Friday, December 19, 2008

MySpace as a Rat

In checking Westlaw for reported criminal cases involving social networking sites like MySpace and Facebook, I found something interesting.

It’s really quite amazing how often these sites – MySpace, anyway – are being used as what we might call incidental sources of criminal evidence. The best way to explain that, is to describe a few of the reported cases in which this has happened.

We’ll go in reverse chronological order, so let’s start with an opinion the U.S. District Court for the District of Minnesota issued on November 14: U.S. v. Martin, 2008 WL 5095986. It addressed motions to suppress filed by two defendants in what seems to be a prosecution for illegally possessing certain firearms.

One of the motions sought to suppress evidence seized from “Meal Ticket Foods” in St. Paul, Minnesota. The defendant who filed the motion argued that it was not based on probable cause to believe a weapon or weapons would be found at this location. In its opinion, the district court notes that the affidavit an ATF agent submitted in support of the issuance of the warrant provided the following information:
The ATF . . . believed that Black P-Stone gang members owned and operated the Meal Ticket Foods business. Officers had identified the owner of the business as Akbar Abdul-Ahad . . . and the co-owner as Vito Corleone Williams.

On April 10, 2008, pursuant to a wire tap . . . the police intercepted a telephone call between Vito Williams and Robert Herron in which Williams `swore’ that he had `a big-ass gun right here.’ On April 13, 2008, . . . the police intercepted another telephone call . . . between Vito Williams and Akbar Abdul-Ahad. Williams, who was at the Meal Ticket Foods store, told Akbar Abdul-Ahad he could not find the `heat.’ Based on prior training and experience, Agent Voth knew the term `heat’ referred to a firearm. Akbar Abdul-Ahad informed Williams that he had wrapped it in a towel and placed it in the bathroom. The police were actually able to view photographs of the bathroom on the website `MySpace,’ which also depicted other images and photographs of the Meal Ticket Foods store as well as images of the gang.
So photos Abdul-Ahad posted on MySpace provided part of the probable cause on which the warrant was based. The district court held that the information above coupled with over information was sufficient to establish probable cause for the issuance of the warrant, and so denied Mr. Abdul-Ahad’s motion to suppress. U.S. v. Martin, supra.

In State v. Soza, 2008 WL 4455613 (Arizona Court of Appeals 2008), a witness known as Matthew C. identified Soza as the man who shot Lee L. in the parking lot of a Tucson night club after being shown “a photograph of him on a `MySpace’ internet web account.” State v. Soza, supra. In People v. Sanchez, 2008 WL 4381648 (California Court of Appeals 2008), an officer investigating Sanchez for a gang-related battery used MySpace to find “photographs of Sanchez” and two others “making gang hand signals.” People v. Sanchez, supra. That seems to have been used to tie him to the gang and, inferentially, to the man who had been battered for testifying against a gang member in another trial.

In People v. Ibarra, 2008 WL 4329899 (California Court of Appeals 2008), Ibarra was charged with attempted murder and assault with a firearm based on his participation in an incident in which a member of a rival gang was shot. People v. Ibarra, supra. As part of proving that Ibarra was involved with a gang, at his trial the prosecutor “played a DVD made from viewing [his] MySpace page in which [he] raps about his gang associations” and a gang rivalry that was also relevant to the charges. People v. Ibarra, supra.

In State v. Felts, 2008 WL 2521663 (Tennessee Court of Criminal Appeals 2008), Felts was convicted of aggravated kidnapping based on his abducting the victim while “armed with an `SK’ assault rifle.” State v. Felts, supra. A woman who witnessed the abduction “helped Detective Rickie Morris locate the defendant's `MySpace’ internet page, which contained a picture of the defendant holding an SKS assault rifle.” State v. Felts, supra. She also said the “rifle appeared to be the same one used during the offenses.”

In U.S. v. Ebersole, 263 Fed. Appx. 251 (U.S. Court of Appeals for the Third Circuit 2008), the defendant’s MySpace page was admitted to put an email he sent in context. The issue was whether the email constituted a threat; the prosecution used comments on his MySpace page support the proposition that “any reasonable person” would have interpreted his email as a threat. U.S. v. Ebersole, supra.

There are a few more, but I assume you get the idea. There are a number of other cases in which MySpace or Facebook are more centrally involved in the prosecution, as when the sites are used to try to lure a minor into having sex or play a role in a sexual assault on an adult.

Those cases, though, aren’t relevant to the issue I find interesting: the fact that people are putting all kinds of incriminating evidence on MySpace (and, probably, Facebook) pages without ever considering that it can come back to bite them. Law enforcement officers must love this. I wonder how long they’ve been aware of this option?

Most of the cases I find in which MySpace or Facebook coincidentally provide evidence that can be used in an investigation and/or trial seem to have been decide in 2008 . . . which, of course, doesn’t mean the cases themselves arose in 2008. Factoring in the usual times taken to get a case to and through trial (most of these are appellate court cases) and then to appeal, it looks like they’ve been using social networking sites for, say, a couple of years.

I’d assume that use will only become more prevalent, at least unless and until people began to realize the consequences of putting all that personal information out there for the bad and good guys to find.

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