The hand-off procedure or the new silver platter: how today's police are serving up potentially tainted evidence without even revealing the search that produced it to defendants or to courts.

• Author: Block, Micah G.
• Position: NOTE

INTRODUCTION I. UNDERSTANDING THE HAND-OFF PROCEDURE A. Example of a Hand Off: United States v. Man Nei Lui B. The Prevalence of the Hand-Off Procedure II. WHY THE HAND-OFF PROCEDURE IS PROBLEMATIC A. Comparison to the Silver Platter Doctrine B. Why the Hand-Off Procedure Is Problematic: A Case Study III. THE HAND-OFF PROCEDURE UNDER CURRENT LAW A. The Legality of the Pre-Hand-Off Search B. The Legality of Concealing the Pre-Hand-Off Search from Defendants and Courts 1. The Fourth Amendment 2. The exclusionary rule a. The attenuation doctrine b. The independent source doctrine c. The inevitable discovery doctrine 3. Title III: the federal wiretap statute 4. Due process IV. SOME ELEMENTS OF A POSSIBLE SOLUTION: TOWARD REQUIRING DISCLOSURE OF PRE-HAND-OFF SEARCHES A. Title III-Style Statutory Notice Requirement B. Warrant-Like Prior Authorization Requirement C. Educating Defense Attorneys and Encouraging Active Questioning CONCLUSION INTRODUCTION

Imagine the following scenario: A police officer is investigating a major drug trafficking ring. She obtains a wiretap on the cell phone of the suspected kingpin of the organization. The wiretap enables her to overhear conversations between the top target of the wiretap and several other people in the drug ring. Before the wiretap produces sufficient evidence to support arrest and prosecution of the kingpin, it yields evidence of various crimes involving lower-level drug runners.

Traditionally, this officer would face a dilemma. On the one hand, she could arrest the low-level targets based on the evidence she had already obtained, but in the course of prosecuting them she would be forced to reveal the existence of the wiretap to these low-level targets, who would likely inform the kingpin, which would likely prevent her from obtaining any additional evidence against her top target. Alternatively, she could sit idly by while known criminal activity occurred, perhaps at immediate risk to the safety of the community, in order to keep the wiretap secret and continue building her case against the kingpin.

The "hand off" is a law enforcement technique that seeks to resolve this dilemma by enabling what I will call "midstream prosecutions." A hand off occurs when information from an initial investigation such as a wiretap is "handed off" from one police unit to another. The receiving unit conducts a subsequent and so-called independent investigation, and the subsequent investigation becomes the basis of a criminal prosecution during which the initial investigation is never revealed to the defendant or to the court. The hand off therefore allows police to conduct midstream prosecutions during ongoing covert investigations without "blowing their cover."

Although this technique appears to be commonplace, (1) courts have seldom examined it because it is almost always kept secret from them. On the rare occasions when the procedure has been challenged in court, law enforcement officials have described it openly, apparently confident that it raises no constitutional or statutory problems, and that evidence produced after a hand off would be admissible under exceptions to the exclusionary rule even if the prior investigation were later found to be unconstitutional. (2) Despite this confidence, the hand off raises legal and policy problems, both of which I explore in this Note.

My purpose is to bring attention to the hand off and to explore its legal and policy framework. The Note proceeds in four Parts. In Part I, I describe the hand-off procedure and its common applications and review evidence of its prevalence. In Part II, I argue that the hand-off procedure creates significant threats to privacy even as it serves legitimate societal interests in effective law enforcement. Because the hand off has rarely been examined by courts, I look beyond the hand off in this Part to the analogous silver platter doctrine as a means of illuminating the procedure's legal and policy framework. Part II concludes with a case study of one well-documented use of the hand off, which demonstrates how the procedure's potential for abuse has resulted in actual privacy violations.

In Part III, I describe how the hand off interacts with current law. My central claim is that, although existing law does not create an obligation for police and prosecutors to disclose the existence of a pre-hand-off search either to criminal defendants or to courts in every post-hand-off prosecution, the policies underlying the Fourth Amendment, the exclusionary rule, and the federal wiretap statute weigh in favor of imposing a limited disclosure obligation that will allow midstream prosecutions while minimizing the risk of and incentives for police misconduct. In addition, I argue that disclosure is already required by statute in certain hand-off situations, where the pre-handoff search involves a wiretap.

Finally, in Part IV, I outline two possible elements of a resolution to the problems the hand off creates, either of which would establish a qualified disclosure obligation that enables nondisclosure in certain exigent circumstances, upon specific judicial approval. Although I do not propose a polished solution, my discussion of these elements of a possible solution emphasizes the importance of striking an appropriate balance between the need for midstream prosecutions and the threat to privacy that broad and unscrutinized covert investigation powers create.

1. UNDERSTANDING THE HAND-OFF PROCEDURE

   The core elements of the hand-off procedure are (1) an initial investigation; (2) communication from the initial investigators to some different law enforcement unit that involves, at the very least, a tip on where to look for criminal activity; and (3) a subsequent investigation conducted by the unit receiving the information. The procedure is specifically designed to "wall off" the prior investigation from the subsequent one, enabling law enforcement authorities to bring midstream criminal prosecutions during a covert investigation without revealing the existence of the covert investigation to courts, to the individuals prosecuted after the hand off, or to other individuals who remain the targets of the ongoing pre-hand-off investigation. (3)

   The procedure obviously benefits law enforcement and society's interest in the successful investigation and prosecution of crimes. Large criminal investigations, especially in the context of sophisticated drug trafficking networks or organized crime more generally, routinely rely on extended covert investigations that may include confidential informants, undercover police officers, communications surveillance in the form of wiretaps (4) and/or pen registers, (5) and myriad other covert investigatory techniques. Many of these practices are highly resource intensive, and in order to be effective they must be carried out without the knowledge of the targets of the investigation.

   Investigators engaged in a long-term, resource-intensive investigation who become aware of specific instances of imminent criminal behavior that are ancillary to their main objectives have a legitimate interest in being able to thwart that behavior, especially if it is immediately threatening to public safety, without revealing the existence of the ongoing investigation. Without the hand off, they would be forced to choose between allowing potentially dangerous criminal conduct to proceed unabated while building a case against higher-level or more dangerous criminals, or averting an immediate instance of criminal activity at the cost of allowing the broader criminal enterprise to discover the covert investigation and presumably avoid prosecution, at least for some time. The hand off is designed and supported as a means of avoiding this dilemma by enabling midstream prosecution of the immediate crime without revealing the existence of the ongoing investigation. As we shall see, however, a procedure that gives the government unconstrained power to hide part of its investigation from courts and defendants presents society with a new dilemma because the added benefit in terms of law enforcement comes at a potentially serious cost to privacy. (6)

   1. Example of a Hand Off: United States v. Man Nei Lui

      A typical hand off occurred during a recent United States-led, international investigation into drug trafficking, codenamed Operation Sweet Tooth. (7) Operation Sweet Tooth lasted twenty-four months, ranged over twelve separate judicial districts in the United States, and culminated in 291 arrests and the execution of ninety-eight search warrants both in the United States and Canada, yielding 931,300 tablets of MDMA ("Ecstasy"), 1,777 pounds of marijuana, and $7.75 million in United States assets. (8) As part of this investigation, Drug Enforcement Administration (DEA) agents obtained a wiretap on a private cellular telephone belonging to a man named Eric Zi Ping Lei in San Francisco on March 30, 2005. (9) On April 23, 2005, approximately six and one-half months before the international takedown in Operation Sweet Tooth, (10) information obtained in the March 30, 2005, wiretap led federal investigators to believe that a man named Man Ning Tao was in possession of several ounces of cocaine in a certain car on the streets of San Francisco. Not wanting to reveal the existence of the ongoing federal investigation, but hoping to prevent this cocaine from reaching end users, the federal investigators asked a San Francisco Police Department (SFPD) officer to conduct a "wall stop" on Man Ning Tao's car, in order to '"wall[] off' the federal presence from the target and ... make the target believe that any subsequent seizure of contraband from his vehicle was merely fortuitous." (ll) SFPD officers conducted the wall stop after observing a broken taillight. (12) They obtained consent to search the car and discovered six ounces of cocaine. (13) The occupants of the car, Man Ning Tao and another man, Man Nei Lui, were charged...