News Column

Social Media Teaches Fresno Police an Evidence Lesson

Feb 5, 2013

Marc Benjamin

Facebook offers Fresno police an opportunity to show the world what they're doing every day, but it also exposed a gap in the department's policy when it comes to using social media.

For the trial last month of three men charged with having guns and ammunition in the car they were riding in, defense lawyers asked for photos taken by police when the arrests were made. Officers said they had none.

Turns out, they did. Snapshots including one showing a hiding place in a door panel for a gun and ammunition were posted on the Fresno Police Department Facebook page soon after the August arrest.

An officer who testified in the trial -- flanked by a member of the city attorney's office -- said the photo was taken with a personal cellphone, not a work phone, and was later deleted.

The officer said he didn't take photos for evidence, but for the Police Department's public Facebook page. He described it as an effort at media transparency and disclosure of public information.

Ken Taniguchi, Fresno County's public defender whose office had a client in the case, described it as something else: Trying people in the court of public opinion.

"They were not giving us things that were available on their Facebook," Taniguchi said. "They said they didn't have photographs but posted photographs on their Facebook page."

All pictures, he said, should be in a court file where rules of evidence apply.

"Of course, the public defender is going to say this, that's what they do," said Chief Jerry Dyer, "send up smoke screens to get their clients off."

Still, the case has triggered a change in police procedures. Now, everything that is produced during an investigation -- including those Facebook snapshots -- will be in the officer's report, Dyer said.

"We are not going to make that judgment" about what should be entered as evidence, the chief said. "We will let the district attorney and public defender make that determination."

In the case that brought a focus to the issue, Dyer said his officer didn't think the photos had value as evidence: "The officer made an honest mistake and did not violate any policy."

Dyer said officers are diligent about using Facebook for the public to learn about arrests and police programs. He said he hopes the new policy doesn't deter officers from using Facebook in the future.

The police Facebook page, started in March 2010, has nearly 10,000 "likes" and two primary purposes: promote police work and share details about selected cases.

Now, the Police Department is examining all photos on Facebook to ensure that the pictures are in the department's "report writer" system before going to the district attorney, Dyer said.

Kelly Keenan, Fresno County's chief deputy district attorney, said that should've been happening all along.

"I think every law enforcement agency in the county understands that if you take pictures you need to log those in as evidence in the case," Keenan said. "Those pictures need to have a case number on them and be maintained with that case file."

Two of the defendants in last month's case -- Sue Vue, 28, and Lue Moua, 26 -- were found not guilty. Arezou Bakhtjou, Vue's public defender, said it was because they had no prior knowledge that ammunition was in the car.

The jury came back hung on the third defendant, Gane Lee, the car's driver, who could still face firearms, ammunition and drug charges related to the case.

Alex Martin, Moua's lawyer, said he thinks the jury didn't believe the police.

His client said he didn't know a gun was in the car, and the Facebook photo showed there was a hidden compartment, Martin said.

But when confronted with the photo from Facebook, the officer said he didn't recall taking the picture. And any photos taken were deleted. That's not a choice officers should make, Martin said.

"What if this had been a murder scene?" Martin asked.

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Distributed by MCT Information Services



Source: (c) 2013 The Fresno Bee (Fresno, Calif.)


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