Thursday, December 07, 2006

Slippery slopes: Warrantless tactics used for child molesters now applied to misdemeanors

Be careful who you agree to let become one of your MySpace friends - what you blog can and will be used against you if they turn out to be a police investigator.

On the Texas District and County Attorneys' public user forum, a string yesterday showed how DAs are using information from MySpace web pages not just for sex offenders, but for increasingly low-level crimes - in this case two juveniles who set fire to some clothes in the middle of a WalMart store in Plainview. In that case, Jim Tirey, a prosecutor from Plainview, wants to charge the pair with third degree felony arson, but finds the statutes only allow him to charge with a Class B misdemeanor for "criminal mischief" (which I should say, seems to me to more accurately apply to what the kids did). Both kids already confessed, he said, but it will "tick me off" if he cannot secure a felony conviction.

Leaving aside what punishment would fit this particular crime (Tirey muses he might load up the indictment with several higher, less likely charges then "drop some things off along the way"), I was especially interested to see a prosecutor from Williamson County someone named Gretchen, an assistant DA whose affiliation is not listed, suggest, "Checked their myspace accounts? If they are computer savvy I'll bet they bragged about it online."

Geez, that's devious, but fair game, I suppose, if they're public sites. The next bit of advice, though, I thought went over the line.

Tirey went and checked, then replied, "One of these kids apparently does not have a MySpace page. The other has several, including one that was last updated a few days ago, but they are all private. I do not think that I can very well invite her (or whatever you do on MySpace) to be my friend and let me see her page. I am reasonably sure she might recognize my name and refuse. Is there some way I can get to look at the page without using outright deception?"

Good question. What constitutes outright deception? Lets see what his fellow prosecutors think. Another prosecutor identified only as Gretchen replied: "Could you have an investigator invite your D as a friend? I would think that'd be no different than chatting up a child molester online, and you'd only have your investigator monitoring the site, not even necessarily engaging in conversation. Just a thought."

That IS quite a thought. I wonder how many investigators and cops are "monitoring" private MySpace accounts, having used this ruse to pretend to be a "friend" when they really are seeking evidence to prosecute?

Here's an example of that famous slippery slope: Tactics become commonly used to pursue a terrible crime, like child molestation, that may violate constitutioonal rights, but because the crime is so heinous it's tolerated by public opinion. In the legal world, though, what that does is set precedent for using those same tools in other, less serious crimes - in this case a Class B misdemeanor. No warrant, no judicial oversight. Nothing. And how long may this "monitoring" go on? Quien sabe? Who knows?

Tirey asks if it'd be okay if a probation officer made the surreptitious ask to be the defendant's friend, but Gretchen thought "
it would be better if it was law enforcement, such as your arresting officer."

That last bit of advice tells me prosecutors understand that this would constitute an investigative function. In that case, there's a process for them to access private information of defendants: 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.

UPDATE: Prosecutors defend MySpace deception.


Unknown said...

We have rights in the United States?

Anonymous said...

Overzealous prosecution, perhaps, but I don't think an investigator asking to be a MySpace user's friend, and then using info found within their profile as evidence would be a violation of the 4th amendment.

I guess it does pose an interesting question about the reasonable expectation to privacy in a so-called "private" profile on the very public world-wide web. But regardless, the MySpace user has the right to keep out whoever he/she desires (similar to the way the front door of one's house operates), so if he/she lets in the investigator, it's consent to search, I would think.

If the investigator poses as a kid, it may be devious, but the kid shouldn't let a stranger be his/her friend. On the other hand, if the investigator disguises himself as one of the kid's real-life friends to get in, it may be another story.

Gritsforbreakfast said...

But Mike, aren't they asking to become a "friend" under false pretenses? You write:

"so if he/she lets in the investigator, it's consent to search"

But people consenting to searches 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 their "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?

Anonymous said...

You don't need a search warrant to use an informant, or to use information gained by a friend or an acquaintence who then decides to turn the bad actor in for money or some other benefit. In out on the street instances we would just say, "hmm, should have chosen your friends wiser." Or becareful who you trust. I look at this just like these guys/kids are standing on the street. If the kid chooses to let ANYONE into their private space without verifying who they are then the kid runs the risk of being discovered.

Anonymous said...

Texas mommy,

So using your mind set , our kids who are victimized and molested by false pretences, as well as found guilty for petty crimes. ARE EQUALLY AT FAULT??? They both fell prey to being trusting, but one is ok because the good guys done it, right??? Are ALL our young suppose to be safeguarded against deceitful predators , what happens to those who are violated and found to be innocent does the legal perpetrator have any liabilities for their actions???

So child molesters and LEO have no blame in their “ EQUAL “ tactics??? Or is it child molesters are guilty because they prey on our young, and LEO isn't because they “ LIE “ to our young ASSUMING they made a mistake. Tell me again how this builds respect and trust in adults and LEO in these kids minds??? But the fact LEO is doing their job, the harm done to our young isn't any problem, they brought it on themselves, right!

I have two problems with this. First deceit is deceit regardless of who uses it or justifies it! That used to be what made the good guys different from the bad guys! Second our young are not to be held the same EXPECTED standards and means of protecting themselves, that it took adults YEARS TO DEVELOPE!!!
Things are not as easy as they appear!!! These kids who brag about their misdeeds can easily be taken down with out sacrificing the honor and respect of US ALL , by good honest police work instead deceitful short cuts! IMHO!

Anonymous said...

I mourn the death of two dear friends, common sense and reason.

Anonymous said...

As our nation moves farther away from the Bill of Rights and the common sense restrictions placed on police by the Warren Court we see more and more sloppy police work. Sadly, that fact is coming back to haunt law enforcement. Four police officers killed in Texas over the past several weeks. One wonders, were these tragedies simply mean felons who murdered or were they reactions from people who thought: "I'm mad as hell and I'm not going to take this anymore?"

Anonymous said...

Sigh. If I could bring myself to comment on the TDCAA forum, I'd say this:

"Remember when we took that oath to seek justice? That means charging the crime we have, not the crime we think the suspect deserves. If you don't have enough for arson, you charge criminal mischief. You don't look for ways to make it in to an arson charge, because the jury will not buy it and you will (rightly) lose the case."

That said, caveat emptor for who people friend on MySpace or Facebook or whatever. What you knowingly expose to the public (and the entire Internet is public, even if your profile is set to private) you lose your legitimate expectation of privacy in, and I see nothing wrong (in a constitutional dimension) with police using deception to gain admissions from suspects.

-Ethical Prosecutor