Facebook Fought The Law And The Law Won: Court Rules In Favor Of The Government When It Comes To Search Warrants For Your Private Facebook Account

Facebook…where millions of users are connected on a daily basis and millions of criminal masterminds post status updates to brag about their crimes.  Here is an example, “LOL! Just robbed a store!  Clerk didn’t know what to do! #yolo #thug #aintscared #comeandgetme #hardcore” posted by a criminal mastermind with an accompanying picture of the criminal mastermind holding the gun used in the robbery in one hand and the cash in the other hand.  Maybe this criminal mastermind ain’t scared, as his hashtag suggests, because his Facebook account is set to private and only his friends can see this post.  Well Mr. Criminal Mastermind, your days of posting your crimes are done.

In In Re 381 Search Warrants Directed to Facebook Inc., Facebook attempted to challenge search warrants they believed to be illegal.  The warrants in question ordered Facebook to turn over all information with regards to the accounts of 381 people, including private photos and conversations.  The 381 people were alleged to be committing disability fraud.  Believing they had probable cause to show disability fraud, the Manhattan District Attorney wanted to obtain this information to show that the specified individuals were actually living active lives while claiming to that they were so disabled and depressed they could not leave their homes.

To challenge the search warrants for their user’s private information, Facebook made a very creative argument.  Facebook moved the court to treat criminal search warrants served upon social media sites the same as civil subpoenas for records.  To help clarify the argument, take a look at the illustration below.

Police officers walk up to a house with a criminal search warrant in hand and knock on the front door.  Owner of the house answers and is handed the search warrant.   The police officers then instruct the homeowner to move out of the way so they can search the house.   The police officers go into the house and find 100 lbs. of cocaine.  I am sure it is for personal use only and not for trafficking.  In any event, believing this to be an illegal search of his house, the homeowner decides to challenge it in court.  There are two import aspects to this challenge, one it must be brought by the defendant and the challenge must be done after the state collects the evidence.  In other words, the search must happen first then the defendant can challenge it in court before trial.

Looking at that illustration, Facebook claims the search of their users’ private information is different from a physical search of a home because they must perform the search to gather and release the information.  Under this scenario, Facebook argued that this is similar to a civil subpoena for a user’s personal records which they may challenge it in court on their users’ behalf prior to giving up the records.

The appellate court did not find Facebook’s argument persuasive.   The court held that Facebook did not have legal standing to challenge a search warrant on behalf of their customers and that there is no constitutional or statutory right to challenge an allegedly defective search warrant before it has been executed.

Well that puts a huge damper on a lot of criminal masterminds across the Facebook community!  How are they supposed to brag about their crimes now?  Write an article to the newspaper about their crimes and hope it gets published?  You can’t even “like” a news article nor get the enjoyment that you are popular based on your post’s “like” count!  Way to ruin a great thing New York Appellate Court.  To protest this decision, I plan on inviting the whole appellate court panel to play Farmville on the hour every hour.

The Ohio Constitution Flexes Its Muscles Against An Officer’s Statutory “Authoritah” During An Extraterritorial Arrest

In State v. Brown, the Ohio Supreme Court took a look at an extraterritorial arrest made on a major highway by a township police officer.  The main question presented to the Court was did the township police officer even have the authority to stop and arrest Brown?  When reading the decision in Brown, the only thing that I kept thinking about was Cartman from South Park pretending to be a cop.  He would pull people over on his tricycle and try to issue them traffic tickets.  The adult driver would usually say, “you are just a kid.”  This would lead Cartman to reply with, “hey…I am a cop and you will respect my AUTHORITAH!”  Unfortunately for the cop in this case, the Ohio Supreme Court did not recognize or respect her authority when it came to arresting Brown.

For all intents and purposes, this case is a typical traffic stop that eventually led to a drug arrest.  Officer Clark of the Lake Township Police Department, observed Brown momentarily cross over the solid white fog line for a distance of approximately 100 feet.  After observing this minor traffic violation, Officer Clark pulled up alongside of Brown’s vehicle.  When alongside Brown’s vehicle, Officer Clark observed that Brown kept staring directly ahead and did not look over at her.  Obviously since Brown did not give Officer Clark the time of day by looking at her, he must have been up to no good.  After the no look by Brown, Officer Clark stopped Brown for the marked lanes violation.  During her traffic stop, Officer Clark walked her drug dog around Brown’s vehicle for a drug search.  Which makes sense; because a minor traffic violation along with not looking at a cop means that you have drugs in your car.  I mean, how did Brown not know that?  In any event, Officer Clark discovered 120 oxycodone tablets and a baggie of marijuana.  Most likely for personal use, not drug dealing.

I have to wonder, had Brown just given Officer Clark a smile and a wave, would she just kept on going?  Brown not looking at her seemed to be a big clue to her that criminal activity is afoot.  I am willing to bet not….just a thought.

This case eventually makes it way up to the Ohio Supreme Court and the Court gives a pretty good summarization of the history of both common law and codified law as it relates to extraterritorial arrests.   The Court eventually looks at R.C. 4513.39(B) which grants authority to certain township police officers to enforce traffic laws on state highways.  Remember, Officer Clark is a police officer for Lake Township and the incident happened on Interstate 280.

R.C. 4513.39(B) precludes township police officers who are not commissioned peace officers from enforcing these traffic laws (marked lane violation included) on any state highway, and commissioned peace officers serving a township with a population of fifty thousand or less may not enforce these traffic laws on state highways included in the interstate highway system.

With that statute in mind, the Court states that “an arrest made in violation of a statute limiting the police officer’s authority to make the arrest infringes on the right of the people to be secure in their person, house, papers, and possessions, against unreasonable searches and seizures as guaranteed by Article I, Section 14 of the Ohio Constitution.”

Now this logic went against what the State wanted to see happen.  The State contended that prohibitions against unreasonable searches and seizures set forth in the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio Constitution are nearly identical and should be read in harmony.  Specifically, the State argued that a search or seizure outside an officer’s territorial jurisdiction does not violate the Fourth Amendment, provided that the officer has probable cause.  Thus, Article I, Section 14 of the Ohio Constitution affords no greater protection.

Not buying the State’s argument, the Court stated in response, “the Ohio Constitution is a document of independent force” and “it is our charge to determine and not to disturb the clear protections provided by the drafters of our Constitution.”

The Court then brings the hammer down with, “Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment against searches and seizures conducted by members of law enforcement who lack authority to make an arrest.”  The Court goes on to state that, “a traffic stop for a minor misdemeanor offense made by a township police officer without statutory authority to do so violates Article I, Section 14 of the Ohio Constitution.”

So take that Township Police Officers!  Maybe if you were a commissioned peace officer or if your township had a population greater than fifty thousand the General Assembly would let you play on the highways with the rest of the Troopers and Sheriff Deputies!  But until then…you are stuck on those lonely country roads.