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 evidence...now 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. MySpace.com 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).