Don’t Post Evidence on Facebook!!!

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

It should go without saying, but you can do your criminal defense attorney a huge “solid” by not posted evidence of a crime on your Facebook or other social media account. While it didn’t directly address social media posts, an opinion from the Third District Court of Appeal in Florida reveals how posts can be used against a criminal defendant.

Facebook Post Links Firearm to Defendant

In Barnes v. State, 44 Fla. L. Weekly D2283a (Fla. 3d DCA 2019), Barnes was convicted by a jury of three counts of attempted first-degree murder. The evidence against Barnes consisted of eyewitness testimony from each of the victims that Barnes was the person who shot them. Each of them also testified that the weapon used was a black, semi-automatic handgun with an extended clip. A similar weapon, and perhaps the same weapon, was recovered from another person, George Avila.

Without more, the weapon is likely not admissible in trial because there is nothing to link Barnes to the firearm. However, this is where Facebook comes into play.

The State, after having obtained a warrant to search his Facebook account, found pictures of Barnes with a similar weapon tucked into his pants. The State was also able to prove that the picture was posted relatively close in time to the alleged crimes. As such, the State now possessed evidence that Barnes possessed a similar, if not the same, firearm as the one used in the crime close in time to the alleged crime. That coupled with the eyewitness testimony was more than enough to convict Barnes.

Other Examples of Foolish Posts

A quick Google or DuckDuckGo search will reveal numerous other incidents of foolish posts by criminal defendants. Some of our favorites are:

Posting location and work schedule when you have a warrant out for arrest.

Siphoning gasoline from a police vehicle and sharing said crime on Facebook.

Any my personal favorites, don’t “Like” the police department’s Facebook page if you are fleeing from said law enforcement agency.

Call Us For Your Free Consultation

While we hope that neither you nor a loved one is on the wrong side of the law from an ill-fated social media post, if you are, give us a call at 813.397.3965 for your free consultation with an expert criminal defense lawyer. We serve all of Hillsborough County and will travel to Polk, Pasco, Manatee, and Pinellas counties as well.

The Bantner Firm

Valrico Law Group

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

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Before you enter a plea of guilty or simply accept the help of a public defender, give us a call at 813.397.3965 to set up your free consultation. We’ve tried over 30 cases and have represented hundreds (if not thousands) of individuals since 2006 with successful resolutions of their cases. Put our expertise to work for you today!