Last month, a Wisconsin court issued an order in a very modern-sounding case. Here are the facts:
On August 27, 2013, while viewing the Facebook pages for groups from his beat, [a] Police Officer (“Petersen”) found a rap music video on YouTube. In the video, Petersen observed [defendant] Johnson displaying a firearm. Petersen knew Johnson to be on extended supervision, so he alerted Johnson’s Probation Agent, (“Hart”). After viewing the video, Hart issued an Order to Detain Johnson. The Order to Detain recounts that Johnson was on extended supervision following a felony conviction… of substantial battery… The Order further provides that the “behavior or violation resulting in custody” is the possession of a firearm. [Two days later], Petersen and another officer observed Johnson walking down the street; knowing of the Order to Detain, Petersen arrested Johnson. Petersen performed a custodial search of Johnson, during which search Petersen discovered a Smith and Wesson .32 caliber revolver in the left pocket of Johnson’s shorts.
Defendant was charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), “which prohibits persons convicted of a felony from possessing a firearm that had previously been transported in interstate commerce.”
Wisconsin Courts require that “any detention to investigate an alleged violation” be reasonable. The Magistrate Judge reviewed whether Hart’s decision to impose an Order to Detain was reasonable based upon what Hart knew at the time she issued the Order. The Magistrate found that Hart’s belief of Defendant possessing a firearm was reasonable.
Defendant argued that the YouTube video did not provide a reasonable basis to detain him for two reasons: (1) it was unreasonable for the Probation Agent to assume that the firearm in the video was real and (2) there was no way for the Probation Agent to know when the video was taken and therefore, there was no way to know whether it was filmed after Defendant was convicted.
In analyzing Defendant’s first reason, the court agrees with the government that there was no need to establish that the gun was real, as long as the suspicion of Defendant’s violation was reasonable.
Defendant’s second argument also fails:
Had the video been posted on a date prior to Johnson’s release on extended supervision, the analysis would obviously be different. However…Hart only needed a reasonable basis to order Johnson detained, not probable cause.
The court upheld the Order to Detain and denied Defendant’s motion to suppress the evidence from the YouTube video. Let there be a lesson in here: next time you’re trying to make a viral video, leave out the illegal or illegal-looking stuff.