In both cases, it helps to be clear about terminology.
You can't simply introduce evidence and conceal its source from a judge; that evidence would be excluded from trial. You also can't introduce evidence that chains back to excludable evidence.
But the products of NSA/FBI fusion (or "SOD", or whatever you want to call it) are never introduced as evidence, either directly or as cause to authorize a search. That's why the process is called "parallel construction": it is the legal opinion of the DOJ that you can use excludable evidence as intelligence so long as you then build a case from probable cause (either for a warrant or arrest) that doesn't stem from that intelligence.
In other words, you can exploit the NSA to put a detective in the right place at the right time. But the detective will need to observe you doing something that gives them probable cause for a search: you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
The way parallel construction works, the information coming from parallel construction is never brought to court. This bothers criminal defense attorneys and civil rights advocates. It has never been the case that prosecutors are required to furnish all the information they collect on a suspect (though they are required to furnish any potentially exculpatory information, per Brady v. Maryland). But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
But the detective will need to observe you doing something that gives them probable cause for a search
Alternatively, once the detective has been "informed" that the suspect is already known to be guilty, and thus that their organization wants this person arrested and off the street, that detective may feel comfortable making statements and performing acts that they otherwise would not. In the simplest form: lie about it, but with clear conscience because you are doing so to convict a known criminal.
Anecdotal, but I recently spent my jury duty as foreman for a case where the police claimed that the defendant was transporting a legally-owned handgun in an illegal manner (loaded and in an unlocked case). For all I know, the defendant we unanimously found "not guilty" may have been correctly known to be on his way to commit a murder. But all of us on the jury concluded that the police who testified were simply lying about too many of the major details to be trusted.
And I don't mean poor recall: this was flat-out perjury that we felt contradicted the police's own photographic evidence. While my faith in the system is really shaken, I'd at least like to believe that the detectives felt they were doing "the right thing" by trying to put this person in jail. But it certainly gives me cause to worry about the side-effects of parallel construction. Given a preconception of guilt, how much farther will the local authorities feel comfortable "bending the rules" in ways that pervert the system to their advantage?
This isn't hard. The constitution says the order is
probable cause -> search
Parallel construction is
search -> probable cause -> search again
The first search is blatantly illegal according to the plain language of the constitution. No fancy lawyering needed. That they lie about the origin of the probable cause is icing on the illegal cake.
There's a difficult semantic problem that comes up in these conversations, how to explain...
Publishing the AACS key as Wikipedia does [1] is, as you would say, "blatantly illegal according to the plain language [of the law]. No fancy lawyering needed." In spite of the fact that is "blatantly illegal", they do it, and nothing bad happens. How can this be?
Well, the reason is because "blatantly illegal" is not a magic word that prevents people from doing things. It's not a technical measure that stops you in your tracks.
"Illegal" simply means that someone has the option to get a specific legal remedy from you. And whether that somebody is interested in exercising that remedy or whether the remedy is very good are completely different questions.
It is "blatantly illegal" to search your house but that doesn't stop the DEA, your ex-girlfriend, or the burglar down the street from doing so. The only operative question is, "what is the remedy?" And on this question the constitution is "blatantly" silent.
In the illegal search situation legal precedent has decided the remedy is that you cannot use the evidence you collect illegally in court. This is called the "fruit of the poisonous tree" doctrine.
Now maybe you think that remedy is insufficient, that there should be a fine or we should put them in jail. That is a perfectly reasonable view. But "this is blatantly illegal under the constitution" is not an argument that competently advances that position for a harsher remedy. Everybody already agrees that illegal searches are illegal; that is true by definition. Not everybody agrees about what the remedy should be.
Sure, that's why they hide all their shenanigans under national security secrecy. To make it impossible to challenge and for a judge to make a determination of legality. Thereby circumventing the system of checks and balances and tearing another hole in the constitution.
No. That's serial construction. To work, the process must defensibly be:
search -> [intelligence]
probable cause -> search -> [evidence]
Think of parallel construction the way engineers think about clean-room reimplementations, for instance of the old Phoenix BIOS. The probable cause that authorizes the evidence search has to be de novo; LEO's can't search you simply because the NSA tipped them off.
Right, they pretend it's parallel when in fact it's serial. The first illegal search is what generates the lead, no matter what secret rationale they come up with.
NSA surveillance of a smuggler in Mexico produces the name of Joe Schmoe in El Paso (for concreteness let's say the intercept is "Joe Schmoe will distribute our cocaine, as always"). The DEA gets tipped, Joe Schmoe's name goes up on a tack board and he's put under surveillance. A case may be built from there using classical police methods.
> Parallel construction is not that. You're describing simple perjury.
The only difference between "parallel construction" and "simple perjury" is that the people testifying aren't, if parallel construction is done "correctly", even aware that it has been done, and thus aren't committing perjury (though the agency doing parallel construction is committing a massive fraud on the courts.)
> But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
The argument against parallel construction is simpler than that: The exclusionary rule exists not because guilty defendants have a right to go free, but rather to deprive law enforcement of the benefit of an unlawful search. Allowing parallel construction would impermissibly allow law enforcement to benefit from the unlawful search.
> It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.
The distinction is that evidence from a CI would be admissible in its own right. Further evidence that it leads to wouldn't be the fruit of the poisonous tree.
The trouble seems to be that the exclusionary rule breaks in the absence of total transparency from law enforcement. The exclusionary rule exists to remove the incentive for law enforcement to conduct unconstitutional searches. If law enforcement doesn't have to disclose all their sources, even if parallel construction from poisonous evidence was nominally prohibited, defendants wouldn't be able to prove it when it happened. It would reintroduce the incentive for law enforcement to conduct unconstitutional searches and thereby make the exclusionary rule insufficient. This is a hard problem, although maybe requiring a high level of transparency and disclosure from law enforcement would be beneficial in general.
No, evidence from a CI is not admissible when the CI is not revealed to the court. I'm not saying parallel construction applies to every case involving a CI; I'm saying it applies to cases made from CIs who remain sources after the case is brought, and are thus concealed from the court and (more importantly) the defendant.
Again, the distinction is that the use of the CI is not a violation of the defendant's constitutional rights. Hiding the existence of the CI doesn't have the effect of hiding a constitutional violation by law enforcement.
Just to add the relevant terms of art to this post for people to google if they're interested in the legal doctrine: "exclusionary rule", "fruit of the poisonous tree", "independent source", "inevitable discovery", "attenuation", "good faith reliance", and "standing".
And the accumulation of these concepts and precedents have added up to the current, nearly-legal, total surveillance state that we're developing into; a court decision, a failure to allow a challenge to a court decision, a secret interpretation by an executive branch counsel that is made illegal to either see or challenge but the executive operates as if it's established law...
The problem isn't that there isn't a body of precedent that allows a lot of this garbage, it's that those precedents tend to be equally horrible and biased towards the powerful.
edit: Just saying:) Not trying to be antagonistic. Just venting.
>you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
Or be a totally innocent person who is unknowingly transporting contraband and say, "of course I don't mind, search my car, officer."
Why would anyone willingly give up their protections under the law? Of course, if you say "no", they'll just get their trained dogs to give them "permission".
>Why would anyone willingly give up their protections under the law?
* Implied or implicit threats from LEO
* Unwarranted trust in law enforcement
* Belief that they are making the most efficient choice.
* Ignorance of their rights
* etc.
In both cases, it helps to be clear about terminology.
You can't simply introduce evidence and conceal its source from a judge; that evidence would be excluded from trial. You also can't introduce evidence that chains back to excludable evidence.
But the products of NSA/FBI fusion (or "SOD", or whatever you want to call it) are never introduced as evidence, either directly or as cause to authorize a search. That's why the process is called "parallel construction": it is the legal opinion of the DOJ that you can use excludable evidence as intelligence so long as you then build a case from probable cause (either for a warrant or arrest) that doesn't stem from that intelligence.
In other words, you can exploit the NSA to put a detective in the right place at the right time. But the detective will need to observe you doing something that gives them probable cause for a search: you'll need to, say, do an open-air drug transaction, or get stopped for running a red light and then have drugs plainly visible in your car (or have a dog authorize the search, which is plainly problematic).
The way parallel construction works, the information coming from parallel construction is never brought to court. This bothers criminal defense attorneys and civil rights advocates. It has never been the case that prosecutors are required to furnish all the information they collect on a suspect (though they are required to furnish any potentially exculpatory information, per Brady v. Maryland). But people opposed to parallel construction see this process as a bridge too far; one way to look at it would be that the whole process of discovering probable cause is something that a criminal defense can challenge, and so that whole process is potentially exculpatory.
It's also helpful to know that parallel construction isn't a new thing. It's similar to the process that works when the FBI/DEA has a highly-placed informant in a criminal organization. They want to make cases from that CI, but they don't want to expose the CI, not least because they'll have more cases to make down the road.