We obtained a dismissal of all charges as a result of the State's failure to properly preserve the Facebook profile that was used to lure and arrest our client.
Our client was a respected Air Force veteran and former federal corrections officer. He was arrested by the Salt Lake City Police Department as a result of an internet sting operation where he agreed to meet a police officer pretending to be a 13-year-old girl. He had a very good local attorney but hired us in the later stages of the case when he felt that he needed a lawyer with more experience defending these sting operations.
Our client contacted the officer’s fake Facebook profile “Sarah” after she came up in his feed as a suggested friend. They communicated for over five weeks and he even had a video call with the “girl” prior to attempting to meet. From the beginning, our client was insistent that he did not truly believe the person he was communicating with was a minor.
During our investigation, we found several issues with the tactics that the undercover officer used during this operation. Most of these issues centered around the decision to use Facebook and the way in which the fake profile was used by the officer.
One issue with using Facebook for an internet sting operation is that this is not a social media platform typically used by children. Only about 4% of users are between the ages of 13-17. That was the first red flag.
The second issue is that this “Sarah” profile did not appear to be the profile of a true 13-year-old. The pictures were heavily filtered and there were several video posts where she clearly looked older. Additionally, anyone who saw the girl’s friends list would have been at least skeptical that she was really a minor.
The “Sarah” Facebook profile had over 2,900 friends and almost all of them were adults. That did not appear to be consistent with a profile of a 13-year-old. Also, these same adult friends were constantly liking and commenting on her posts. All of this would have been visible to anyone interacting with the profile. This is part of what contributed to our client’s belief that this was not a minor.
When we got involved in the case, we were given a screen recording of the “Sarah” profile that the State provided in discovery. It was immediately apparent that the recording was incomplete. The recording consisted merely of the officer scrolling through the Facebook posts on the profile. You could not see the friends or any of the likes and comments to her posts.
This was problematic because we wanted to be able to show that due to all of the “girl’s” adult friends and all of the likes and comments to her posts, this helped form our client’s belief that she too was an adult.
We then made a formal discovery request in which we requested a complete screen recording of the profile, with the entire friends list as well as all of the likes and comments to the posts. Months went by and the State failed to comply with our request. Eventually, the State claimed that it was unable to access the profile anymore because it was either locked or deleted by Facebook. As a result, the evidence that we were seeking was now lost forever.
We then filed a motion to dismiss the case due to the State’s failure to preserve the Facebook profile. We argued that due to the loss of this evidence, it will negatively impact our client’s ability to prove his defense at trial. He was now unable to fully present to the jury the complete Facebook profile that he observed while he was communicating with the officer.
In its stead, the State would present at trial an incomplete screen recording of the profile containing only the information that the State felt was relevant. This was unfair to our client as the State had been able to “create” the evidence that the jury would see as opposed to the jury being able to see all of the evidence.
We argued that dismissal of the case was the proper remedy because the State was directly responsible for not preserving the complete profile despite the fact that we were persistently requesting it. Plus, we informed the State on numerous occasions that this evidence was critical to our client’s defense.
The Court held a hearing on our motion and then issued an order granting the motion and dismissing the case against our client. In the motion, the judge wrote, “outright dismissal is an appropriate sanction in this case. The State’s behavior is egregious. If a litigant in a civil case was as casual about their discovery obligations as the State was here, it would almost certainly result in terminating sanctions.”
As a result, our client’s case was dismissed with prejudice and the arrest will be expunged from his record.
Categories | Internet Sting Cases,