HOW COPS HIDE SURVEILLANCE SNOOPING FROM COURTS.

• Author: Ciaramella, C.J.
• Position: CIVIL LIBERTIES

IN 2004, ASCENSION Alverez-Tejeda and his girlfriend were stopped at a traffic light in Oregon when their car was rear-ended by a drunk driver. The police arrived and arrested the drunk, but while Alvarez-Tejeda was outside dealing with the situation, a thief jumped in his car and tore off down the road.

Police recovered the car and, after obtaining a search warrant from a judge, found in it cocaine and methamphetamine that Alverez-Tejeda was trafficking from California to Washington.

It looked like a case of very bad luck for Alverez-Tejeda. The truth didn't come out until the trial: The whole thing had been staged. The only ones who weren't in on the plot were Alverez-Tejeda, his girlfriend, and the judge who signed the warrant. The Drug Enforcement Administration (DEA), relying on surveillance and wiretaps, had tipped off local law enforcement to Alverez-Tejeda. The cops then constructed an elaborate ruse to gain probable cause to search his car.

Alverez-Tejeda's case--ultimately upheld by a federal appeals court in 2007--is a particularly complicated example of "parallel construction," a tactic used by law enforcement to hide its investigative methods from courts and defendants by building another plausible evidence chain. A January report by Human Rights Watch (HRW), which examined 95 similar cases, says federal agencies may be regularly laundering intelligence information to each other, as well as to local law enforcement, to build criminal investigations while concealing the origins of the evidence. The report argues parallel construction raises numerous civil rights concerns, chiefly the right to a fair trial.

"When you have parallel construction, you have defendants and even judges who don't know how evidence was gathered and can't challenge the constitutionality of that," Human Rights Watch researcher Sarah St. Vincent says. "What you have is very one-sided, where the government, on its own, is deciding what practices it thinks are legal."

St. Vincent argues parallel construction can hide illegal searches that violate defendants' Fourth Amendment rights or result in exculpatory evidence not being turned over, violating the Fifth Amendment. It can also hide discriminatory actions by law enforcement.

Reuters first published details about the practice in a 2013 investigation that revealed that the DEA's Special Operations Division--whose activities earned it the nickname "the dark side"--was regularly funneling tips obtained from...