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Comment by jancsika | Hacker News Reader

That's cute, but it doesn't make sense.

I'm no lawyer, but I don't think judges overlook constitutional rights just because an officer "found something." In fact, I believe there's an entire industry of defense lawyers that exists because judges don't overlook those rights.

From another vantage point-- if officers can invent reasons for searches that pass legal muster, then what does it matter that parallel construction exists and has a constitutional loophole? If it were really the case that there's an epidemic of invented reasons for warrants then parallel construction would improve the status quo by reducing the number of dubious warrants, leaving only those that "find something."

I'm playing devils advocate here to fish for a legally competent response...

Edit: typo and clarification

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> If it were really the case that there's an epidemic of invented reasons for warrants then parallel construction would improve the status quo by reducing the number of dubious warrants, leaving only those that "find something."

There must be an understanding here. A warrant executed for an invented and fictitious reason doesn't become "good" because it "finds something"; it's dubious precisely because of its provenance (a lie to cover an unconstitutional search). Whether there really is anything found doesn't impact the constitutionality of a search: that is the point of the "exclusionary rule" -- to exclude real, honest-to-goodness incriminating evidence of a defendant but which is found in violation of his/her constitutional rights. We cannot judge the rightness of a warrant based on whether it leads to useful evidence because then we would have no 4th amendment at all. Therefore, parallel construction doesn't improve anything; rather, it can only serve to increase the number of searches executed for fictitious reasons, and hence the number of dubious warrants.

nb: obviously, the above comment assumes/argues that Herring v United States was incorrectly decided. Also, I am not an appellate lawyer (or a lawyer at all).

> I don't think judges overlook constitutional rights

That's an idealistic view that may happen in some situations, but often does not.

> an entire industry of defense lawyers

That's great for people that can afford those lawyers. For the 60-90% of criminal defendants that need to use a public defender, it's generally impossible to make a complicated defense required to get evidence excluded when the PD only has as little as 12 minutes[1] available for each client.

> what does it matter that parallel construction exists and has a constitutional loophole?

It matters because it's the fruit of the poisonous tree[2]. The entire point is to discourage this kind of workaround that ignores the spirit of the warrant requirement for search and seizure. Law enforcement and the judicial system is intentionally held to a higher, more difficult standard specifically to make it harder to ignore your right to due process.

> If it were really the case that there's an epidemic of invented reasons

It was common enough at the DEA[3] that they created a training presentation about using information from classified sources, a "Taint Review Team" on call ready to help agents launder evidence, and a standard form for submitting requests to the NSA for specific information.

[1] https://www.mprnews.org/story/2010/11/29/public-defenders

[2] https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

[3] https://www.techdirt.com/articles/20140203/11143926078/paral...

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