Busted by a Facebook ‘friend’/undercover cop? Court: It’s legal!

It’s illegal for convicted felons to possess deadly weapons, including handguns.

Which means it isn’t a good idea for them to post photos onto Facebook that show off their Smith & Wessons, or accept friend requests without knowing the requester, given that undercover investigators are in the habit of friending suspects.

And no, a Delaware court has decided, a felon who got caught with incriminating evidence of the aforementioned Smith & Wesson has no expectation of Fourth Amendment protection against the “mistaken trust” he placed when accepting that friend request.

The convict in question is Terrance Everett. As of November 2015, he was on federal probation after being convicted of conspiracy to possess with intent to distribute more than 500 grams of cocaine.

His Facebook “friend” turned out to be Detective Bradley Landis of the New Castle County Police Department in Delaware. Landis had monitored Everett’s Facebook page a few times a week for at least two years, using a fake name and photos on his profile. According to the court decision, it’s unclear what information was available to Landis before he friended Everett, and what was available after the friending.

Either way, on 4 November 2015, Landis saw a photo on Everett’s page that had been posted at 5 am. It showed a nightstand with a number of things on top: a handgun, a Mercedes car key, a large amount of cash, a pay stub, two cell phones and a framed photograph of Everett wearing a black T-shirt and a red necklace.

Everett wasn’t in the photo, but it was captioned:

Just getting in for the night, how I sleep every night.

The court granted Landis a search warrant the next day. When it was executed that same day, police found a number of items that had been on the nightstand in the Facebook post, including a loaded 9mm Smith & Wesson handgun, the black T-shirt and the red necklace that Everett was wearing in the framed photo.

Everett was indicted by a Grand Jury the following December, on one count of possessing a firearm and one count of possessing ammunition as a felon.

The day after he found out that Landis had been monitoring his Facebook page, Everett moved for a mistrial, claiming that his privacy was violated by the three-year-long covert surveillance. His challenge was based on a key omission from Landis’s warrant affidavit: namely, the detective never informed the judge he had spent three years pretending to be Everett’s friend in order to gather probable cause for a search.

The lower court denied Everett’s motion in February 2017, finding that the omission didn’t affect the warrant’s validity. The state Supreme Court agreed. Motions went back and forth until June 2017, when the court sentenced Everett to 15 years in jail and six months of probation.

But beyond the omission part, the bigger question is this: do fake friends violate privacy?

Everett argued that Landis’s monitoring of his Facebook page was an unlawful, warrantless search and, thus, any incriminating evidence seized pursuant to that “search” should be tossed, given that it violated his Fourth Amendment protection against unreasonable search. As the photo was only viewable to his friends, he argued, he had a “legitimate expectation of privacy.”

We beg to differ, the court said. There’s no reasonable expectation that Facebook posts that Everett voluntarily shared with Detective Landis’s fake profile and other “friends” wouldn’t be disclosed. As the court noted in its decision, for all Everett knew, any of his Facebook friends could have a) been an undercover cop, or b) ratted him out:

Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.

This doesn’t compare to wiretapping, the court said. Landis didn’t intercept private communications; nor did he directly ask a service provider – as in, Facebook – to give him the post that led to the discovery of incriminating evidence. Basically, more or less, communications are public.

And if it turns out that communications are in fact with a “false friend,” well, that just comes with the territory when you’re interacting with humans:

If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement – or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”

The moral of the story: if you don’t want your incriminating guns or drugs or any other evidence to put you back behind bars, best to keep your tell-tale photos off Facebook, and any other social media for that matter.

Investigators know full well that crooks often don’t heed such advice, however. Everett is certainly not alone in his folly: a few years back, felon Malik First Born Allah Farrad posted a series of photos taken in his bathroom as he held, posed with, and displayed firearms, including a .45-caliber semiautomatic handgun.

Thus, Everett joins the ‘Those Who Post Facebook Photos That Lead Directly To 15 Years in Jail’ club.