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Are ‘Gangsta’ Posts on Social Media a Violation of Probation? PA Supreme Court Says ‘No’ … Under These Circumstances

What can possibly go wrong if you decide to post to social media while on probation? Here’s the story of how a defendant’s self-described “stupid” post launched a legal showdown that landed in the Pennsylvania Supreme Court.

‘Gangsta’ Posts

In Commonwealth v. Foster, Darnell Foster was arrested in May 2015 and charged with possession with intent to deliver and simple possession of a controlled substance. Two months later, he entered a guilty plea and was sentenced by the trial court to four years of probation.

In August 2016, Foster’s probation officer detained him because of several photographs he had posted to his Instagram and Facebook accounts during the preceding three months. The photographs depicted guns, drugs, large amounts of money, and his sentencing sheet from his plea agreement. In one photo, Foster wore an ankle monitor and was fanning large amounts of money.

In October 2016, the trial court found Foster to be in violation of his probation due to his posts. The court, accordingly, revoked his probation and resentenced him to 11 ½ to 23 months of incarceration, followed by seven years of probation.

Notably, the court did not find that Foster had violated a specific condition of his probation. Nor did it find that the items in the photographs were, in fact, contraband, that any of them belonged to Foster, that he took the posted pictures, or that he had committed a crime.

Instead, the court found:

What is crystal clear from these photographs, posted by the defendant on his social media accounts, is that he does not take probation seriously and clearly is not attempting to conform to society’s expectations of its citizenry. Mr. Foster’s embracement of all things ‘gangsta’, including illegal drugs, guns and violence, is not the reformation this court had in mind for the defendant when he was placed on probation. This defendant’s conduct clearly indicates that probation was an ineffective vehicle to accomplish his rehabilitation and deter against Foster’s future antisocial conduct, as he has chosen to highlight his defiance or indifference regarding his crimes, rather than any display of remorse.

Foster maintained that the court’s belief regarding the ineffectiveness of his probation was not a permissible basis upon which to find him in violation. He maintained that, by statute, the court was required to find that he had violated a specific condition of his probation or had committed a new crime in order to find him in violation of his probation.

He appealed to the Superior Court of Pennsylvania, which upheld the trial court’s decision. He next appealed to the Pennsylvania Supreme Court.

Supreme Court Decision

In a unanimous ruling, the Pennsylvania Supreme Court sided in favor of Foster. The court wrote:

We find the language of the pertinent statutory provisions to be clear and unambiguous. … A court may find a defendant in violation of probation only if the defendant has violated one of the ‘specific conditions’ of probation included in the probation order or has committed a new crime. The plain language of the statute does not allow for any other result.

Conclusion

It is important to recognize that the outcome of this case turned upon the Commonwealth’s failure to prove that Foster had violated a specific term of his probation or that he had committed a crime.

Indeed, Foster’s attorney recounted that he had been attending meetings with his probation officer, tested negative on every drug screen, and had not incurred any new arrests, all of which presumably were conditions of his probation.

Foster said he posted the photos to “show off to people” and admitted that it was “stupid.” He asserted that he downloaded all of the pictures (other than those depicting his sentencing sheet and him with money) from the internet. He further asserted that the photographed money was his, but that he had earned it through legal employment with a waste management company.

Back to our question of what can possibly go wrong for a defendant who posts to social media while on probation: Foster ultimately received a good legal outcome, but he served some jail time as his case was winding through the courts. In cases where the Commonwealth can prove criminal activity or a probation violation, the social-media-happy defendant will not be as fortunate.

The takeaway: If you are on probation, our best advice is to think before you post to social media. Better yet, step away from the computer.