Police videos of man’s drug arrest in McHenry County wind up on TikTok. His lawyer wants to know how.

The videos have been viewed millions of times on the social media platform

William Gilbert

A man who was taken into custody last year near Wonder Lake and charged with several drug-related offenses wants to know how videos of his arrest wound up on TikTok.

The man’s attorney, Roderick Drobinski, said in a filing in McHenry County court that he learned body camera videos from the July 25 arrest had been edited and broken up into two- to three-minute segments and posted to the social media platform.

The release of the footage “creates a substantial likelihood that” his client, William Gilbert, 42, of Waukegan, will not receive a fair trial, Drobinski wrote in a motion he filed in McHenry County court.

The lawyer said in the motion the videos, posted to TikTok Jan. 23, would have been accessed through Evidence.com, a secured site used by the McHenry County sheriff’s office to upload digital evidence.

In order for prosecutors to share with defense attorneys the evidence that law enforcement has gathered – a process called discovery – both parties on a case can get access to evidence on the platform through private links and passwords. Attorneys then are only able to access discovery pertaining to their clients’ cases, said Robert Deters, a defense attorney who often has clients in McHenry County.

Deters, who is not involved in the Gilbert case, said he “is very surprised” the videos appeared on TikTok, where the site indicates they’ve been viewed more than 2.7 million times.

But Sandra Salgado, business manager for the sheriff’s office, said, “There was not a breach in Evidence.com.”

She said the video was released under the Freedom of Information Act through two requests by two out of state people.

She said her office follows the rules of FOIA set by the Illinois Attorney General’s Public Access Counselor.

“Just because something is in court doesn’t mean we can’t release it,” she said, adding some exceptions include when there are eyewitnesses or minors who need to be protected. Though such evidence is not always provided under a FOIA request while a case is still open, Salgado said, sometimes it is, depending on timing and circumstances.

“Once the investigation is done and an arrest is made, then we have the opinion from the PAC we need to release it,” she said. “In this case, the investigation was closed the arrest was made, so when requests came through we released it.”

Many defense attorneys do not agree.

“The ramifications of disseminating discovery without court approval are significant,” said defense attorney Brian Stevens, who is not working on Gilbert’s case.

Citing Supreme Court Rule 415 which regulates discovery, Stevens said it is mandated “that any materials furnished to an attorney shall remain in his or her exclusive custody unless the court authorizes dissemination.”

Even a defense attorney has to have a judge’s permission to give his own client any discovery, Stevens said, adding the video being on TikTok could warrant a motion for change of venue or even dismissal.

The sheriff’s office began using the digital storage service about three years ago. The county has a five-year contract with Axon, the company that runs Evidence.com and also provides the office with body and dash cameras as well as tasers, Salgado said.

The service was incorporated by the sheriff’s office because it made storing and sharing digital evidence easier. It is more economical, secure and efficient than burning CDs and thumb drives, Salgado said.

She hopes all police agencies in the county start using the system to make multi-jurisdictional cases easier to investigate.

Gilbert’s attorney is asking the court to “enter a preservation order ensuring the audit lists regarding the electronic files for this case are preserved and an order to produce those audit lists pertaining to every video taken by law enforcement pertaining to the investigation.”

He also is asking for an order “requiring the McHenry County State’s Attorneys’ Office to issue and serve a subpoena for any records and data related to [TikTok] user account ‘mindshiftmagic.bd1′ and any records and data released to the specific videos of defendant upon TikTok,” the motion said.

The videos being public “presents several issues of serious concern to the defense,” Roderick wrote in the motion, “including, but not limited to, potential tainting of the jury pool, mishandling of evidence on a pending criminal prosecution, and potentially ethical or criminal violations of the law.”

His motion also states that, to his knowledge, the only people allowed access to such discovery are the prosecutor, defense attorney and police involved in the case.

The videos captured by the deputies’ body cams show a man standing outside his red Dodge Charger, pulled off to the side of the road along Route 120 with its hood popped open. Two sheriff’s deputies approach, and he tells them his car broke down and he is waiting for his girlfriend’s dad to arrive with a tow truck.

The man “was identified as a suspected male from Waukegan driving a red Dodge Charger suspected of possessing and selling narcotics within McHenry County,” according to a motionfiled last year by prosecutors.

The videos show deputies deploying a police dog, K-9 Deuce, to conduct a free air sniff of the vehicle. On the videos, the dog appears to respond to both the driver and passenger side of the car. As police attempt to get the driver to open the car door, he argues that his due process rights are being violated. They quibble and as the deputy tries to handcuff him, he tries to run away. He then locks himself in his car, which had dark tinted windows, and refuses to open the doors.

Among the items allegedly found in the car were about 26.4 grams of methamphetamine, 4.5 grams cocaine and fentanyl and about 31.7 grams of heroin, as well as plastic bags, clear latex gloves and a digital scale with white residue and $2,902 in cash, according to prosecutors’ court filings.

Gilbert was charged with felony delivering or possessing with intent to deliver methamphetamine, cocaine, heroin and fentanyl, according to the indictment.

The motion on the videos is due to be heard in court Feb. 27.

Representatives of TikTok and Axon, which runs Evidence.com, could not be reached for comment.