Coverup of Criminal Investigation Source Could be Problematic for Prosecution

In any criminal case, the way that evidence was found and collected is often just as important – and sometimes even more important – than the evidence itself.
So if our Broward criminal defense attorneys can prove that evidence was improperly gathered, the evidence won’t matter because we will work to have it suppressed so that it won’t be considered by the court.

However, in order for us to do our job in this regard, law enforcement officials and prosecutors must be forthcoming. The law requires them to do this in the discovery phase of the case. They are forbidden by law from withholding any information that could be beneficial to your case – and that includes information about evidence collection.

This is what makes the revelations of what has been happening with the U.S. Drug Enforcement Administration all the more disturbing. A recent investigation by news outlet Reuters revealed that federal DEA officials took information received from the National Security Administration’s intelligence intercepts, wiretaps, phone record databases and informants, and distributed it to local law enforcement. This information is supposedly gathered for the purposes of protecting our national security Yet, it is being given to the DEA, which is then using it to further domestic criminal investigations.

What’s more, the DEA has reportedly been giving pieces of this information to lower-level law enforcement agencies to help further their criminal drug investigations. What’s more, the DEA has been directing these lower-level law enforcement agencies to “recreate” an investigative trail, such that the defense lawyers and sometimes even the prosecutors will be kept in the dark about the origins of the evidence.

This is a major, major concern in terms of constitutional rights. The reason is because if a defense lawyer is not aware of how an investigation started, he or she does not know to ask for a review of potential sources of exculpatory evidence. Exculpatory evidence would be evidence that might be favorable to the defendant. This might include evidence of certain biases or entrapment or some other element that could help a defendant in court.

Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011, offered reporters her view on the matter: “It’s one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations.”

The entire situation is happening under the umbrella of a unit of the DEA called the Special Operations Division. It has roughly two dozen partner agencies, which include the NSA, the Internal Revenue Service, the Department of Homeland Security, the CIA and the FBI. Originally, this unit was formed back in the mid-1990s to curb the proliferation of Latin American drug cartels.

Today, we don’t know the exact nature of the operations, because the agency is highly secretive. The only reason Reuters knows about the cover-up directives is because internal memos were leaked to reporters.

Former law enforcement officials who spoke anonymously to reporters, indicated it would often work like this:

Someone from the SOD would contact a local law enforcement agency, tell them to be at a certain location at a certain time and look for a certain vehicle. From there, officials would find some reason to stop that vehicle, search it and locate contraband. However, the tip from the SOD was top secret. No mention of it is ever made in any law enforcement documentation. There is evidence that even prosecutors were often unaware of it.

By hiding the origins of a case, law enforcement officials are able to get around established court procedures by which judges privately examine potentially sensitive information. This might include an informant’s identity, for example. It also takes away the judge’s discretion to determine whether the information is relevant to the defense.

And again, we’re talking about information supposedly collected for purposes of national security being used to prosecute those accused of drug-related crimes. That alone is likely a blatant violation of a defendant’s Fourth Amendment rights to be free of unlawful and unwarranted search and seizure.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

Additional Resources:
Exclusive: U.S. directs agents to cover up program used to investigate Americans, Aug. 5, 2013, By John Shiffman and Kristina Cooke, Reuters
More Blog Entries:
Broward Defense Lawyers: Emotions Shouldn’t Dictate Verdict, July 30, 2013, Broward Criminal Defense Lawyer Blog

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