TheAgitator.com
Big Friender
Tuesday, November 24th, 2009For your “shouldn’t the police have something better to do?” files:
University of Wisconsin-La Crosse student Adam Bauer has nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.
He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.
The police report said Bauer admitted drinking, which he denies. But he did plead no contest in municipal court Wednesday and will pay a $227 fine.
He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites.
Thanks to Thom Roethke for the link.
Your honor, I will acknowledge that this photo shows me holding a beverage which has a visual appearance similar to beer, but that is not a crime. Can the prosecution offer any evidence that the beverage in the photo actually is beer?
Gabriel: He may have posted a comment about the beer as well (not saying he did.)
It’s still a douche move. Someone should check up on that cop’s high school buddies and pass some info along to the internal affairs department.
Gabriel,
That might work in a real court of justice where “beyond a resonable doubt” means something. Not in our USA kangaroo courts while only gaining convictions matters.
“She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.”
Yeah, “some reason.”
Poor college kids should learn about O’Doul’s — not to drink it, mind you, just that it exists.
“She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason“
It’s like some people cannot even hear the words coming out of their own mouths.
durrr…
I put pictures of myself doing something illegal on the internet under my real name with all my personal information.
I then allowed people I didn’t know to see that information.
I was then surprised that someone used that information against me.
Frankly, I don’t see this as a waste of their time as long as they were actually being funded specifically to combat under-age drinking.
Just curious and maybe a lawyer can answer this, but if they don’t have a picture of you actually drinking the alcohol how can they actually catch you? Seems to me that as long as you don’t have that picture you could argue, “Yes, I held the beer up as a joke, but I didn’t drink it. After all that would be illegal.”
Yep, another possible defense. So long as it isn’t a bottle of beer you are drinking from, seems like a win as well.
No kidding we might find that alot of them are actually rapists.
It seems to me that the kid is kind of a bonehead. It also seems to me that La Crosse, Wisconsin must have a crime rate of practically zero.
Either that, or they’ve realized they can make a quick, easy buck by running simple stings on boneheaded college kids.
While I oppose the alcohol laws as currently constituted (I think people should be able to drink beer and wine, under parental supervision, starting around age 12), I can’t get too worked up about this.
For starters, one of the best ways to encourage change is to enforce the laws strictly (and not just opportunistically against the poor, the minorities, and people who pissed off the cops). And I don’t think the actual lawbreaking is in question, here.
The fake friend invite is a little cheesy, but if you have four hundred friends and accept invites from people you don’t know, then your Facebook page is a public space. Now if the cops had dredged up this info via some dragnet subpoena, or gotten it via illegal warrantless cybersnooping, that would be a big deal.
What about all the boomers who’ve written about having done weed and more in the 60’s? Or if someone posts a message saying he did an illegal U-turn or drove 56 in a 55-mile zone? Or claims to be the one who really shot Kennedy?
Would some informed person here please explain whether all these talkative persons are, without further ado, subject to prosecution, let alone conviction? What about the rules of evidence, let alone screening out false confessions?
@Steve Verdon: In most states it is illegal for someone under the age of 21 to possess an alcoholic beverage and the charge is for possession, not for drinking, so he might have gotten out of the drinking charge, but a possession charge would not be far behind. In fact, the only state law I can find regarding drinking relates to consuming alcohol on the premises of a licensed seller of alcohol; the other provisions refer to mere possession, so the article may be imprecise. See Wisc. Stat. § 125.07(4).
That said, just on the facts presented, the police are just taking advantage of ignorance. I don’t think you could get a conviction based on just pictures, since no one can attest to the provenance of the pictures.
@ktc2: as soon as you have an operable definition of “beyond a reasonable doubt” that would exclude actual pictures of the person in question committing the crime charged, I’ll take your comment seriously. Beyond a reasonable doubt does not mean that there is no other conceivable explanation. Let’s all be clear here: this kid was drinking beer.
The two issues raised are whether this is a good use of scarce police resources (no) and whether his drinking beer should be illegal at all (no).
Now, as it turns out I don’t think these photos are admissible evidence, but just because I can come up with a bullshit story of how I wasn’t drinking in that picture, doesn’t mean that jurors couldn’t draw the contrary inference.
Whether the kid is foolish for posting illegal activity online, there’s something profoundly sad about always needing to wonder whether person is a cop hoping to find something to arrest you for.
Actually, even if there was a picture of them drinking it, it wouldn’t rise to the level needed to convict. Was that actually beer he was drinking? Was there anything in the bottle? Was the photo altered? Was there beer in the bottle? Can the police department even cite the day of the crime, beyond a reasonable doubt? Sure, the picture may have said that it was taken on Friday, but are they sure about that? Do they have the raw data image?
Answer: No. Jesus, any first year crim law student could defend this case successfully. Yes, a picture means that they were more likely than not drinking, but beyond a reasonable doubt? Hell, say that it’s possible that you filled an empty bottle with water, and you’re done. I’ m surprised that the DA even bothered to charge.
I mean, god, they declined to press charges against Phelps in a very similar case, and he admitted and apologized a few days after the picture was leaked.
I would have taken it to trial.
I’ve got a picture on Facebook of me humping a statue of Napoleon. I make sure I never accept any French friend requests.
The La Crosse, Wisconsin police post their annual reports on their website. Here’s the 2008 report:
http://www.cityoflacrosse.org/DocumentView.aspx?DID=2631
Clearance rates on page 28 — below 50% for part one crimes.
That should have been my attitude, ya big brute!
In France, the statutes of Napoleon hump you.
Well, that explains it.
The fact that the kid was overly trusting – dumb, if you prefer – does not justify the police being douches.
John,
Thanks, so technically if I were careless and handed my 11 year old son a bag with a bottle of vodka to take into the house and a cop saw it that would be a violation? Again just curious.
What about the contents of the glass/cup/etc. or is that part of your provenance of the pictures?
I shot JFK.
I’m pretty sure that they got the kid to admit he was drinking.
Lesson: do not accept any “invitations” to the police station. And if they insist, bring a lawyer.
@ Steve Verdon: probably not, actually. There is a carve-out for an underage person in the presence of his majority-aged parents or spouse.
My assumption from reading the story is that the pictures were of college kids drinking from beer bottles or cans, not cups or glasses (it doesn’t sound like the sort of large-scale party where there was a keg, not that I have any personal experience with any of this, you understand).
A picture of him drinking from a red cup without any indication of what he was drinking would not be enough, taken alone, to carry the burden of persuasion, in my eyes. A picture of him drinking from a Bud Light can (who am I kidding, he’s in college, it was a Natural Light can), on the other hand, would be more damning as evidence.
As to provenance, what I mean is the person who took it is not there to say when he took it and where he took it. Where he took it is more important. It is not enough that you break the law, you have to be brought before the right court. If he were drinking in a different county, then that particular county (or city) where the charges were brought might not have jurisdiction to prosecute him. Without someone to testify as to the photo’s authenticity, I don’t think it could get admitted.
Here’s how he gets convicted: he “admitted” drinking beer to the officer. The pictures no longer matter. The statements you make to police are always used against you, which is why you say NOTHING!!!! I can’t tell you how many clients I have had where the state would have had a hard time proving the case if my client hadn’t opened his/her mouth.
Here, the kid denies admitting. He may have. But he probably made a bunch of other statements, so the cop felt comfortable lying about the admission. Which is back to my first point: say NOTHING. If you make no statements, it is awful hard for a cop to flesh out a report that says you admitted.
And by the way, all the pictures of me drinking underage on my facebook page are well over 1.5 years old, so past the statute of limitations in Nebraska.
#8 This is how college towns get revenue. What, did you think colleges actually pay taxes?
The kid’s mistake was NOT in posting the picture on facebook, but rather in talking to the police about it. The cops apparently contacted him via email and asked him to come to the police station to “talk about” the pictures. When he did just that they used their friendly little “talk” to get him to incriminate himself, and charged him.
The photo alone was not enough to incriminate him for all the reasons that have been stated here. They needed additional evidence and the “talk” at the police station filled that roll. The kid now says he never confessed, but it’s his word versus the cop (and we all know how that always turns out in court) and, most likely, the cop was able to weasel some sort of indirect confession out of him whether he realized it or not. They are trained to do that.
I cannot stress it enough. NEVER NEVER NEVER NEVER NEVER talk to the police.
If they “invite” you to come “talk about” something the answer should always be “no thanks.” If they want to talk to you that badly, make them go get a warrant and even then do not utter a single word unless you have an attorney present.
Any statement you make to the police that is exculpatory is hearsay and not admissible; any statement you make to the police that is inculpatory is not hearsay and is admissible against you. See FRE 801 (many states follow very similar rules to the FRE and Wisconsin is one).
If the kid made any statements, then they probably could have gotten a conviction based on the statements alone, if they tended to incriminate him at all (like: yeah, that’s my house).
The moral of the story is never talk to the police.
If the police paid someone min. wage to do this trolling, it might be one of the most cost effective policing strategies ever. Posting public pictures of law-breaking signals to others that the behavior is acceptable and easy to get away with. Is that a good thing? What if the photos found are of vandalism or DUI? It makes sense to have a “web beat” provided it’s done fairly.
Not that I think the underage drinking laws are any good or would voluntary talk to the police myself. Just saying, I think it’s perfectly consistent for civil libertarians to support crime control techniques, esp. ones that work w/o violence, intimidation, entrapment, etc.
In this case my understanding is that the student posted the picture to his own facebook account. What if someone else had taken the picture without his knowledge and posted it to their facebook account?
The potential is there for anyone to be charged with crimes based on pictures online that they have no control over.
Imagine this, I’m 40 years old, I have a barbecue for the neighbors. I put a cooler on the patio filled with beer. Some adult leaves their beer sitting on a table open and a kid takes a sip without my knowledge. Someone takes a picture. Next thing I am being arrested for providing alcohol to a minor.
#13
While I admire your zeal in trying to defend those guilty of offenses which should not be crimes, you really don’t understand the standard of “beyond a reasonable doubt” – which, I freely concede, is a standard that has perplexed juries, lawyers, judges, and legal philosophers for a hundred years. If I see someone taking a swig from a Corona bottle filled with yellowish liquid, I can easily be convinced that they actually drank Corona beyond a reasonable doubt, without performing any testing on the substance in the bottle at all. The common sense inference in everyday life is that if you see a person drinking from a beer bottle, they’re drinking beer. Now, it’s easy enough to concoct a scenario where this is actually not the circumstance, but the question is, in every case, how likely is it that a common sense inference is incorrect. If he argued in court that in fact he had surreptitiously emptied out the Corona bottle and filled it with an identical-looking apple juice, all a fact-finder would have to do is reject his testimony as an unlikely, desperate fabrication, and you still have guilt “beyond a reasonable doubt.” Juries, and judges acting as fact-finders, can simply choose to believe that someone is not telling the truth, and discount their testimony, and they are likely to do so when their testimony fails to conform with how things usually work.
Way to go, law enforcement! Lets enforce stupid laws against college students by friending them on facebook. When the college students become influential members of society, will have nothing but utter contempt for the cops.
It is almost impossible to be convicted of any crime based solely on the contents of a online digital image without other corroborating evidence.
How many different ways could this have gotten tossed out?
Is there any proof it was beer?
If there any proof it was alcoholic beer?
Is there any proof he actually consumed the beer?
Is there any proof he consumed the beer in that jurisdiction?
Is there any proof that he consumed the beer within the statues of limitations?
Is the image real? Has it been altered in any way? Who took it? Can they authenticate it?
Talking to the police without any representation is crazy. The moment you talk to them, anything you say, or anything they claim you say can be used against you. If it is your word against theirs, you will lose.
Until they actually charge you, don’t cooperate… period.
Did they ask you to come in to answer a few questions? Just Say No.
They ask for you to clear up a few things? Just Say No.
They want you to come in without telling you why? Just Say No
Wrong. It makes no difference whether you say something or say nothing, as a cop can make up anything they want, knowing that their “word” has more weight than their victim.
“Posting public pictures of law-breaking signals to others that the behavior is acceptable and easy to get away with.”
Far, far too many people can’t tell the difference between a genuine crime involving wronging another — causing demonstrable damage to an identifiable victim — and an act that’s labeled illegal but isn’t wrong.
I doubt the picture alone could have convicted him. How could the prosecutor have got the picture into evidence? It’s hearsay and not self-authenticating and the kid can’t be forced to testify. Absent the testimony of the photographer or at least someone else who was also present and can authenticate the photograph I don’t see how it’s admissible.
@Cornellian: How is a picture hearsay? It’s not a statement at all. The problem of authentication is a real one, but that’s not a hearsay problem. Photographs aren’t even dealt with under Article VIII of the FRE, they are under part X. See, e.g. FRE 1001(2) & (3).
It would be interesting to know whether any court has dealt with the authentication issue in the context of Facebook. Were I attempting to get a picture like that introduced, I would look at the data Facebook gives about it, such as date of upload and any meta-data (names, locations, times). If it is the defendant’s account, and he has dominion and control over the account, then those are statements by a party opponent, which are not hearsay under FRE 801, and he would have to either testify to rebut my evidence (and thereby waive his Fifth Amendment right) or just let my interpretation stand. I don’t know whether I would win, but it’s not just a fast and loose argument and it could well be a persuasive one.
It is too bad that he didn’t hire a lawyer to fight this.
As for the police, they could use a round of furloughs and lay-offs. Clearly they have too much time and money – unacceptable in a depression.
Well it’s postings like this that I use as little learnings for my children. Just sent this to my oldest with a note that he might want to beware of any “friends” and pass the word around. Enough people get the message and this little trick may not work long.
#37
While the picture would be subject to some pretty minimal authentication, a picture is not hearsay.
“I would have taken it to trial.”
And the D.A., if (s)he were feeling dickish, would probably throw in five to ten more charges just to see what would stick and get you sentenced to a lot more than a 200 dollar fine to punish you for exercising your constitutional right.
And seriously kids, don’t post this crap online. Even if the cops don’t see it, a prospective employer might. It’s just wise behavior.
#33 Too late, we already have contempt for the police and with good reason.
#42 Which is why we need to eliminate the immunity privilege for DAs.
Sickening. To ‘protect’ kids, police give them arrest records and prosecutors and judges give them convictions. And in some cases, while they’re busy ‘protecting’ them, the objects of their concern are killed by those who so loudly proclaim they’re doing it ‘all for the cheel-drin’.
The late social critic Philip Wylie warned us long ago about allowing for creeping infantilization of society, courtesy of ‘Momism’, and the effects that it would have on this society seem to have been borne out, as we have the Gub’mint trying to ‘protect us’ from ourselves, i.e. the DrugWar.
If more so-called parents were to sit their kids down and tell ‘em the facts of life as my Marine Da did for us kids, telling us that if we were going to experiment with alcohol and tobacco, do it at home and not bring shame to the family, there’d be less of this fascistic crap where police pull this kind of stunt.
People! We are talking alcohol here. You all know that when it comes to an alcohol related offense, your rights get tossed out the window. The kid was a moron for posting the picture in the first place. Facebook is a public website, posting a picture there is the same as putting it on a billboard. Personally I am 100% against the 21 drinking age, but until enough people apply enough pressure to their State Congresscritters, I’m afraid we are stuck with it.
These are just Gestapo tactics. If he doesn’t confess, they don’t have anything. No prosecutor would bring this to trial for a $227 fine. The math doesn’t add up, and they know can’t prove up their case (based on the rules of evidence). The 5th amendment exists for a reason people, use it!
It’s amazing how accurate Godwin’s law really is. Yes, asking students to come to the police station to answer questions about pictures of said students drinking under age is exactly like the Gestapo. It’s eerily similar, in fact.
It’s a fishing expedition, you cast out a few lines and see if you get any bites.
It costs almost nothing for the cops, yet how many kids paid the $227 fine because they were nervous, scared, confused, etc…?
NEVER talk to the cops, even if they say you’re not being charged, they could certainly charge you based on what you say.
These are just Gestapo tactics. If he doesn’t confess, they don’t have anything. No prosecutor would bring this to trial for a $227 fine. The math doesn’t add up, and they know can’t prove up their case (based on the rules of evidence). The 5th amendment exists for a reason people, use it!
I agree with this post, above. Why did he confess?
“I cannot stress it enough. NEVER NEVER NEVER NEVER NEVER talk to the police.”
Well, technically saying “I have nothing to say” is talking to them.
If you’ve ever been grilled by govt goons you know FEAR is a big
tactic. Sitting there silent is not realistic . Listen to Steve Bierfeldt’s TSA encounter to get a feel for how to play it right, IMHO.
More economic “injustice”. The fine is less than $300 and (at this moment) there are no serious collateral consequences to a misdemeanor conviction of underage drinking.
But what, however, will he do in 5 years when Senator Lautenberg gets a brain-dead US Senate to pass a lifetime ban on owning a car for those with such a prior conviction. It won’t be an ex post facto law in the eyes of the federal courts but he’s screwed.
He should have paid a lawyer $500 and beaten the charge.
But, of course, he forgot the FIRST LAW OF CIVILIZATION. Never talk to the police. YOU HAVE A CONSTITUTIONAL RIGHT TO REMAIN SILENT AND TO REFUSE TO CONSENT TO ANY SEARCHES. Always do so until you can speak to a lawyer. There is NO upside to talking or consenting. Be glad you don’t live in the United Kingdom (remember now why we fought the war of 1775?) or Canada.
Once again, children, “I have nothing to say until I speak to MY lawyer and I do not consent to any search of my person or my property.” Now, “Am I free to leave?” If so, GO. You have absolutely no obligation to cooperate with the police. They are NOT your friend.
As prior posters have made crystal clear, the state had NO evidence whatsoever until the young man opened HIS MOUTH and gave it to them.
Yizmo said: “If you’ve ever been grilled by govt goons you know FEAR is a big tactic. Sitting there silent is not realistic.”
So, …
(1) Never go the police station when called. If they haven’t already arrested you, it’s because they have nothing. Don’t give them the evidence they don’t have.
(2) Have your lawyer call them and ask why they want to speak to you. And then have him tell them you’ll only appear with him or her at your side and you’ll say nothing.
(3) They’ll quickly lose interest in you. There are easier ways to build their arrest stats.