Fusion Centers and the Fourth Amendment: Application of the Exclusionary Rule in the Post-9/11 Age of Information Sharing

• Author: James B. Perrine - Verne H. Speirs - Jonah J. Horwitz
• Position: Assistant United States Attorney, Middle District of Alabama, Criminal Division and Adjunct Professor, Cumberland School of Law - Assistant United States Attorney, Middle District of Alabama, Criminal Division, Organized Crime Drug Enforcement Task Force - J.D., 2010, Northwestern University School of Law
• Pages: 721-787

FUSION CENTERS AND THE FOURTH AMENDMENT:

APPLICATION OF THE EXCLUSIONARY RULE IN THE

POST-9/11 AGE OF INFORMATION SHARING

JAMES B. PERRINE,1 VERNE H. SPEIRS,11 JONAH J. HORWITZ111

TABLE OF CONTENTS

I. Introduction 723

II. Fusion Centers: A Significant Response to the Terrorist

Attacks of 9/11 727

A. A Tragedy of Errors: Miscommunication and No

Communication 728

B. Demolishing the Wall: The Response to 9/11 732

C. Prudential Concerns for Information Sharing Via

Fusion Centers 738

III. The Life and Times of the Exclusionary Rule: Where It

Began and Where It Is Now 742

Copyright © 2010, Jame s B. Perrine, Verne H. Speirs, and Jonah J. Ho rwitz

1 Assistant United States A ttorney, Middle Dist rict of Alabama, Criminal Division an d

Adjunct Professor, Cumber land School of Law.

11 Assistant United States At torney, M iddle Di strict of Alabama, Criminal Division,

Organized Crime Drug Enfor cement Task Force.

111 J.D., 2010, Northw estern University School of Law.

The authors would like to thank Sandra Stewart and Christopher S nyder for their review

of this article and their extremely h elpful comments and suggestion s. Any errors are sol ely

those of the authors.

The case, H erring v. United States, 129 S. Ct. 695 (2009), discussed infra at Part III.B,

originated from th e United States Attorney’s Office for the Middle Di strict of Alabama.

Speirs repr esented the g overnment in that case before the United States District Cour t for

the Middle District of Alabama and before the Unit ed Stat es Cou rt of Appeals for the

Eleventh Circuit. The views expressed in this article are the authors’ alone and do not

necessarily represent those of the United States Attorney’s Office or the United States

Department of Justice.

722 CAPITAL UNIVERSITY LAW REVIEW [38:721

A. Genesis and Early Expansion of the Exclusionary

Rule: 1914–1961 742

B. Maturity and Contraction of the Exclusionary Rule:

1962–Present 747

IV. The Intersection of the Exclusionary Rule and Fusion

Centers 756

A. The Confidential Informant Analogy 757

B. Objectively Reasonable Reliance on Fusion Center

Information 763

1. Fusion Centers Are Akin to Citizen-Informers 763

2. Consistency with Past Precedent 771

3. Analogy to Treatment of Public Records 776

C. The Deterrence Rationale and Negligent

Recordkeeping 780

V. Conclusion 786

2010] THE EXCLUSI ONARY RULE P OST 9/11 723

I. INTRODUCTION

Shortly after noon on a hot August day, agents with the Drug

Enforcement Administration (DE A) park ed in an unmarked police vehicle

directly outside the exit from Miami International Airport. These agents

communicated with counterparts at th e Bureau of Customs and

Immigration Enforcement (BICE) who were inside the airport t racking t he

movements of Masoo d Qalzai, a residen t alien of Afghan des cent and

suspected heroi n smuggler and terrorist. The BICE agents fol lowed Qalzai

to determi ne who will pick h im up. Both groups of agents were pois ed to

arrest Qalzai based on the following information .

Barely a month earlier, an intelligence analyst with the Department o f

Justice’s National Information Divisi on (NI D)1 traveled to Miami, Florida

to coordin ate a meetin g of DE A agents and federal prosecutors assigned to

the Organized Crime Drug Enforcement Task Force (O CDETF)2 who were

working on the Qalzai i nvestigation. These part icular agents and

prosecutors represented the Miami, New Orleans, Los Angeles, and

Chicago field offices. At the meet ing, ea ch tea m detailed its independent

investigation into a sophisticated heroin trafficki ng or ganization operating

within its jurisdiction. Each district sup plied reports concerning high

quality heroin distributed by Afghan immigrants who recently enter ed the

United States. By sharing information and records, this group established

the vario us drug trafficking cell s were part of th e same organization. The

evidence also in dicated t hat Qal zai was the main heroin source and lead er

of the entire enterp rise.

The decision to arrest Qalzai was made a few ho urs prior to his

expected arrival in Miami fro m New Yo rk Cit y wh en Miami DEA agent s

learned from the NID analyst that Qalzai boarded a fli ght at LaGuardia

Airport and was en rou te to Miami. In addition to Qalzai’s location, the

analyst informed the agents th at Qalzai had an outstanding federal arrest

warrant for use of a communication facility in furtherance of a drug

1 NID is a fictitiou s organization used solely for pu rposes of this hypothetical to

represent th e inter-agency info rmation sharing networks formed in the wak e of September

11, 2001.

2 OCDET F was established in 1982 to conduct com prehensive, multi-level attacks on

major drug trafficking and money laundering organizations. U.S. Drug Enforcement

Administration: Organized Crime Drug Enforcement T ask Forces (OCDETF), ht tp://usdoj.

gov/dea/programs/ocdetf.ht m (last visited June 14, 2009). T he princip al mission of the

program is to identify, disrupt, and d ismantle the most serious of these organizations,

including those primarily responsible for providing the nation’s drug sup ply. Id.