What "law" should they be following that was discussed in this essay? Defense counsel are free to make suppression motions, are they not? And do, in my experience. So if "the law" is on the side of reducing the admissibility of evidence attained by impermissible means, and these means are impermissibly employed, why are the ordinary incidents of criminal litigation insufficient? The way to improve the draft is to address---one hopes, to remove---the confusion.

Law Enforcement Behaving Like Spies

-- By GrahamGodwyn - 13 May 2015

Introduction

Spooks and spies should be kept apart from domestic law enforcement. It is expected that an intelligence agency operating internationally will, at least to some degree, operate outside of the court system. They do not generally seek warrants, and they do not testify before the court. Ostensibly, these agencies are to be used against foreign powers. While U.S. intelligence agencies have a controversial (to put it politely) history, they are certainly not expected to catch common criminals. The expectations of traditional law enforcement (police, FBI, DEA, etc.) are quite different. A core duty of these agencies is to apprehend criminals. In doing so they are expected to follow the law, and to testify faithfully before the court. When domestic law enforcement begin to act more like spies, circumventing the law for the sake of convenience, it fundamentally undermines the judicial system.

Parallel Construction

Parallel construction is the process by which a law enforcement agency manufactures a separate set of evidence to obscure the true origin of the investigation. This information often stems from the Special Operations Division, a coalition of traditional law enforcement mixed with intelligence agency workers (Reuters: U.S. directs agents to cover up program used to investigate Americans). In plainer terms, when a law enforcement agency obtains information that it cannot use in court (potentially because this information was obtained illegally), the officers will be instructed to find an excuse to detain and search the suspect. If that search uncovers evidence of wrongdoing, and the suspect is charged, the law enforcement agency will lie about the origin of the investigation, stating that it was a hunch, an anonymous tip, or a routine traffic stop rather than information ultimately derived from an undercover agent, an NSA wiretap, or other warrantless electronic surveillance. Not only does this deny the defendant rights and potentially a defense, but it requires a misrepresentation to the court. Catching the “bad guy” has been deemed more important than due process.

Stingray

Stingray is the catchall term for a class of cell phone surveillance device. Stingrays pretend to be legitimate cellphone towers, but force all nearby cell phone users to connect to them (State of Florida v. James L. Thomas: Transcript pg. 12). By spoofing a cell tower stingrays operate like a drag net, not able to distinguish (at least initially) between users. This means that anyone who happens to be in the area will have their cellphone compromised. A compromised phone can have all of its communications intercepted (Federal Business Opportunities: Network Monitoring System), its user tracked (State of Florida v. James L. Thomas: Transcript pg. 17) and be unable to make calls or access data (Affidavit of Supervisory Special Agent Bradley S. Morrison pg. 2-3). Clearly, these devices could easily be used to invade the privacy and conduct warrantless searches on just about anyone. There are many questions about their capabilities and how they are being used that have not been answered. Law enforcement agencies have signed non-disclosure agreement with each other, and with the Harris Corporation (the manufacturer of the stingray device). While NDAs are not in and of themselves unusual, the extent that law enforcement has gone to maintain this level of secrecy is nothing short of extreme. Rather than answer questions about stingrays and their use, the cases are instead routinely dropped (Washington Times: Dropped Charges Raise Questions About Tracking Device and NYCLU: Erie County Sheriff Records Reveal Invasive Use of Stingray Technology and Ars Technica: Prosecutors drop key evidence at trial to avoid explaining stingray use). Perhaps even more troublingly, U.S. Marshals seized documents relating to stingray surveillance rather than allow local police to release them (ACLU: U.S. Marshals Seize Local Cops Cell Phone Tracking Files in Extraordinary Attempt to Keep Information From Public). Judges seem to be just as in the dark as ordinary citizens, having to threaten a detective with contempt for not answering questions related to the stingray ([[http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-officer-contempt-20141117-story.html#page=1][]The Baltimore Sun: Judge threatens detective with contempt for declining to reveal cellphone tracking methods]) One reason for this secrecy may be that when this device is used, it is not being used in accordance with the law, and the evidence would be unusable at trial (The Wall Street Journal: Judge Questions Tools That Grab Cellphone Data on Innocent People).

Why Collect Information That Cannot Be Used?

The peculiar secrecy around stingray devices raises an obvious question: why would law enforcement want to use a device to collect information when they refuse to present that information at trial? Ordinarily, one would assume that if the police lawfully collect information, they would be happy to present it in court. If that information is not lawfully obtained, and therefore useless, then they would have little reason to expend such a heroic effort to protect their ability to gather this useless information. There is no definite answer to this question. I could hypothesize however, that law enforcement agencies are not wasting time, money, and credibility to collect information that serves no use. It may be that they have found a way to cut out the spooks. That they are obtaining information they know they cannot use, then using parallel construction to transform that useless information into something they can bring to court. Only dropping the charges if the true origin of their investigation is revealed. It certainly would be convenient if an officer could surreptitiously obtain information about a crime, say a transaction involving drugs, then happen to be in the right place at the right time and find an excuse to search a suspect that they know is carrying contraband.

Conclusion

The solution to this problem is relatively straightforward. Law enforcement agencies are acting like intelligence agencies when they should be acting like law enforcement. Officers are lying to the judiciary, and the judiciary is aware of this. It may not be obvious in every case, but it certainly is clear when an officer refuses to give information due to an NDA. The judiciary needs to take a harder line to compel them to behave like traditional law enforcement and follow the law.

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