The New Silver Platter: How Today’s Police Are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts

Micah Block

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Imagine the following scenario: A police officer is investigating a major drug trafficking ring. She obtains a wiretap on the cell phone of the suspected kingpin of the organization. The wiretap enables her to overhear conversations between the top target of the wiretap and several other people in the drug ring. Before the wiretap produces sufficient evidence to support arrest and prosecution of the kingpin, it yields evidence of various crimes involving lower-level drug runners.

Traditionally, this officer would face a dilemma. On the one hand, she could arrest the low-level targets based on the evidence she had already obtained, but in the course of prosecuting them she would be forced to reveal the existence of the wiretap to these low-level targets, who would likely inform the kingpin, which would likely prevent her from obtaining any additional evidence against her top target. Alternatively, she could sit idly by while known criminal activity occurred, perhaps at immediate risk to the safety of the community, in order to keep the wiretap secret and continue building her case against the kingpin.

The “hand off” is a law enforcement technique that seeks to resolve this dilemma by enabling what I call “midstream prosecutions.” A hand off occurs when information from an initial investigation such as a wiretap is “handed off” from one police unit to another. The receiving unit conducts a subsequent and so-called independent investigation, and the subsequent investigation becomes the basis of a criminal prosecution during which the initial investigation is never revealed to the defendant or to the court. The hand off therefore allows police to conduct midstream prosecutions during ongoing covert investigations without “blowing their cover.”

Although this technique appears to be commonplace, courts have seldom examined it because it is almost always kept secret from them. On the rare occasions when the procedure has been challenged in court, law enforcement officials have described it openly, apparently confident that it raises no constitutional or statutory problems, and that evidence produced after a hand off would be admissible under exceptions to the exclusionary rule even if the prior investigation were later found to be unconstitutional.

Despite this confidence, the hand off raises several legal and policy problems. In particular, although hand offs are defended by law enforcement authorities as a means of protecting legitimate ongoing investigations, the core elements of the hand off exist whenever a prior investigating authority provides a tip to another unit and then seeks to wall off the prior investigation from the subsequent one. The effect, whether or not there is a legitimate justification, is to shield a subset of police investigatory conduct that contributes to a current prosecution from both judicial and adversarial scrutiny. The reasons to be concerned about the procedure revolve around the fact that there is no judicial scrutiny to ensure that legitimate reasons for the hand off exist every time it is used. Because there is no judicial scrutiny, the hand off enables and perhaps encourages police to conduct prior investigations that overstep constitutional constraints on their power, secure in the knowledge that they can “wall off” the prior investigation and still prosecute any crime they may discover, so long as the information revealed by the prior investigation can be “rediscovered” by legitimate means in a subsequent operation.

Put aside for a moment the problem of the outright crooked cop. The hand off is not necessary to enable Fourth Amendment violations by a hypothetical police officer with no regard for the Constitution. It is conceivable that this officer could covertly break into your home, discover something incriminating, and then engineer rediscovery by means that would pass judicial muster without ever handing off a tip to another officer or serving up ill-gotten evidence to the agents of another sovereign. The hand off is unlikely to change this wanton malfeasant’s behavior.

The much more troubling problem is the impact the hand off might have on the behavior of the honest, enterprising police officer who vigorously fulfills her obligations of service to the community by investigating crime up to the very limits allowed under the Constitution. For this officer, the availability of the hand off threatens to alter fine judgments about what constitutes good, aggressive police work and what constitutes an unreasonable invasion of privacy. It does this in at least two ways. First, the hand off makes it easier to “get away with” marginally invasive behavior because that behavior is unlikely to be scrutinized by a judge. Even for the honest officer, this may subtly influence decisions about how much marginal activity to conduct, or how to conduct marginal activity. But perhaps more importantly, if the officer believes that the hand off legally cleanses evidence obtained in a prior investigation that may or may not have been unlawful, then the officer is given to believe that under the Fourth Amendment what a suspect doesn’t know doesn’t hurt him. In other words, an officer might conclude that the reasonableness of a search depends not only on whether there is probable cause to support it but also on whether, if the search is carried out, its target will know about the search and feel that her privacy has been invaded. I am not suggesting that this scrupulous officer, once equipped with the hand off, will go berserk and launch a series of patently unconstitutional covert searches, but I am suggesting that the hand off will blur this officer’s judgment about what is “reasonable” in covert searches. This blurring will expand government snooping at direct cost to societal interests in privacy.

* * *

In my view, the hand off is not per se illegal. My conclusion is contrary to Whitaker v. Garcetti,1  the only case to directly address the merits of the hand-off procedure.That court held that the mere fact that the hand off conceals a search from a post-hand-off criminal defendant creates a constitutional violation because it deprives that defendant of his ability to challenge the pre-hand-off search in court. I disagree because I cannot find a reasonable basis for such a broad conclusion. At its root, the Whitaker holding relies on a blanket requirement that the government must provide people with the information they need to enforce their substantive rights. This extraordinarily broad principle would seem to require disclosure of any part of the long course of any investigation that might potentially implicate Fourth Amendment rights, so as to enable the defendant to scour that conduct for possible Fourth Amendment violations. Nor is there reason to think that Whitaker’s logic should be restricted to the Fourth Amendment context. Applying the same reasoning to the Fourteenth Amendment, would the government be obliged, for example, to analyze its “covert” employment practices (such as personnel evaluations that are not fully disclosed to employees) in order to look for actions that potentially violate the Equal Protection Clause, and then disclose those actions to all the affected employees? And who is to judge what conduct might potentially violate a constitutional right? On what standard? At what cost?

Because I cannot support Whitaker’s conclusion, I see no basis for holding the hand off per se illegal.  But nor do I believe that the hand off cleanses an unconstitutional pre-hand-off search of its taint.  In other words, contrary to the government’s litigating position in Whitaker and other cases, the hand off is not per se legal. In at least some hand offs, an illegality in the pre-hand-off search would render evidence obtained after the hand off inadmissible under the Fourth Amendment and the exclusionary rule, or the federal wiretap statute, or both. Moreover, even though many hand offs are probably not forbidden by current law, there is ample reason to conclude that the unconstrained hand-off procedure offends the social values expressed in the Fourth Amendment, the exclusionary rule, and the federal wiretap statute. In particular, it undermines the exclusionary rule by creating a path for otherwise excludable evidence to be introduced in post-hand-off prosecutions, which is especially problematic because there is reason to believe that pre-hand-off searches may regularly violate the Constitution, even if they do not always do so.

* * *

Because of the special risks that concealment of pre-hand-off searches creates to the values of privacy reflected in the Fourth Amendment, the exclusionary rule, and the federal wiretap statute, I argue that it makes sense to impose some kind of disclosure obligation. But as we consider possible policy responses to the hand-off procedure, it is important to keep in mind that, notwithstanding the risks it creates, the hand off also serves an important public interest by enabling law enforcement authorities to pursue midstream prosecutions without ruining long-term investigations. A blanket disclosure-to-defendants rule would eviscerate the valuable public purpose that the hand off serves because it would make it impossible to bring midstream prosecutions that arise from legitimate wiretaps without making the existence of pre-hand-off searches a matter of public record. Accordingly, I sketch out a couple of proposals that are designed to support a limited obligation of disclosure to courts. This limited disclosure obligation is intended to allow concealment of pre-hand-off searches from defendants when legitimate investigatory circumstances justify concealment, and to require disclosure of pre-hand-off searches to post-hand-off defendants in all other cases. These sketches are not intended to be complete or comprehensive, but rather to begin a dialogue on how courts and/or legislatures ought to address both the benefits and the risks of the hand-off procedure.

One possible solution would be to introduce a qualified disclosure obligation that applies to all hand offs and is similar to the notice and disclosure rules under the federal wiretap statute, Title III.  This obligation could require police to (1) notify the court that authorized a wiretap or search warrant whenever it leads to a prosecution, and (2) notify the court in which the prosecution occurs that the evidence derived from the pre-hand-off search. Either court would then have discretion to inform the relevant defendant of the existence of the pre-hand-off search, unless the police could show cause that the pre-hand-off search ought to remain secret in order to support a legitimate ongoing investigation (and satisfy the judge that there had been no impropriety with respect to the defendant being prosecuted). As compared to the ex ante permission-from-the-court solution proposed below, this ex post notice-to-the-court requirement would enable police to conduct hand offs more quickly and efficiently, on very short notice, because they would not be required to apply for and obtain prior authorization between learning about suspected criminal activity and conducting a post-hand-off investigation. Moreover, because this disclosure obligation would be triggered by a post-hand-off prosecution, and not by the hand off itself, it might avoid unnecessary bureaucratic burdens involving hand offs that never result in prosecutions. In such cases, there is less reason to suspect that police have impermissibly invaded anyone’s privacy, because they do not ultimately obtain a benefit (i.e. a prosecution/conviction) that might have motivated such an invasion. Put differently, the deterrent effect of the disclosure rule will not be diminished if judicial scrutiny is applied only to the cases in which the police seek a tangible benefit from the use of the procedure.

Alternatively, law enforcement authorities could be required to obtain the permission of a magistrate prior to conducting a hand off. This magistrate would review the circumstances leading to the hand off to ensure that the pre-hand-off investigation was not a pretext for investigating the proposed target of a post-hand-off investigation and to evaluate the need for maintaining the secrecy of the pre-hand-off investigation. This magistrate might also require periodic updates to ensure that the need for secrecy remained current and pressing, just as wiretaps must be regularly reapproved in order to stay active. Whenever the need for secrecy (either to protect the ongoing pre-hand-off investigation, or the pre-indictment post-hand-off investigation) lapsed, the authorizing magistrate would immediately inform the hand-off defendant of the existence of the pre-hand-off search and the hand off.

A warrant-like process would carry many of the same benefits and problems as the ex post notice-to-the-court requirement discussed above. It would enable legitimate midstream prosecutions without jeopardizing the larger ongoing investigation, and it would likely prevent abuses by requiring a judge to separately pass on both the legitimacy of the hand-off and the need for secrecy. Although it is possible that requiring prior authorization would hamper some investigations, this problem could perhaps be circumvented by allowing for ex post authorization under exigent circumstances and within a short period of time, say twenty-four hours.

Finally, simply educating criminal defense attorneys about the hand-off procedure, and encouraging them to ask police and prosecutors about prior investigations and hand offs as a matter of routine can address some portion of the threats to privacy and fairness that the hand off creates. Even if a disclosure obligation is not formally imposed, and even though police and prosecutors may not feel obliged by any of the legal provisions discussed above to volunteer information about a prior investigation to a hand-off defendant, they might well disclose it in response to direct questioning. And if a given investigation is revealed upon questioning to be the product of a prior investigation, defendants would presumably be entitled to discovery on the prior investigation to support a possible motion to suppress.

Conclusion

The hand-off procedure poses a serious threat to privacy. The policy rationale advanced by law enforcement in support of the procedure, namely enabling midstream prosecutions during ongoing covert investigations, is obviously an important and valuable end for society to pursue. But an unconstrained hand-off procedure gives police too much discretion because it enables them to unilaterally wall off entire swathes of investigatory activity not only from defendants but also from courts based on nothing more than a phone call from one cop to another.

Because the need for bringing midstream prosecutions is legitimate, an appropriate solution must balance that need against the public interest in protecting Fourth Amendment rights. Accordingly, I have sketched two tools that could be used to impose a qualified disclosure obligation, each of which seeks to get information to defendants themselves wherever practicable while enabling police to avoid full disclosure upon a showing of exigency to a judge. Although ex parte judicial scrutiny is a poor second-best to full adversarial scrutiny of police tactics, it would represent an enormous improvement over the current system, in which police with the hand off in their investigatory repertoire can theoretically conduct any kind of covert search they want to, secure in the knowledge that they can both use the information uncovered in criminal prosecutions (so long as it can be “rediscovered” by open and lawful means) and keep the investigation hidden from both courts and defendants indefinitely.

Acknowledgments:

The author thanks Dean Larry Kramer and Professors Joseph Bankman and Robert Weisberg for their immensely valuable comments and suggestions.  Thanks also to Professor Pamela Karlan for her mentorship and encouragement.  Finally, and most of all, the author thanks his wife, Jocelyn, for her unfailing support and patience, upon which he depends completely.

Copyright © 2010 Stanford Law Review.

Micah Block is a 2009 graduate of Stanford Law School. 

This Legal Workshop Editorial is based on the following Law Review Note: Micah G. Block, Note, The Hand-Off Procedure or the New Silver Platter: How Today’s Police Are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts, 62 STAN. L. REV. 863 (2010).

  1. 291 F.Supp.2d 1132, 1148 (C.D.Cal. 2003).

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