# News story - cops arrest kids for underage drinking after seeing Facebook picture - really? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [November 28, 2009, 6:00am UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210 "2009-11-28T06:00:05Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![BellRungBookShut-CandleSnuffed](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@BellRungBookShut-CandleSnuffed](https://boards.straightdope.com/u/BellRungBookShut-CandleSnuffed)\ **Post date:** [November 30, 2009, 9:06am UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/61 "2009-11-30T09:06:12Z")
> [@GESancMan](#): > > I must be missing something here. I don’t know a whole lot about how Facebook works, but it seems to me that the only people that can look at my profile -\> pictures are people I have accepted as friends. And it appears to me that this level of privacy is the default, and very few people change it. So how are cops and whoever else getting these pictures? You go to a party, your friend takes a pic of you drinking. He posts it on his page, over which you have not control in regard to the privacy settings. ETA: And the default level of privacy (which I’m sure a greater % of people change than you think anyway) isn’t so private. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 30, 2009, 2:57pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/62 "2009-11-30T14:57:20Z")
> [@GESancMan](#): > > I must be missing something here. I don’t know a whole lot about how Facebook works, but it seems to me that the only people that can look at my profile -\> pictures are people I have accepted as friends. And it appears to me that this level of privacy is the default, and very few people change it. So how are cops and whoever else getting these pictures? They ask to be friended. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [November 30, 2009, 7:04pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/63 "2009-11-30T19:04:10Z")
> [@Martini\_Enfield](#): > > That isn’t the point. It has to be proved. It’s not outside the realms of possibility that the person had emptied the beer out of the bottle and refilled it with a non-alcoholic drink, so they’d still appear “cool” to their mates, but without drinking alcohol (which, perhaps they have a religious or moral objection to). > > So they’d appear to be drinking from a can of beer, but they’re not actually consuming an alcoholic beverage, and no crime is being committed. It only has to be proved “beyond a reasonable doubt.” Not “beyond all possible doubt.” When I served on a jury, this was carefully explained to us. One can imagine all kinds of possible scenarios, but are any of them reasonable? ---
**Author:** ![Cat\_Whisperer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cat_whisperer/32/4839_2.png) [@Cat\_Whisperer](https://boards.straightdope.com/u/Cat_Whisperer)\ **Post date:** [November 30, 2009, 8:14pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/64 "2009-11-30T20:14:15Z")
> [@Captain\_Amazing](#): > > Just for some more examples of why Facebook and underage drinking pictures don’t mix, [here](http://ksusentinel.com/news/facebook-pictures-alcohol-do-not-mix/) is a story of a restaurant losing its liquor license after pictures of underage drinkers showed up on Facebook. > > [Here’s](http://www.nbcconnecticut.com/news/local-beat/Facebook-Photos-Bust-Underage-Drinking-Party.html)a story about a couple who got ticketed after pictures of a party they hosted showing underage drinkers showed up on Facebook. > > [Here’s](http://abclocal.go.com/wls/story?section=news/local&id=5890815) a story about high school students arrested after pictures of them drinking showed up on Facebook. What I’m taking away from this is that Facebook can indeed be used to charge you with things (and cops really don’t have anything better to do), but if you have any brains, you’ll challenge it in a court of law and probably win because the evidence is far too circumstantial. **GESancMan** , from the story in the OP the fool kid accepted the police request for friending. They didn’t present themselves as police, however, which makes me wonder about THAT aspect of the whole mess - aren’t police required to identify themselves as such, when they are operating in an official capacity? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 30, 2009, 8:20pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/65 "2009-11-30T20:20:49Z")
No, that’s a myth. Cops are allowed to deny being cops even if you ask them. ---
**Author:** ![Chopper9760](https://avatars.discourse-cdn.com/v4/letter/c/cdc98d/32.png) [@Chopper9760](https://boards.straightdope.com/u/Chopper9760)\ **Post date:** [November 30, 2009, 8:41pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/66 "2009-11-30T20:41:03Z")
When I attended the University of Idaho there was a gal who would cruise facebook pages and students would get in trouble for underage drinking. I can’t remember what her position was but she worked for the dean of students. I don’t recall any of those students getting into legal trouble though. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 1, 2009, 12:45am UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/67 "2009-12-01T00:45:53Z")
> [@Cat\_Whisperer](#): > > What I’m taking away from this is that Facebook can indeed be used to charge you with things (and cops really don’t have anything better to do), but if you have any brains, you’ll challenge it in a court of law and probably win because the evidence is far too circumstantial. I don’t know if the evidence is too circumstantial. Do you know of any cases where there was a prosecution on this that was thrown out for insufficient evidence? ---
**Author:** ![Cat\_Whisperer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cat_whisperer/32/4839_2.png) [@Cat\_Whisperer](https://boards.straightdope.com/u/Cat_Whisperer)\ **Post date:** [December 1, 2009, 1:03am UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/68 "2009-12-01T01:03:15Z")
> [@Captain\_Amazing](#): > > I don’t know if the evidence is too circumstantial. Do you know of any cases where there was a prosecution on this that was thrown out for insufficient evidence? I was talking about what the legal types have been saying in this thread - maybe “circumstantial” is the wrong word. I meant what **Procrustus** was saying about authenticating the photographs - it sounds like they are not the prosecution’s best, most reliable conviction-getting evidence. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [December 1, 2009, 3:50pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/69 "2009-12-01T15:50:31Z")
> [@Cat\_Whisperer](#): > > I was talking about what the legal types have been saying in this thread - maybe “circumstantial” is the wrong word. I meant what **Procrustus** was saying about authenticating the photographs - it sounds like they are not the prosecution’s best, most reliable conviction-getting evidence. Yes, but I don’t know what **Procrustus’s** authority is for making those statements. Is that just something he believes, or does he have evidence that people brought to trial on the basis of these pictures won’t be convicted? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2009, 4:08pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/70 "2009-12-01T16:08:05Z")
> [@Procrustus](#): > > Well, I’m no expert, but I have taken cases like to this to trial, and have served as a judge _pro tem_ in a court where we handled cases of minor in possession. I can’t tell you what every judge or every prosecutor would do, but in my experience, a case would never be prosecuted based on a photograph alone and a judge would never allow a case to get to a jury if that is all the evidence a prosecutor had. There simply would not be sufficient evidence that a crime was committed. This is true. But a Facebook picture can certainly serve as probable cause. And other people in the picture can be identified, subpoenaed, and required to testify as to the events depicted in the picture. So while it’s true that a picture, standing alone, with no foundational testimony for its admission, cannot serve as the basis of a conviction, it’s also true that the Facebook picture can lead to the admission of legally sufficent evidence to sustain a conviction. > [@](#): > > Ok, have you ever tried authenticating a Facebook page in court? It’s a challenge. When I was practicing law, Facebook didn’t exist. So no, I’ve never tried it. But it doesn’t seem to me to be an insurmountable task. In [url=“[http://www.cofad1.state.az.us/memod/CR/CR080160.pdf](http://www.cofad1.state.az.us/memod/CR/CR080160.pdf)”]State v. Pressly\*, the court admitted pictures found on a MySpace page over the objections of the defense as to foundation. It does not appear to be impossible, then, at least in Arizona. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 1, 2009, 4:15pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/71 "2009-12-01T16:15:05Z")
I searched for awhile to find a single case of someone being convicted with this type of evidence, and could not find one. That corresponds to my understanding of the rules of evidence and protections for people accused of criminal acts. Sure, it’s “my opinion,” but not without 20+ years of experience in the field. A photograph of what appeared to be a crime, without more, just wouldn’t support a conviction. The biggest hurdle is that the photograph is not even admissible evidence without a witness. > [@](#): > > What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this-that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated. See 9 A.L.R.2d 899. The photograph need only be sufficiently accurate to be helpful to the court and the jury. See Hassam v. J. E. Safford Lumber Co. and Safford, 1909, 82 Vt. 444, 74 A. 197; Blake v. Harding, 1919, 54 Utah 158, 180 P. 172. > > State v. Tatum 58 Wash.2d 73, 75, 360 P.2d 754, 756 (1961) There are other difficulties if the officer didn’t seize the “beer,” smell the alcohol, or otherwise establish what was being possessed. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 1, 2009, 4:22pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/72 "2009-12-01T16:22:17Z")
**Bricker** , I don’t think we disagree. With additional evidence or witnesses, a photograph could be very powerful evidence. > [@](#): > > But a Facebook picture can certainly serve as probable cause. And other people in the picture can be identified, subpoenaed, and required to testify as to the events depicted in the picture. So while it’s true that a picture, standing alone, with no foundational testimony for its admission, cannot serve as the basis of a conviction, it’s also true that the Facebook picture can lead to the admission of legally sufficent evidence to sustain a conviction. The “other people” are likely to have some fifth amendment rights to refuse to testify, but I suppose they could be offered immunity if the prosecutor really wanted to get the target. Regarding “admissions” on the the facebook page, I’m not asserting it would be impossible to get that into evidence, but I sure think it would be an uphill battle. How could I prove that the words on this page purportedly authored by you were in fact typed by your hands? My kids play around with their friends’ facebook pages all the time. I don’t know how a court could find a facebook posting reliable evidence of a defendant’s statements. Maybe if you got technical and somehow established which IP address entered the post, that would satisfy the court. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2009, 4:25pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/73 "2009-12-01T16:25:37Z")
> [@Procrustus](#): > > The biggest hurdle is that the photograph is not even admissible evidence without a witness. Correct – but the witness simply needs to be someone who was there, and can testify that the photograph accurately depicts the scene. The prosecution can force anyone (except the accused!) to take the stand and answer those questions. > [@](#): > > There are other difficulties if the officer didn’t seize the “beer,” smell the alcohol, or otherwise establish what was being possessed. Well, yes, there are difficulties, but they relate to weight of evidence. The accused can certainly argue that the substance in his beer can was not beer, but that’s something the jury can accept or reject. Put another way: imagine a case in which the evidence is a the photo, properly authenticated by someone who says, “Yes, I was at the party, it was at such-and-so location, and this picture is a true and accurate representation of the party at that moment.” The jury convicts, and the accused appeals, claiming insufficiency of the evidence. Is that record legally sufficient to sustain a conviction? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2009, 4:29pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/74 "2009-12-01T16:29:15Z")
> [@Procrustus](#): > > I don’t know how a court could find a facebook posting reliable evidence of a defendant’s statements. Maybe if you got technical and somehow established which IP address entered the post, that would satisfy the court. It’s been done many times – child porn convictions are often based on precisely that sort of evidence: proving that particular content came from a particular PC. Now, as a matter of practicality, it’s hard to imagine a prosecutor spending the time and effort to prove computer forensics to win a misdemeanor minor-in-possession case. But it’s certainly _legally_ possible. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 1, 2009, 4:36pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/75 "2009-12-01T16:36:40Z")
> [@](#): > > Well, yes, there are difficulties, but they relate to weight of evidence. The accused can certainly argue that the substance in his beer can was not beer, but that’s something the jury can accept or reject. Except that the State must prove their case. A more common example is cocaine. You can’t convict someone for possessing cocaine without a lab test to prove that the substance is, in fact, cocaine. Even if the defendant said it was cocaine, and believed it was cocaine. It still has to \*be \*cocaine, or there is no crime. So, before the defendant ever has to say, “hey, that’s not really beer in there,” the prosecution has to establish that it really was beer in there. Usually, that’s simply done by a cop saying he arrested the kid with a beer in his hand the the substance had the appearance and odor of alcohol. I’m not saying you’d need a lab test (although I’d argue that if I was the kid’s lawyer—alcohol free beer looks a lot like real beer). ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [December 1, 2009, 5:48pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/76 "2009-12-01T17:48:19Z")
> [@Diogenes\_the\_Cynic](#): > > I know it was beer because I’m not a retard. Objection! Calls for facts not already in evidence. 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 1, 2009, 6:03pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/77 "2009-12-01T18:03:43Z")
> [@Procrustus](#): > > Except that the State must prove their case. A more common example is cocaine. You can’t convict someone for possessing cocaine without a lab test to prove that the substance is, in fact, cocaine. Even if the defendant said it was cocaine, and believed it was cocaine. It still has to \*be \*cocaine, or there is no crime. So, before the defendant ever has to say, “hey, that’s not really beer in there,” the prosecution has to establish that it really was beer in there. Usually, that’s simply done by a cop saying he arrested the kid with a beer in his hand the the substance had the appearance and odor of alcohol. I’m not saying you’d need a lab test (although I’d argue that if I was the kid’s lawyer—alcohol free beer looks a lot like real beer). Sure. But cocaine isn’t sold commercially. If it were, and someone were holding a tin of Sno-Pop Powder Power, it would likely be a permissible inference for the finder of fact to conclude that there was actual cocaine in the package. You’d certainly be free to argue the alcohol-free beer theory. But I’m saying that on the record, a reasonable jury could find that the elements of the crime were met. Not saying that they would. Saying that they legally could. ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [December 1, 2009, 6:04pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/78 "2009-12-01T18:04:16Z")
> [@Zsofia](#): > > Remember what happened here in my fair city with Michael Phelps and a little bit of pot? Of course, that was a grandstanding sheriff, but same idea. What happened? Did the sheriff actually charge him with anything? ---
**Author:** ![Rilchiam](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rilchiam](https://boards.straightdope.com/u/Rilchiam)\ **Post date:** [December 6, 2009, 1:23am UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/79 "2009-12-06T01:23:16Z")
It was not a legal matter, but a few years ago, an underage American Idol contestant was quietly dropped between the auditions and the Hollywood rounds. His Facebook (or MySpace?) page showed **numerous** photos of him holding beer cans and bottles of rum, plus photos of beer-can pyramids and shrines of empty rum bottles. It wasn’t made an issue of; he just wasn’t seen again after the auditions. If it had been a photo of him holding a beer, he might have been okay, but his page made it look as if his whole life revolved around alcohol. (Heck, maybe he was too hungover to show up for Hollywood week!) ---
**Author:** ![troubled\_mom](https://avatars.discourse-cdn.com/v4/letter/t/7993a0/32.png) [@troubled\_mom](https://boards.straightdope.com/u/troubled_mom)\ **Post date:** [January 20, 2010, 7:33pm UTC](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210/80 "2010-01-20T19:33:10Z")
> [@Procrustus](#): > > Except that the State must prove their case. A more common example is cocaine. You can’t convict someone for possessing cocaine without a lab test to prove that the substance is, in fact, cocaine. Even if the defendant said it was cocaine, and believed it was cocaine. It still has to \*be \*cocaine, or there is no crime. So, before the defendant ever has to say, “hey, that’s not really beer in there,” the prosecution has to establish that it really was beer in there. Usually, that’s simply done by a cop saying he arrested the kid with a beer in his hand the the substance had the appearance and odor of alcohol. I’m not saying you’d need a lab test (although I’d argue that if I was the kid’s lawyer—alcohol free beer looks a lot like real beer). daughter caught on myspace with beer bottle in her hand what can be done school wont budge [Previous page](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210.md?page=3) [Next page](https://boards.straightdope.com/t/news-story-cops-arrest-kids-for-underage-drinking-after-seeing-facebook-picture-really/519210.md?page=5)