You've misread the Reuters story. These cases start with "tips" based on excludable intelligence, but the DEA then diligently works to build evidence that isn't excludable. The excludable intelligence allows the DEA to "always be at the right place at the right time", but isn't (for instance) used as probably cause to effect searches.
(I still think this kind of evidence gathering should still be excludable, as it no doubt would if the root of the investigation was torture and not foreign intelligence).
He didn't misread the story at all, what on earth are you talking about? The government is hiding the initial evidence. That means it's "not public". You are wrong.
No one but you thinks it's OK to start investigations with "tips" based on excludable evidence. The rest of us literally consider that something we are protected from by the Bill of Rights. Investigations handled according to the excerpts in the article are precisely what we consider to be disgusting and evil.
Most of us do not support the government trying to find loopholes in the Bill of Rights. We want the government to follow the constitution not only technically, but in spirit.
None of this is responsive to any point I made. Not only that, but your comment misrepresents all the points I made, for instance by asserting directly that I support the program. It is thus hard to find anything to respond to in it.
You claimed he misread the story. He did not. The government is using illegal evidence as probable cause and then lying and saying something else is probable cause. That is, the real probable cause, the thing that actually turned them on to these suspects, is made "not public". It doesn't get much more "responsive" than that.
Yes, I see that you claim to not support the program. It's hard to tell with how vigorously you are defending indefensible aspects of the program and seem to support parts of it on legalistic grounds when the issues at stake are legal AND moral. You continue to parse the posted article in an odd way that gives huge benefits of the doubt to the government when it would appear to deserve none.
You don't understand the point I was making, or have seized on a part of the conversation where there's enough ambiguity that it's easy to jump in and generate faux outrage about.
Meanwhile, your comment is yet another instance† of someone not being satisfied that we agree that the program is bad, but instead demanding that we find it bad for exactly the same set of reasons. Again: case in point for why HN is a terrible venue for political discussions.
Incidentally, you might do better than "yes, I see that you claim not to support the program" [em: mine] when in effect admitting that you were not only wrong, but wrong in the entire premise of your response to me.
I'm not sure the point you were making was entirely clear. Having read the article, and your replies, I don't see how the original poster misread the article.
It's entirely possible that I don't understand the situation. Could you rephrase the reason you believe the original poster was wrong? i.e. That the evidence trail is public.
Again: the "evidence" gleaned from tip-offs from unlawful surveillance can't be introduced into court in any fashion; for instance, it can't be the stated cause of a search, which must still be justified from first-principles by some defensible claim of probable cause.
It's a shadow, secret set of facts, but it isn't evidence and can't be used as such.
And, to be clear: I think the program is bad news and don't support it. But my reasons are probably different from those of many other HN readers, and have more to do with precedent (I think if we're going to do extensive foreign SIGINT --- and, sorry, we just are going to do that --- we should at least firewall it off from domestic law enforcement).
The police had every reason to stop you: you failed to signal a turn (or you did not come to a complete stop at a stop sign, or you were speeding, or any number of other violations).
The real problem here is that there are far too many laws, which has led to a situation where the police can find a "legitimate" reason to arrest/search anyone. There is also the matter of victimless crimes (like possession of certain drugs), which can turn minor infractions like speeding into 20-year prison sentences. The massive increase in police budgets and power over the past few decades added fuel to the fire, but we were in trouble from the beginning.
>I think if we're going to do extensive foreign SIGINT --- and, sorry, we just are going to do that --- we should at least firewall it off from domestic law enforcement
A personal question, sorry: legality and constitutionality aside, are you comfortable with ample surveillance of other countries? If so, why? From your posts on HN since the PRISM leaks, you've stressed NSA's mandate to spy on other countries. NSA exists and has this function, yes, but why is it acceptable for the US to spy on all foreigners?
Yes, I am, for a bunch of reasons, not worth going into here. The simplest response to this would be that broad surveillance of US citizens violates our Constitution, but surveillance of foreigners abroad does not.
It appears that you're happy to take the DEA informant at his word when he says "Pull over suspect X on Tuesday at location Y and get probable cause for a search for drugs" But obviously, there is no check on the power of the NSA/DEA/etc. here; and that makes the scheme as unconstitutional as anything that ever was, and ripe for abuse. One need not even don their tinfoil hat and allege made-up conspiracies[1], just consider the effect that selective enforcement with a racial bias would have, and then remember that minorities can't even get equitable treatment for the terms of their mortgages, and that most DEA/NSA types are socially conservative Whitey Whiterson types. Decades of this would give you feedback effects that might make people feel justified in their racial bias, and indeed there are people who argue in favor of racial profiling on the basis of the ratio of black:white &etc. prison inmates.
[1] Like John DeLorean, Angela Garmley, or those few moron terrorist/pizza deliverymen.
Please explain at what point the accused is allowed an opportunity to face & challenge the original accusation of wrongdoing (the secret accusation that was obtained by illegal surveillance).
The state is accusing you of a crime, and you have the right to confront the prosecutor. You can confront any witnesses brought against you. You do not have the right, and never have had the right, to confront every single person in the state who had ever heard about your case. You do not, for instance, get to summon the President or even your state governor to testify in your cases.
Once again: the information generated from this program does not generate evidence. It generates intelligence.
There is an evidentiary issue involved in the program, which is that it might generate exculpatory facts that the defended might want to introduce into evidence, which the defendant should have the right to discover. But that's (a) going to happen very infrequently and (b) isn't close to the biggest problem with the program, which, for the nth time today, I don't support either.
The sophistry isn't needed. If an NSA agent provides intel for use against a person in a criminal proceeding, he should have to explain his methodology, and the details of how the intel was obtained.
Consider this. Ptacek rents a car to travel from A to B. NSA/DEA/SOD tips off DPS officers to search Ptacek's car for drugs. Of course, they find drugs. At trial Ptacek's defense is "What drugs? I don't know anything about any drugs!" All the judge, prosecutor, defense knows is that you were pulled over, and you [consented, or PC was otherwise obtained] and lots of drugs were found.
Now, if the origin of the intel hadn't been concealed, Ptacek's defense atty could subpoena President Obama, sorry, I mean the SOD agent, who could testify as to the source of the intel. It might be discovered that there was no evidence to suggest that Ptacek was aware of the drugs concealed in his rental car. It might even be further discovered that hiding drugs in people's car without their knowledge is one of many ways that drug smugglers move contraband.
You completely miss the point of what it means to have a right to face one's accuser.
> No one but you thinks it's OK to start investigations with "tips" based on excludable evidence.
That's a massive overstatement, as can be seen by noting that there is virtually no controversy over the anonymous tip hotlines that have been used for decades by virtually every police force in the country.
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?
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.
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.
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.
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.
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.
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"?
If that was true, then we'd all be searched at every traffic stop, and there would be no point to the (excellent) ACLU videos on what to do if you're stopped by a police officer.
But in reality, the sources of PC sufficient to search a car aren't all that easy to credibly fake. Can they be faked? Certainly. Trivially? With the possible exception of drug dogs (which bother me a lot more than this program does), no.
That such police subterfuge can't be used for bulk dragnets where "we'd all be searched" is irrelevant: there, it'd be obvious (when the followup search usually fails) that some fishy overreach is happening.
In this particular surveillance-tipped condition, you are asserting there's still some useful check from the necessity of "articulable probable cause". But because of the strong (and legally out-of-band) tip, very few searches are necessary, the searches always succeed in finding contraband, and the only contrary witness to the flimsy smell/dog/eyes/joint-on-the-seat probable-cause rationale is the suspect himself -- whose credibility is shot by the successful find.
That's what makes the phony 'probable cause' tricks trivial in these cases, and your reassurances hollow.
And once the authorities have started down the road of deception of the courts to get a conviction, it's only a small additional step to planting the drugs/guns/porn. "The NSA/DEA-SOD has assured us this is a very bad guy, but all the evidence of that is non-admissible. So let's just 'parallel construct' another incriminating scene from what's handy."
It isn't necessary to credibly fake PC, though it is easy (see link above). An officer could believe they were correct in their suspicion and their actions would have that bias. Combine that with a mindset of "the ends justify the means" and there is little that would stop many officers from an outright lie in order to achieve their goal.
The officer can believe whatever they want, but if they can't document in court the actual probable cause that generated the search, the evidence from that search is excluded. Probable cause is not as simple as "the officer says they believed the motorist was probably guilty".
>Probable cause is not as simple as "the officer says they believed the motorist was probably guilty".
That is naive. The bar for documentation is the officer's own recollection or a written report based upon their recollection. Officers receive training on how to obtain PC, and how to subsequently pivot to full searches. SCOTUS has granted wide latitude WRT such techniques.
State vehicle codes are written to provide law enforcement officers ample opportunity to establish probable cause to initiate a traffic stop when an individual is suspected of having committed, or about to commit, a crime other than the infraction of the vehicle code.
I'm not confused. I'm trying to explain to you that the distinction you make between the two is practically meaningless. Even a dim-witted cop can figure out a way to get in your car for a search; you don't stand a chance against a competent one.
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).
(I still think this kind of evidence gathering should still be excludable, as it no doubt would if the root of the investigation was torture and not foreign intelligence).