In theory, disclosure of the tip should not harm the government`s record if the arresting officer develops independent reasons to arrest the target and investigate further. But is it realistic for the clerk to set aside all the “whispered” clues and examine them objectively? If you listen to the oral reasoning in the Bowman case (available here, although a fair warning, the player was a bit fickle on my computer), the government faced some skepticism from the panel on this specific point (the government`s reasoning starts at 2:40 p.m. if you`re interested). During the government`s reasoning, the court noted that this is not exactly a normal traffic stop – with a more regular traffic check, suspicions arise more or less naturally – officers observe what they observe and filter the information as they normally would to determine if something arouses suspicion. The suspicions of the officials are then either confirmed or dispelled. However, with a whispered pipe, the officer must establish his own “own” reasons for stopping and investigating. But as one committee judge pointed out, it is not true that the officer on the side of the road forgets the tip. In this sense, the official has “thumbs on the scales” in the reasoned analysis of suspicions, in order to borrow the words of one of the judges in the argument. Does the pipe affect how the agent processes the observed information? Does the agent remain a reliable narrator given the “extra” information available? Does the official really dispel independent suspicions? Or just looking for confirmation? The court noted that the officer would probably never have followed that vehicle without the hose — the soldier was looking for a reason to stop Bowman`s car.
In addition, the court expressed suspicions as to the reasons for the traffic control (speeding and weaving), but this issue was not challenged in the District Court and was not referred to the Committee. Advocates concerned about using this technique have several options. To determine whether a whispered stop has occurred, you must add a line to the original discovery request requesting whispered stops, walled stops, or parallel build stops. Pay attention to this type of stop in officer reports and findings – which is difficult because it`s unlikely to be explicitly stated in the discovery – but if there`s a reference to external information or an unsubstantiated lead, consider a more specific discovery request. According to the Reason article linked above (as well as this article on DEA training in this area), information from federal agencies about whispered rulings was obtained through Freedom of Information Act (“FOIA”) requests. A state-level request for public documents may be an option for obtaining general information about whisper judgments. To what extent are these judgments consistent with the Fourth Amendment? In a sense, they can only be seen as a different type of advanced stop – it`s not a new phenomenon for one law enforcement agency to tell another to inspect a vehicle, ask local authorities to initiate a traffic stop based on an observed traffic violation, and let each subsequent investigation continue as much as possible. or that an officer who wants to stop a suspect for a specific reason finds another reason to justify the stop. According to established U.S.
Supreme Court jurisprudence, the officer`s subjective motives for stopping a vehicle are irrelevant as long as there was an objectively reasonable justification for stopping. Whren v. U.S., 517 U.S. 806 (1996). North Carolina acquired Whren under the state constitution in State v. McClendon, 350 N.C. 630 (1999). Whren has been the subject of significant criticism (e.g., this Law Review article), most recently by Justice Ginsburg in her unanimous opinion in the recent case of DC v.
Wesby, 538 U.S. ___ (2018) (as Shea noted in a recent article here). But whether you like it or not, Whren is the law of the land, and among the Whren, the practice is generally permissible as a Fourth Amendment matter. Does this mean that it is simply not relevant to the analysis of the judgment if a whispered judgment occurred in one case? Not necessarily. A “whispered stop” of the police takes on a threatening quality once its underlying meaning is understood. What struck me was a footnote in the review. Before the State Trooper met with the defendant, the Drug Enforcement Administration (“DEA”) sent a notice to local authorities in North Carolina stating that the defendant`s vehicle was suspected of selling methamphetamine. This advice included the vehicle`s license plate and a description (“an old red Lexus model”). The footnote states: “The government agrees that the DEA`s tip should not be taken into account in our legal analysis under any circumstances.” Slip op. at 3 n.1.
What for? After some research and the help of lawyers from the Charlotte Federal Public Defender`s Office (again, thanks to Ann Hester, Kevin Tate, and Mary Ellen Coleman of that office for telling me about the case), I was able to determine that it was a so-called “whispered judgment.” While not exactly a new practice, its application in the digital age raises some interesting questions. The tipping aspect of the case isn`t discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is taking place in North Carolina and elsewhere, so I wanted to cover it in today`s post. Have you seen a case of a whispering judgment in your jurisdiction? Do you have any other ideas on how to understand and challenge them? Post a comment and share your thoughts! And these officers act properly on this whispered communication to create a pretext that allows them to get in touch with the suspect (and often with his vehicle). They make an arrest and obtain a conviction, presumably on the basis of their independent findings. Ideally, they do not mention the federal tip. blogs.wsj.com/digits/2014/10/28/whisper-and-the-meaning-of-anonymity/ A whispered stop occurs when a law enforcement agency (usually a federal agency) passes information to local authorities to identify a suspect traveling in a vehicle. Once identified, local authorities find an independent reason to stop the vehicle without relying on the dump to justify the roadside check. Once the vehicle is stopped for a supposedly neutral reason (usually a minor traffic violation), the vehicle officer attempts to establish an independent reasonable suspicion to conduct a typical drug investigation, again without relying on the tip.
These are also known as “walled” stops or “parallel construction” stops – the arrestofficer does not rely directly on the summit to justify the stop, so the top is “looped” off the site supporting the actual stop; Local authorities elaborate the reasons for the stop and examine the vehicle “in parallel” (but independently) with the information contained in the landfill, so that the peak is likely to become less relevant (or completely irrelevant) in the overall analysis. National Public Radio (“NPR”) recently published an article on the practice here, noting that the DEA is the most productive among federal law enforcement agencies in enforcing this method — apparently, drug cases are the ones where this type of stop is most likely to occur. However, federal officials working in a laboratory in another state have secret investigative techniques that circumvent warrant requirements. These agents — perhaps from the FBI or the Drug Enforcement Administration — quietly disclose what they know to local law enforcement. Does the source of the index matter because the pipe is not used as evidence? He does it at least for my comfort, and there may be cases where it impacts the case. Imagine if police officers in St. Louis or soldiers elsewhere in Missouri had no evidence that any particular person is associated with illegal drug-related activities. In addition to the issue of findability, there is the separate issue of how the tip affects the witness` testimony from law enforcement authorities. Secrecy of the origin and use of the pipe during the affidavit could constitute a false statement or intentional omission. Napue v. Illinois, 360 USA 264 (1959) concluded that the deliberate use of false testimony in court of law may violate due process.
In addition to possible due process concerns, lawyers naturally have a duty to open up to the court on matters of professional ethics, and all witnesses naturally have a duty to tell the truth under oath. Ultimately, a court might find it fundamentally unfair that, in a proceeding to determine the legality of a check, in the general circumstances, information that directly causes law enforcement to focus on a vehicle is withheld from the defense and the court. Now, it`s anyone who uses an app that promises to keep their secrets. Programs such as Whisper, Snapchat, Secret, and Yik Yak allow users to post messages that claim to contain no credentials. These apps encourage people to express things they wouldn`t otherwise say in public, knowing that their private expressions can`t be traced back to them. “[C]oncealing the origins of evidence and intelligence” fundamentally undermines justice in the area of criminal law, note both the authors of NPR and the authors of this report, which is highlighted by public radio. Defendants, judges and others are kept in the dark about questionable investigative tactics and “constitutionally questionable methods.” The authors of the Human Rights Watch report cited above hope that its findings will further strengthen aggressive advocates in their search for relevant sources and details for each piece of evidence they possess.