Snapchat and Instagram Drug Sales: How Those Cases Get Made.

While not unique to drug investigations, digital evidence is increasingly common in these cases. Smartphones, messaging apps, and social media are all used to communicate about illegal drug transactions. If law enforcement is investigating drug crimes, they may seek access to relevant digital messages, photographs, and videos.

This includes content collected from social media accounts (including Snapchat and Instagram), mobile apps, emails, cloud storage services, and other sources. Once obtained, this content can provide law enforcement officers with essential information and grounds for arrest and prosecution.

When review digital evidence in drug investigations, law enforcement officers are on the lookout for several key indicators. If any of these markers appear in a target’s messages, photographs, or videos, they may trigger further investigative steps and, eventually, a criminal case.

Some examples of such markers include:

• References to specific drugs, such as opioids (Xanax, OxyContin), stimulants (cocaine, methamphetamine, or fentanyl), and other controlled substances
• Use of slang or other coded language to refer to drug transactions, buyers, sellers, and other relevant information
• Quotations, requests for prices, and prices that are consistent with retail or wholesale drug transactions
• Requests for specific quantities (such as “30s” or “weights”) that are consistent with illegal drug transactions
• Discussion of meeting places, delivery routes, and other means of facilitating in-person drug transactions
• Other markers that could support an inference of intent to distribute, manufacture, or transport controlled substances

Law enforcement will then look to build a case based on the information they uncover. This includes connecting suspected drug transactions (often through undercover purchases) to the target’s messages, as well as using other available means to identify the target and gather any necessary proof of his or her identity. If deemed necessary or warranted, investigators will also use other tactics, from search warrants and arrests to grand jury subpoenas, as they work to gather more information and build a case that can withstand challenges at trial.

When can a Snapchat screenshot prove who sent it?

One of Snapchat’s most famous features is its “disappearing” messages. But if a recipient takes a screenshot or photo of the message, that material can survive. And, provided that the screenshot isn’t obtained in violation of federal or state law, it may be used as evidence in criminal court.

A Snapchat screenshot is not automatically admissible as evidence at trial, though. Its admissibility will depend on authentication and other evidence rules (which apply in criminal cases in all jurisdictions, including federal cases). As a general rule, authentication requires the prosecution to produce evidence that adequately demonstrates a digital content’s relationship to its claimed sender or author.

For example, if a Snapchat screenshot is the product of an undercover purchase involving a confidential source, the prosecution may rely on the source’s testimony to establish that the screenshot was received from the defendant.

Even if the prosecution can show that a specific Snapchat account was used to send the messages, proving identity for the purposes of authentication is more difficult. For example, when multiple people use the same phone, establishing identity will require additional evidence.

For photos and videos, the prosecution can often point to GPS metadata that shows when and where the content was created. In cases where the target is alleged to be operating from a particular location, this data is invaluable for the government.

When it comes to other evidence, including emails, the law is similar. Before an email can be used in court, the government must demonstrate that it was sent from the target’s account, and, preferably, sent by the target personally. For example, when an email account is shared by multiple people, this requirement can prove particularly difficult for the government to meet.

But there are some exceptions. Federal courts recognize “as circumstantial evidence of the declarant’s knowledge of the existence of some fact, rather than as testimonial evidence of the truth of the matter asserted, does not offend the hearsay rule.” in a variety of circumstances, and they will also allow circumstantial evidence of authenticity.

How do private posts, deleted content, and warrants reach prosecutors?

When did you think Snapchat was disappearing? With a disappearing photo, video, or message, Snapchat makes an appeal to the user that what you send will soon be gone. But while a user may have believed that the content vanished, it was actually stored on a server that is still accessible. With the help of digital forensics experts, government investigators may sometimes recover photos, videos, messages, and other content that they later claim that the user thought were deleted.

What about a private Snapchat or Instagram account? When you set your posts to “private” or “friends only,” this doesn’t do anything to prevent the federal government or other law enforcement from lawfully obtaining that information. They can do this through either a request to the company (or person) that stores the content or, in other cases, by accessing it from someone else’s phone.

When should you expect a warrant? The contents of your devices generally receive strong privacy protection, and a warrant will ordinarily be required to access the contents of your phone, laptop, tablet, or other digital device, subject to recognized exceptions such as consent and exigent circumstances. Once the warrant is issued, investigators will then seek to carry out the authorized search.

Is the scope of a search warrant absolute? When the scope of a search warrant is exceeded, this can serve as a basis for a motion to suppress. In this scenario, law enforcement investigators will target someone with a search warrant, but during the execution of that search warrant, investigators find evidence relating to someone else. This can open the door to seeking suppression of the evidence seized under the pretense of lawfully executing the warrant.

What if the search of your phone was illegal? This is a scenario that can lead to a motion to suppress. To file a motion to suppress, the defendant must ask the judge to rule that evidence obtained during an illegal search cannot be used in court.

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

Which facts let federal prosecutors take a social-media drug case?

Federal drug investigations commonly involve agents with the Drug Enforcement Administration (DEA) and the Federal Bureau of Investigation (FBI), among other federal law enforcement agencies. The DEA and the FBI, among other federal law enforcement agencies, conduct investigations that, in many cases, can be transferred to state prosecutors. But even when federal agents are involved, this doesn’t necessarily mean the investigation will result in a federal prosecution, especially in cases involving Snapchat or Instagram.

The decision to pursue a federal prosecution (as opposed to a state prosecution) can depend on a number of factors. These include, but are not limited to:

• The quantity of drugs allegedly involved;
• Evidence of violence or the threat of violence (including the use of weapons);
• Evidence that the drug transactions crossed state or national lines;
• Evidence that a drug transaction is linked to a drug-dealing network or organized criminal enterprise; and,
• Involvement of government officials or other high-profile figures.

The presence of these factors can significantly increase the federal government’s interest in pursuing criminal charges in federal district court. However, these factors are not the only ones that matter. For example, federal jurisdiction alone, or even the presence of federal agents, does not automatically establish federal jurisdiction over a drug offense.

As federal drug cases can be particularly complex, you will need to rely on the advice of federal defense counsel. Your lawyer should rely on knowledge of relevant federal statutes and the most recent jurisdictional facts that federal prosecutors can actually plead in the indictment, not on theories that only make sense in the abstract.

So then, what facts are not sufficient, on their own, to give federal prosecutors jurisdiction to pursue a drug case?

• Does the involvement of federal agents automatically result in federal jurisdiction over a drug sale? No, while any drug investigation involving federal agents can, in theory, result in a federal case, the agents’ presence alone is not sufficient.
• Does the use of a cellphone, laptop, or other device to facilitate a drug sale confer federal jurisdiction? No, the use of a cellphone or other digital device to facilitate a drug-sale transaction does not by itself give federal prosecutors jurisdiction.
• Does the location of a drug offense on federal property, like a national park or an airport, guarantee federal jurisdiction? No; an offense occurring on federal property does not automatically create federal jurisdiction, because federal criminal jurisdiction depends on the property’s jurisdictional status or another applicable federal offense or jurisdictional basis.

What changes once an online drug investigation becomes federal?

Why would an informant offer to work with the government?

While some informants seek monetary compensation, others are seeking sentencing benefits or other forms of consideration in exchange for their cooperation. Many of the most impactful informants are individuals who were caught committing serious crimes themselves. In order to avoid prosecution, they will offer to work with the federal government to help build cases against others.

How long can federal drug investigations take?

The timeline for a federal drug investigation can range from months to years. The time that passes between the time when investigators execute a search warrant (and/or perform an arrest) and the filing of a criminal indictment can also be months or years.

What charges are commonly filed in federal drug cases involving Snapchat or Instagram?

Drug trafficking conspiracy, drug trafficking, and possession with intent to distribute are some of the most common charges filed in federal drug cases. Federal prosecutors rely on these charges to seek longer prison sentences based on relevant federal sentencing guidelines.

What other charges or seizures can prosecutors pursue?

Firearm charges are also common in federal drug cases, and prosecutors will seek forfeiture of any and all property that was used to facilitate drug transactions (including cell phones and laptops). While some evidence may be considered “digital,” the federal government can seek to seize actual devices in most drug investigations.

Can state and federal prosecutors file charges based on the same investigation?

Yes, this is possible. While prosecutors must be careful to avoid duplicative charges and illegal violations of a defendant’s Fifth Amendment right against double jeopardy, they can pursue charges under the laws of different jurisdictions.

Can a defendant avoid federal prosecution if the state has already resolved their case?

Not necessarily. Resolving a drug case at the state level does not categorically preclude a later federal prosecution, particularly in cases in which a defendant is charged with new offenses under federal law.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.