After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."
Jesus fucking Christ. They were lying to prosecutors to get charges pressed against people.
They weren't necessarily lying, -just omitting the cause prior to the traffic violation. If the traffic violation as primary cause was never challenged, they wouldn't technically be taking a position on the origin often. They'd simply state the facts: "Vehicle X was driving southbound on I-94 and failed to utilize a turn signal while switching lanes. I pulled car over and noticed x,y,z..."
As a police officer friend of mine told me many years ago "If I want to pull you over, there is nothing you can do to stop me. All I have to do is follow you for one mile and you're going to violate some portion of the traffic code."
I'm not defending this at all, as I think it is outrageous and that the link to harvested NSA data is beyond the pale . I'm just pointing out that this is, as the article mentioned, de rigueur, and when a technically legal starting point is provided, the defense likely almost never challenges that, thus eliminating the need for the prosecution to take a formal stance on the origin. Hopefully this begins to change.
Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally.[1] The logic of the terminology is that if the source of the evidence or evidence itself (the "tree") is tainted, then anything gained from it (the "fruit") is tainted as well...Such evidence is not generally admissible in court.
You cannot conceal the source of evidence that leads you to other evidence.
I think (and hope) you're right that this is a straightforward application of the poisonous tree doctrine, but you should be aware that the doctrine is not quite a clean-cut as you make it out to be. One big exception to it is "inevitable disclosure". If a traffic stop is otherwise lawful, and a normal police officer acting in the lawful confines of their authority would have otherwise discovered e.g. the drug stash in the car (for instance, because it was in plain site in the back seat), the Poisonous Tree doctrine probably doesn't exclude the evidence.
That's the tricky thing about the Reuters DEA revelation. Some drug offenders probably are cavalier about displaying evidence in the cars because the likelihood of their being stopped is low. Here, domestic surveillance is allowing the police to drastically increase the odds that they'll make a fortuitous traffic stop.
What would not work, in my understanding of the story, is for an intelligence intercept to establish the legal basis for stopping and searching a car.
I agree, it really seems like they're trying to come as close to the line as they can without obviously crossing it, and I think it's clear they did cross it.
Also, I don't see any virtue to secrecy in this case; unlike organized Al Qaeda terrorism prevention or foreign hostile adversaries or counterproliferation, the tactics we're using in the "war on drugs" are a public policy matter that benefit from public discussion.
That's the tricky thing about the Reuters DEA revelation. Some drug offenders probably are cavalier about displaying evidence in the cars because the likelihood of their being stopped is low.
Maybe it wouldn't even matter if the drugs were in plain sight? The cop could likely just use the old "I smell marijuana" trick and then he would 'inevitably discover' the drug dealer's stash, no matter where in the car it's hidden.
Edit: So this seems to speak to a bit of what the main link was talking about. This extension of the exclusionary rule doesn't speak to whether or not omission of first cause is lying (under the legal definition), but rather about how if the first cause evidence was obtained illegally, then it cannot be used.
The crux of this issue seems to be that the prosecution is not volunteering information that might trigger the defense to look for Fruit of the Poisonous Tree in the first place (and does that cross the line into illegality, thus preventing evaluation). I would hope it does...
An omission of fact is a lie. Try doing it under oath. You'll go to jail.
Source - "Also known as a continuing misrepresentation, a lie by omission occurs when an important fact is left out in order to foster a misconception. Lying by omission includes failures to correct pre-existing misconceptions. When the seller of a car declares it has been serviced regularly but does not tell that a fault was reported at the last service, the seller lies by omission. It can be compared to dissimulation" http://en.wikipedia.org/wiki/Lie
I think it's important to realize that what constitutes a lie in a legal framework under oath is often completely different than several of the myriad definitions of lies found in popular culture as well as lies that are civilly actionable in conjunction with sales transactions.
The closest fit from your link (only listed lie I saw that pertained to legal proceedings):
Let's say a DEA agent is testifying and I ask him, "why did you stop the truck?" If he gives me a bunch of malarkey about a unreadable tag or a broken tail light instead of telling me about the NSA intercept, he has committed perjury. Pure and simple.
Whether you fully misrepresent the story (tell a complete lie) or omit a portion of the story (tell a partial lie), they are both still lying. A partial lie is not more noble than a complete one.
An omission of fact is a lie. Try doing it under oath. You'll go to jail.
You can see from my comment history that I am vehemently opposed to recent government actions including this one. The prosecution omitting exculpatory evidence is illegal but omitting information under oath is not.
When you are under oath, you are expected to answer the question before you. You are not required or even expected to guess or to elaborate. I've heard from many attorneys I've been a client of that you need to make opposing counsel "work for it". If they ask a broad question, answer narrowly. If you're asked, "Have you ever done anything wrong?", it's not your duty to list everything wrong you've ever done in your life going back to the time you tripped Timmy in third grade at recess.
You are playing the same slimy word game politicians play to evade responsibility.
As long as one can find a form of words, then all is fine and dandy. Even if that means redefining words to mean something new. I despise this game of words.
They are misleading prosecutors: "In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept."
According to articles that I've read in the past, when the Feds get caught in trial doing something like this, they'll say "Whoops, we screwed up, but we were acting in good faith". Generally, that makes it ok.
At some point people need to wake up enough such that they recognize the equivalence of being surprised and being naive, which is an important reason they've trusted government to its own devices for far too long.
Jesus fucking Christ. They were lying to prosecutors to get charges pressed against people.