Self-Incrimination in the Age of “Selfies”

The Fifth Amendment to the U.S. Constitution states that no man shall be “compelled in any criminal case to be a witness against himself,” which has been interpreted to mean that individuals retain the right against self-incrimination. Thus, in criminal proceedings or congressional hearings, when asked a question that could implicate the responder in a crime or wrongdoing, said person will often respond, “I plead the 5th,” meaning that they exercise their right not to answer a question that might incriminate them.
Our South Florida criminal defense attorneys know that as society evolves and becomes further inundated with technology, the criminal justice system becomes affected by that evolution. For example, one of the newest fads is to take “selfies,” photographs of onesself typically captured by way of snapping a photo from a smartphone, tablet, or some other handheld device or camera.

Based on multiple recent news reports, it is evident that individuals should be cautious about what information they choose to photograph and send out into the world. While not everything picked up by law enforcement officers can be used as evidence in a court of law, inadvertent tips and the like can certainly be used by police departments to track down a suspect or in determining whether or not to pay attention to the activities of a certain individual.

For example, a man recently lost his iPad on a flight from Phoenix to Denver. Afer the flight, he assumed that the device was gone for good. Then, roughly a month later, an unfamiliar woman’s “duckface selfies” began to appear on all of his family’s synced Apple devices — their Macbooks, iPads, iPhones, etc,. — through the “cloud.”

As it turns out, the woman who had allegedly stolen the iPad from the man on the flight had been taking funny selfies on her newly-acquired (stolen) iPad. Unbeknownst to her, her entertaining photographs had been popping up on the devices of the victim of the crime. Apparently, this woman was unaware that Apple’s “iCloud” connected all of the devices such that any photograph taken on one would be displayed on every other.

In another new story, one which hits closer to home, a Port St. Lucie man found himself arrested and jailed after he essentially broadcasted his criminal activities for all to see by posting incriminating selfies on his Facebook page. The 21-year-old South Floridian had uploaded photos of himself dealing drugs in the back of a car — while a Martin County Sherrif’s Office patrol vehicle was right next to his car and visible in the background of the photo he uploaded. He intended to brag about how he could get away with his criminal behavior right under the noses of law enforcement officers.

While he apparently meant to boast about his lifestyle as a drug dealer, his actions had a counterproductive effect — they led to his arrest. Not only did Martin County police officers take him into custody and hold him on $55,500 bail, they decided to have a bit of fun with the sitaution, posting a compilation of his self-uploaded selfies next to his mugshot, taken at the police station.

These stories of unintended consequences should remind people of the permanence of digital photographs released into the world of the internet, and the possible counterinuitive ramifications of publishing such pictures.

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