The international nongovernmental organization Human Rights Watch released a blockbuster report this week. It alleges that, in many cases federal law enforcement is tipping off state and local forces about information it may have learned by using constitutionally questionable practices. Such tips might not be admissible as evidence if brought before a court. Therefore, state and local police and prosecutors create false back stories for how they discovered the evidence.
The report says that criminal defendants and their counsel frequently have no idea federal agents tipped off their local counterparts about suspect activities. The Sixth Amendment of the U.S. Constitution gives defendants the right to confront all evidence used against them. Yet this hidden evidentiary trail makes challenging the evidence appropriately very difficult.
The report says the original evidence may have been obtained via warrantless searches, wiretaps or even mass surveillance techniques which may not be constitutional. Apparently in order to overcome that problem, state and local law enforcement creates a false “parallel construction,” in which they claim to have discovered the evidence on their own.
For example, suppose a federal agency was using illegal mass surveillance techniques on a U.S. citizen. While doing so, they find something suggesting the citizen is selling drugs. They secretly tip off the local police, who wait for a moment when the citizen is driving and pull them over on a pretext. A lawful search of the citizen’s vehicle yields a small quantity of drugs.
The citizen’s defense attorney is never told about the federal tip, so they don’t have a chance to challenge the legality of the evidence gathering. Instead, they are only told about the traffic stop. They may attempt to challenge the stop, but they don’t know it was pretextual. Therefore, the evidence is admitted in the case even though its true origin is an unconstitutional search.
The report identifies the FBI, The Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Immigration and Customs Enforcement and the DEA as agencies known to feed information secretly to state and local law enforcement. The DEA was singled out as the most active.
Law enforcement insists that this is all quite legal. However, it appears to deprive criminal defendants of their rights to due process, confrontation of evidence and reasonable searches and seizures. It certainly sounds as if the federal government has been making an end-run around the Constitution — and doing so secretly.