court sentenced Pride to 21 years in prison based upon six years for the robbery (double
the midterm of three years) plus 10 years for the gang enhancement and five years for the
serious felony prior. The court struck one of the prison prior allegations and stayed
punishment on the second prison prior because it arose from the same conduct that
resulted in the serious felony prior.
Pride contends his rights under the Fourth Amendment to the United States
Constitution and the Electronic Communications Privacy Act (ECPA) (§ 1546, et seq.)
were violated when a police detective viewed and saved a copy of a video Pride posted
on a social media account shortly after the robbery depicting Pride wearing a chain taken
in the robbery. Having reviewed the record in this case as well as the transcript of the in
camera proceeding, we conclude there was no violation of Pride's rights.
1 Further statutory references are to the Penal Code unless otherwise stated. 2 The jury acquitted Pride of the charge of being a felon in possession of ammunition (§ 3035, subd. (a)(1); count 2).
2
In supplemental briefing, however, the People concede the matter should be
remanded for the court to consider whether to exercise its newly conferred discretion to
strike the five-year serious felony enhancement pursuant to recently enacted amendments
to sections 667 and 1385. Accordingly, we remand the matter for the limited purpose of
allowing the trial court to consider whether to dismiss or strike the section 667,
subdivision (a) enhancement and, if so, to resentence Pride accordingly. In all other
respects, we affirm the judgment of conviction.
BACKGROUND
On the night of May 25, 2017, D.C. was robbed at the Imperial Avenue trolley
stop near Petco Park. D.C. said he was visiting San Diego and became lost on the trolley
system. He said he got off the trolley to take a taxi because he realized the trolley would
not take him to his hotel. D.C. was wearing red Jordan shoes, a hat, a gold chain, and
two watches.
D.C. spoke to some men who were looking for a party. D.C. invited them to his
hotel and told them he was looking for marijuana. He followed the men into a parking lot
where another group of men was standing. D.C. asked where he could get some
marijuana. Someone yelled, "This is West Coast" and then took D.C.'s shoes, hat, iPad,
money, watches, and chain.
After the assault, D.C. called 911 at 10:29 p.m. and reported he was robbed a few
minutes earlier. He said he was jumped by a group of five males who took his iPad,
shoes, money, and a credit card. He believed they were gang members.
3
The responding officer observed abrasions on D.C.'s left elbow and lacerations or
abrasions to his forehead. D.C. also had marks on the side of his face which appeared
consistent with someone kicking him. D.C. was not wearing shoes. He did not have a
hat, a watch, or a chain.
D.C. reported a male with a scar along his jawline was among the individuals
involved in the incident. D.C. identified Pride in court as the individual with the scar.
According to D.C., Pride said, "This is West Coast" or "West Coast Crips" and the group
jumped him. Pride took D.C.'s necklace. D.C. said the group also took his two gold
watches, red shoes, $2,700 in cash, and an iPad.
Video surveillance at 9:50 p.m. showed D.C. wearing red shoes and a baseball hat.
A few minutes later D.C. was seen talking with a group of males until approximately
10:05 p.m. when the group walked out of the camera view. Still photographs from the
video showed D.C. wearing a watch and holding a tablet that resembled an iPad, which
are consistent with D.C.'s description of items that were taken from him.
Approximately 20 minutes later, D.C. was seen walking into the surveillance
video again and approaching a transit officer. D.C. was no longer wearing the shoes or
watch and no longer had the tablet.
Based upon D.C.'s description of a person with a scar on his face who yelled,
"This is West Coast," a gang unit detective thought the suspect could be Pride. The
detective found a video Pride posted on a social media account shortly after the robbery
depicting Pride wearing a gold chain around his neck saying, "Check out the new chain,
dog."
4
The following day, D.C. looked at a photographic lineup. He thought two
photographs looked like the person who robbed him. He said his "gut" told him the
photograph of Pride was the person, but he could not see the scar in the photograph.
A detective showed D.C. a still photo taken from the video depicting only the
chain, it did not show Pride's face because the detective did not want to influence the
photographic lineup. D.C. confirmed it was his chain.
A few days later, officers executed a search warrant at Pride's residence where
several items associated with the robbery of D.C. were recovered. A debit card with
D.C.'s name on it was recovered on the top shelf of a closet in Pride's residence. The
jacket Pride was wearing in the video was also recovered. When Pride was arrested, he
was wearing D.C.'s gold chain.
DISCUSSION
I
Pride contends the court's admission of the video he posted on social media
violated his rights under the Fourth Amendment and the ECPA because the detective
obtained the video without a warrant by portraying himself as a friend to gain access to
Pride's social media account. "In reviewing a motion to suppress evidence, we defer to
the trial court's factual findings which are supported by substantial evidence and
independently decide whether the facts of the challenged search and seizure conform to
the constitutional standard of reasonableness. [Citation.] Where, as here, the facts are
undisputed, we independently review the decision, applying federal law, as well as state
law where it does not conflict with federal law, to evaluate the issues involved." (People
5
v. Henderson (1990) 220 Cal.App.3d 1632, 1642; People v. Sandee (2017) 15
Cal.App.5th 294, 300.)
A
We begin with a summary of the procedural history of the issue. In a trial brief,
the People sought to introduce a copy of the video Pride posted on social media. The
court stated the video would be allowed with proper foundation.
Before opening statements, defense counsel objected to the video contending Pride
had an expectation of privacy in the message because the social media platform he used
was intended for private messages, rather than messages open to the public. Counsel also
argued the expectation of privacy was heightened because messages on the social media
platform Pride used disappear after they have been viewed by intended recipients.
Defense counsel contended the detective's recovery of the message violated the ECPA
and sought to suppress the video under sections 1546.1 through 1546.4. The court
distinguished the video in this case from the situation in Carpenter v. United States
(2018) ___U.S.___ [138 S.Ct. 2206] (Carpenter) dealing with cell tower information
identifying the location of a phone, which the United States Supreme Court was
reviewing at the time of trial. The court also stated, based on the offers of proof, that the
video was not illegally obtained and there is "no expectation of privacy" when one puts
something out "into the ether."
In a hearing pursuant to Evidence Code section 1040, the gang detective testified
he was assigned to monitor the West Coast Crips gang for over three years. He obtained
evidence associated with Pride from a social media account. He asserted a privilege not
6
to disclose official information about the methods for obtaining the evidence because
disclosure would be against the public interest. After hearing evidence from the detective
in camera, the court determined there was a privilege related to some of the details of the
investigation regarding how the video was obtained. The court determined defense
counsel could inquire about whether the detective obtained access to the social media
message by using a false name on an account. However, defense counsel could not
inquire about the name on the account, any of the URL's or numbers associated with the
account, or any other friends associated with the account.
The detective clarified during a subsequent 402 hearing that the detective did not
log into or hack Pride's account to acquire the video. Rather, the detective logged in to an
account, which was an account accepted by Pride as a "friend."
The court ruled there was "no authority for the proposition that false friends are
not friends for purposes of—that there's a Fourth Amendment violation by representing
yourself as a friend when you're not really all that friendly."
Before the jury, the detective testified he monitors gang members' social media
activity almost daily. The detective identified Pride as one of the West Coast Crip gang
members he monitors on social media platforms. When the detective heard the
description of a Black male with a prominent scar on his jaw who said, "This is West
Coast," the detective thought it was Pride. He was the only West Coast Crip gang
member with a prominent scar on his jaw. The detective started checking Pride's social
media accounts. The detective found a video Pride posted of himself with a chain in the
early morning hours of May 26, 2017 on a social media account.
7
The video was played for the jury. It showed Pride wearing a chain resembling
the one taken from D.C. and Pride said, "Oh, check out the new chain dog. Ya feel me?
Ya feel me? All on this thang."
The detective agreed the social media platform Pride used sent messages only to
friends on his account. The detective also acknowledged Pride did not send the video to
the detective's account knowing he was a detective.
B
"The Fourth Amendment protects '[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.' The
'basic purpose of this Amendment,' …, 'is to safeguard the privacy and security of
individuals against arbitrary invasions by governmental officials.' " (Carpenter, supra,
___U.S. at p. ___ [138 S.Ct. at p. 2213].) "When an individual 'seeks to preserve
something as private,' and his expectation of privacy is 'one that society is prepared to
recognize as reasonable,' … official intrusion into that private sphere generally qualifies
as a search and requires a warrant supported by probable cause." (Id. at p. ___ [138 S.Ct.
at p. 2213].)
The Supreme Court of Delaware recently held there was no Fourth Amendment
violation when an undercover officer posed as a false friend and obtained incriminating
information from a social media page. "[T]he Fourth Amendment does not guard against
the risk that the person from whom one accepts a 'friend request' and to whom one
voluntary disclosed such information might turn out to be an undercover officer or a
'false friend.' One cannot reasonably believe that such 'false friends' will not disclose
8
incriminating statements or information to law enforcement—and acts under the risk that
one such person might actually be an undercover government agent. And thus, one does
not have a reasonable expectation of privacy in incriminating information shared with
them because that is not an expectation that the United States Supreme Court has said
that society is prepared to recognize as reasonable." (Everett v. State (Del. 2018) 186
A.3d 1224, 1236.)
Other states have similarly concluded there is no Fourth Amendment violation for
police officers accessing social media posts through a cooperating witness who is a
"friend" of the person disclosing the information. Where social media "privacy settings
allow viewership of postings by 'friends,' the Government may access them through a
cooperating witness who is a 'friend' without violating the Fourth Amendment." (U.S. v.
Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 526 citing United States v. Barone (2nd
Cir. 1990) 913 F.2d 46, 49 [no legitimate privacy expectation in telephone calls recorded
by the Government when at least one party on the call consents].) Although a defendant
may believe his social media profile or account "would not be shared with law
enforcement, he had no justifiable expectation that his 'friends' would keep his profile
private. [Citation.] And the wider his circle of 'friends,' the more likely [the defendant's]
posts would be viewed by someone he never expected to see them. [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. [Citation.] When [the defendant] posted to his [social
media] profile and then shared those posts with his 'friends,' he did so at his peril."
9
(Meregildo, at p. 526; see Palmieri v. United States (D.D.C. 2014) 72 F.Supp.3d 191, 210
[no reasonable expectation of privacy or Fourth Amendment violation when a social
media user shared information with "friends"].)
These cases are consistent with long-standing United States Supreme Court
precedent holding the Fourth Amendment affords no protection for voluntary
communications with individuals who are secret government informers or agents. The
Fourth Amendment does not protect " 'a wrongdoer's misplaced belief that a person to
whom he voluntarily confides his wrongdoing will not reveal it.' " (United States v.
White (1971) 401 U.S. 745, 749, citing Hoffa v. United States (1966) 385 U.S. 293, 302
[conversations with an unknown government informer do not implicate the Fourth
Amendment]; Lewis v. United States (1966) 385 U.S. 206, 210 [no violation of Fourth
Amendment for an undercover agent to enter a home at the invitation of the defendant to
purchase narcotics the defendant offered for sale].)
The California Supreme Court applied similar principles in holding a recorded
telephone call is admissible if one party consents to the recording. The court explained
that even if the consenting party acted at the direction of the state, the accused is not a
passive victim of government intrusion; "rather ... by taking a companion into his
confidence, [the accused has] in essence extended his zone of privacy to embrace the
companion as to any confidences so disclosed. There is simply no constitutional
principle that prohibits the recipient of a confidence from breaching the trust reposed in
him not to disclose it to others, including the police." (People v. Phillips (1985) 41
Cal.3d 29, 53.)
10
We conclude the same principles apply in this case. Pride voluntarily shared with
his social media "friends" a video of himself wearing the chain stolen from D.C. The fact
he chose a social media platform where posts disappear after a period of time did not
raise his expectation of privacy. Rather, in posting the video message, Pride assumed the
risk that the account for one of his "friends" could be an undercover profile for a police
detective or that any other "friend" could save and share the information with government
officials. As such, there is no Fourth Amendment violation.
C
Section 1546.1, subdivision (a) provides that, except as otherwise provided, a
government entity shall not "(1) Compel the production of or access to electronic
communication information from a service provider[; ¶] (2) Compel the production of or
access to electronic device information from any person or entity other than the
authorized possessor of the device[; or ¶] (3) Access electronic device information by
means of physical interaction or electronic communication with the electronic device."
However, section 1546.1, subdivision (a)(3) clarifies, "This section does not prohibit the
intended recipient of an electronic communication from voluntarily disclosing electronic
communication information concerning that communication to a government entity."
Additionally, section 1546.1, subdivision (c)(4) states a government entity may access
electronic device information by communicating with the device with "the specific
consent of the authorized possessor of the device."
The ECPA has no application in this case because the government did not seek to
compel access to Pride's electronic device or information on the device. Instead, Pride
11
voluntarily granted access to his social media account by "friends." One such "friend" to
whom he granted access was an undercover profile account for a police detective. Pride
voluntarily then posted a video of himself with incriminating evidence. There was no
violation of the ECPA and the court did not err in admitting the video.
II
Effective January 1, 2019, recent amendments to sections 667 and 1385 delete
language prohibiting a judge from striking a prior serious felony conviction for purposes
of eliminating a five-year sentence enhancement. Instead, the court now may exercise
discretion to strike a prior serious felony in the interest of justice. (§§ 667, 1385 as
amended by Stats. 2018, ch. 1013, § 2.) The People concede the new law applies to
Pride retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973 citing People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308 and In re Estrada (1965) 63 Cal.2d
740, 744–745.) At trial, the court and counsel discussed the fact the court could not stay
the five-year enhancement for the serious felony prior under the prior law. Accordingly,
we remand the matter for the trial court to consider whether to exercise its newly
conferred discretion to strike Pride's serious felony prior conviction for purposes of
sentence enhancement.
12
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to
consider whether to dismiss or strike the section 667, subdivision (a) enhancement. If the
court so exercises its discretion, it shall resentence Pride accordingly. In all other
respects, the judgment of conviction is affirmed.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
HALLER, J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant has no reasonable expectation of privacy in social media posts shared with 'friends,' even if the account is an undercover police profile, and thus no Fourth Amendment or ECPA violation occurred. The court also remanded the case for the trial court to exercise its newly granted discretion to strike a serious felony sentencing enhancement.
Issues
Did the police violate the Fourth Amendment or the Electronic Communications Privacy Act by accessing a defendant's social media video via an undercover 'friend' account?
Does the trial court have discretion to strike a five-year serious felony sentencing enhancement under recently amended Penal Code sections 667 and 1385?
Disposition. Affirmed and remanded for further proceedings.
Quotations verified verbatim against the opinion
“The ECPA has no application in this case because the government did not seek to compel access to Pride's electronic device or information on the device.”