DEA Presentation Shows How Agency Hides Investigative Methods From Trial Review

v3rgEz writes "CJ Ciaramella stumbled upon some interesting documents with a recent FOIA request: The DEA's training materials regarding parallel construction, the practice of reverse engineering the evidence chain to keep how the government actually knows something happened away from prosecutors, the defense, and the public. 'Americans don't like it,' the materials note, when the government relies heavily on classified sources, so agents are encouraged to find ways to get the same information through tactics like 'routine' traffic stops that coincidentally find the information agents are after. Public blowback, along with greater criminal awareness, are cited among the reasons for keeping the actual methodologies beyond the reach of even the prosecutors working with the DEA on the cases."

Comments

Prohibition...

[Anonymous Coward]

Prohibition creates corruption at all levels of society. Lessons from history learned: zero. Film at 11.

How about "play by your own rules", eh?

[pla]

Americans don't like it,' the materials note, when the government relies heavily on classified sources

That doesn't mean you need to find a way to "fake" the chain of evidence. It means that Americans don't fucking like classified evidence, what with our constitution guaranteeing us the right to face our accusers. As in, our actual accusers, not some fictional "these guys who just happened to smell bomb-making chemicals on your breath" accusers.

You want to keep the public off your backs, quit playing all these bullshit "Big Brother knows best" games, and if you can't come out and say how you know something, keep it to yourselves.

Re:How about "play by your own rules", eh?

[DarkOx]

"Americans don't like it". Did anyone note how they did not use "we" or "some people" they used "Americans" it's almost as if they recognize they are outside and apart from the rest of us.

These people hate freedom, they hate the rule of law, and they don't think of themselves as citizens and neighbors. I really think it's time the rest of 'us' start treating these folks accordingly, that is anyone working for a three letter should be assumed a scumbag until proven otherwise. Don't help them, if you see something say nothing, don't socialize with them, shun them. We can dismantle this crap from the ground up, nobody will join these organizations if they know it mean being blackballed the rest of there lives.

In the grand scheme of things

[Sean]

The DEA are the real criminals.

Fruit of the poison tree

[duckintheface]

Not all evidence is admissable in court. Evidence that is illegally obtainted can't be used in a prosecution. And any resulting evidence (like from a traffic stop as described in the article) is excluded as fruit of the poisoned tree. So this DEA "parallel construction" is not only a subversion of the intent of the law but is actually a conspriacy to subvert justice. The people who organized and practiced this system are guilty of a crime.

Re:Fruit of the poison tree

[physicsphairy]

I completely agree that if, e.g., doing an illegal wiretap and then reconstructing the evidence through a more legitimate train is subservision of the system and should be prosecuted.

But confidential informants, undercover work, legal wiretaps, etc. are all things which should be protected, and for which parallel evidence is a means of doing. In many cases, it is the civilians who are being shielded, not the police.

Re:Fruit of the poison tree

[melstav]

duckintheface didn't say it wasn't being used in court.

the statement was that it can't [LEGALLY] be used in court.

Re:Fruit of the poison tree

[icebike]

And defense attorneys had better step up their game and put state, county, and federal officers on the stand and start asking just how it is that they just HAPPENED to stop a certain car or visited a certain street corner at a specific time of day. Then ask them point blank if it was a case of parallel construction. Ask them to turn over the names of their CIs, even if its in closed court.

Force them to Commit Perjury. Best case you get your current case dismissed, even if you never get off the radar of the local law.

(I doubt the DEA is going to use secret sources of evidence or parallel construction to ensnare Joe Sixpack trying to score some recreational drugs. The fish will have to be worth the effort and the risk for the DEA to use this tactic themselves, but a casual word to the local sheriff might be used more often than you think.)

Re:Fruit of the poison tree

[He Who Has No Name]

Technically, conspiracy for depredation of rights under the color of law is punishable by death. It is legally constructed as domestic treason against the social compact, rather than wartime treason against the body republic.

This shit would stop quick if some of these bastards faced the firing squad on national prime-time television.

Re:Fruit of the poison tree

[flaming error]

"confidential informants, undercover work, legal wiretaps, etc. are all things which should be protected"

So says the government. The Constitution says the defense is supposed to get all the evidence. That's been taken to include the whole story of what opened the case, and what led the cops to look where.

Maybe the Constitution is wrong; I wouldn't know. But this "parallel evidence" is a secret end run around the Constitution, and it is illegal.

If you want to allow this "parallel evidence" history revision, amend the constitution to say the government can lie about their evidence trail to keep secrets from defendants and even the prosecutors.

Until then, follow the law. Or just stop pretending we have a Constitution.

Re:Fruit of the poison tree

[demonlapin]

Good luck getting a prosecutor to go after a cop for perjury.

Re:Fruit of the poison tree

[Anonymous Coward]

You're missing the point which is that the DEA *knows* the evidence can't be used in court. The DEA instead uses the evidence to surveil the person they are after to later catch them in the act or catch them in possession or whatever. In other words - the illegal spying just lets them know that criminal acts are going on and allows them to follow up with methods that are legal to actually catch the person in the act.

There is legal precedent establishing that this *may* be legal (quote from a techdirt article earlier today):

It appears that much of the DEA's arguments here rely on the Supreme Court's ruling in 1938 in Scher v. United States, in which a law enforcement agent was told some things by a source, and used that information to find and arrest the defendant handling whiskey (during Prohibition). The court said that how the agent found out about the information doesn't matter, so long as the agent saw illegal acts himself. And thus, the Supreme Court "enabled" the idea of parallel construction. That case pops up repeatedly throughout the documents, basically telling DEA agents: expect information to come from intelligence sources, but do your best to never find out why they know this stuff.

To me, the contexts are different (a source coming forward vs. someone being illegally spied on) as well as over 75 years passing, so I think this is ripe for being re-tested in court. I hope the courts find this practice to be highly illegal.

Re:Fruit of the poison tree

[msauve]

"Every time a cop has ever testified that he just had a "gut" feeling about a certain car"

A "gut" feeling is neither probable cause nor reasonable suspicion. Which is why the cop will simply lie and say your tail light was out or you failed to signal a lane change.

Re:Fruit of the poison tree

[mosb1000]

That would make it practically impossible to defend yourself against any charges brought against you by a government agency. They would have all this information that they gathered by whatever means are at their disposal, and you'd only have the evidence they presented to be used you and whatever else you are legally able to obtain (within your financial means). There is no way that scenario fits the definition of due process, the government would be practically guaranteed to win every time. According to you, they could have evidence that exonerates you and simply choose not to present it and it would all be totally legal.

You are not correct, during the discovery process the prosecution is required to turn over all the evidence they gathered. Not just whatever they saw fit to present.

Re:Fruit of the poison tree

[Bob9113]

Not all evidence is admissable in court. Evidence that is illegally obtainted can't be used in a prosecution. And any resulting evidence (like from a traffic stop as described in the article) is excluded as fruit of the poisoned tree.

The one I've been noodling on lately is privileged communications. Doctor/patient, supplicant/confessor, and attorney/client privilege come to mind. Could the government tap the communication between a criminal and his lawyer and use the information to construct a parallel evidence chain? Seems that fear of such would have a chilling effect on medical care, legal representation, and mystical absolution.

Re:Fruit of the poison tree

[DarkOx]

Sure there is

and to be informed of the nature and cause of the accusation;

. It's in the sixth amendment. Parallel construction can't be legal because it denies you being informed of the cause of the accusation, a possible cause for the accusation domes not count, the Constitution says THE cause.

Re:Fruit of the poison tree

[Electricity Likes Me]

That's not how parallel construction works.

Parallel construction is based on the idea that if a crime was committed, then it's unlikely that the bit you got by a non-admissable means was the only evidence of that crime.

"Fruit of the poisonous tree" is also specific: what it means is that you can't use an inadmissable wiretap to then carry out a normally disallowed search to get evidence of a crime.

So for example, it is not illegal for police to search through public parklands. It's public property after all, they can go there. If it was discovered someone had committed a murder and buried the body in a public park, but it was discovered by inadmissable wiretap (say, a hitman telling a client the job was completed) - then you couldn't use that intercept to get a warrant to go search their house for murder implements, or collect DNA.

But you can suggest to law enforcement to check public parks for bodies, particularly within 100m of these coordinates or so. Law enforcement is normally able to do this, and might have stumbled across this anyway, or a hiker might have or something. If they then find the body, they can work backwards from the victim, rebuild the profile, and when it comes time to asking for warrants, they can happen to ask for a warrant against the intercept guy first (amongst others they would normally have done so with).

All this evidence, collected this way, is admissable because it could have been discovered as a part of normal, admissable police/law enforcement procedure. It's public, it's out in the open and you have to explain it because it was perfectly legal to collect it.

Re:Fruit of the poison tree

[Etherwalk]

"Due process of law" is all that seems to be required, and in practice that means that discovery has to proceed in a normal manner and the prosecution may bring as much or as little evidence against you as they may require to convict you, no more or less. They must produce this evidence, and how they got it; any evidence they don't bring to court, they don't have to explain.

They have an obligation to make evidence, including exculpatory evidence, available to the defense. Some of them don't--that's prosecutorial misconduct and gets convictions overturned when the courts catch them.

Re:Fruit of the poison tree

[Frobnicator]

I'd love to see where you see that in the US Constitution, because no such specific language exists as far as I know. "Due process of law" is all that seems to be required, and in practice that means that discovery has to proceed in a normal manner and the prosecution may bring as much or as little evidence against you as they may require to convict you, no more or less. They must produce this evidence, and how they got it; any evidence they don't bring to court, they don't have to explain.

That's okay, not everybody went to law school.

Due Process, as currently enumerated:
1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Got that?

Next up, the SCOTUS clarified the requirements (and some consequences) in Brady V Maryland. Coupled with that is a body of rules such as Brady disclosure. In the past few decades judges have slowly gotten lax on Brady rules, but that has picked up sharply in the past year or two.

Re:Fruit of the poison tree

[Peyna]

The prosecution is required to hand over all the evidence they intend to use at trial, and any potentially exculpatory evidence. Not "all the evidence they gathered."

Re:Fruit of the poison tree

[Anonymous Coward]

And the problem with this is?

Most folks frown on cops breaking the laws simply because it's convenient for them.

Re:Fruit of the poison tree

[KingOfBLASH]

It's about over reaching.

A LEO may in the course of his or her duties come across information that he can't use. For instance, hearsay is inadmissable in a court of law so if someone tells a cop he heard you say something, it is not something you could use to send the person to jail. Then the officer is allowed to dig up, legally, evidence that might be able to use to convict. With warrants and proper investigation.

The problem is that the DEA takes this one step further. They take investigative measures they're not supposed to, and then try to do the whole "well let's find some legal way to find this."

That's the issue.

Re:Fruit of the poison tree

[icebike]

Except, the illegal wiretap probably gets the case thrown out.
And with it, the search of your car.
A traffic violation does not automatically give the police the right to search.

Its much easier for the police to say they got an anonymous tip.
Even if that tip was texted to 911 on anonymous burner phone. (Which happened to be in the possession of a DEA agent).
That would be probable cause.

Re:Fruit of the poison tree

[allaunjsiIverfox2]

Well, not to state the obvious, but you could actually not do the crime!

Well, not to state the obvious, but it's entirely possible that you didn't do anything illegal, or that the law is absolutely unjust and should be challenged.

Re:Fruit of the poison tree

[mysidia]

and any potentially exculpatory evidence.

Since with an analysis by the defense, together with additional statements, ANY kind of evidence the prosecution has might turn out to be exculpatory or pertinent to the defense --- they can't withold anything they gathered.

Re:Fruit of the poison tree

[aviators99]

Well, not to state the obvious, but you could actually not do the crime!

I guess there's no point in even having a trial?

Contrary to popular opinion, its not too hard to go about your life without attracting any police attention.

Happens every day. The odds of it happening to a particular individual may be pretty low, but when you beat those odds, you'll probably argue for the rules of justice to be followed.

Re:Fruit of the poison tree

[JonBoy47]

You people are all forgetting about inevitable discovery. If the prosecution can prove that a piece of evidence would have been "inevitably discovered" then the fact that it was actually obtained by illegal means becomes a moot point. This inevitability can be empirically proven if the illegally obtained evidence is later also obtained via legal means. See Segura vs. United States. Grand juries are allowed to question witnesses based on evidence that was allegedly collected illegally. See United States vs. Calandra. The Court has also ruled that the exclusionary rule goes out the window if the evidence was obtained, even illegally, by a private citizen. Purely coincidentally, law enforcement agencies have a penchant for using confidential informants.

Re:Fruit of the poison tree

[icebike]

Purely coincidentally, law enforcement agencies have a penchant for using confidential informants.

Exactly.
Simply having an anonymous tip can serve to get some fact or allegation into the record to serve as a basis for investigation.

  Cops have been using those tactics for decades to protect undercover officers or snitches embedded in criminal organizations. Parallel Construction simply applies this technique of protecting sources from retribution, and redirects it to protecting government illegal activity.

The solution isn't to expect cops not to use information that comes into their hand via less than perfectly legal means. That goes against human nature.

The solution is to make sure goverment isn't in possession of this information in the first place.

Re:Fruit of the poison tree

[mosb1000]

Discovery can involve any material which might be relevant to a particular case with substantial restrictions to protect the identity of government informants and to prevent intimidation of witnesses. The prosecution is not the authority in determining which information may or may not be relevant. They must comply with any request for information the defense makes which the court agrees may lead to information relevant to the case. Any lawyer worth anything will ask for, and be entitled to, all the information the police gathered during their investigation. Of course, this also goes the other way in that the defense is required to comply with any requests made by the prosecution.

With regard to illegal wiretaps, if a defendant's civil rights were violated during the course of an investigation, that would certainly be relevant to the case. That is why they build a parallel case using legitimate means to present to the prosecutor.

Cheaters

[Avidiax]

The underlying problem here is that prohibition is a failed policy, and yet another form of moral panic.

As such, the DEA has an impossible task (enforcing the failed policy), and yet also knows that everything they do to enforce that policy is Right (justified by the moral panic).

Hence, they will cheat once, they will cheat always, they will make deals with the Devil, just to "win".

And this is the modus operandi for an organization that operates a fleet of drones.

Complete deck, without reader

[ciurana]

Hi.

Here's the complete presentation deck without the annoying reader:

for ((n = 1;n <= 276;n++))
do
        wget "https://s3.amazonaws.com/s3.documentcloud.org/documents/1011382/pages/responsive-documents-p$n-normal.gif"
done

Cheers!

Re:Complete deck, without reader

[kbonin]

Or just use: https://s3.amazonaws.com/s3.do...

Comment removed

[account_deleted]

Comment removed based on user account deletion

Comment removed

[account_deleted]

Comment removed based on user account deletion

ex parte Garland ruled they're officers of the cou

[raymorris]

They are officers of the court, and not of the executive. This was made explicit by ex parte Garland shortly after the civil war.

Just another reason to abolish the DEA

[blindseer]

I'm trying to figure out why the DEA even exists. I know it exists to enforce drug laws but that is not what I mean. I found out a couple interesting facts about the DEA. One is that the DEA shares jurisdiction with the FBI. Any crime the DEA investigates the FBI can also investigate. That was something undoubtedly enacted to smooth over the politics of creating a new federal law enforcement agency.

Another interesting fact is that the DEA shares authority with the FDA on the classification of drugs. I'm not quite sure on how this authority is shared but the DEA has some sort of say in how the Controlled Substances Act is applied to new and existing drugs.

So, what does the DEA actually do that some other federal agency cannot? Apparently it can violate our rights and get away with it. It seems to me that the FBI somehow keeps itself above this crap. Perhaps its because the DEA is so good at violating our rights that the FBI lets them do the dirty work. Perhaps it's because the FBI is too busy investigating murders, assaults, rapes, arson, thefts, and so on (you know, "real" crimes) that they don't have to resort to such depths to keep busy.

The way things are going now with the federal government turning a blind eye to violations of federal prohibitions on marijuana trade I suspect we are going to see marijuana reclassified under the Controlled Substances Act in less than five years. It might not be complete legalization and getting dropped from all controls but something has to change. I see marijuana getting federal control somewhere between alcohol and tobacco (getting carded upon purchase, high taxes, etc.) and Tylenol (strict laws on labeling, purity controls, but generally over the counter).

I recall that the DEA gets most of its arrests and convictions from marijuana. When (not if, it's going to happen) marijuana laws change the DEA is going to have a real hard time justifying its own existence.

I smell a civil rights suit coming on.

[Ungrounded Lightning]

The very existence of this document is evidence of a conspiracy to deny civil rights under color of law. This is both a civil and a criminal issue.

IMHO it should be trivial to show that the authors of this document, along with all adminstrators and instructors who used it in training agents and all agents who, having attended such training, committed any of the described acts, have committed a felony.

I wonder if civil RICO suits might be brought, as well. B-)

Re:"could have" citation?

[Frobnicator]

> All this evidence, collected this way, is admissable because it could have been discovered

The ccops illegally tap your phone line and hear about a pot deal. What did not happen is that a a K9 officer COULD HAVE been taking the dog out for a walk when they just happened to walk by a car full of pot. That didn't happen, but it could have.

If I'm understanding you correctly, you are claiming that the cops can search the vehicle and it's not fruit of a poisonous tree because they could have stumbled upon it. They didn't, but they could have. Do you have a citation for that? In all of American jurisprudence has any appeals court held that it's okay to violate the Constitution because they could have not violated it? I know a certain "law professor" (who never taught law) who might believe that, but has the court ever ruled such?

And that is precisely the difficulty around parallel construction.

The government cannot withhold potentially exculpatory evidence. In the late 1960s, right after the SCOTUS decided the Brady case, prosecutors gave quite a lot of information to defendants. Over the years prosecutors and judges have taken progressively stricter interpretations to the point where they routinely withhold everything again, only handing over the minimum that they think might fall under Brady and often only if the defense uses very specifically worded discovery demands. If the prosecutors can argue that they didn't think it was material evidence, or argue that the discovery demand wasn't quite specific enough, they can get away with it. And since the defense doesn't know about the evidence (as it was withheld from them) they almost always get away with it.

In very recent time, perhaps the last 18 months or so, there has been a surge in claims of withheld exculpatory evidence, and judges are increasingly more sympathetic to defendants during discovery. There have been quite a few major cases where prosecutors realize that maybe some of the evidence might have been potentially exculpatory, but often their excuses are enough to keep judges from dismissing the case outright. Both behaviors are changing, and we have multiple cases going right now in my state that are currently on the fast track for the state supreme court where evidence was "accidentally" withheld (except some leaked information shows it was quite intentional as the defense 'would never know') but prosecutors and judges had a wink-and-a-nod when it was discovered to be "accidentally" withheld. (There is a very active public debate about this right now; since prosecutors are immune for these violations and they are kept employed based on their results rather than fairness, they have every incentive to break the law with impunity.)

Parallel construction is nearly impossible to detect, and if discovered is subject to the exclusionary rules. Depending on the nature of the construction and the interpretation of the judge, it could exclude no evidence, some evidence, or be enough to cause the case to be dismissed entirely. The problem is that when it happens you don't have any evidence that it happened. Prosecutors and officers might not even know it happened, since groups like the DEA use anonymous tips to police for the construction. Even though the entire case might be tainted enough for dismissal, it is possible nobody directly involved (even the police and prosecutors) know about the unlawfulness because it was laundered through anonymous reporting systems.