The respected non-governmental organization Human Rights Watch has just released a report claiming that federal agencies are tipping off local law enforcement with information obtained through constitutionally questionable techniques. And, since evidence obtained in this way might not be admissible in court, local cops and prosecutors often create a false narrative about how they came by the information.
According to the report, the Drug Enforcement Administration, the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives and U.S. Immigration and Customs Enforcement are among the agencies that are passing along the secret information. The information itself may come from warrantless wiretaps, phone and computer surveillance and physical surveillance or even the National Security Agency’s mass surveillance programs, which are supposed to shield U.S. citizens and residents from scrutiny.
Even more troubling, there is no way to challenge the constitutionality of how the information was gathered — since defense attorneys are intentionally kept in the dark. Human Rights Watch says that local police and prosecutors routinely pretend to have discovered the evidence on their own, using a technique called “parallel construction.” They do so because long-standing Supreme Court cases have ruled that illegally obtained evidence cannot be used in court, and neither can evidence derived from illegal conduct, under the so-called “fruit of the poisonous tree” doctrine.
Here’s a theoretical example. A federal agency, using warrantless mass surveillance, runs across supposed evidence of a certain person’s drug activity. Knowing they cannot legally use the evidence, they pass it along to a local police department, which agrees not to reveal the source of the information. Then, in order to hide the true source, the police pretend to stumble upon the evidence. They may pull the suspect over on a pretext, for example, and search the interior of the vehicle. If they find drugs, they pretend the discovery was the result of routine police work.
The defense — and even the judge — may be kept in the dark. Without being told that the evidence was actually garnered from potentially illegal surveillance, the defense doesn’t have enough information to challenge the evidence.
“Taken to its worst logical conclusion, parallel construction risks creating a country in which people and communities are perpetually vulnerable to investigations based on prejudice, vast illegal operations or official misconduct, but have no means of learning about these problems and holding agents to account,” reads the report.
It’s unclear how widespread these practices may be. However, on-record sources told Human Rights Watch that there is an entire unit within the DEA set up to distribute just these kinds of tips. It is called the Special Operations Division.
This is all deeply troubling, and we recommend you read this NPR story and the full report. These allegations indicate that the federal government is actively undermining the defense’s ability to protect defendants’ rights by challenging evidence that may have been gathered illegally.