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Report: Federal agencies secretly tipping off local police

A report by Human Rights Watch says that federal law enforcement agencies have been passing along secret tips based on information collected through constitutionally questionable methods. When state and local law enforcement receive these tips, they create a false narrative about how they discovered the information in a process called "parallel construction."

While law enforcement insists this is legal, it may not be constitutional. If the original source of the information was an unconstitutional search, any use of that information would presumably violate the suspect's rights. Moreover, hiding the real source of evidence prevents defendants from being able to fully confront and challenge it. Finally, these deceptive practices open the door to abuse, prejudice and misconduct.

The report makes the case that the Drug Enforcement Agency, the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and Immigration and Customs Enforcement are all involved in secretly feeding information to local law enforcement.

The source of that information may be warrantless searches, wiretaps, phone and computer surveillance and even mass surveillance performed by the National Security Agency. Some of these tactics may occasionally be lawfully used against known criminals or foreign nationals abroad. U.S. citizens are supposed to be protected from most of these tactics.

According to the report, a typical scenario would be this. A federal agency learns of possibly illegal activities through a mass surveillance program that is supposed to exclude U.S. citizens. Since it cannot act on the information without exposing the illegal surveillance, it secretly tips off local authorities, who agree not to reveal the source of the information.

Then the local authorities wait for an opportunity. They notice the suspect driving and pull them over on a pretext. They search the interior of the vehicle and find evidence of drugs. In the prosecution, the police claim they discovered the drugs through a random traffic stop. They may go so far as to tell the judge this story.

The defense is never told that the traffic stop was not random. The defendant has no opportunity to challenge the illegal survillance that actually prompted the traffic stop. They have no opportunity to have the evidence thrown out of court even though it was obtained unconstitutionally.

"The problem we have here is that we apparently have the government deciding for itself what counts as a genuinely independent source of information or what constitutes inevitable discovery," says the report's author. "Covering up how evidence was originally found deliberately hoodwinks defendants and judges, severely weakening constitutional fair trial rights."

The government is deciding what's legal without giving anyone else enough information to weigh in. And, this is all being kept secret from the public, the defense and judges.

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