Overview: After posting an evidence photo on the department’s Facebook page but not logging it as evidence in the case file -- thereby excluding critical evidence in a trial -- the Fresno Police Department* revised its policies by requiring all photos to be properly logged as evidence in a particular case. Using a personal cell phone, an arresting officer had taken photos of a hiding place for guns and ammunition in the door panel of the defendants’ car. The officer later testified that he had no photos, saying they were either “deleted” or used only for “media transparency” on the department’s online page. The incident has lead the department to change its social media policy for posting photos taken by police officers on its Facebook page.

Training Points: The increased use of smartphones and online profiles continues to raise unique issues and challenges for public safety agencies. Facebook and other online social media sites provide a platform to share police work with a worldwide audience but also require that departments closely monitor their social media policy. First, police officers should never have to decide which photos to delete or enter as evidence; any pictures involving police activity must be logged in with a case number and kept with that case file. Second, any case-related photos taken by police officers with their own smartphones should be included in the officer’s report as evidence produced during an investigation before being posted online. Finally, all law enforcement agencies should ensure that any posted pictures are entered in “report writer” or a similar database system before being sent to the district attorney.

Summary Analysis: In August 2012, Fresno police arrested three men in a car for carrying guns and ammunitions in the car. Their case was tried before a jury last month. Passengers Sue Vue and Lue Moua said they had no knowledge of a gun or ammunition in the car. When confronted with the Facebook photo showing a hidden compartment in the door panel, the officer said he did not recall taking the picture and that any photos were “deleted.” The jury found Vue and Moua not guilty. The jury came back hung on the driver, Gane Lee. Fresno County public defender Ken Taniguchi said that “all pictures should be in a court file where the rules of evidence apply.”

Follow-Up Contact: For questions regarding this case or its implications for your city and police department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, police attorney, or your BB&K attorney.

* NOTE: This bulletin was prepared with the consent of the Fresno Police Department.