Risky Click: Adding Undercover Cop As Friend Nets Man Conviction For Gun Charges

(Mis)Uses of Technology

from the brave-new-world dept

Keep your friends close, but your Facebook friends closer.
– a multitude of criminal defendants probably

Here’s the thing about public profiles on social media services: they’re public. If you don’t want to be immediately arrested for committing criminal acts, maybe steer clear of social media. A multitude of examples can be found here at Techdirt, many of them covered caustically by Tim Geigner.

But it’s not just bragging about bad behavior getting people caught. It’s not being more selective about who you let into your online inner circle. It’s not a new thing but it’s only going to become more prevalent. “Friending” people you don’t know is pretty much letting cops take a look around your place without a warrant.

A recent Delaware Supreme Court ruling said there’s no Fourth Amendment violation contained in government surveillance of a public Facebook account, even if a cop hid behind a pseudonym to get invited into the suspect’s social circle. While it does seem like months of lurking to produce only a weapons possession charge is sort of low on the ROI, scale, lurking is a passive effort that only requires the periodic checking of notifications from surveilled accounts.

There’s no expectation of privacy to stuff published to social media accounts others can view. Setting it to “Friends Only” may prevent the general public from accessing the contents of your page, but when the passive surveillance is already coming from inside the house (so to speak), there’s really little you can argue when seeking to have this evidence suppressed. It’s sort of like inviting in vampires and then complaining about the holes in your neck.

Another defendant is challenging the evidence cops acquired by browsing his Facebook page as “friends.” The Sixth Circuit Court of Appeals has some sympathy for the arguments raised. In this case, a citizen’s tip turned into low-key surveillance, which ultimately turned into federal gun charges. From the decision [PDF]:

After serving time in prison for a previous felony, [Malik] Farrad was released from federal custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when “[v]arious confidential informants and concerned citizens” evidently “reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.” Some time later, a Johnson City police officer named Thomas Garrison, using an undercover account, sent Farrad “a friend request on Facebook.” After Farrad “accept[ed] the friend request,” Garrison was able to see more of Farrad’s photos. “One [photo] in particular” “caught [his] interest”: a photo that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”

I don’t own a handgun so I’m not really up on proper display technique, but this practical demonstration of why the bathroom is the most dangerous room in the house soon found its way to the FBI, which immediately sought a warrant for the contents of Farrad’s Facebook account. This turned up some other photos of guns, along with limbs and distinguishing tattoos that seemed to constitute a Facebook approximation of a convicted felon in possession of handguns.

Oddly, no warrant was obtained to search Farrad’s residence. This meant the entirety of the prosecution rested on photos of guns pulled from Facebook. The Sixth Circuit opens its opinion by remarking of the unusualness of the case, which certainly isn’t going to seem all that unusual in the coming years.

No physical evidence was presented, no witness claimed to have seen Farrad with a gun, and Farrad himself never made any statements suggesting that he owned a gun; instead, the Government relied primarily on photographs obtained from what was evidently Farrad’s Facebook account. To help prove its case, however, the Government called two police officers: Officer Garrison, who testified that criminals are particularly likely to upload photos of criminal deeds soon after committing those deeds, and Officer Hinkle, who testified at length about the similarities between the photos and a real gun, as well as the dissimilarities between the photos and the closest fake gun of which he was aware.

Now, there were ways Farrad could have challenged the evidence on appeal. As his counsel noted during his trial, the photos — which the trial court found were “self-verifying business records” stored by Facebook — may not have been evidence of anything. First off, the photos may have been posted when Facebook said they were (October of 2013) but there’s no info available anywhere showing when the photos were actually taken. Both Facebook’s rep and the investigating officer admitted the only thing Facebook knows is when photos are uploaded. Existing metadata is stripped during the upload process, removing any evidence of where and when the photos were taken.

As the court notes, the prosecution’s decision to use only evidence gathered from Facebook raised a host of questions about the sufficiency of the evidence.

As the foregoing helps make clear, there are a few potential theories on which Farrad’s trial and appellate counsel could have challenged his indictment and conviction, respectively. First, could any rational juror have concluded beyond a reasonable doubt that the photos were taken on or about October 11? (Call this the “date” theory.) Second, could any rational juror have concluded beyond a reasonable doubt that the item in the photos was not a fake gun? (Call this the “replica” theory.) Third, could any rational juror have concluded beyond a reasonable doubt that the photos were not altered to suggest the appearance of a real gun? (Call this the “Photoshop” theory.) Fourth, could any rational juror have concluded that Farrad was in fact the person in the photos? (Call this the “lookalike” theory.)

Unfortunately for Farrad, his counsel never developed most of these arguments and actively abandoned the first one on appeal. Instead, his rep focused on the theory least likely to succeed: that the guns in the photo weren’t real guns. The court isn’t impressed by this theory or Farrad’s decision to pursue this one on appeal.

The legal problem is this: Farrad is not the first person in our circuit to argue that what appears in images to be a gun is really a sophisticated replica, though he may be the first to argue it in this particular context. If a defendant is convicted of armed robbery, however, and claims the gun that witnesses saw was merely a convincing fake, reasonable jurors may infer—at least when corroborated by images or the testimony of a witness with law-enforcement experience— that the gun was real.

The court acknowledges the comparison isn’t entirely fair. The guns weren’t used to serve as a threat in the commission of a violent crime. They were merely pictures on a Facebook profile. But they were particularly detailed photos which aided the prosecution in its quest to prove they were the real thing.

In any event, however, the replica theory falters on the facts, because this is not a case in which a jury was asked to draw a conclusion from a few grainy or ill-lit photos, or asked to guess at an object out of focus or in the distance. Rather, the jury in Farrad’s case saw seven different photos, all from different angles, some remarkably close-up and of seemingly high resolution. And it heard exceedingly meticulous testimony from Hinkle— pointing to, among other things, markings and serrations on the slide, a lever and ridges on the trigger guard, and the shape and position of the firing pin—that both (a) convincingly likened the item in the close-up photographs to a real Springfield XD .45, and (b) discredited the closest non-gun comparator that Hinkle could find.

That the guns were real doesn’t necessarily impute ownership. This was cobbled together from the array of info pulled from Facebook and this point mostly went unaddressed by the lower court and the appeals court. There may have been more to say on the subject but this question was addressed obliquely by Farrad and his lawyer, which leads to the court affirming the lower court’s decision.

This is unfortunate for Farrad since the Appeals Court says it does have a problem with the testimony offered by law enforcement on this particular point. The government’s expert on social media surveillance testified that he believed criminals were day-and-date when celebrating illegal acts on social media. He declared more often than not criminals upload photos, etc. to social media sites soon after acts have been committed or ill-gotten goods obtained. When pressed by the defense, he could not state specifically — or even generally — how often immediate posts happen compared to delayed posts of photos taken week, months, or years ago.

The Appeals Court says this supposed testimony — and the trial court’s overruling of the defense’s objections — was not a harmless error. Unfortunately, Farrad’s counsel abandoned the “date” theory during the trial, in essence making the error harmless by not challenging it prior to jury deliberations. This theory was (again) disavowed by Farrad’s lawyer in briefs to the Sixth Circuit, leaving it little choice but to uphold the conviction and sentence. It doesn’t like the outcome, but it can only work with what it’s given.

The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun— may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.

There are many troubling aspects to this case. With very little effort expended, law enforcement agencies are building cases involving nothing but social media posts. A possession charge used to mean someone being physically caught with the actual, physical contraband in their possession. Now, it’s apparently enough to just submit a bunch of Facebook posts as evidence and hope the defense fails to pick the right argument to pursue. What used to be supporting evidence is now the main event, and it all starts with risky clicks by social media users.

Filed Under: felony, friends, guns, social media, undercover police