           IN THE SUPREME COURT OF THE STATE OF DELAWARE


TERRANCE E. EVERETT,                   §
                                       §      No. 257, 2017
      Defendant Below,                 §
      Appellant,                       §
                                       §      Court Below:
             v.                        §      Superior Court of the
                                       §      State of Delaware
STATE OF DELAWARE,                     §
                                       §
                                       §      Cr. I.D. No. 1511002499 (N)
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: March 21, 2018
                          Decided: May 29, 2018

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware, for
Appellant.
Martin B. O’Connor, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.


VALIHURA, Justice:
         When a person voluntarily accepts a “friend” request on Facebook from an

undercover police officer, and then exposes incriminating evidence, does the Fourth

Amendment protect against this mistaken trust? We conclude that it does not.

         Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend

request from a detective who was using a fictitious profile. The detective then used

information gained from such monitoring to obtain a search warrant for Everett’s house,

where officers discovered evidence that prosecutors subsequently used to convict him.

         In the proceedings below, Everett moved for a so-called reverse-Franks hearing,

named for the United States Supreme Court opinion in Franks v. Delaware.1 He asked the

trial court to determine whether the detective knowingly and intentionally, or with reckless

disregard for the truth, omitted information from the affidavit—namely, information

concerning the detective’s covert Facebook monitoring—that was material to the

magistrate’s finding of probable cause. Everett argued that, if he made this showing by a

preponderance of the evidence at such a hearing, then the evidence obtained via this

warrant should be suppressed. The Superior Court denied Everett’s motion from the bench

on February 16, 2017. Everett appeals that decision and now seeks reversal of his

conviction.

         For the reasons set forth below, we AFFIRM the Superior Court’s denial of

Everett’s motion.




1
    438 U.S. 154 (1978).
                                             1
                                  A.     Factual Background

        At some point during 2012 or 2013, Detective Bradley Landis of the New Castle

County Police Department began monitoring Everett’s Facebook page using a fake profile,

including a fake name and pictures. Detective Landis regularly monitored Everett’s page

between one to three times per week for at least two years. During this monitoring,

Detective Landis used the fake profile to send Everett a “friend request.” Everett accepted

the “friend request.” Based on the record before us, it is unclear what information from

Everett’s Facebook page was available to Detective Landis before “friending” Everett and

what information was available only after the two became “friends.”2

       On November 4, 2015, Detective Landis saw a photo on Everett’s Facebook page

that was posted at 5:00 AM that morning. The photo (“Photo”) showed a nightstand with

several items on top of it: a handgun, a Mercedes car key, a large amount of cash, a pay

stub, two cell phones, and a framed photograph of Everett wearing a black T-shirt and a

red necklace. Although Everett was not in the Photo, the caption read: “Just getting in for

the night, how I sleep every night.”3




2
  When considering Everett’s motion, the trial judge questioned both parties about Everett’s
Facebook privacy settings. Everett’s counsel stated that he did not know whether the photos in
evidence were “Friend-only protected” or whether they were viewable on Everett’s public profile.
Trial Transcript (Feb. 15, 2017), at A095. The State noted that it appeared that, “at some point,
maybe in 2016,” Everett changed his Facebook profile to a “private page, which does restrict some
access.” Id. But, the State also argued that, “at some point, there is evidence to suggest that it
was, in fact, a public page that anyone could go on and look at.” Id.
3
 Search Warrant Application and Affidavit (Nov. 4, 2015), at A018 [hereinafter Warrant
Affidavit].

                                                2
      On that same day, November 4, 2015, Detective Landis applied for a warrant to

search Everett’s house. In the application, Detective Landis swore that he:

       observed Everett’s Facebook page and the Photo “while browsing Facebook”;

       knew the Facebook page was Everett’s because Everett posted daily self-filmed
        videos and photographs at various locations, and he was familiar with Everett
        from previous contacts and criminal investigations;

       personally saw Everett operate a tan Mercedes on multiple occasions;

       was aware that Everett was a person prohibited from possessing deadly weapons,
        including firearms, due to numerous violent felony convictions;

       was aware that Everett was currently on federal probation for conspiracy to
        possess with intent to distribute more than 500 grams of cocaine and cocaine
        base, and that Everett would be on federal probation until January 2020;

       was aware that Everett was currently being supervised by the Delaware
        Probation and Parole Sex Crimes unit;

       contacted Everett’s probation officer to verify Everett’s address and then drove
        past Everett’s residence and observed a tan Mercedes parked out front;

       observed distinguishing features on the handgun upon closer examination of the
        Photo and, after additional investigation on the Smith & Wesson website,
        determined that the firearm in the Photo was in fact a Smith & Wesson.

      The search warrant, which was both authorized and executed on November 5, 2015,

allowed police to conduct a daytime search of Everett’s residence to collect DNA samples

and/or a deadly weapon. During the search of Everett’s home, police recovered a loaded

nine-millimeter Smith & Wesson handgun; the handgun’s original box with a serial number

matching the Smith & Wesson handgun; clothing, including the black T-shirt and the red

necklace that Everett was wearing in the Photo and other Facebook photos; and Everett’s

pay stubs.

                                            3
          Police arrested Everett on November 17, 2015. A Grand Jury indicted him on

December 21, 2015, for one count of Possession of a Firearm By a Person Prohibited in

violation of 11 Del. C. § 1448, and one count of Possession of Ammunition By a Person

Prohibited in violation of 11 Del. C. § 1448. According to the indictment, Everett was a

“person prohibited” because he had previously been convicted of two felony counts of

Reckless Endangering (first degree) and one felony count of Possession with Intent to

Deliver a Controlled Substance.4 A jury trial began on February 14, 2017, and the parties

stipulated that Everett was a person prohibited.

          On the first day of trial, Detective Landis disclosed that he began monitoring

Everett’s Facebook page “approximately two years” before he saw the Photo. Further,

Detective Landis testified that he monitored Everett’s page by using a fake Facebook

profile under a fake name and using photos that he found on the Internet, rather than his

own personal photos. The day after learning the details of Detective Landis’s monitoring

of his Facebook page, Everett moved for a mistrial or, in the alternative, a reverse-Franks

hearing.5 The Superior Court denied the motion in a bench ruling on February 16, 2017.6




4
  Indictment at A014. The warrant affidavit also states that a search of the Delaware Criminal
Justice Information System revealed that “Terrance has been convicted twice of Reckless
Endangering First (05/06/02, 11/23/10), three counts of Unlawful Sexual Contact (08/08/96), and
Possession with intent to deliver a narcotic schedule II controlled substance (10/19/05), all of
which are violent felonies.” Warrant Affidavit, supra note 3, at A019.
5
  Trial Transcript (Feb. 15, 2017), at A092. There is no written motion in the record. Rather, at
the start of the second day of the trial, Everett’s counsel stated to the court: “I am assuming Your
Honor got my e-mail this morning?” Id. Everett’s counsel then said that he provided the State
with a copy of the e-mail. Id.
6
    Trial Transcript (Feb. 16, 2017), at A108.

                                                 4
In denying the motion, the trial judge found “that the omitted facts were not material for

[the] purposes of issuance of a search warrant.”7

          On February 16, 2017, the jury found Everett guilty of only one of the charges,

Possession of a Firearm By a Person Prohibited, and the Superior Court ordered a

presentence investigation. On February 22, 2017, Everett filed a Motion for a New Trial

arguing that the two verdicts were legally inconsistent because he was found guilty on the

possession charge but not the ammunition charge. The Superior Court denied the motion

on May 18, 2017. The State filed a motion to declare Everett a habitual offender, and the

Superior Court granted the motion on June 2, 2017. The court sentenced Everett to fifteen

years of Level V imprisonment, followed by six months of Level II probation.

                             B.     Scope and Standard of Review

          This Court “review[s] a trial court’s evidentiary rulings for abuse of discretion.”8

“Where the facts are not in dispute and only a constitutional claim of probable cause is at

issue, this Court’s review of the Superior Court’s ruling is de novo.”9




7
    Id.
8
 Adams v. State, 124 A.3d 38, 45 (Del. 2015) (citing Jones v. State, 940 A.2d 1, 9 (Del. 2007)).
Generally, a request for a Franks or reverse-Franks hearing accompanies a motion to suppress,
and this Court reviews the denial of such motions for abuse of discretion. See Restrepo-Duque v.
State, 130 A.3d 340, 2015 WL 9268145, at *3 (Del. Dec. 17, 2015) (TABLE) (“This Court reviews
a trial court’s evidentiary rulings, including a denial of a motion to suppress, for abuse of
discretion.” (citing Adams, 124 A.3d at 45)).
9
 State v. Holden, 60 A.3d 1110, 1113 (Del. 2013) (citing Smith v. State, 887 A.2d 470, 473 (Del.
2005)).

                                               5
                                         C.     Analysis

       Everett’s claim is somewhat convoluted, but his central argument is that Detective

Landis’s monitoring of his Facebook page constituted an unlawful, warrantless “search”

and, thus, any information seized pursuant to it must be suppressed as the fruit of the

poisonous tree in violation of the Fourth Amendment of the United States Constitution and

Article I, Section 6 of the Delaware Constitution. However, instead of launching a direct

challenge under the search-and-seizure provisions of the United States and Delaware

Constitutions, Everett asserts a so-called reverse-Franks claim10 and, as such, argues that

the Superior Court erred in denying him a hearing to determine whether Detective Landis

knowingly and intentionally, or with reckless disregard for the truth, omitted information

from his warrant affidavit that would have vitiated the magistrate’s finding of probable

cause—i.e., that the affidavit omitted material information. That is, Everett argues that,

had the authorizing magistrate known about the “arbitrary ruse” that Detective Landis

employed via Facebook, the magistrate would have denied the warrant application because

the affidavit’s facts about Everett’s Facebook page were based on an unconstitutional

search, and thus any evidence seized under such a warrant should be suppressed.




10
   This is known as a “reverse-Franks” claim because it is the converse of the situation in Franks
v. Delaware, 438 U.S. 154 (1978), where the United States Supreme Court held that, “where the
defendant makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56; see
Sisson v. State, 903 A.2d 288, 300 (Del. 2006) (“If the police omit facts that are material to a
finding of probable cause with reckless disregard for the truth, then the rationale of Franks v.
Delaware applies.” (quoting Smith v. State, 887 A.2d 470, 472 (Del. 2005))).
                                                6
          Despite Everett’s awkward framing, we consider his argument for what it is: a claim

that Detective Landis’s Facebook monitoring violated his constitutional rights and that,

without that tainted information, the search warrant affidavit did not establish probable

cause.

          We evaluate that argument under a two-step framework. First, we consider whether

the Facebook monitoring violated the Fourth Amendment or Article I, Section 6 of the

Delaware Constitution. If it did, then we “must ‘excise the tainted evidence [from the

warrant affidavit] and determine whether the remaining, untainted evidence would provide

a neutral magistrate with probable cause to issue [the] warrant.’”11 In this case, we need

not go beyond the first step: Detective Landis’s monitoring of Everett on Facebook did not

run afoul of the Fourth Amendment or Article I, Section 6 of the Delaware Constitution.

          Everett focuses his arguments on attempting to refute the trial court’s conclusion

that it was “unable to find any basis in law in support of the proposition that the dissembling

conduct of law enforcement would have altered the magistrate’s issuance of the search

warrant.”12 Everett argues that “the trial court reached its erroneous conclusion without

considering either Everett’s legitimate expectation of privacy in his Facebook posts or the

extent of Landis’ intrusion upon that legitimate expectation,”13 which is essentially arguing

that the trial court ignored a Fourth Amendment or Article I, Section 6 violation. Everett



11
  Jones v. State, 28 A.3d 1046, 1058 (Del. 2011) (quoting United States v. Herrold, 962 F.2d
1131, 1138 (3d Cir. 1992)).
12
     Trial Transcript (Feb. 16, 2017), at A107.
13
     Appellant’s Opening Br. at 11.

                                                  7
also argues that Detective Landis presented no evidence that the privacy settings of his

Facebook page were “set to anything other than ‘private.’” And, given that Detective

Landis had “friended” Everett, Everett argues that it is reasonable to assume that his

settings were “private” and, as such, the Photo itself was only viewable to his friends and,

thus, he had a “legitimate expectation of privacy.”14 Finally, he asserts that, even assuming

arguendo that his acceptance of Detective Landis’s “friend” request amounted to consent,

Detective Landis’s use of deception rendered that consent involuntary because the

detective lacked the reasonable suspicion to monitor him.

          We reject Everett’s contentions because Everett did not have a reasonable

expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake

profile and other “friends” would not be disclosed. We observe that Detective Landis did

not request or access the Photo directly from Facebook, the third-party service provider—

a scenario that we need not address here. Rather, Everett made the Photo accessible to his

“friends” and, by doing so, he assumed the risk that one of them might be a government

officer or share his information with law enforcement.

          The United States and Delaware Constitutions protect the rights of persons to be

secure from “unreasonable searches and seizures.”15 A search does not occur “unless ‘the

individual manifested a subjective expectation of privacy in the object of the challenged




14
     Id. at 12-13.
15
     U.S. Const. amend IV; Del. Const. art. I, § 6.

                                                      8
search,’ and ‘society [is] willing to recognize that expectation as reasonable.’”16 This test

derives from Justice Harlan’s concurrence in Katz v. United States,17 a case in which the

majority found that the government violated the defendant’s Fourth Amendment rights by

installing an electronic listening device on a public telephone booth and recording the

defendant’s calls—actions that produced evidence leading to the defendant’s conviction.

Though the majority stressed that “the Fourth Amendment protects people, not places,”18

Justice Harlan nonetheless observed that determining “what protection [the Fourth

Amendment] affords to those people” whom it protects “requires reference to a ‘place’”—

i.e., evaluation of whether, by intruding on the place in question, the government could be

said to have conducted a “search” that is “presumptively unreasonable in the absence of a

search warrant.”19 Justice Harlan observed that “there is a twofold requirement” for an

intrusion on a particular place to qualify as a search—“first that a person have exhibited an

actual (subjective) expectation of privacy and, second, that the expectation be one that

society is prepared to recognize as ‘reasonable.’”20 And Justice Harlan explained that, as


16
    Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S. 207
(1986)) (applying the Fourth Amendment). Similarly, standing to challenge government action as
an unconstitutional search depends on “whether the person . . . has a legitimate expectation of
privacy in the invaded place.” Hanna v. State, 591 A.2d 158, 163 (Del. 1991) (quoting Rakas v.
Illinois, 439 U.S. 128, 143 (1978)). “A subjectively held expectation of privacy is legitimate if it
is ‘one that society is prepared to recognize as reasonable.’” Id. (quoting Rakas, 439 U.S. at 143-
44 n.12). This test also applies to challenges to searches under Delaware law. See id. at 164.
17
     389 U.S. 347 (1967).
18
     Id. at 351.
19
     Id. at 361 (Harlan, J., concurring).
20
  Id. (“Thus a man’s home is, for most purposes, a place where he expects privacy, but objects,
activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because
no intention to keep them to himself has been exhibited. On the other hand, conversations in the
                                                  9
applied to the placement of the listening device on the public telephone booth, the “critical

fact” was that:

          ‘[o]ne who occupies it, (a telephone booth) shuts the door behind him, and
          pays the toll that permits him to place a call is surely entitled to assume’ that
          his conversation is not being intercepted. The point is not that the booth is
          ‘accessible to the public’ at other times, but that it is a temporarily private
          place whose momentary occupants’ expectations of freedom from intrusion
          are recognized as reasonable. 21

Both Justice Harlan and the majority observed that, in contrast, “[w]hat a person knowingly

exposes to the public, even in his own home or office, is not a subject of Fourth Amendment

protection.” 22

          Although Delaware courts have not confronted whether law enforcement officers

violate the United States Constitution or the Delaware Constitution by monitoring

information that people make accessible to them when they are undercover, or to other

Facebook “friends” who are cooperating with law enforcement, cases from other

jurisdictions suggest that a Facebook user does not have a reasonable expectation that

information that he shares online with his “friends” will not be revealed by them.23



open would not be protected against being overheard, for the expectation of privacy under the
circumstances would be unreasonable.”).
21
     Id. (quoting majority opinion at 352, then 351).
22
     Id. at 351 (majority opinion); id. at 361 (Harlan, J., concurring).
23
   See, e.g., Palmieri v. United States, 72 F. Supp. 3d 191, 210 (D.D.C. 2014) (holding that “when
a Facebook user allows ‘friends’ to view his information, the Government may access that
information through an individual who is a ‘friend’ without violating the Fourth Amendment”
because those friends “‘were free to use the information however they wanted—including sharing
it with the Government’” (quoting United States v. Meregildo, 883 F. Supp. 2d 523, 527 (S.D.N.Y.
2012))); Meregildo, 883 F. Supp. 2d at 526 (“[Defendant’s] legitimate expectation of privacy
ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the
information however they wanted—including sharing it with the Government.”).

                                                    10
           A few federal courts have addressed similar scenarios.         In United States v.

Meregildo,24 the government officers viewed the defendant’s Facebook profile through the

Facebook account of one of his “friends,” who was a cooperating witness. The officers

learned that the defendant had posted violent messages and threats online, and that

information “formed the core of the Government’s evidence of probable cause supporting

its application for the search warrant.”25 The defendant alleged a Fourth Amendment

violation given that he “undoubtedly believed that his Facebook profile would not be

shared with law enforcement.”26 The court acknowledged the defendant’s impression but

nonetheless found that the defendant “had no justifiable expectation that his ‘friends’

would keep his profile private” because “those ‘friends’ were free to use the information

however they wanted—including sharing it with the Government.”27 Thus, the court found

that the government did not violate the Fourth Amendment in obtaining information

through the “friend.”28

           In United States v. Gatson,29 the defendant accepted an Instagram friend request

from an undercover account operated by officers, which allowed the officers to see the

defendant’s photos and other information. The defendant filed a motion to suppress the



24
     883 F. Supp. 2d 523 (S.D.N.Y 2012).
25
     Id. at 526.
26
     Id.
27
     Id.
28
   Id. (“When [the defendant] posted to his Facebook profile and then shared those posts with his
‘friends,’ he did so at his peril.”).
29
     2014 WL 7182275 (D.N.J. Dec. 16, 2014).

                                               11
evidence obtained from his Instagram page arguing “that there was no probable cause to

search and seize items” on his Instagram account.30 The court denied the motion, holding

that, “[n]o search warrant is required for the consensual sharing of this type of

information.”31

          Meregildo and Gatson reach the same conclusion, but frame the issue slightly

differently—and these approaches reflect the two major ways courts have viewed these

fact patterns. As in Meregildo, some courts view this issue as follows: by making

information available to “B,” “A” misplaced his trust in B because B could always give

A’s information to law enforcement. These courts find that, by trusting B, A took a risk

that B would reveal his information to law enforcement and thus could never have had a

reasonable expectation of privacy.32 Others (i.e., Gatson) frame the situation as such: by



30
     Id. at *22.
31
     Id. (citing United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012)).
32
   See K. Brennan-Marquez, Fourth Amendment Fiduciaries, 84 Fordham L. Rev. 611, 611 (2015)
(“Under existing law, if A shares information with B, A runs the risk of ‘misplaced trust’--the risk
that B will disclose the information to law enforcement”); see also United States v. Miller, 425
U.S. 435, 443 (1976) (“[T]he Fourth Amendment does not prohibit the obtaining of information
revealed to a third party and conveyed by him to Government authorities, even if the information
is revealed on the assumption that it will be used only for a limited purpose and the confidence
placed in the third party will not be betrayed.”); United States v. White, 401 U.S. 745, 749 (1971)
(“[H]owever strongly a defendant may trust an apparent colleague, his expectations in this respect
are not protected by the Fourth Amendment . . . .”); Rosario v. Clark Cty. Sch. Dist., 2013 WL
3679375, at *6 (D. Nev. July 3, 2013) (“When a person tweets on Twitter to his or her friends, that
person takes the risk that the friend will turn the information over to the government.” (citing
Meregildo, 883 F. Supp. 2d at 526)); United States v. Devers, 2012 WL 12540235, at *2 (N.D.
Okla. Dec. 28, 2012) (“[U]nless the defendants can prove that their [F]acebook accounts contained
security settings which prevented anyone from accessing their accounts, this court finds their
legitimate expectation of privacy ended when they disseminated posts to their ‘friends’ because
those ‘friends’ were free to use the information however they wanted–including sharing it with the
government.”).

                                                 12
approving B’s access to A’s information, A acted at his peril because B could always be a

“false friend” or member of law enforcement, and A “consensual[ly] shared” the

information with B.33 These cases acknowledge that A might have had a subjective

expectation of privacy, but they seem to suggest that that expectation of privacy was not

reasonable given the apparent societal view that the law should not remedy “a wrongdoer’s

[mistaken] belief that a person to whom he voluntarily confides his wrongdoing will not

reveal it.” 34 Whereas, in Katz, the Supreme Court “held that the Fourth Amendment . . .

protected Katz because he ‘justifiably relied’ upon the privacy of the telephone booth,”35

one cannot justifiably rely on others to keep evidence of criminal activity from law

enforcement.       Though Gatson’s reference to “consensual” sharing might be read as

implying that A consented to B’s access to the information in question, no case that we

have found addressing this context expressly says that A gave B “consent.” Discussion of

“consent” would seem to presuppose that B would have otherwise conducted a “search” of




33
     Gatson, 2014 WL 7182275, at *22.
34
     Hoffa v. United States, 385 U.S. 293, 302 (1966).
35
  Kyllo, 533 U.S. at 32 (quoting Katz, 389 U.S. at 353); see also Lewis v. United States, 385 U.S.
206, 210-11 (1966); On Lee v. United States, 343 U.S. 747, 753-54 (1952); United States v.
Norman, 448 F. App’x 895, 896-97 (11th Cir. 2011) (“[E]ven if Norman held a subjectively
reasonable expectation of privacy in the shared files on his computer, this expectation was not
objectively reasonable.”) (finding that defendant had no reasonable expectation of privacy in child
pornography contained in a file on his computer accessible to the public via a peer-to-peer file-
sharing program”); cf. Chaney v. Fayette Cty. Pub. Sch. Dist., 977 F. Supp. 2d 1308, 1315 (N.D.
Ga. 2013) (“Even if she had a subjective expectation of privacy in her Facebook photos, Chaney
cannot show that her expectation is legitimate.”) (finding that a high school student had no
reasonable expectation of privacy in photos that she posted on Facebook that depicted her wearing
a bikini).

                                                 13
a constitutionally protected area by viewing such information because “consent” is a way

to render that intrusion “reasonable” and therefore constitutional.36

          Though they do not expressly cite it, the “false friend” cases appear to rely on the

logic of Hoffa v. United States,37 which observed that “no interest legitimately protected

by the Fourth Amendment is involved” when the defendant invited a cooperating witness

who was wearing a wire into his hotel suite where the witness then recorded defendant’s

incriminating statements.38 The United States Supreme Court noted that the cooperating

witness neither “entered the suite by force or by stealth,” nor was he a “surreptitious

evesdropper.” Rather, the witness “was in the suite by invitation, and every conversation

which he heard was either directed at him or knowingly carried on in his presence. The

petitioner, in a word, was not relying on the security of the hotel room; he was relying upon

his misplaced confidence that [the witness] would not reveal his wrongdoing.”39




36
   See, e.g., Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 589
(2009) (“If government conduct does not violate a reasonable expectation of privacy, it is not a
search, whereas if it violates a reasonable expectation of privacy pursuant to consent, it is a search
but one that is constitutionally reasonable.”); Sherry F. Colb, What Is A Search Two Conceptual
Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 147
(2002) (“A consent search is a governmental activity that invades a reasonable expectation of
privacy, and for which the Fourth Amendment would therefore ordinarily require a warrant. Due
to the presence of consent, however, the invasion of privacy is ‘reasonable,’ notwithstanding the
absence of any basis for suspicion or outside authorization. The consent of the person searched
thus effectively becomes a substitute for probable cause and a warrant.”).
37
     385 U.S. 293 (1966).
38
     Id. at 302; see also Lewis, 385 U.S. at 210-11; On Lee, 343 U.S. at 753-54.
39
     Hoffa, 385 U.S. at 302.

                                                  14
          Though Hoffa preceded Katz, Hoffa was not overruled by Katz.40 Following both

Hoffa and Katz, the United States Supreme Court extended this “third party” doctrine to

find that one has no reasonable expectation of privacy in certain other information given

to third parties, such as records of the telephone numbers one dials (as in Smith v.

Maryland)41 or bank records (as in United States v. Miller).42 However, the applications

of the Katz test in these cases have been the focus of much criticism.43 In fact, several


40
     White, 401 U.S. at 749 (noting that Hoffa “was left undisturbed by Katz”).
41
   442 U.S. 735, 742 (1979) (holding that that police did not invade a legitimate expectation of
privacy when they used a “pen register,” a device that identifies the recipients of a person’s
telephone calls).
42
   425 U.S. 435, 443 (1976) (holding that a depositor had no reasonable expectation of privacy in
his bank records, and thus no Fourth Amendment search occurred when the government
subpoenaed them directly from the bank because “[t]he depositor takes the risk, in revealing his
affairs to another, that the information will be conveyed by that person to the Government.” (citing
White, 401 U.S. at 751-52).
43
  See, e.g., 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.7(b)
(5th ed. 2012) (critiquing Smith by arguing that “[s]uch a crabbed interpretation of the Katz test
makes a mockery of the Fourth Amendment. Under Smith, the police may without any cause
whatsoever and for whatever purpose they choose uncover private relationships with impunity
merely because the telephone company might under some circumstances for certain limited
purposes make a record of such relationships for the company’s own use.”); id. § 2.7(c) (“The
result reached in Miller is dead wrong, and the Court’s woefully inadequate reasoning does great
violence to the theory of Fourth Amendment protection the Court had developed in Katz.”); Susan
W. Brenner, The Fourth Amendment in an Era of Ubiquitous Technology, 75 Miss. L.J. 1, 68
(2005) (“The problem with this holding [in Smith] is that it erroneously assumes Smith had a
choice. In fact, since [Smith] had no way to shield the numbers he dialed from the telephone
company, the only choice Smith had to minimize his risk of being observed was to leave home
and use a pay phone.”); id. at 70 (“Essentially, Smith presents us with a Hobson’s choice: Embrace
technology and surrender privacy in the data it compiles and disseminates or reject technology and
thereby prevent the exposure of one's personal data.”); Robert Ditzion, Electronic Surveillance in
the Internet Age: The Strange Case of Pen Registers, 41 Am. Crim. L. Rev. 1321, 1336 (2004)
(“The only way that Smith’s reasoning based on third-party disclosure could make sense in the
Internet age would be an undesirable (and likely factually inaccurate) holding that people have no
expectation of any privacy in their Internet communications.”); Patricia L. Bellia, Surveillance
Law Through Cyberlaw’s Lens, 72 Geo. Wash. L. Rev. 1375, 1403 (2004) (“The conclusion that
Miller, Smith, and like cases foreclose any claim of an expectation of privacy in communications
held by a service provider fails to acknowledge the factual contexts of Miller and Smith themselves,
                                                 15
state supreme courts, in interpreting their own state laws, have expressly disagreed with

those holdings and applied the Katz test to find that society recognizes a reasonable or

legitimate expectation of privacy in such circumstances.44 Further, Congress stepped in to

grant individuals privacy rights in certain bank records,45 suggesting that at least Congress

believed that the Court took too narrow a view of societal expectations of privacy. The

United States Supreme Court itself has since limited the third party doctrine in certain areas

to suggest, for example, that one may have a reasonable expectation of privacy in certain

types of information shared with certain types of people: in Ferguson v. City of

Charleston,46 the Court found that doctors at state hospitals conducted an unreasonable

search in violation of the Fourth Amendment by administering a diagnostic test in order to

obtain evidence of a patient’s criminal drug use for law enforcement purposes where the

patient had not consented to the procedure.47 The Court observed that, “[t]he reasonable



as well as the doctrinal and normative underpinnings of those decisions. A broad reading of Miller
and Smith is also fundamentally inconsistent with Katz.”); Colb, supra note 36, at 122 (“[T]reating
exposure to a limited audience as identical to exposure to the world, means failing to recognize
degrees of privacy in the Fourth Amendment context.”).
44
   See, e.g., Com. v. Melilli, 555 A.2d 1254, 1259 (Pa. 1989) (“Telephone activities are largely of
one piece, and efforts to create distinctions between numbers and conversational content are
constitutionally untenable in our view.”); State v. Hunt, 450 A.2d 952, 956 (N.J. 1982) (“It is
unrealistic to say that the cloak of privacy has been shed because the telephone company and some
of its employees are aware of this information. Telephone calls cannot be made except through the
telephone company’s property and without payment to it for the service. This disclosure has been
necessitated because of the nature of the instrumentality, but more significantly the disclosure has
been made for a limited business purpose and not for release to other persons for other reasons.
The toll billing record is a part of the privacy package.”); see also 1 LaFave, supra note 43, §
2.7(c) (arguing that people have a legitimate expectation of privacy in telephone and bank records).
45
     See Right to Financial Privacy Act, 12 U.S.C. §§ 3401-22 (2012).
46
     532 U.S. 67 (2001).
47
     Id. at 78.

                                                16
expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a

hospital is that the results of those tests will not be shared with nonmedical personnel

without her consent.”48 Scholars have proposed a further limitation on the third-party

doctrine to cover information shared with so-called “information fiduciaries”—a

“counterparty to whom we entrust ‘personal [or] sensitive information’ today, and who,

because they occupy a status ‘analogous to . . . traditional . . . fiduciaries,’ are obligated to

use that information in ways that benefit us (or at least, that don’t work to our detriment).”49

Moreover, even the Supreme Court itself has questioned how far the third-party doctrine


48
   Id. But see California v. Greenwood, 486 U.S. 35, 40-41 (1988) (holding that the Fourth
Amendment did not prohibit a warrantless search and seizure of garbage left for collection outside
the curtilage of a home, and concluding that “having deposited their garbage ‘in an area particularly
suited for public inspection . . . ,’ respondents could have had no reasonable expectation of privacy
in the inculpatory items that they discarded.” (quoting United States v. Reicherter, 647 F.2d 397,
399 (3d Cir. 1981))). See also Bond v. United States, 529 U.S. 334, 338-39 (2000) (applying Katz
test and citing Smith, 443 U.S. at 740) (observing that a bus passenger who places his bag in an
overhead been necessarily exposes it to third parties, such as other passengers or bus employees,
who “may move it for one reason for another” such as in order to fit other luggage, but “[h]e does
not expect that other passengers or bus employees will, as a matter of course, feel the bag in an
exploratory manner,” and therefore holding that “the agent’s physical manipulation of petitioner’s
bag violated the Fourth Amendment.”).
49
   See Brennan-Marquez, supra note 32, at 649 (quoting Jack Balkin, Information Fiduciaries in
the Digital Age, Balkinization (Mar. 5, 2014, 4:50 PM), http://balkin.blogspot.com/2014/03/
information-fiduciaries-in-digital-age.html [http://perma.cc/VN5D-JBZP]); see also Jack Balkin,
Information Fiduciaries and the First Amendment, 49 U.C. Davis. L. Rev. 1130-31 (“We provide
lots of information about ourselves — some of it quite sensitive — to people and organizations
who owe us fiduciary duties or duties of confidentiality. And when we provide this information,
we have, and should have, a reasonable expectation that they will respect our privacy. We have a
reasonable expectation that disclosing this information to them, or allowing them to collect it from
us, is not the same as making the information available to the public generally. . . . If I am right
that new digital online service providers may be new kinds of information fiduciaries, then we
should have reasonable expectations of privacy in at least some of the information about ourselves
that we share with them.”); see also Richard A. Posner, Privacy, Surveillance, and Law, 75 U. Chi.
L. Rev. 245, 248 (2008) (“[A] person would have to be a hermit to be able to function in our
society without voluntarily disclosing a vast amount of personal information to a vast array of
public and private demanders.”).

                                                 17
should be carried in this digital era and speculated that a more nuanced approach might be

needed to address the complexities posed by modern technology.50

       Though Fourth Amendment jurisprudence is in flux as courts try to apply it to new

technologies,51 the United States Supreme Court recently has affirmed, in Byrd v. United

States, that, in order for there to be a Fourth Amendment violation, the complainant must

have had a “property interest” or “reasonable expectation of privacy” under the Katz test




50
   See, e.g., United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring) (noting
that the “third-party doctrine” is “ill suited to the digital age, in which people reveal a great deal
of information about themselves to third parties in the course of carrying out mundane tasks” and
that “it may be necessary to reconsider the premise that an individual has no reasonable expectation
of privacy in information voluntarily disclosed to third parties.”); see also Riley v. California, 134
S. Ct. 2473, 2491 (2014) (observing that, “[t]o further complicate the scope of the privacy interests
at stake [in cell phone searches], the data a user views on many modern cell phones may not in
fact be stored on the device itself,” that “[c]loud computing is the capacity of Internet-connected
devices to display data stored on remote servers rather than on the device itself,” and that “[c]ell
phone users often may not know whether particular information is stored on the device or in the
cloud, and it generally makes little difference.”); City of Ontario, Cal. v. Quon, 560 U.S. 746, 759
(2010) (“The Court must proceed with care when considering the whole concept of privacy
expectations in communications made on electronic equipment owned by a government employer.
The judiciary risks error by elaborating too fully on the Fourth Amendment implications of
emerging technology before its role in society has become clear.”); Kyllo, 533 U.S. at 33-34 (“It
would be foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology.”).
51
    In fact, the United States Supreme Court is currently considering whether the Fourth
Amendment requires the government to obtain a warrant before accessing from third-party service
providers “historical cell phone records revealing the location and movements of a cell phone user
over the course of 127 days . . . .” See Brief for Petitioner at i., Carpenter v. United States, No.
16-402 (U.S. Aug. 7, 2017), http://www.scotusblog.com/wp-content/uploads/2017/08/16-402-
ts.pdf. In that case, officers obtained Carpenter’s cell site location information (CSLI)—data that
revealed his location at nearly every moment over a four-month period—from his cellular service
providers, MetroPCS and Sprint, pursuant to a court order (not a warrant) under the Stored
Communications Act, 18 U.S.C. § 2703(d), based on a standard that was less than probable cause.
See id. at 2, 5-6, 13. Carpenter argued before the Court that accessing long-term CSLI is a “search”
that requires a warrant based on probable cause because the possibility that government officers
might access that data based on less than probable cause intruded on citizens’ reasonable
expectation of privacy, even though that information was held by a third party. See id. at 14-15.

                                                 18
in the area where the Fourth Amendment violation is alleged to have occurred.52 Justice

Thomas wrote separately in Byrd to express his “serious doubts about the ‘reasonable

expectation of privacy’ test from Katz.” But even he (joined by Justice Gorsuch) joined

the Court’s opinion because “it correctly navigates our precedents, which no party has

asked us to reconsider.”53

          Here, we need not explore the edges and boundary lines defining a person’s

legitimate expectation of privacy in information shared with third parties such as Internet

providers or social media platforms such as Facebook, Twitter, and Snapchat. Rather, we

resolve the case on narrow grounds—namely, that the Fourth Amendment does not guard

against the risk that the person from whom one accepts a “friend request” and to whom one

voluntary disclosed such information might turn out to be an undercover officer or a “false

friend.”      One cannot reasonably believe that such “false friends” will not disclose

incriminating statements or information to law enforcement—and acts under the risk that

one such person might actually be an undercover government agent. And thus, one does

not have a reasonable expectation of privacy in incriminating information shared with them




52
   Byrd v. United States, No. 16-1371, --- S. Ct. ----, 2018 WL 2186175, at *6-7 (U.S. May 14,
2018) (“Indeed, more recent Fourth Amendment cases have clarified that the test most often
associated with legitimate expectations of privacy, which was derived from the second Justice
Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967), supplements, rather than
displaces, ‘the traditional property-based understanding of the Fourth Amendment.’” (quoting
Florida v. Jardines, 569 U.S. 1, 11 (2013))).
53
     Id. at *12 (Thomas, J., concurring).

                                             19
because that is not an expectation that the United States Supreme Court has said that society

is prepared to recognize as reasonable.54

       To be clear, there are prohibitions against wiretapping conversations as they are

happening absent a court order.55 And the privacy of emails or the servers where they are

stored is not at issue. We only hold that, as between Everett and his “false friend,” the

undercover Detective Landis, Everett assumed the risk that whoever was behind that

account was a law enforcement officer, and, thus, there was no reasonable expectation of

privacy that shields the incriminating information he shared.

       Finally, Everett argues that Detective Landis must have had reasonable suspicion of

criminal activity before resorting to “ruse, fabrication, or deception” in obtaining his


54
   Our holding under the Delaware Constitution is similarly limited. Our Article I, Section 6 is
broader than the Fourth Amendment. See, e.g., Jones v. State, 745 A.2d 856, 866 (Del. 1999)
(recognizing that the Pennsylvania Supreme Court found that the search and seizure provision in
Pennsylvania Constitution’s “reflected different and broader protections than those guaranteed by
the Fourth Amendment” and determining that “[w]e reach the same conclusion with regard to the
search and seizure provision in the Delaware Constitution based upon its historical convergence
for more than two hundered years with the same provision in the Pennsylvania Constitution.”); see
also Wheeler v. State, 135 A.3d 282, 298 n.71 (Del. 2016) (noting “three cases in which this Court
held that our State Constitution provides somewhat broader constitutional protections.”). We do
not foreclose the possibility that this Court might conclude that, as to other issues that might arise
in this developing area of search and seizure law, our State Constitution is more protective of those
rights than the Fourth Amendment.
55
   See Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 1:10 (“Title
III [of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. No. 90-351, 82 Stat. 197,
211 (1968), codified at 18 U.S.C. §§ 2510 et seq.] is a detailed legislative scheme which specifies
who may authorize an investigator to apply for a court order, the information an application must
contain and the findings a judge must make before issuing the order, how the order is to be
executed, how recordings of intercepted conversations are to be secured, who must eventually
receive notice that phone or other communications facility was tapped or a location was bugged,
and a host of other details.”); 11 Del. C. § 2402(c)(3) (authorizing government wiretapping for
limited investigative purposes only after obtaining a Superior Court order under § 2407); 11 Del.
C. § 2407(c)(1)(a)-(d) (providing that a judge may issue an ex parte order “authorizing interception
of wire, oral or electronic communications” only if certain requirements are satisfied).
                                                 20
consent in order for that consent to be considered valid. In Hoffa v. United States, “[t]he

argument [was] that [the informant’s] failure to disclose his role as a government informant

vitiated the consent that the petitioner gave” for the agent’s access to criminal

wrongdoing.56 But the United States Supreme Court rejected that argument recognizing

that, “[t]he Fourth Amendment does not protect ‘a wrongdoer’s misplaced belief that a

person to whom he voluntarily confides his wrongdoing will not reveal it.’”57 If one allows

others to have access to his or her information that contains evidence of criminal

wrongdoing, then that person assumes the risk that they might expose that information to




56
     Hoffa, 385 U.S. at 300.
57
   Henry v. State, 945 A.2d 594, 2008 WL 623208, at *3 n.16 (Del. 2008) (TABLE) (quoting
United States v. Lee, 359 F.3d 194, 199-200 (3d Cir. 2004) (quoting Hoffa, 385 U.S. at 302)); see
also Lewis v. United States, 385 U.S. 206, 209 (1996) (“[I]n the detection of many types of crime,
the Government is entitled to use decoys and to conceal the identity of its agents,” but noting that
“[t]he various protections of the Bill of Rights, of course, provide checks upon such official
deception for the protection of the individual.”); see Schneckloth v. Bustamonte, 412 U.S. 218, 241
(1973) (“There is a vast difference between those rights that protect a fair criminal trial and the
rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring
a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the constitutional guarantee against
unreasonable searches and seizures.”); Colb, supra note 36, at 149 (“[A] lack of information that
would vitiate a waiver does not categorically invalidate consent.”); Illinois v. Rodriguez, 497 U.S.
177, 187 (1990) (“[W]hat is at issue when a claim of apparent consent is raised is not whether the
right to be free of searches has been waived, but whether the right to be free
of unreasonable searches has been violated.”); United States v. Longoria, 177 F. 3d 1179, 1183
n.2 (10th Cir. 1999) (stating that, “[i]f a defendant . . . knowingly exposes his conversation to
accomplices, even in a room not accessible to the general public, his conversations are not subject
to Fourth Amendment protection from disclosure by such accomplices,” and that, defendant “had
no reasonable expectation that the person in whose presence he conducts conversations will not
reveal those conversations to others.”); Pennell v. State, 602 A.2d 48, 54 (Del. 1991) (rejecting the
defendant’s argument that an officer was not legally in a position to view evidence in plain view
because, even though the defendant believed that the officer was a prostitute, the defendant invited
the officer to approach and enter the defendant’s van) (citing Lewis, 385 U.S. at 210-12).

                                                 21
law enforcement—or they might be undercover officers themselves.58 As the United States

Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as

to the identity of one with whom one deals is probably inherent in the conditions of human

society” and “is the kind of risk we necessarily assume whenever we speak.”59 In United

States v. White,60 a plurality of the United States Supreme Court followed Hoffa and

similarly observed that, “[i]f the law gives no protection to the wrongdoer whose trusted

accomplice is or becomes a police agent, neither should it protect him when that same agent

has recorded or transmitted the conversations which are later offered in evidence to prove

the State’s case.”61


58
   See, e.g., Palmieri, 72 F. Supp. 3d at 210 (“When a Facebook user allows ‘friends’ to view his
information, the Government may access that information through an individual who is a ‘friend’
without violating the Fourth Amendment.”). In addition, Detective Landis was aware that Everett
was a person prohibited from possessing deadly weapons due to violent felony convictions.
Although our holding here need not rely upon this fact, the special nature of probationary
supervision results in curtailed rights of a probationer as compared to those of an ordinary citizen.
See Fuller v. State, 844 A.2d 290, 291 (Del. 2004); see also Griffin v. Wisconsin, 483 U.S. 868,
873-74, 880 (1987) (holding that a warrantless search of a probationer’s home was “reasonable”
within the meaning of the Fourth Amendment, and noting that the special nature of probationary
supervision justified a departure from the usual warrant and probable cause requirements for a
search); McAllister v. State, 807 A.2d 1119, 1124 (Del. 2002) (“As the United States Supreme
Court has observed, ‘inherent in the very nature of probation is that probationers do not enjoy the
absolute liberty to which every citizen is entitled.’” (quoting Griffin, 483 U.S. at 874)).
59
  Hoffa, 385 U.S. at 303 (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J.,
dissenting)).
60
     401 U.S. 745 (1971).
61
   Id. at 752. In White, the plurality found no Fourth Amendment violation where a radio
transmitter was concealed on the informant’s body, and police then monitored the informant’s
conversations with the defendant, including one that occurred in the defendant’s home. See also
Lopez v. United States, 373 U.S. 427, 439 (1963) (finding no Fourth Amendment violation where
an undercover officer gained entry into the defendant’s office with his consent and then recorded
his conversations with the defendant because “[t]he Government did not use an electronic device
to listen in on conversations it could not otherwise have heard. Instead, the device was used only
to obtain the most reliable evidence possible of a conversation in which the Government’s own
agent was a participant and which that agent was fully entitled to disclose.”); United States v. Lee,
                                                 22
       In sum, we agree with the trial court’s conclusion that the Detective’s viewing of

Everett’s Facebook page did not violate the Fourth Amendment or Article I, Section 6 of

the Delaware Constitution.

                                      D.      Conclusion

       For the reasons set forth above, we AFFIRM.




359 F.3d 194, 203 (3d Cir. 2004) (finding no Fourth Amendment violation where officers
videotaped defendant’s conversations with an informant in the defendant’s hotel suite with a
camera that they had installed before defendant occupied the room); United States v. Myers, 692
F.2d 823, 859 (2d Cir. 1982) (“[Defendant’s] conversations with undercover agents in whom he
chose to confide were not privileged, and mechanical recordings of the sights and sounds to which
the agents could have testified were proper evidence.” (citing White, 401 U.S. at 749-53)).

                                               23
