v. Nedergard, 51 Wash.App. 304, 753 P.2d 526 (1988) (entry into home by undercover agents posing as interested buyers responding to "For Sale"; sign was permissible means of establishing probable cause for a search warrant);

U.S. v. Scherer, 673 F.2d 176, 181-82 (7th Cir.1982)(agent posing as cousin of an informant invited on property to build duck blinds).


elvez1975 said...

(Let me just preface this by saying I am member of the defense bar...)

In a nutshell, the federal constitutional standard for 4th Amendment protections is whether or not the individual had a "reasonable expectation of privacy" in the place or thing to be searched. The question is, if you are making your information available to someone who simply requests it, do you have any expectation of privacy in it?

In the girl scout analogy, if the person claiming the 4th Amendment violation was letting people come in to his home just because they asked to, then he has no expectation of privacy about what those people observe when they are in his house. This is true even if these people are dressed deceptively. The same would hold true for a random person requesting to view your private MySpace page. Even if you were diligent in questioning that person about who they were and they lied, there still would be no 4th Amendment violation (undercover cops have no obligation to disclose their identity). About the only set of facts where I can see this situation implicating the 4th Amendment is if the government hacked the page to view it instead of requesting a search warrant/subpoenaing My Space records or requesting Friend status.

However, I'm betting most of the righteous indignation coming from prosecutors on the TCDAA message board has more to do with their familiarity with judges who care more about re-election than they do about the Consitutions of the United States and Texas.

Poverty Lawyer 1 said...

I think most of the indignation comes from the fact that an outsider is reading their forum and airing their dirty laundry. Good work Scott.

Anonymous said...

Actually, since we're playing a game, by my count that first comment had three red herrings: The third is the trope that any criticism of prosecutors can be dismissed as some crazy liberal Austin thing. Grits, aren't you from Tyler?

txjeansguy said...

"In all cases where the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the King's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors." Semayne's Case, 5 Coke Co.Rep. 91a, 11 E.R.C. 629, 77 Eng.Repr. 194, at 195 (1603).

Elvez, the cops arent' simply requesting the information; they're lying to kids to get to a private area. And they're not even sure this is the kid/perp.

The question is whether it's reasonable to expect that people you meet in daily life are not cops who are lying to you in order to invade your privacy so that they can put you in prison.

The nutshell also didn't mention Lewis at 211 (US 1963): An undercover entry must be limited to the purposes contemplated by the suspect, and once inside a private area, the agent may not conduct a general search for incriminating materials.

Another issue is the special preference given to "papers" in the Bill of Rights.

And it seems there are due process problems in addition to the privacy problem. Isn't it fundamentally unfair to lie to kids in order to access their private writings?

elvez1975 said...

txjeansguy: I think you would have a hard time analogizing the home to a MySpace page. The MySpace page is only accessed through the home(or maybe not at all). Many of the English prohibitions centered around the special nature of a person's home, and these simply do not apply to something that not analogous.

Like it or not, the "reasonable expectation of privacy" standard is the metric used by our court systems. The police officer, like any other person, is sending a request to be a friend. There is no information that someone has to give in order to become a friend. It is up to the page's owner to decide whether or not to admit a person by making a friend. He or she can deny that person and send a MySpace message trying to get more info. The point is, under this situation, it is the page owner's laziness when it comes to protecting a private area that means that he or she cannot complain when officers intrude. There is no lying involved.

(I think you have misread Lewis v. U.S., 385 U.S. 206 (1966). In that case, an undercover agent gave a false name, went to the defendant's home, and purchased drugs. The US Supreme Court still upheld the search, citing to the Government's brief: "[i]n short, this case involves the exercise of no governmental power to intrude upon protected premises; the visitor was invited and willingly admitted by the suspect. It concerns no design on the part of a government agent to observe or hear what was happening in the privacy of a home; the suspect chose the location where the transaction took place. It presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him. The pretense resulted in no breach of privacy; it merely encouraged the suspect to say things which he was willing and anxious to say to anyone who would be interested in purchasing marihuana.")

There certainly is a warrant preference in the Bill of Rights. My personal opinion is that the police should probably use it more often. We might even think it smacks of unfairness that the police are "taking advantage" of juveniles. But under the reasonable expectation of privacy standard, the police have done nothing illegal. They are only accessing what the kids have not done a good enough job to keep private. I really think that the only way the State violates the 4th Amendment here is if they hack the page to gain access.

Shannon said...

"Poverty Lawyer 1 said...

I think most of the indignation comes from the fact that an outsider is reading their forum and airing their dirty laundry. Good work Scott."

That's funny, those "indignant" prosecutors didn't even make Scott dress up as a Girl Scout or pretend to be one of their friends to get onto their website. They must be mighty stupid to actually talk about the law out in the open like that. Why, I even hear that they allow non-prosecutors to attend their CLE courses!

It must all be a trick.

Fight the power!

Gritsforbreakfast said...

Actually, Shannon, you've discovered my dirty little secrtet. I do the vast majority of my blogging dressed as a girl scout. Ah ... the simple pleasures.

Seriously, it is cool that TDCAA puts it discussion boards online, and I appreciate that and think transparency benefits everyone. OTOH, the last couple of times I linked to those strings before this one, some prosecutors removed their postings that had gone a little over the top. So realistically I think both your interpretation and PovertyLawyer1's have merits and flaws.

For me, the bottom line: Democracy is messy and a crappy form of government, but as Churchill said it's better than all the others. So putting discussions online is a highminded approach, while simultaneously retracting posts that are criticized is a base but very human reaction. All that's okay. What's important to me is that such exchanges make possible a dialogue, even if a limited and sometimes snarky one, that really hasn't existed in the past. Which is why I'll probably occasionally go back to the well at TDCAA's user forums in the future - I think it's useful for prosecutors to hear the public's views on their approaches, and for the public to get a glimpse of the prosecutors' daily reality, too.

Oh and elvez1975, while IANAL (I am not a lawyer), I think you can analogize a myspace page to home entry, especially considering the BoR's special protection for "papers," as txjeansguy mentions. I agree that precedents set by undercover officers provide a degree of latitude, depending on circumstances, but I wonder if those tactics currently have legal limits, and where the limits are, because it's easy to envision sitations where the practice becomes abusive. As a defense lawyer, where is that line and can you really think of no bright line below hacking that would constitute misconduct in such matters?

That could well be the law, but if so it's a law ripe for rationalization.


Rusty said...

To One and All,

All though you guys are way out of my league, I'd like to raise a couple of questions.

elvez, said "Many of the English prohibitions centered around the special nature of a person's home, and these simply do not apply to something that not analogous."

While this was true in the PAST, no longer are the homes in this country protected with the same powers nor intent of those before us, FACT! The very ancestors you quote would hang those from the nearest tree for what they have done to their dreams and our futures for their own self important, self serving BS agendas!

While I sit here and watch each present a case for or against this issue, I have yet to here ANYBODY voice the damage done to the trust IN US AND LEO by our young and our people as a whole due to these BS TACTICS!

IMHO, LEO and the SYSTEM as a whole has lost any and all respect due to their own BS and SELF SERVING beliefs and agendas! It started out maybe under the pretence of being just and needy, using the most heinous crimes and criminals to justify little indiscretions in VIOLATING our safe guards! Now it has SLIMED it's way to these BS tactics being accepted at ANY OFFICERS DISCRECTION with no “ TRUE “ accountability or recourse for those abused, FACT! Still think it’s ok for TV programs to show LEO violating the laws to get the bad guy??? How does it feel to know those making our laws and sitting on YOUR jury have been condition to accept abuses by LEO and the SYSTEM, THERE MUST HAVE BEEN A REASON, RIGHT BSSSSSSSSSSS!!!

Even those who can prove they have been abused, can NOT afford the path to recourse and justice, FACT! And instead of talking about how this has been manipulated in to being and how those entrusted with protecting our freedoms and rights, SOLD US OUT, YOU SIT HERE JUSTIFYING BS! That is just like watching police violate Americans on TV, abusing and assaulting them, and then have the station say there may or not have been excessive force or police brutality, when a 10 year old could see the truth???? That is saying in some cases excessive force and brutality are acceptable, BSSSSSSSSS! The law says ONLY which force is NECISSARY, and then only in progressive steps “ NEVER “ does it condone brutality!!!

And then some still can't understand why our young and people have turned their backs on the system! One they have manipulated for their own beliefs and agendas! At the very cost of Individual Freedoms and the free will and rights of all, They believe they can trump all rights and freedoms at will??? The sad thing is these types have been so successful in manipulating AWAY our freedoms and rights using fear and BS , it has become acceptable ! BUT ONLY DUE TO NO REAL ACCOUNTABILITY NOR RECOURSE!!! I CALL BSSSSSSSS!

If the good guys don’t have to follow the laws NO matter how well intentioned, and our courts let our people be raped and abused at will, NOBODY has to follow these BS LAWS! If memory serves me correctly we threw the last self proclaimed , self serving, KINGS BASTARDS out of this country for the same kind of self serving BS, and claimed this country for “” ALL “”our people! Where is the blood of our ancestors when we need it?????

I apologize to one and all for letting my anger and passion turn to vulgarities, “ BUT “ to us commoners there is NO QUESTION if there is abuse, the question is how long are we going to take it!!!

elvez1975 said...

FWIW, I didn't mention my occupation trying to impress anyone, merely to show that I am typically disposed to side with the average person and not with law enforcement on criminal law issues. The Constitution is something that all citizens have a say about, and just because someone has some letters behind their name doesn't mean their opinion should be held with greater weight.

Scott - If you reject the police action in requesting friend status on a MySpace page, I would think you would also have to reject the very notion that police can do work undercover. There is inherently deception involved in undercover work, but I would think even the staunchest civil libertarian would acknowledge that law enforcement has to engage in some form of undercover work to fight certain types of crime (terrorism most notably).

I certainly don't come at this discussion from the perspective that the law is what it is and by virtue of that should remain so henceforth. I think the reasonable expectation of privacy (REOP) standard at least produces consistent results and some common framework for judging government action. Standards like "fairness" are subject to vastly different interpretations from person to person (and judge to judge) and using them leads to unfair and disparate results.

So what should the standard be if not REOP? I don’t know. Maybe I should defer to Churchill (not the best, but better than the rest). What’s your suggestion?

rusty - I agree with you that America has too many laws and too many crimes and too many people behind bars or on community supervision. Simply because I don't think everything the police do is an abomination doesn't mean that I want to put the country in chains. Part of any government's function has to be to protect citizens from one another. People do nasty things to one another and if the government does nothing to stop it, people look for a new government.

If people commit crimes (and let's be honest, this crime alleged here was lighting a fire in a WalMart during business hours), incriminate themselves through their own writings, post this self-incriminating evidence in a place where others can see it, and then don't do a good job of keeping that information private, the 4th Amendment simply isn't implicated. The Constitution doesn’t protect stupidity. If I went to a crowd of people and announced that I set a fire, and a cop was in the crowd, too bad, so sad. You have to know where to pick your fights. This is not that place.

So allow me to call BS. I see underhandedness and dishonesty by law enforcement officers almost every day. It infuriates me and most of the defense attorneys I know. We try to do the best we can, but there is no magic wand that forces people to tell the truth. I put myself out there every day and fight for clients who have no one on their side, so don’t go around using the internet as your sounding board comparing us to cops who beat suspects and lie about what happened, OK????

You want to do something about it? Get people to agree with you! You can't just yell at the folks who disagree with you. That’s how democracy works. Otherwise, you’re just screaming at the darkness. Or in this case, people who might just be on your side.

elvez1975 said...

As far as the preference for papers is concerned, when you make them available to people, it's hard for you to claim you a protectable interest in them under the 4th Amendment. For me, the issue is how far has the person gone to protect the information? The more they do to protect it and the more the State has to do to overcome those protections, the more likely we're talking about a 4th Amendment violation, even with papers.

For example, if I wrote a confession on a piece of paper, made a paper airplane out of it, and threw it out the window, I couldn't really complain if the police officer caught it, even if he was standing there waiting.

Rusty said...


Brother/Sister? you have my apology! Not for my beliefs but for my lack of tactfulness. As a speaker for I HAVE STOOD UP, and have been for YEARS! Read my BIO on our speakers home page , I am well aware of what protecting the public demands! And like you am trying to turn this BS around!
The issue for me was saying it was the child’s fault because they didn't take the steps adults would to protect themselves? How can we expect them to have or use skills they have not developed yet??? How can we hold them accountable for not using skills they don't have yet??? Should the guilty be punished, YOU BET! Should police be able to violate any and all protections in their pursuit, HELL NO!

If you go back and read I compared you to NO ONE! You talk about standing up to protect those who can't, YOUR NOT THE ONLY ONE! Here is a link to what I do for the industry I have been in off and on for over 35 years! It is an article called " Wired for Tragedy ". I to know what it is like to see justice denied!

Many times my lack of skills and passion leads people to believe I am only angry and attacking blindly, I hope that was not the case again here!

Gritsforbreakfast said...

Elvez1975 writes: "If you reject the police action in requesting friend status on a MySpace page, I would think you would also have to reject the very notion that police can do work undercover."

I don't think that's right. I think it's possible to argue for limits on undercover work. That it should only be used for more serious crimes than B misdemeanors, e.g.. That it should only be used when there aren't non-deceptive ways of gaining a conviction - in this case a confession. That it should be court-monitored when aimed at juveniles, IMO. There are many limits one could put on undercover work by law or policy that might keep this tactic from being pursued.

Undercover police work, especially in the drug trafficking realm, is a huge source of police corruption and deserves tight restrictions and scrutiny, IMO, even if current court precedents don't require it. Best,

elvez1975 said...

Regarding your suggestion that we limit undercover work/investigation to felonies, I'd submit that this distinction is way too difficult to be practical. Take the case we started with. Two juveniles allegedly setting a fire in a store. This conduct at first glance could be classified as a felony (arson, attempted arson, deadly conduct, felony criminal mischief) and the prosecutor could start with an investigation. It is only later that the prosecutor discovers that this is only misdemeanor conduct. Does any evidence obtained using undercover investigation have to be discarded?

You suggest that this sort of thing should not be pursued when other evidence is available to support a conviction. Any lawyer will tell you that you can never have enough evidence. For a third party to say that "well, you've got enough already" goes too far. What if their witnesses don't remember what happened, are non-responsive, refuse to testify, die, or some of the other evidence disappears? Well, then that incriminating statement (not a confession, which is only made to law enforcement officers) becomes a critical component of their case. I just don't ever see that kind of change happening.

Undercover work, by its very nature, is ripe for abuse by corrupt cops. If your position is that all undercover work needs to be subject to some sort of judicial oversight, I think that's probably a good idea. Keep in mind however that police officers and prosecutors are sophisticated enough to "venue shop" their warrants. If one judge says no, nothing prevents them from submitting it to municipal court judges or justices of the peace until some one says yes. Practically, I don't see this as that big of an impediment to them doing nearly whatever they want.

The bottom line here though is that I don't see this kind of act as undercover. There is no deception even when it's done in the course of an investigation against a juvenile.
(Prosecutor: "Can I see that?"
Juvenile: "I don't know you, but sure.")

Gritsforbreakfast said...

No offense, elvez, but you made the undercover analogy, not me, so if you don't think it applies I'm not sure what we're talking about.

As I've said, I think the law is probably as you say it is - I also think that won't dissuade public distaste for the idea that officers may be engaging in such behavior, for reasons well-articulated in this string. And we'll just agree to disagree whether it's possible to enforce limits on undercover work. Best,

elvez1975 said...

Sorry for creating confusion. I was never convinced that the government conduct at issue here was deceptive, but if it was it would be like undercover work.

My point about judicial oversight on undercover work is merely this: how do you do it in a practical way, given that judges typically rubber stamp warrants 99% of the time? If you want more intellectual honesty/integrity out of judges, then you need to appoint rather than elect them. That's not such a simple change, but it's really the only thing that gets us anywhere near where I think you would like to see the process.

The big drawback with appointments: what's good for the goose is good for the gander. Expect to see a lot of judges who issue opinions/rulings that fly in the face of the Constitution. So pick your poison...