How Your Social Media Posts Can Hurt Your Defense in Nevada

Posted on November 8, 2016

What you post on Facebook, Instagram, Twitter, or on any other social media can and will be used against you in a court of law.

Reviewing Social Media is Standard Operating Procedure for Law Enforcement

If you have been charged with a crime, or if police are conducting a pre-file investigation, they will scour the Internet for evidence they can use to get a conviction. Pictures, videos, status updates on social media can provide law enforcement with critical and often damning information, and they know it. A November 2014 report by LexisNexis found that eight out of every 10 law enforcement professionals (81%) actively use social media as a tool in investigations.

Who needs a stakeout or an army of detectives out in the streets when incriminating evidence can be found with just a few clicks?

Think about what you post on social media and the information that police can obtain just from looking at your posts or even those of your friends. They can learn:

• Where you were
• What you were doing
• Who you were with
• The identity of potential witnesses or accomplices
• Background information on you that they can use against you

Privacy Settings Are No Help

If you think you can post anything you want because your privacy settings will keep out investigators’ prying eyes, think again. Courts have ruled that social media posts are not private regardless of the poster’s privacy settings. In fact, police can create false identities and try to “friend” you or get one of your friends to cooperate with them and give them access to your posts.

For example, in one case (U.S. v. Meregildo, 883 F.Supp.2d 523 (S.D.N.Y. 2012)) prosecutors successfully obtained and used incriminating Facebook posts against a defendant after they had one of the defendant’s Facebook “friends” give them access to his wall.

The defendant claimed that the police violated his 4^th Amendment rights against unreasonable search, but the court disagreed and held that:

“[The Defendant’s] legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government.”

Even if law enforcement can’t get past your privacy settings through a cooperating ‘’friend,” they can and will subpoena or obtain search warrants necessary to get Facebook, YouTube, Twitter, and any other social media platform to provide them with the information they are seeking, regardless of your privacy settings.

Given that your social media posts can be powerful evidence against you in a criminal case, you should be extremely careful what you share on the Internet. Certainly, if you have committed a crime, you shouldn’t post pictures of yourself on Facebook boasting about it.  If you have questions about your social media use and your criminal case, please give one of our experienced Nevada criminal defense attorneys a call. (See our related article, When can I use other people’s photographs on my social media?)

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.