Report Shows US Law Enforcement Routinely Engages In Parallel Construction

from the no-solution-in-sight dept

A long report by Human Rights Watch delves into the secretive world behind the evidence given in criminal cases. Multiple law enforcement entities are making use of DEA tips to build cases and secure convictions, but they’re burying the original evidence using parallel construction, whitewashing it of possible Fourth Amendment violations.

Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full access to domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of “new” criminal investigations.

The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs — up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them.

Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence.

Parallel construction also means judges may never evaluate whether government uses of constantly evolving surveillance techniques adhere to the US Constitution and laws adopted by Congress, as is their role in the US system. For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights.

But judges won’t be seeing much info on government surveillance means and methods that the government wishes to keep hidden from the public. The DOJ has dodged its evidentiary obligations for years in regards to NSA-derived evidence, despite multiple government agencies having some sort of access to the NSA’s collections.

Worse, the courts have encouraged the practice of parallel construction by giving officers free rein to perform pretextual stops. Any real or perceived traffic violation can serve as a pretext for stop meant to discover evidence of some unrelated crime. A 20-year-old Supreme Court decision turned traffic stops into fishing expeditions.

The Supreme Court’s Rodriguez decision only slightly mitigates the damage done by the 1996 decision. It holds a traffic stop ends when the stated objective is completed. If an officer stops someone for speeding — even if the real purpose is to search for evidence of drug trafficking — the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time.

If more courts were willing to hold officers to the spirit of the decision, pretextual stops would become a very precarious way to obtain evidence. Instead, the courts have generally been willing to continue to give the government considerable leeway during pretextual stops.

This is what keeps the lights on in the DEA’s Special Operations Division. Known colloquially as the “Dark Side,” the DEA’s SOD passes on tips to locals, pointing them at DEA surveillance targets while ensuring these local agencies understand they’ll have to find another way to come up with the evidence the DEA has already handed them.

Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.”

This generally leads to pretextual stops, known by a number of unofficial nicknames synonymous with parallel construction:

The documents Ciaramella obtained indicate that the use of “[a] wall off or pretext stop” is an accepted tactic. Human Rights Watch has also identified numerous federal and state judicial decisions in which the government has admitted, after the fact, to having carried out what are known as “whisper,” “wall,” “walled off,” or “wall off” stops. It is unclear how the government decides whether to disclose the fact a traffic stop was pretextual on its own initiative during proceedings: in at least one case Human Rights Watch identified, the disclosure of a “wall stop” was inadvertent (evidence emerged in a New Mexico federal trial that an officer had mentioned a “whisper stop from DEA” to a dispatcher while unaware that he was being recorded). In another case a defendant who had been convicted in Arizona state court only found out the traffic stop in his case was a “whisper stop” requested by the DEA after his conviction, when pertinent records were later disclosed in a California federal court.

“Whisper” refers to federal tipsters who are not to be exposed in court. “Wall stops” refer to building a “wall” between the evidence obtained via the pretextual stop and its true origin via DEA sources. In both cases, nothing about the original evidence can be challenged. Evidence obtained via bulk surveillance or warrantless intercepts remains hidden. The trustworthiness of confidential informants cannot be questioned. It remains walled off from the court and defendants, forcing them to work only with what was derived from a traffic stop that likely would not have happened without the intervention of a government agency whose name never appears in court documents.

To fix the problem of parallel construction, Human Rights Watch suggests a legislative fix. Unfortunately, as solid as the recommendations are, there’s roughly a zero percent chance a bill like this would make its way to the president’s desk.

Congress should… adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes and consider imposing restrictions accordingly.

To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data. Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities.

The first recommendation would make all government agencies answerable to discovery requests. This is an important fix, and one that would face a less of an uphill battle in Congress. Currently, any agency that has passed on info used in parallel construction can simply claim its not part of the prosecution and is therefore not required to hand over information to the defense. This would force agencies to search for and produce documents related to the origins of the evidence handed over to local agencies. Or would in theory. The DOJ has spent years dodging evidentiary obligations for Section 702 cases (another place parallel construction is a common practice), so it’s apparent the Justice Department picks and chooses which statutory requirements it will follow. Another law on the books won’t make much of a dent.

As it stands now, the system will allow the government to continue to prosecute people while withholding information pertaining to questionably-obtained evidence. Supreme Court decisions on traffic stops haven’t made things much better, even with more recent decisions adding a bit back to citizens’ Fourth Amendment protections. The end result is ugly: the government can lie with impunity, making a mockery of the Fourth Amendment in the process.

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Comments on “Report Shows US Law Enforcement Routinely Engages In Parallel Construction”

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That One Guy (profile) says:

Wrong terminology

It’s not ‘parallel construction’, it’s ‘evidence laundering’.

Taking ‘dirty’ evidence and coming up with a ‘legal’ method it could have been obtained, little different than taking ‘dirty’ money and running it through several transactions so that it has a ‘legal’ source, and for the same underlying reason in both cases: legal cover for what would otherwise be illegal.

Parallel construction might be the ‘normal’ term for the act, but it severely underplays exactly what is being done and makes it sound almost harmless. Call it evidence laundering on the other hand, and it’s obvious right away just what’s being done.

orbitalinsertion (profile) says:

Re: Wrong terminology

A Brady violation doesn’t really underplay anything. The fact that some people don’t understand the weight of the term “parallel construction” doesn’t make it an incorrect term. It is hardly an understatement.

I don’t see anything wrong with “evidence laundering”, it seems perfectly descriptive and fit to convey meaning and avoid repetition. I do, however, see a problem with the trend of juicing up terminology to bypass any logical consumption and reach straight for negative emotional reactions. (I’m not saying your descriptive term is in this category.) It gives the opposition ammunition to mock arguments employing such terms, sometimes with some reason, even if their general position is sheer bullshit.

I’m a fan of colorful and variegated communication used to better convey meaning. But it is senseless to discard original terms rather than use additional description, such as “evidence laundering”, to describe them.

I don’t suppose my thinking is particular to your comment, but it did elicit a train of thought that brought me here. It put me in mind of changing terms to manipulate people or fire up the like-minded, which sometimes works terrible magic, or loses any meaningful connection with the original intent, among other outcomes.

Again, i think your statements are accurate. Perhaps something there simply reminds me of other, unconnected things.

Anonymous Coward says:

Re: Re: Deceptive terminology

words mean things

meaning is important

legal profession is notorious for using deceptive words to hide truth

defendants in court have right to confront their specific accusers & specific evidence offered against them. Hidden accusers & hidden evidence from secret people (NSA, etc) is fundamentally unjust and direct violation of 5th/6th Amendments.

Court judges understand the terminology in play, but blithely go along with the deception

Fundamental problem here is not mere legal terminology

DannyB (profile) says:

Re: Wrong terminology

Parallel Construction is a conspiracy between law enforcement and the prosecution to deny actual evidence to the defense and to perjure themselves before the court by lying about what the actual evidence is.

The evidence used in prosecution may have only been obtainable by using illegal methods including illegal evidence to lead them to the evidence being presented.

JoeCool (profile) says:

Re: Re: Wrong terminology

Perjury – the offense of willfully telling an untruth in a court after having taken an oath or affirmation.

They’d argue that they told the truth, or that they didn’t lie willingly. The first was best stated by Obi-wan (paraphrased) – the truth depends greatly on your point of view. The second comes from things like those NDAs for cell-tower spoofers.

Anonymous Coward says:

Re: Re: Re: Wrong terminology

They’d argue that they told the truth, or that they didn’t lie willingly. … The second comes from things like those NDAs for cell-tower spoofers.

NDAs don’t give you permission to lie to courts (or if they do they’re invalid). Corporations would be all over them if they did. If they used a spoofer, they can’t just say "no" when asked whether they did. They can say there’s an NDA, and the court might let them avoid the question or might make them answer anyway.

Miss Taranza Arnold says:

Quite the unholy guilty party

Back when i grew up in the 80’s, people routinely dealt drugs and got away with it and got wealthy then turned legit and kept all the ill gotten gains and got women cause they had money. People, expecially geeks remember this, and who is in charge of all this stuff, yes, geeks with long memories of stolen girls due to drug dealing money and lost opportunities because of the broken system not cathing the cheats. Now the geeks are getting back at the cheats. good for them.

Anonymous Coward says:

Re: Quite the unholy guilty party

This is covered under the pursuit of happiness reference in our laws. You are allowed to do illegal things and the government is only allowed to go after you when they are legitimatly made aware of things. As is, we have a rogue agency using unconstitutional information to violate our rights roundly. They also seem to target minorities more based on the problems with driving while black. If you don’t beleive any of this, congradulations, you aren’t black and get to stay ignorant for longer than everyone else.

Anonymous Coward says:

Re: Quite the unholy guilty party

You’re assuming that it’s mainly “cheats” who are getting nabbed by this systematic abuse. It’s much likelier that the “cheats” – or the affluent, in any case – are using their resources to get around this system or use it for their own purposes. This leaves the people who don’t have enough money to fight back, and so they get caught in the dragnet by cops looking for easy money.

Never mind that “geeks” generally don’t make it into law enforcement. The force won’t let you in if you’re too intelligent. Geeks are the ones getting harassed by the “cheats” to “nerd harder” just so they can break the encryption on your iPhone.

I get where your sentiment comes from, but it’s pretty heavily misguided.

Anonymous Coward says:

Re: Re: Re: Quite the unholy guilty party

Quite well, then. No jail time for the perjurers, no mention of even a fine or court costs. They’re still employed. No punishment for the department or anyone in it. Even in the rare case where there’s a financial settlement, it comes out of the general city budget and the police lose nothing. (Have you ever heard of a police department that wanted to buy a tank or whatever, but didn’t have money because of a civil-rights suit?)

JoeCool (profile) says:

We've seen this before

It’s all under the category "if you’ve done nothing wrong, you have nothing to fear." People won’t care about evidence laundering as long as it’s used against "criminals" like drug dealers. They won’t believe it could ever be used against them… until they get a DWI after being reported for having two beers at Chili’s before leaving in their car. By that point, it’s far too late to whine.

JoeCool (profile) says:

Re: Re: We've seen this before

My point is that most people have no idea how much alcohol they can drink in a set period of time to remain under whatever their state sets as the legal limit. They figure if they’re not at least “buzzed”, they’re fine… and that’s very often not the case. The first they realize that one or two or however many they drink during the meal will put them over the limit is when the machine goes “bing!” and they get cuffed.

Most of these people will never get caught because they don’t run checkpoints everywhere every single day. However, that doesn’t mean someone couldn’t report them, and then the police invent a reason to pull them over and claim they smell alcohol on their breathe or something.

Anonymous Coward says:

In other reports...

Everyone wants the Constitution destroyed in some way when it serves their politics.

Since you folks want to remove one right or another for your politics you should probably stfu when someone else wants to remove a right YOU like for theirs.

Hypocrisy is such a nasty little vice is it not?

Anonymous Coward says:

Re: In other reports...

“Everyone wants the Constitution destroyed in some way when it serves their politics.”

Speak for yourself – you don’t know me.

“Since you folks want to remove one right or another for your politics”

Again – speak for yourself, you do not represent me … what is it about this that you do not understand?

“you should probably stfu “

I think you should take your own advice.

“Hypocrisy is such a nasty little vice is it not?”

You would know.

Anonymous Anonymous Coward (profile) says:

Re: Get a *F*** WARRANT, ALWAYS!

+1 for "evidence laundering", it’s a much more powerful, evocative term than "parallel construction".

Actually I think both are taking place. First one, then the other.

And yes, warrants should always be required, and we need to get rid of that secret court (FISA) as well. Then there’s Congress enacting unconstitutional legislation and the courts not holding up their end of the bargain by striking those down.

Anonymous Coward says:

Bring the dog?

If an officer stops someone for speeding — even if the real purpose is to search for evidence of drug trafficking — the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time.

What stops them from just bringing the dog right away? Do they need to keep up the pretext that they called the dog because they "smelled drugs" during a normal traffic stop?

Anonymous Coward says:

Re: Re: Bring the dog?

There are fewer dogs and their handlers that there are cars on patrol.

But why does it matter? These aren’t cops that were "on patrol" and happened to see something. They were told to follow someone until they made some minor traffic mistake. So whoever’s saying "follow license plate X" could just as easily add "and bring a dog".

Uriel-238 (profile) says:

Re: Dogs are fake evidence.

Detection dogs by far give false positive signals more often than they give true positives, as much as 90+% of all signals in Chicago.

They shouldn’t be grounds for securing probable cause, rather should require a warrant. We should also require dogs to be retired if they’re over eager to signal.

But since they’re useful in getting warm bodies into prisons, they’re going to remain as a method to bypass fourth amendment rights.

Sharur (profile) says:

Not the problem, but a symptom

A query, from a non-lawyer:

How is “Parallel Construction” different from the “Inevitable Discovery” exception to the Exclusionary Rule.

Functionally they seem the same, in that evidence that would be excluded is allowed. The Inevitable Discovery doctrine is, to this layman, theoretical: That prosecution merely has to establish (to the low standard of a preponderance of evidence) that the . E.g. if the police torture a kidnapper for the location of their victim, anything they say would be inadmissible, but if there is enough physical evidence at the abduction point, the kidnapper could still be prosecuted.

Parallel Construction merely seems like proving the theoretical case: i.e. actually using untainted evidence to prove the case, which is what would happen anyway if the original evidence was suppressed.

Note that in the case of civil rights violations of the 4th amendment, the case is rarely dropped in its entirety, rather the illegally gathered evidence is suppressed (which may lead to the case being dropped due to lack of evidence, but that is not a direct effect).

In summery, I think parallel construction is a logical behavior, if we hold that the punishment for violating the 4th amendment is merely you can’t use *that* evidence. If you want to protect the 4th amendment, then have its violations have some consequences.

Anonymous Coward says:

Re: Not the problem, but a symptom

How is "Parallel Construction" different from the "Inevitable Discovery" exception to the Exclusionary Rule.

Also not a lawyer, but as a guess: imagine you had someone tied up in your back seat, and the police noticed during their illegal stop. It probably would’ve been noticed by a trucker or SUV driver anyway, so it could be "inevitable". Or if the cops heard you had drugs and intended to get you on a minor traffic violation, but you were driving so badly people were already calling it in.

Anonymous Coward says:

At first it is drugdealers and other criminals...

Then it turns into smaller crimes. It is quite common knowledge that if you let kids get away with too much trouble, they will just push the boundaries even more and it is the same here. In the end they will catch jaywalkers at night, by using GPS if they are allowed.
Besides, how close are we to “I don’t like that politician. I am just going to find some dirt in our database, leak it to a journalist, and ask him to do some “Alternative Fact-checking””.
With the current political segregation, I can see how this person could do it while telling himself (and believing) that he/she is saving the country.

Uriel-238 (profile) says:

I suspect there are different degrees of parallel construction.

IANAL, but there may be merit to the argument that literal parallel construction would mean the same evidence would be found by another path, say rather than a tip from the NSA based on internet surveillance (which violates Constitutional rights) then a tip from an ex-girlfriend (which…does not). The former might be quicker than the latter, and in the case of hunting a serial killer might even save a life.

But it sounds like the current use of the term parallel construction is reframing illegally obtained evidence so that it sounds more legal, such as information from NSA surveillance being delivered as an anonymous tip. That’s evidence laundering.

The ultimate end to this is the public will cease to trust law enforcement, the Department of Justice and courts of law. That they cheat to secure convictions implies they have to cheat in order to secure convictions.

Anonymous Coward says:

defendants in court have right to confront their specific accusers & specific evidence offered against them. Hidden accusers & hidden evidence from secret people (NSA, etc) is fundamentally unjust and direct violation of 5th/6th Amendments.

But the point is, this hidden stuff ISN’T OFFERED AGAINST THEM. So the constitution doesn’t apply directly.

There’s nothing new in “evidence laundering”. It has always, in fact, been a part of any legitimate investigation.

Police go out and ask questions. “Informants” answer the questions, unreliably. Knowing those answers are not reliable and cannot–SHOULD NOT–be introduced in court, the police look for more-reliable evidence pointing the same way. If nothing more reliable is found, move on to the next possible suspect. If something more reliable is found, introduce it as evidence. The accused will never know, and ought not to know, who has been telling the truth about him behind his back. On the other hand, what benefit is telling the not-accused that someone has been telling probable-falsehoods behind HIS back?

The problem with mass data collection is the “right of privacy”–how many certainly-innocent people lost their rights in the data-collection process? How many right-to-work advocates are outed to union goons, how many fleeing battered spouses, how many abortion/right-to-life advocates, how many police informants in unrelated cases, have lives endangered by the wrong people knowing where they were?

I don’t believe all, or most, police are the wrong people. I just know that the information leaks–too many organized-crime-lords of all stripes are willing to purchase that information from corrupt police; and it only takes one corrupt person–police or sysadmin or even janitor–with access.

That Anonymous Coward (profile) says:

Home of the free...

Where we will “accidentally” intercept all of your communications, “accidentally” unmask those who live in the US, “accidentally” pass those tips on, “accidentally” encourage them to lie about the source.

If not for our “Constitution” we’d be yet another banana republic dictatorship. Our mail is searched, our contacts with others searched, vast databases built all about us on the off chance we might do something bad. Of course this is done for our own good, even if it undermines the course of justice & our alleged rights.

Perhaps it is time to ask if this is all worth it.
College students forced into being CI’s, and those responsible denying it when the CI is found dead.
Collecting an unknown amount of communications from innocent people, to save and sift when it suits them.
Creating fairy tales about how they got the evidence, denying the accused a fair day in court. They can be as guilty as sin, but if we convict them by breaking the rules are we any better?

Loose tea is pot.
Tests known to be faulty keep being used.
Cops to stupid to identify plants arresting innocent people.
Peoples homes destroyed & them denying they owe anything for the destruction.
Civil forfeiture, you don’t need any evidence the entire system is rigged to let you keep it.
Doughnut Glaze is meth.
Home made soap is drugs.
People held for hours & brow beaten into confessing to things they didn’t do.
A system shown they clearly punished an innocent, fighting tooth and nail to deny them compensation & in at least 1 case claiming DNA proves nothing.
A system that allows the rich and powerful to avoid trials because the case would be hard & might ruin a record.
A system that allows them to stack charges to 4 human lifetimes to force a plea deal, even if those charges would never stick.
A system that doesn’t punish investigators who “recruit” people with limited IQ’s to use as pawns in invented terrorism plots or drug stings.
They care more about wins, than the decaying bedrock of our society hastened by their actions.

Maybe if a powerful persons son is murdered in under 13 seconds or video shows the cop planting evidence after shooting someone in the back, then they might question if the system is broken.

They refuse to admit where the information comes from, because the programs aren’t supposed to be used against us but somehow they can accidentally collect it & then pass it on.

Tin-Foil-Hat says:

Corrupt to the core

The DEA, like its creator, is a corrupt agency whose only purpose is to benefit itself.

They do exactly the opposite of their stated purpose. They distribute drugs supposedly to catch the “bigger dealers”. They can barely get through a major investigation without a few agents turning and almost or actually derailing cases. I wish they would close the agency and transfer their responsibilities to the FBI.

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