Metropolitan News-Enterprise


Wednesday, July 22, 2015


Page 1


Court Upholds Admission of Seized Photographs Based Upon Testimony of ‘Instagram Officer’


By a MetNews Staff Writer


Testimony by two police officers, one of whom was specially assigned to monitor social media for criminal activity, was sufficient to authenticate photographs depicting illegal gun possession, even though no one who was present when the photographs were taken testified, the First District Court of Appeal has ruled.

Div. Four Monday affirmed a San Francisco Superior Court judge’s order finding the accused, who was identified only as K.B. and was 17 when the offenses were committed, guilty of possessing two firearms and ordering him to complete a program at the San Francisco Juvenile Justice Center.

K.B. alleged on appeal that photographs showing him with the guns should not have been admitted because they were inadequately authenticated. The photographs, which also depicted several other persons, were found on a cellphone seized from Marquis Mendez, who was among those present at the apartment where K.B. was arrested.

Officer Eduard Ochoa testified at K.B.’s jurisdictional hearing that at the time of the 2013 arrest, he was the San Francisco Police Department’s “Instagram officer” and had been so for three or four years. In that capacity, he was assigned “to monitor and track individuals through Instagram,” a social media website to which users upload photographs.

Ochoa said he was familiar with K.B. and Mendez from prior cases, and that when he saw photos of them with guns on Instagram, he knew that they were on probation and were subject to conditions requiring them to submit to warrantless searches, and that Mendez “was a wanted felon.”

Ochoa and other officers went to the apartment where they expected to find Mendez and K.B. for the purpose of conducting probation searches, he said, and noticed that the Instagram photos appeared to have been taken in the vicinity. When they knocked on the door, he said, two handguns were thrown out a window by an unidentified person.

Mendez, K.B., and another juvenile were detained, the officer testified. They were wearing the same clothes they were wearing in the Instagram photos Ochoa had viewed a few hours earlier.

Also testifying was Officer Steven Wood, who said he used a program called Cellebrite to retrieve information from Mendez’s seized cellphone. The program produced a 37-page report that included photographs that Ochoa had viewed on the phone and photographed at the time of the arrests.

Presiding Justice Ignacio Ruvolo, writing for the Court of Appeal, said the testimony of Ochoa and Wood was sufficient to authenticate the photos.

He cited People v. Goldsmith (2014) 59 Cal.4th 258, in which the court held that photographs and a video of the defendant running a red light, generated by a red-light camera system, were properly admitted. The court rejected the argument that testimony on the reliability and accuracy of the system’s hardware and software was a prerequisite to the admission of that evidence.

 In this case, Ruvolo said, “the authenticity and genuineness” of the photos was similarly proven by the officers’ testimony, and “there was an absence of any evidence that the photos or those screen shots taken from Mendez’s cell phone were not accurate reproductions of the pictures uploaded onto appellant’s Instagram account and stored in the digital medium on Mendez’s cell phone.”

The case is In re K.B., 15 S.O.S. 3705.


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