# Using information that is inadmissible to "construct" different evidence that is admissible **URL:** \ **Category:** Great Debates\ **Created:** [August 5, 2013, 7:22pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423 "2013-08-05T19:22:47Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 5, 2013, 7:22pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/1 "2013-08-05T19:22:47Z")
[http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805](http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805) To summarize: DEA, NSA etc. collect all kinds of data on us that it is (questionably) legal to collect but is not admissible in court. But never fear - they provide it to FBI and other LEO agencies, and those use it to “recreate” that information using “normal investigative techniques”. Of course, mentioning where they got the original information is a no-no. IMO, that is an outrage and a clear violation of laws. Yet the article quotes LEO officials saying that it is a “bedrock concept” and that it is routinely used. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 5, 2013, 8:13pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/2 "2013-08-05T20:13:45Z")
There is the [fruit of the poisonous tree](http://en.wikipedia.org/wiki/Fruit_of_a_poisonous_tree) doctrine which extends the [exclusionary rule](http://en.wikipedia.org/wiki/Exclusionary_rule) to exclude evidence derived from illegally-obtained evidence. > [@](#): > > The doctrine is subject to four main exceptions. The tainted evidence is admissible if: > > 1.it was discovered in part as a result of an independent, untainted source; or > 2.it would inevitably have been discovered despite the tainted source; or > 3.the chain of causation between the illegal action and the tainted evidence is too attenuated; or > 4.the search warrant not based on probable cause was executed by government agents in good faith (called the good-faith exception). Does info derived from NSA surveillance meet any of these exceptions? Well, 1, perhaps – but, in the first place, it’s not clear the doctrine even **applies** here. For better or worse, NSA obtains its info **legally.** There are no grounds to exclude it or anything derived from it. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 5, 2013, 8:24pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/3 "2013-08-05T20:24:01Z")
> [@BrainGlutton](#): > > Well, 1, perhaps – but, in the first place, it’s not clear the doctrine even **applies** here. For better or worse, NSA obtains its info **legally.** There are no grounds to exclude it or anything derived from it. It may be “legal”, but it is still inadmissible, since there are no specific court orders allowing the collection of the information (the general ones are not enough). In order to be admissible, AFAIU, the court order has to have been issued based on specific information that would show that the wiretapping will be relevant to a specific ongoing criminal investigation involving a specific crime. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 5, 2013, 8:31pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/4 "2013-08-05T20:31:10Z")
> [@Terr](#): > > It may be “legal”, but it is still inadmissible, since there are no specific court orders allowing the collection of the information (the general ones are not enough). Cite? > [@Terr](#): > > In order to be admissible, AFAIU, the court order has to have been issued based on specific information that would show that the wiretapping will be relevant to a specific ongoing criminal investigation involving a specific crime. Cite? ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 5, 2013, 8:41pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/5 "2013-08-05T20:41:40Z")
> [@BrainGlutton](#): > > Cite? [https://www.privacyrights.org/fs/fs9-wrtp.htm](https://www.privacyrights.org/fs/fs9-wrtp.htm) Federal law enforcement officials may tap telephone lines only after showing “probable cause” of unlawful activity and obtaining a court order. This unlawful activity must involve certain specified violations. The court order must limit the surveillance to communications related to the unlawful activity and to a specific period of time, usually 30 days. (Electronic Communications Privacy Act, 18 USC 2516) Similar restrictions exist in state law. And “telephone lines” includes digital communications. As in “This law [Communications Assistance for Law Enforcement Act] specifically states that it does not alter or expand the current ability of investigators to conduct a wiretap. It merely allows them to access digital communications in the same manner as voice communications once a legal wiretap has been authorized.” ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [August 6, 2013, 4:57am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/6 "2013-08-06T04:57:43Z")
Saw that earlier today. With respect, I think you guys are misreading the article. It’s not a Fourth Amendment issue. That’s met by confirming the tip with evidence developed under ordinary procedures, in which the tip itself isn’t used to support probable cause. Rather, if there’s a problem, it’s that secret tips undermine discovery. From the article: > [@](#): > > The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses. > > … > > “Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.” > > … > > [T]wo senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.” > > … > > Some defense lawyers and former prosecutors said that using “parallel construction” may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. > > … > > As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement. The last quoted paragraph suggests prosecutors acknowledge the discovery problem. It appears from the article, though, that they don’t usually know there’s an issue. To me, that’s the problematic aspect of the program. And that includes guilty pleas obtained from defendants unaware of potential defects in the case against them. I will mention that this isn’t my field. I’m going almost entirely by what’s reported in the article. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 6, 2013, 5:09am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/7 "2013-08-06T05:09:03Z")
> [@PBear42](#): > > Saw that earlier today. With respect, I think you guys are misreading the article. It’s not a Fourth Amendment issue. That’s met by confirming the tip with evidence developed under ordinary procedures, in which the tip itself isn’t used to support probable cause. Rather, if there’s a problem, it’s that secret tips undermine discovery. So, you illegally wiretap a house. From that illegal wiretap you find out they are dealing drugs out of the house. The illegal wiretap gives you a time the dealer will be transporting drugs for sale to someone. You go to the judge, claim to him that you heard the rumor from informants on the sale, obtain a search warrant, bust the sale, get the warrant to search the house, bust the drug operation. Is this “confirming the tip with evidence developed under ordinary procedures”? Gotta love the law enforcement system run by the “the ends justify the means” principle. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [August 6, 2013, 5:17am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/8 "2013-08-06T05:17:09Z")
That cops sometimes lie to get warrants is a separate problem. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 6, 2013, 5:28am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/9 "2013-08-06T05:28:32Z")
> [@PBear42](#): > > That cops sometimes lie to get warrants is a separate problem. That the federal law enforcement and intelligence agencies actively encourage cops to lie is not a “separate problem”. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [August 6, 2013, 6:27am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/10 "2013-08-06T06:27:51Z")
The Reuters article says no such thing. I agree the SOD program is problematic, but not for this reason. See the quotes above. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 6, 2013, 6:35am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/11 "2013-08-06T06:35:32Z")
> [@PBear42](#): > > The Reuters article says no such thing. I agree the SOD program is problematic, but not for this reason. See the quotes above. “Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.” … A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said. “PARALLEL CONSTRUCTION” After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.” =============================== The above describes lying to the prosecutors and judges in the probable cause affidavits about where the information for the busts came from. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [August 6, 2013, 1:36pm UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/12 "2013-08-06T13:36:57Z")
> [@Terr](#): > > So, you illegally wiretap a house. From that illegal wiretap you find out they are dealing drugs out of the house. The illegal wiretap gives you a time the dealer will be transporting drugs for sale to someone. You go to the judge, claim to him that you heard the rumor from informants on the sale, obtain a search warrant, bust the sale, get the warrant to search the house, bust the drug operation. > > Is this “confirming the tip with evidence developed under ordinary procedures”? Gotta love the law enforcement system run by the “the ends justify the means” principle. I agree with **PBear** both that this is problematic and depressing and that it isn’t a slam-dunk Fourth Amendment problem. Illegal wiretaps are illegal, obviously, so any scenario that starts with a hypothetical illegal wiretap is going to be problematic. Still, step two is important in that scenario: the officer goes to a judge and lays out his probable cause case. Does the evidence he puts in front of the judge satisfy the requirements for probable cause for a search? When he “claims that he heard a rumor from informants,” that isn’t enough certainly. He needs to make out a case that he has specific, credible information from a reliable source. So in your scenario, does he or doesn’t he? That’s the key. The illegal wiretap is still illegal and still a problem, mind you. But if an officer goes and gets a search warrant in this scenario, there are three scenarios that come to mind: 1. the judge fucks up and gives him a warrant in violation of Illinois v. Gates, which requires the officer to demonstrate that certain indicia of reliability are met by the informant upon whose word the officer’s case depends - bad because judges are supposed to get that right; 2. the officer lies in his affidavit and says he has a credible informant and demonstrates that certain indicia of reliability are met, even though they aren’t, and gets a warrant – bad because he lied, as **PBear** said; 3. the officer tells the truth in his affidavit and says he has a credible informant, demonstrates that certain indicia of reliability are met, and gets a warrant – OK because that means there’s a real informant. But I don’t know that in any of those three circumstances the defendant’s Fourth Amendment rights are clearly violated by the search because of the wiretap. It’s a problem, philosophically and generally speaking, that an officer is “looking for an excuse” to do anything. But when you talk about it hypothetically it’s easy to overlook the fact that in any particular case they either find a legitimate excuse or they don’t, and if they don’t then it’s illegal on its face anyway. If they do, then it’s possible the law is satisfied in that the police can establish, at the time they take action, the legal justification to do it. It’s “parallel,” not “imagined.” ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [August 7, 2013, 6:35am UTC](https://boards.straightdope.com/t/using-information-that-is-inadmissible-to-construct-different-evidence-that-is-admissible/665423/13 "2013-08-07T06:35:37Z")
> [@Terr](#): > > “Remember that the utilization of SOD cannot be revealed or discussed in any investigative function,” a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use “normal investigative techniques to recreate the information provided by SOD.” > … > A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said. > > “PARALLEL CONSTRUCTION” > > After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.” > > =============================== > > The above describes lying to the prosecutors and judges in the probable cause affidavits about where the information for the busts came from. You do realize, right, that the Supreme Court ruled in [Illinois v. Caballes](http://en.wikipedia.org/wiki/Illinois_v._Caballes) (link to text of full opinion at bottom of the page) that cops don’t need probable cause to do a dog sniff of a vehicle? So, although disliked by many (me included), what’s described here is legal under existing case law. [Notably, _Caballes_ was not disturbed or limited in the Court’s ruling earlier this year in [Florida v. Jardines](http://en.wikipedia.org/wiki/Florida_v._Jardines) (again, full text linked at bottom of the page) disallowing a dog sniff of a private residence.] In any event, the incident doesn’t constitute “lying to the prosecutors and judges in the probable cause affidavits about where the information for the busts came from,” much less demonstrate that “federal law enforcement and intelligence agencies actively encourage cops to lie,” the claim in Post #9 to which I was responding. -