08.12.2013 0

The fruit of the poisonous tree

poisonappleBy Robert Romano

“If they’re recreating a trail, that’s wrong and we’re going to have to do something about it.”

That was House Intelligence Committee Chairman Rep. Mike Rogers’ (R-Mich.) reaction on the Mike Huckabee radio program to reports that the Drug Enforcement Agency’s (DEA) Special Operations Division is feeding intelligence tips to law enforcement, and then instructing them to alter the investigative trail.

A former Federal Bureau of Investigation (FBI) agent, Rogers would know a thing or two about the proper, constitutional way that a criminal investigation must begin.

Generally speaking, comporting with the Fourth Amendment’s prohibition against unreasonable searches, police require probable cause to initiate a search or criminal investigation.

The principle has been famously expressed by the Supreme Court repeatedly over the years. In 1939, Justice Felix Frankfurter wrote in Nardone v. U.S. that if “a substantial portion of the case against [a defendant] was a fruit of the poisonous tree,” then the evidence cannot be used at trial.

Similarly, in 1920’s Silverthorne Lumber Co. v. U.S., Justice Oliver Wendell Holmes wrote, “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”

Yet, that is precisely what DEA’s special instructions to the Internal Revenue Service (IRS) attempts to do. It appeared online as a manual for agents in 2005 before being removed in 2007 and warns against directly using the information as evidence to be presented at trial, “Information obtained from SOD in response to a search or query request cannot be used directly in any investigation (i.e. cannot be used in affidavits, court proceedings or maintained in investigative files).”

But in point of fact it is still being used to assist the investigation. It’s a cheat sheet. So, agents are directed to recreate the trail: “Usable information regarding these leads must be developed from such independent sources as investigative files, subscriber and toll requests, physical surveillance, wire intercepts, and confidential source information.”

The ostensible reason for shielding the use of the warrantless intelligence information from official records obtainable by the defense is to prevent a defense attorney from making the case that the entire investigation would not have originated but for the tip. In turn, that could result in any evidence potentially being thrown out of court, jeopardizing the entire prosecution.

Rogers knows all of that. Curious, then, is his fierce support of the National Security Agency’s (NSA) domestic surveillance program where intelligence tips are passed off to the FBI to initiate or complement a national security investigation, often with a prosecution in mind.

Speaking on July 24 against an amendment to the Defense Appropriations Act offered by Rep. Justin Amash (R-Mich.), Rogers recounted how acquiring phone, email, and other communications records ahead of time for intelligence gathering might have helped to avert the 9/11 terrorist attacks, and has subsequently assisted in identifying potential follow-up attacks.

“[S]omebody leading up to the September 11 attacks who was a terrorist overseas, called a terrorist living amongst us in the United States, and we missed it because we didn’t have this capability,” Rogers said. “What if we’d have caught it? The good news is we don’t have to what-if. It’s not theoretical. Fifty-four times this and the other program stopped and thwarted terrorist attacks both here and in Europe — saving real lives. This isn’t a game. This is real. It will have a real consequence.”

Yet, if recreating the trail from DEA leads is “wrong,” to quote Rogers, than wouldn’t NSA leads used in the same manner pose a similar constitutional problem?

If the intelligence obtained is the primary source leading to such an investigation, even into terrorism, and that in itself might be inadmissible in court, probable cause is questionable.

Of course, there was an exception carved out by Holmes in Silverthorne when he wrote that the constitutional prohibition “does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.”

Undoubtedly that is why the DEA is specifically instructing agents to develop “independent sources,” as per the IRS document.

But if the investigation would not have otherwise been pursued but for the warrantless tip, then there was no probable cause to initiate the inquiry to begin with. Perhaps that is why Holmes concluded, “the knowledge gained by the government’s own wrong cannot be used by it…” still airing on the side that probable cause is needed.

To put this decision into context, in 1920 when Holmes rendered his opinion, the radio was not even widely used yet. He could not have anticipated the wide scale technological surveillance possible today via the Internet, satellites, and other electronic means.

To allow investigations to begin in this manner today would be an open invitation for the government to engage in blanket surveillance in an attempt to achieve perfect information — turning the presumption of innocence on its head.

The question is what Rogers and the rest of Congress are really going to do about it.

Robert Romano is the senior editor of Americans for Limited Government.

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