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

AuthorJames B. Perrine - Verne H. Speirs - Jonah J. Horwitz
PositionAssistant 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
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.
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
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.

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