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Parallel Construction: Criminal Defense Lawyers Seek Source of Tips in Drug Investigations

In the United States, Louisiana, and even New Orleans, there are federal agencies that obtain investigative information from drug investigations through a method called parallel construction. In the United States, the Drug Enforcement Agency (DEA), other federal and local police forces work together in a unit called the Special Operations Division (SOD). Part of the SOD’s role is to obtain information about major crimes through wiretaps, cell phone intercepts, informants, and phone records. In some cases, the information obtained through a one major crimes investigation is part of a second, larger crime. Parallel Construction is the transfer of the information about the second crime by SOD to other law enforcement agencies, who use the information to create reasonable suspicion about a person in an investigation that never existed until SOD provided the information.

What is an Example of Parallel Construction?

Here’s an example of what to look watch out for with Parallel Construction. Let’s suppose that SOD is investigating a suspected murderer. As part of the murder investigation, SOD obtained warrant for a wiretap of the murderer’s mother’s house because they hoped they would gain information about the murder. During one telephone conversation, the mother receives a phone call from a relative (who is not the murderer) who tells the mother that an unrelated person is a drug dealer and he is known to deal drugs from his gold car near a particular place. This information is not relevant to the murder investigation, it was not the goal of the warrant for the wiretap, and would probably be inadmissible at trial for the murderer. However, it is evidence that a crime is being committed by the drug dealer, so SOD passes the information along to a local law enforcement agency, who begins to investigate the previously mentioned drug dealer. Days later, the drug dealer is pulled over in his gold car for a minor traffic violation. The officer, who is usually not just a beat cop, smells marijuana, searches the car, and finds drugs in obscure corner. The drug dealer is arrested.

Is Parallel Construction Constitutional?

Criminal Defense Lawyers work very hard to protect the rights of their clients while abiding by the US Constitution. Meanwhile, it seems that the practices by the SOD to transfer information to other law enforcement agencies is not constitutional and does not protect the rights of the accused. DEA officials defend the program on condition of anonymity and claim the practice is legal, and it is also required in order to protect their informants and wiretap methods. But, does it? Criminal Defense attorneys argue it is not because the second crime evidence was unlawfully obtained against their client.

Sharing Criminal Evidence is Commonplace According to the History Books

United States criminal prosecutors have been sharing information for many years. Under Brady (and many Criminal Procedure Laws), prosecutors are required to turn over any information which may help the defendant with his case. Sadly, it is impossible to tell how an investigation started when there are confidential sources. It is even more difficult to prove the basis for the defendant’s arrest was caused by parallel construction or the traffic stop in the example above.

What’s Next for Criminal Defense Lawyers?

The challenge is that because everything is secretive and confidential, it is difficult to make a specific challenge to prove a defendant’s rights are being violated. According to a federal public defender in Washington, A.J. Kramer, investigative agencies should be notifying criminal defense lawyers of the relevant cases, including other investigations which could lead to parallel investigations. He points out that in a 2001 trial, the judge was provided with top secret evidence, which then forced the judge to make a ruling about whether the defendant was entitled to that evidence under Brady. The judge was forced to make a secret ruling that the defendant was not entitled to the evidence because it was not helpful or relevant to his case. Obviously, the defendant did not learn about this evidence during his prosecution and his rights were probably violated.

Are you a victim of Parallel Construction?

It is very hard to decide whether someone is a victim of Parallel Construction. If you believe that you or a loved one are the victim of parallel construction, I encourage you to contact me by e-mail or by calling (504) 264-9492. An evaluation of the totality of the circumstances may help save you from unconstitutional prosecution.

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