Facebook Authentication — Sufficient Where Party Admits Making One Post; Later Posts Refer Back to It; No Evidence Anyone Else Had Access to Facebook Account — Statements on Facebook Page = Party Admissions
Matter of MC v. State, 2015 Nev. Unpub. LEXIS 646 (Nev. Sup. Ct. Feb. 26, 2015):
North Las Vegas Police monitored the Facebook activity of approximately 130 individuals by befriending them under a fictitious name. M.C. was one of the individuals monitored. North Las Vegas Police Officer Richard Arnold found a two-day-old posting on M.C.'s Facebook stating, "Killing spree by myself. I got four clips that hold seventeen and five hundred bullets. And I don't give a fuck no more." That post was viewed by several of M.C.'s Facebook friends. M.C. was arrested after a search of his house that revealed no weapons or ammunition. M.C. claimed he was not serious when he made the post and said he made the post because he was upset after fighting with his girlfriend. The State ultimately charged M.C. with making a terrorist threat under NRS 202.448.
After a contested hearing, the hearing master recommended that M.C. be adjudicated delinquent. Specifically, the hearing master concluded that M.C. violated NRS 202.448(1) by making a terroristic threat via Facebook [*2] with the intent to (1) alarm or intimidate others, (2) cause panic or civil unrest, and (3) interfere with police operations. Additionally, the hearing master concluded that the First and Fourth Amendments did not prevent M.C. from being adjudicated as delinquent. The district court approved the hearing master's findings, conclusions, and recommendations over M.C.'s objection. M.C. now appeals.
On appeal, M.C. contends that (1) the State violated his Fourth Amendment rights by monitoring his Facebook account, (2) the First Amendment requires the State to prove he subjectively intended to make a threat when he made the Facebook post, and (3) the district court erred in admitting testimony from Officer Arnold about the contents of M.C.'s Facebook page.
The Hearing Master Did Not Err in Allowing Officer Arnold to Testify About the Content of M.C.'s Facebook Page
M.C. argues that the hearing master erred in allowing Officer Arnold to testify about the contents of M.C.'s Facebook page because (1) Officer Arnold did not have personal knowledge regarding who actually made various posts on M.C.'s Facebook account, and (2) Officer Arnold's testimony constituted inadmissible hearsay. M.C.'s arguments lack merit. First, there was "sufficient direct or circumstantial corroborating evidence of authorship" to authenticate M.C.'s Facebook posts as his own. Rodriguez v. State, 128 Nev. Adv. Rep. 14, , 273 P.3d 845, 849 (2012). Specifically, he admitted making the killing-spree post, subsequent communications referred back to that post, and there is no indication that someone else accessed his Facebook account. Cf. id. at , 273 P.3d 849-50 (authenticating [*6] text messages was complicated by the fact that multiple defendants had access to the relevant phone). Second, Officer Arnold's statements about the contents of M.C.'s Facebook page (namely, that he referred to himself as "Murder Man" and claimed an affiliation with the 004 Hoodsman street gang) did not constitute hearsay because they were party admissions. See NRS 51.035(3)(a) (party admissions are exempt from the general hearsay rule). Therefore, the district court did not err in relying on testimony from Officer Arnold about the contents of M.C.'s Facebook page.
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