4 ms·

From what I gather in this explanation, if the DEA has unusable evidence, they can still springboard it to finding evidence that would be admissible in court? I

From what I gather in this explanation, if the DEA has unusable evidence, they can still springboard it to finding evidence that would be admissible in court? Is that true? So, effectively, despite the fruit of the poisonous tree doctrine, there isn't real, persistent transparency going back more than a step or two in the evidence gathering process. It's more like judging immediate evidence on its own, without questioning the steps that lead up to its (otherwise valid) finding?

tptacek 13y ago
Yes. It's a grey area. I happen to think it's on the black end of the spectrum. But it's not literally black; they're not introducing secret evidence, or even using secret evidence as the probable cause basis to effect searches.
- dylangs1030 13y ago
  Right. A good counter to this would probably be requiring law enforcement to submit a report of all evidence, admissible and inadmissible, with a report of how it was found. If that's done, the only obstacle left would be corruption and deliberate lack of fidelity (a big only, but still an improvement).
- agwa 13y ago
  It's beside the point to be talking about fruit of the poisonous tree because it would never even come up at a trial - as far as the defense knows, the investigation started with a traffic stop. They don't know the true reason for the stop so they can't challenge its constitutionality. In fact, secret evidence is used as the probable cause basis to effect searches, but the government is playing a neat trick where instead of admitting it's secret, they're just substituting the secret evidence with some innocuous basis for a traffic stop ("driving erratically", "changing lanes without indicating", etc.) that in reality never would have come up if not for the secret evidence.
  - tptacek 13y ago
    Secret information is motivating the search, in the same sense as a bias against African Americans could motivate a similar search, but the actual probable cause that forms the basis for the search --- the from-first-principles reason for the search --- can't be that secret information. I agree that not informing the accused of the application of secret information is one of the multiple problems with this program, which just to be clear I do not support.
    - ellyagg 13y ago
      Not in the same sense. From the article: 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. They are stopping vehicles with the only probable cause being an illegally obtained tip and then they are hiding the illegally obtained tip.
      - tptacek 13y ago
        The car still must be stopped for some lawful reason (speeding, broken tail light, &c) and the pivot from traffic stop to car search must still be based on some articulable probable cause that isn't secret information; for instance, drugs in plain site, or arrest warrant.
        gojomo 13y ago
        Those sources of 'probable cause' are trivial to credibly fake without consequences when you've got the strong tip (and already lying about the true reason for your suspicion). The car "drifted" or "failed to signal a lane change" or "failed to maintain a safe following distance" or "moved suspiciously as the patrol-car neared". The officer "smelled something". The driver was "acting weird", or had "bleary eyes" or "droopy eyelids". A drug dog smelled something (which could just be (a) the dog didn't but the officer says it did; (b) the dog follows a subverbal cue from the officer; (c) the dog reacts to traces planted by the officer.) Once the actual search succeeds, the flimsiest fabricated "probable cause" that was "parallel-constructed" will pass muster. So the defense that such searches "must still be based" on something legitimate isn't very convincing. Once you've already been coached to cover-up the true source of information, what's one more "white lie" to catch a "really bad guy"?

tptacek 13y ago

Yes. It's a grey area. I happen to think it's on the black end of the spectrum. But it's not literally black; they're not introducing secret evidence, or even using secret evidence as the probable cause basis to effect searches.

dylangs1030 13y ago
Right. A good counter to this would probably be requiring law enforcement to submit a report of all evidence, admissible and inadmissible, with a report of how it was found. If that's done, the only obstacle left would be corruption and deliberate lack of fidelity (a big only, but still an improvement).
agwa 13y ago
It's beside the point to be talking about fruit of the poisonous tree because it would never even come up at a trial - as far as the defense knows, the investigation started with a traffic stop. They don't know the true reason for the stop so they can't challenge its constitutionality. In fact, secret evidence is used as the probable cause basis to effect searches, but the government is playing a neat trick where instead of admitting it's secret, they're just substituting the secret evidence with some innocuous basis for a traffic stop ("driving erratically", "changing lanes without indicating", etc.) that in reality never would have come up if not for the secret evidence.
- tptacek 13y ago
  Secret information is motivating the search, in the same sense as a bias against African Americans could motivate a similar search, but the actual probable cause that forms the basis for the search --- the from-first-principles reason for the search --- can't be that secret information. I agree that not informing the accused of the application of secret information is one of the multiple problems with this program, which just to be clear I do not support.
  - ellyagg 13y ago
    Not in the same sense. From the article: 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. They are stopping vehicles with the only probable cause being an illegally obtained tip and then they are hiding the illegally obtained tip.
    - tptacek 13y ago
      The car still must be stopped for some lawful reason (speeding, broken tail light, &c) and the pivot from traffic stop to car search must still be based on some articulable probable cause that isn't secret information; for instance, drugs in plain site, or arrest warrant.
      - gojomo 13y ago
        Those sources of 'probable cause' are trivial to credibly fake without consequences when you've got the strong tip (and already lying about the true reason for your suspicion). The car "drifted" or "failed to signal a lane change" or "failed to maintain a safe following distance" or "moved suspiciously as the patrol-car neared". The officer "smelled something". The driver was "acting weird", or had "bleary eyes" or "droopy eyelids". A drug dog smelled something (which could just be (a) the dog didn't but the officer says it did; (b) the dog follows a subverbal cue from the officer; (c) the dog reacts to traces planted by the officer.) Once the actual search succeeds, the flimsiest fabricated "probable cause" that was "parallel-constructed" will pass muster. So the defense that such searches "must still be based" on something legitimate isn't very convincing. Once you've already been coached to cover-up the true source of information, what's one more "white lie" to catch a "really bad guy"?