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Comment by pc86 | Hacker News Reader

Genuinely curious, in what context is it perjury? My understanding of parallel construction is:

1. Officer receives information $A through inadmissible means (which may be illegal, but not necessarily)

2. With information $A, officer is able to "prove" that a suspect perpetrated a given crime

3. Officer pieces together proof from possible unrelated, but admissible evidence - $B and $C, let's say.

4. And this is the part where I don't know that perjury is what we're talking about: Officer simply testifies to the truth of $B and $C, and that the suspect committed the crime in question.

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The problem is, that they lied about how they got te evidence.

Eg, they plant a hidden camera in your house, see you packing drugs and puting them in your car in your own garage, and driving away. Since they got the info that you had the drugs from illegally set cameras, they can't just stop and search your car, but they can "randomly" stop you for a traffic check, and just "randomly" have a drug sniffing dog present, which finds the drugs in your car.

If the judges let this go through, the police would use more illegal methods (illegal searches, etc.) to gather data, then just "randomly" detect crime, and then the state would win cases.... and we (the people) don't want that. That's why, if you prove, that they knew the drugs were there from an illegal source of information, everything derived from that illegal source should be dropped as a illegally obtained evidence, to disincentivise the use of illegal methods.

Basically, the officer saying they randomly stopped you, would be a lie (=perjury), because they stopped you due their illegal cameras.

Yes, but what if the cameras are not illegally placed, but in fact put there with a warrant. Then there is nothing illegal going on at all, but it would still be in LE interest to parallel how they know about the drugs, so that they can continue using the camera and maybe find out where the next shipment is going to be as well.

Then the judge would be aware of the warrant, and wouldnt throw the evidence away, because it would be obtained legally.

Yes that's precisely my point - there would still be parallel construction but there would be nothing illegal

It might be worth coming up with an example that doesn’t illustrate an end that may justify precisely the means you describe. In your hypothetical scenario, the system would be working as intended according to many people, because the drug dealer would have otherwise gotten away with illegal activity that those people perceive as harmful.

But the end does not justify the means, due to the fact that it is a violation of their 4th Amendment specifically the right to be secure in their persons, houses, papers, and effects. Illegal searches are illegal no matter the sound basis after the fact. As an order of our society, historically police where not supposed to go looking for crime. They where commissioned to enforce the law. One cannot enforce the law by breaking the law and it has set a very bad precedence that the police now go looking for crime. Because if they "believe" you are a criminal there is a better than average chance they are going to find something no matter how petty or insignificant. The point being, it does not matter the end result, it never justifies the action in retrospect as the person is and should be assumed innocent until legal evidence of a crime is uncovered. If it was obtained illegally all evidence even parallel construction should be tossed out for the taint it bring with it.

All of that is true, and nonetheless the parent comment stands: it will be rhetorically more convincing if you show how this negatively impacts the law-abiding.

Like having a police officer watch you shower, jerk off, and eat pizza in your underwear every day, in your own home, while you have no drugs there, but they think you do?

Let’s start with the same scenario: cameras are placed inside a home to try to catch you packing drugs except... it turns out you’re not a drug dealer. So they wait, and wait, and the whole time record everything going on in your house. Your arguments with your wife, your “romantic time”, the ridiculous things your kids say.

Doesn’t that feel like a huge violation of your privacy?

While it may be move convincing, the hope is for people to see that these rights exist for a reason and that even in the presence of mortal outrage, they should still be defended. Because someone out there, is morally outraged at the way you live your life and would make something illegal that you do if they could. That is the whole point of the bill of rights and the amendments. Is to guarantee a base level of freedom no matter how the winds change. I don't understand why that is so hard for people to get. Maybe it's because I am older and boy have I seen the winds change, but it only takes one swing away from your viewpoint to understand how important they are.

>>In your hypothetical scenario, the system would be working as intended according to many people, because the drug dealer would have otherwise gotten away with illegal activity that those people perceive as harmful.

>But the end does not justify the means, due to the fact that it is a violation of their 4th Amendment specifically the right to be secure in their persons, houses, papers, and effects.

You're greatly underestimating how many people who unironically oppose due process and civil rights because it "helps the bad guys", they themselves "don't have anything to hide", and "if you're being investigated, you probably did something wrong".

> "if you're being investigated, you probably did something wrong".

Yeah, like being born a Jew in Germany a little over a century ago.

The meaning of "something wrong" can change over time.

> It might be worth coming up with an example that doesn’t illustrate an end that may justify precisely the means you describe

Agreed.

And a lot of people will miss an important point: for every dealer caught using 'parallel construction', countless of innocent citizens would have to be surveyed to score a "hit".

This already happens. I once had a conversation with a Homeland Security officer at a backyard BBQ, and he said:

"When you see on the news that Police randomly stopped a car and discovered a huge cache of drugs... you don't actually think that's random, do you?"

TBH I had never thought about it before but now I recognize this pattern everywhere.

Yes, it already happens and that's why it's a problem. If they discovered that they should "randomly" pull over that vehicle through evidence that was gathered illegally, then it should also be considered a violation of the 4th amendment... which is likely why the EFF has launched this project.

It would be interesting - and likely amusing - to extrapolate how many people must be driving around with huge caches of drugs, based on an assumption that purportedly unrelated traffic stops (or equivalent) were in fact random samples.

I really do think a "google maps" for police activity needs to be created -- including every single arrest, prosecution , subsequent legal claim... you should be able to rate police officers like restaurants on Yelp

My local courthouse is rated on Yelp. In a shocking turn of events nobody could have ever predicted, it has 1 star.

That doesn't mean those stops aren't base on intel gained via legal warrants. It's more likely the police are trying to protect a source, either a person or technical means that is providing them greater information.

They used to say people going the speed limit on the New Jersey turnpike was a tell. I guess it was/is? a major drug trafficking artery.

There's a DEA program called SOD.

https://www.reuters.com/article/us-dea-sod-idUSBRE97409R2013...

https://www.deamuseum.org/wp-content/uploads/2015/08/042215-...

Most of the time that’s from confidential informants. Not parallel construction.

Technically it could be random....

If you "did nothing wrong", you also drive like you did nothing wrong (5-10 over), hit some yellow lights, etc.

If you know you have a bag of drugs in your car, and a police vehicle pulls at a stop next to you, you can panic.

Also if they do stop you, becase you (eg.) didnt use your turn signal, most people just sigh., give some excuse ("I wanted to, but that black car came, and i had to go around, and the cat, and the wipers, and this and that"), and calmly wait for a ticket... people with drugs usually act different.

And thirdly, police usually know all the drug dealers in their area, know their cars, and just have to catch them with enough drugs to make it worthwile.... so they probably get stopped a bit more often than a normal random commuter does, even if neither of them use turn signals regularly.

>This already happens. I once had a conversation with a Homeland Security officer at a backyard BBQ, and he said:

Oh, it definitly happens.

But officers also make fishing stops all the time too.

The principle of the "Fruit of the Poisoned Tree" says that if $A is inadmissible, then evidence derived from $A is inadmissible. The perjury is claiming (possibly a lie by omission) that $B was not derived from $A. Sometimes this involves a (more direct) lie inventing an alternate history for $B.

Perjury may or may not be the correct or most applicable transgression. Point is, if $A is what led to the collection of $B, then $B should be inadmissible. Presenting $B at trial is a violation of rights.

IIUC, and I may not, that's slightly too strong and there are some circumstances where evidence that's (shall we say) barely inadmissible doesn't necessarily invalidate later evidence.

But in any case, whether the principle applies to a given instance is something that needs to be tested in court, and parallel construction is deliberately depriving the court of the ability to make a determination.

That's not right at all. Loads of stuff is inadmissible as evidence but not illegal. For example, in many countries phone intercept is inadmissible. For example, in The Wire, they might hear a drug deal being arranged on the phones, then arrange to be on patrol with a drug dog and find the stash. The phone recording would be inadmissible (even though it would help the prosecution), the evidence used to prosecute would have to be paralleled.

If the evidence they're hearing on the phone is not admissible, there's a good chance it's because they're listening through illegitimate means as well, hmm?

No, not necessarily. In the UK, for example, all phone intercept is always inadmissible.

The main incentive for paralleling something is to protect the source, to maintain its effectiveness.

In the UK, they do not have the Fruit of the Poisonous Tree doctrine. Parallel Reconstruction is not needed to bypass admissibility constraints because those constraints don't exist in the first place.

Parallel Reconstruction is used to avoid scrutiny of the original source of evidence. Even when used to legitimate ends (and I have doubts how often it's used as such), there are fundamental problems with dodging accountability.

Parallel construction is still used in the UK. That's my point - it is used to conceal sources in a wide variety of circumstances, and is orthogonal to any issues regarding illegality of evidence.

I loved The Wire, but it's a poor choice of reference for good police work.

Not quite. If someone says “Jim told me that Matt killed the guy”. That’s inadmissible hearsay, but it doesn’t mean the cops can’t go interrogate Matt and generate admissible evidence.

1. Officer receives information $A through inadmissible means (which may be illegal, but not necessarily)

2. With information $A, officer is able to "prove" that a suspect perpetrated a given crime

3. Knowing information $A, officer makes up bullshit showing that he reached $A solely from investigating leads from $B and $C.

4. $A is now admissible because the officer can show a link leading to $A from $B and $C, but he wouldn't have been able to without actually knowing what $A was.

For example, if I gave you a billion files to go through and find one thing, you probably wouldn't be able to. If I gave you the same billion files and told you file X was the one you should look at, you can say "oh I knew to look in X because of <bullshit>".

Interesting...so it's kinda like clean-room reverse engineering, except that there's no mandate for the clean-room?

I'd be interested to see what a clean-room-like proposal would look like for evidence collection. I.e. independent agencies that can't share evidence/information between them.

Of course, then a 9/11 happens and there's lots of hand-wringing about how "we had all the data we needed, the agencies just weren't allowed to talk to each other". Ugh...

I'm not sure that's a very helpful analogy.

In these cases, the notion that there is something to be reverse engineered was obtained by illegal means.

>I'd be interested to see what a clean-room-like proposal would look like for evidence collection. I.e. independent agencies that can't share evidence/information between them.

I'm not sure why you'd want that. The reason why it's outlawed in the first place is because it's illegal search and seizure. Making it look like you obtained it legitimately doesn't right any wrongs, any more than making a murder look like an "accident" makes murder okay.

This is called parallel construction.

The officers are lying to the court about how the case was built. That is often relevant to a defense (https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree) and they are lying in this way specifically to deprive defendants of the ability to challenge the collection of that evidence.

Intentionally and materially lying to the court is clearly perjury.

It's still fruit of the poisonous tree but step 3 involves concealing this fact in a manner that is nearly impossible for the defense to prove.

If a random search wasn't a random search, it's perjury to testify that it was a random search. Good luck proving it, though.

I think the issue is that in the moral sense if something is inadmissible but is used to obtain admissible evidence, everything derived should also be inadmissible (GPL style). In this case the officer in perjuring himself by trying to pass off inadmissible evidence as admissible but this is more of a play on words than actual legal doctrine if I understand it correctly. What I think OP is saying is that it should be perjury and I totally agree.

Moral? Legal. "Fruit of the poisonous tree" is an established legal principle.

I believe the simplest perjury in this case is that the officer necessarily lied about their probable cause.

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