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New Mexico Cases Highlight Risks of Secret Evidence

Shadowy Practice of Parallel Construction Threatens Rights

A storm forms over Intersate 40 near Albuquerque, New Mexico, U.S., July 29, 2016. © 2016 Reuters

On a chilly, bright November morning, a bearded man with a large backpack walked through Albuquerque’s main bus station, passing two women who were talking and laughing behind a ticket counter. It was a quiet hour; aside from a young woman absorbed in her cell phone, I was one of the only other people in the waiting area, taking in this unlikely center of controversy before walking back out past a nearby adobe-style building and onto the street.

A casual observer would never know that this station and the nearby highways of New Mexico (a southwestern US state) have been the focus of major concerns about parallel construction, a practice that is undermining the rights of defendants across the country. As a report I will publish in January will describe, this practice involves the government’s creation of an alternative explanation for how it found a piece of evidence, thereby deliberately hiding the fact that authorities actually originally found the evidence some other way – one that may have broken the law. This prevents potential rights violations (including any stemming from surveillance) from ever coming to light and being ruled upon by judges, removing a crucial deterrent to government misconduct.

Albuquerque has been home to several suspected instances of this tactic. For example, in one case a state police officer was recorded saying that the Drug Enforcement Administration (DEA) had asked him to stop – and presumably find a reason to search – a particular vehicle. Only because of the DEA’s secret tip, which may have come from intelligence monitoring, did the officer then discover the driver was transporting ecstasy. The criminal complaint mentioned only the traffic stop and search, not the DEA’s tip.

In a later case involving the aforementioned bus station, the defense alleged that a DEA agent secretly – and unconstitutionally – searched luggage at the bus station before asking a passenger for consent to examine his carry-on bag (which contained an illegal substance). The possibility of an earlier, secret search of the bag was only revealed when defense attorneys obtained a copy of the station’s surveillance videos.

A rights-respecting justice system cannot rest on deceit. The US should restore human rights for everyone in New Mexico and throughout the country by eliminating parallel construction.

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