Dark Side - Secret Origins of Evidence in US Criminal Cases

A report from Human Rights Watch (January 2018)

A growing body of evidence suggests that the federal government is deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects — including methods that may be illegal... Covering up how evidence was originally found deliberately hoodwinks defendants and judges, severely weakening constitutional fair trial rights.

If the government is allowed to violate the US Constitution’s protections and then cover its tracks, this could undermine human rights for people whose liberty is at stake, or anyone else subjected to illegal government surveillance or other unlawful procedures.

The report is based on records from 95 US federal and state criminal cases, analyses of executive branch documents, and 24 interviews with defense attorneys, current and former US officials, and other people with specialized knowledge about the potential deliberate concealment of investigative methods in this manner and the consequences for rights.

Human Rights Watch identified evidence suggesting that US authorities use a range of tactics to create a new story about how an investigation began in order to avoid revealing how information was originally found. The most widely known is commonly described by law enforcement as a “wall stop” or “whisper stop.” Under this practice, a law enforcement or intelligence agency, possibly using information obtained by various forms of surveillance, asks state or local police to find a pretext – often a minor traffic violation – to stop a suspect and then develop a reason to search their vehicle.

An example of this type of illegal activity was reported in an April 2017 article in the Huffington Post: "Antiwar Activists Challenge Army’s Domestic Spying Apparatus in Ninth Circuit".

"PMR activist Phil Chinn, a student at Olympia’s Evergreen State College in 2007, was driving with friends to an antiwar protest at the Port of Grays Harbor in Aberdeen in May of that year. Unbeknownst to Chinn and his friends at the time, the Washington State Patrol had issued an ‘attempt-to-locate’ code for Chinn’s license plate with a message to apprehend “three known anarchists” in a green Ford Taurus and to let the Aberdeen police know.

Trooper Ben Blankenship of the Washington State Patrol pulled Chinn over for going 53 mph in a 55 mph zone, but then decided to charge him with a DUI.

While he was in the trooper’s cruiser, Chinn noticed a computer printout with a picture of his parents’ car he’d been driving the day before. It was at that point Chinn realized he was part of more than just a routine traffic stop and the cops had been looking for him in either car.

Chinn’s charges were eventually dismissed and in 2009 he sued the state patrol, City of Aberdeen, and Grays Harbor County for harassment and false arrest. Over the objections of the US Attorney’s Office in Seattle, which wasn’t even party to the lawsuit, federal judge Robert Bryan ordered police to turn over the intelligence that led to Chinn’s arrest. To avoid disclosure of what the federal government called “Sensitive Security Information,” the case was quickly settled for more than $400,000."  (Mr. Chinn is now a practicing attorney in King County, WA).