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The Police Are Your New Facebook Friend

Colleen Cudney seems like a nice person. In March 2014 she had a few adult beverages the night before she was randomly ordered to undergo an alcohol test as part of her probation. So, she was naturally relieved when she passed the test. She thought nothing of passing along news of her good fortune to her buddies on Facebook, posting: "Buzz killer for me, I had to breatalyze this morning and I drank yesterday but I passed thank god lol my dumbass"

But someone who wasn't her buddy was following Colleen's timeline on Facebook. Her probation officer. Rats!

What is the significance of this? Well, ask yourself this question: If law enforcement used social media to trip up Colleen Cudney in a tiny probation violation case, imagine how frequently they use these type of postings in higher stakes investigations. Social media harvesting is the new 'go to' tool for law enforcement. They do it routinely.

Can Prosecutors Use My Social Networking/Media Site Against Me? Yes They Can.

Prosecutors Use of Social Media as Evidence

Prosecutors and law enforcement are using social media sites to build their cases against criminal defendants.

As the use of FACEBOOK, TWITTER, INSTAGRAM and other internet sites increases, the use of these communications by prosecutors increases as well. The general rule is, if you tweeted or posted it, the prosecutor can use it against you. Most of the time, no warrant is required for law enforcement to scour these social media sites for any information they can use to help prove wherever it is they want to try and prove.

But what if you only posted the communication to a selected list of "friends" using the "privacy settings" on the site? Is your communication protected from the prying tentacles of Police? The answer is yes, but the protection is very thin. If any one person on your "private" friends list decides to share your post, or communication with them with law enforcement, that communication is not private and most likely can be used against you in a criminal prosecution without a warrant.

A person's communication with others is constitutionally protected so long as they have an expectation of privacy and that expectation is one that society recognizes as reasonable. ( See . Courts have generally held that when communications are posted on bulletin boards, electronic or otherwise, privacy cannot reasonably be expected and that society would not reasonably expect that they would be private.

Social Media is a Billboard Outside the Courtroom Door

In practical terms anything you post on a social media site may as well be posted on the court room door. Also, your responses to the posts of others, on your list of 'friends,' are up for grabs. A communication tweeted or posted in a moment of emotion may be used against you in court, years later, long after the emotion that gave rise to the posting has faded away. Items posted as jokes or in fun may not seem that way when taken out of context by aggressive prosecutors out to convict. This is especially true in prosecutions for criminal threats (California Penal Code 422 PC) or participation in a criminal street gang. ( Penal Code 186.22(a) PC). Remember, even if the post is not used in court against you it can be used to investigate you and your associations.

Birds of a Feather Flock Together

Social media connects people, that it's purpose. Since the beginning of time, rightly or wrongly, people are judged by the company they keep. For example, if a person's Facebook page is peppered with photos of him or herself and 'friends' holding guns while flashing gang signs, you can be sure a prosecutor will try and use those postings to prove the elements of participation in a criminal street gang, or issuing criminal threats, no matter what innocent explanation there may be for the photos or writings.

If these photos or writings were in a drawer in a house, or other place one would expect them to remain private, law enforcement would have to get a search warrant to obtain them. But if the material is posted on Facebook or some other site, it is available for immediate use by police and prosecutors. They merely have to identify that it is your account, which is relatively easy though metadata. If you don't want what you post on social media posted on a billboard next to the freeway, don't post it online.

Let's Be Friends (friends are not who they used to be)

The term" friends" here is used loosely. People you never heard pop up on your homepage wanting to be "friends". Many times people add these interlopers to their social circle with little thought. Most of the time adding virtual strangers to the list of people you communicate with is harmless, unless some prosecutor is trying to build a case against you. Consider the following:

A pretty face appears on your homepage one day. He or she wants to "friend you". How nice you think, lucky me. You click the "accept invitation" tab with little thought. In a cyber second you may have connected to a police detective or informant only too happy to chat you up. Beware of new "friends" especially if you are facing a criminal investigation or trial.