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).
