Court tosses gun charges against Dorchester man who police say displayed guns on Snapchat after DA, police refused a court order to hand over data about fake police Snapchat accounts

The Supreme Judicial Court today upheld the dismissal of gun charges against a Dorchester man whom police say they watched showing off guns on Snapchat via a bogus Snapchat ID because both police and the Suffolk County District Attorney's office refused a lower-court order to turn over information about all the fake IDs they used to monitor suspected gang members in Snapchat videos around the time he was arrested - twice - in 2018.

Richard Dilworth's attorney had asked for information about Snapchat "bitmojis" that were really accounts set up by detectives and gang-unit officers in a bid to show that police were unfairly going after mainly Blacks with Snapchat accounts, in a city in which Whites still make up the largest racial group, and a Suffolk Superior Court judge agreed.

Dilworth was arrested on gun charges twice in 2018 - first after a gang-unit officer whose friend request Dilworth accept watched him show off a gun in eight separate Snapchat videos, then again after the cop watched him holding a gun in four more videos after his arrest. During the first arrest, according to the court summary of the case, police pulled him out of his SUV - along with a gun tucked into his waistband loaded with 26 bullets. During the second arrest, the summary continues, police found him with another loaded gun that had an obliterated serial number.

But the DA and BPD refused to comply with the "discovery" request, saying alternately that related case law only applied to traffic stops and that releasing the data would jeopardize ongoing investigations into illegal gun use - at a time when stupid criminals would routinely accept friend requests from new accounts without verifying who was behind the bitmojis, which they said had meant taking hundreds of guns off city streets.

In its ruling today, the state's highest court agreed police have the right to hide investigatory methods in ongoing cases But it noted the data sought by Dilworth's attorney was for a period several years in the past and that nothing was stopping police from simply creating new Snapchat accounts for new cases.

The dispute that led to Dilworth's charges being dropped stems from three motions between 2018 and 2021 by Dilworth's attorney seeking data about both the accounts and the people targeted. Suffolk Superior Court judges who considered the requests concluded Dilworth's attorney had the right to the information to help him make the case the gang unit - formally the Youth Violence Strike Force - was unfairly targeting Blacks, and agreed police could withhold information on accounts still being used in ongoing investigations and and that attorney could not publicly release anything but statistical information about the race of people being targeted.

When the DA and police each filed a formal "notice of noncompliance" in 2022, a judge dismissed the charges against Dilworth. The DA then appealed.

In its ruling today, the SJC agreed the case cited by the DA is limited to traffic stops, which by their nature are far more intrusive than watching an online video, but noted that in a later case, the court concluded the right of a defendant to question the possible racial motivation of police "applies beyond traffic stops to claims of selective law enforcement, such as pedestrian threshold inquiries and 'other claims of discriminatory law enforcement practices.' "

Besides, law enforcement simply failed to make the case that handing over the information sought by Dilworth's lawyer would jeopardize actual ongoing investigations - which the court made clear is a legitimate reason to withhold such data.

The record supports the judge's finding that the government did not establish a legitimate interest in the preservation of undercover social media accounts created three to four years ago. In short, there was no showing of a legitimate need to protect an ongoing investigation. ...

The Commonwealth contends that disclosure of usernames and profile images of undercover officers is "tantamount" to the disclosure of the identities of multiple confidential informants, the result of which, the Commonwealth argues, is an inevitable risk of danger. This theory, explained in [a gang-unit detective]'s affidavit, is as follows: "[i]t is increasingly common" to use information gained from informants or undercover police officers; police use information gathered through social media surveillance to corroborate their informants as "accurate and truthful"; informants risk retaliation from gang members; and the disclosure of usernames and profile images "would allow the target of the investigation the ability to narrow down the inevitable list of individuals believed to have cooperated with law enforcement."

Because the comparison is unpersuasive, there was ample basis for the judge to conclude that the Commonwealth did not properly assert an "equivalent" confidential informant privilege. The use of undercover social media accounts to monitor suspected criminal activity does not necessarily involve confidential informants. As such, there may be no confidential informant to protect. Additionally, disclosure of an undercover social media account does not risk chilling public participation in law enforcement because the public does not participate in the deception. Finally, to the extent that danger lurks in the ability of a defendant to ascertain the identity of an informant through cross-referencing usernames or profile images with other nformation, the Commonwealth failed to establish a nexus between disclosure of the requested information (usernames and profile image used by the BPD between August 1, 2017, and July 31, 2018) and potential danger to a confidential informant.

The ruling is at least the second in which the SJC has considered Snapchat posts. In 2020, the court upheld the use of Snapchat video against a Roxbury man arrested on gun charges in 2017 after he accepted a friend request from somebody who turned out to be a gang-unit officer, who then watched him allegedly holding a gun.

He sought to have the evidence tossed, on the grounds he had marked his account "private." The court, however, held it wasn't police's fault he then accepted a friend request from somebody who was not, in fact, his friend.

The Suffolk County DA's office cited that case in its Dilworth appeal. The court, however, rejected the argument, saying the cases were completely different - that man was not seeking information in discovery motions and the DA wasn't refusing to comply with a judge's order.