D.C. criminal defense attorneys know that when it comes to the evidence used against you in court, the way it is collected is sometimes even more important than the substance itself.
There are very specific laws regarding when an officer is justified with reasonable suspicion and probable cause and when a warrant has to be obtained. Full disclosure by law enforcement and prosecutors of how the evidence came to light and was collected is mandated by the courts, and it's also potentially a critical link for your defense team.
All of this is why the latest revelation regarding a super-secret division of the U.S. Drug Enforcement Administration has come under intense scrutiny in recent weeks. It came to light following outrage over the National Security Agency's amassing of phone records of millions of Americans, purportedly under the guise of national security protection. Such information was collected without probable cause or warrants.
The DEA operation was a bit different. Reuters reports that the Special Operations Division, which has a goal of aiding the DEA and other law enforcement agencies in their investigations of drug dealers and money launderers, has been forwarding tips gleaned from NSA intercepts, wiretaps by foreign governments, federal databases and domestic wiretaps.
Here is the first problem with this: The NSA collects information for purposes of protecting national security. However, the tips that are taken from the SOD and reportedly forwarded to federal and local law enforcement agencies have nothing to do with national security. They are instead used to prosecute those suspected of domestic crimes - primarily drug offenses, and not all of them even felonies.
Here is the second problem: Documents obtained by Reuters reveals that the DEA has been instructing lower-level law enforcement agencies on how to "recreate" an investigative trail, so that the SOD's involvement would be concealed. This is a major issue because if defense lawyers don't know how evidence was obtained, they can't objectively review it for evidence that might be exculpatory, or subject to suppression. Such evidence might reveal things like biases or entrapment. If a defense lawyer can prove these elements, it could result in the case being dismissed altogether.
Of course, they can't do that if they never know about it.
It doesn't appear that prosecutors or judges are aware this is happening either, but it nonetheless potentially violates a defendant's constitutional rights.
DEA officials who oversee the SOD insist that the information they send to law enforcement is obtained though legal means, including court order and subpoena. They say Congress has been aware of and even briefed on the program, though an agency spokesman wasn't sure if legislators were specifically aware of the way tips were being used to prosecute domestic criminal cases.
The SOD is comprised of some two dozen partner agencies, including the FBI, the NSA, the CIA, the Internal Revenue Service and the Department of Homeland Security. It was founded back in the mid-1990s as a way to combat Latin American drug cartels.
Today, it appears the investigations are much more focused on domestic crimes, though its specific functions are kept top-secret.
Those who had prior involvement with the agency explained that an SOD tip would work like this:
SOD officials would call up local law enforcement and tell them to be at a certain truck stop at a certain time and look for a certain vehicle. State police would comply, find an excuse to stop that vehicle and then have a drug dog do a sniff and conduct a full search.
Former DEA officials speaking on the condition of anonymity defended the practice of having a law enforcement agency "recreate" the method of discovery, which is also known as "parallel construction," saying it's been done for years by drug enforcement authorities all over the country.
While some argue it could be legal in terms of establishing probable cause, the act of concealing it as a means of hiding how they got the information in the first place is likely a violation of pretrial discovery rules.
As one legal scholar exclaimed, it's not only alarming but "pretty blatantly unconstitutional."
It's a positive thing that these matters are now coming to light. It's important if you have been arrested for a drug-related crime that you immediately contact an experienced criminal defense attorney.