State Police Access to Federal Criminal Case Files:
Imagine you're a state or local police officer, and you're investigating someone for a crime. You want to know if the feds might have something on your suspect. Maybe the FBI or the DEA is looking at him, too, or has some dirt on him from the past. Should you as a state officer have access to the federal government's files? And if so, how easy should that access be and under what conditions should access be allowed? A story in the Tuesday Washington Post touches on some of these questions in the context of a new DOJ program to expand state access to federal criminal case files.
BruceM (mail) (www):
Can someone tell me why prosecutors should have access to such information, but not defense attorneys? Why should prosecutors be able to pull up the criminal history of ANY witness a defendant decides to call to the stand, but a defendant should not have that same right vis a vis prosecution witnesses? Why should prosecutors be able to look into such details regarding eyewitnesses to determine their reliability but defendants should not? It's always bothered me that the state has access to the NCIC database but defense attorneys (also officers of the court) do not. The state comes to court with dirt on every fact witness, but the defendant is not permitted access to such information. I guess society just couldn't tolerate it if a witness for the state were easily impeached....

The only thing that bothers me more is that the state is given free (as in both beer and speech) access to forensic testing to help their case, but a defendant is not. Why should the prosecutor/police have free acceess to the FBI crime lab with a big smile and a welcome, but not defendants who desire forensic testing? Last rape trial I did I had to call a forsensic pathologist from the Harris County Medical Examiner (who did free work for the prosecution) and got a bill for $800 for the expert's testimony after the trial (which we won). The prosecution doesn't get billed, after all, by gosh, that would just be against public policy, we need that testing to put the bag guys away... but what about keeping the good guys from wrongful convictions and out of prison?

Just another way of stacking the deck against the accused. It will never change.
12.26.2006 11:40am
Mike M (mail):
"Imagine you're a state or local police officer who owns a rental property, and you want to make sure that you don't rent to anyone who has a criminal record."

"Imagine you're a state or local police officer who has a neighbor you don't like."

Aren't lawyers supposed to go beyond the simple examples and tell their clients what other issues might crop up? These are but two simple ones. You might want to look at Alan Westin's 1972 book, Databanks in a Free Society, before (apparently) being so supportive of this kind of information-sharing.

[OK Comments: Mike, I think you have misunderstood my post. If I wanted to be "so supportive" of the program, I would just say so directly. The point of my post was to make the issue come alive with a factual scenario; the story I link to then makes Westin's argument.]
12.26.2006 12:17pm
markm (mail):
Re the potential for abuse by lawmen: I can't find it now, but the anonymous Texas sheriff's deputy who writes
once made a passing comment about fellow officers who use the NCIC as a dating registry!

I can see the usefulness of this database, but there's a lot of potential for misuse too. I think BruceM is onto something: defense attorneys should have equal access to the database as cops and prosecutors, and the information contained in it and controls against misuse should be limited to what everyone feels comfortable with making accessible knowing that defense lawyers will also be using it.
12.26.2006 9:56pm
kelvin mccabe (mail):
Actually, the concern i have is that access to this information will now make even more common unjustified stops (without any reasonable suspicion)just becaues a license plate check pulled up a 1983 conviciton for drugs. The guy gets stopped for no reason, and is henceforth subjected to search, etc... It will basically be a free invitiation for massive numbers of police "fishing expeditions" - which allegedly at one time in this countries history were prohibited.

I see suppression hearings going down the toilet, as the cop lists off previous arrests, or DEA investigations, involving the defendant - even though the defendant at the time he was 'stopped' was doing absolutely nothing wrong. Combined with Illinois v. Caballes, this is going to be a ridiuclous situation - as we hit head on the police state everybody's been bitching about. Courts in my state (IL)have held past crimes standing alone is not probable cause that a person is presently engaged in a crime - but that notion will simply give way. This is bad all around for civil libertarians, criminal defense bar, etc... DEA reports are notorious for containing lots of bogus information (think of the proliferation of the use of informants, and their notorious reliability issues) so false arrests, uneccessary no knock warrants, etc... will likely increase as well.

On the upside, finding the terrorist needle in the haystack of society might increase .001% so it must be justified, and necessary. Likely rendering it insulated from judicial review. Pardon me while i puke.
12.26.2006 10:07pm
kelvin mccabe (mail):
Just to be clear, i know criminal records are now readily available in most state databases and are common in suppression settings as part of the state's establishing pc for a search or seizure (cop testifies about some prior conviction for guns, or drugs, whatever), that is not so worrisome, its the idea that someone named in some random investigation of someone else (or falsely named)will now be subjected to the scenario (fishing expedition)i described above.
12.26.2006 10:14pm
imagine you are... ... i don't have to imagine

ok. first of all, anybody with half a brain can access a wealth of criminal history information on anybody without being a government agent. ESPECIALLY in the age of the internet. frankly, i did a lot of intelligence and background work in one of my assignment, and i almost always got far more information from NON-law enforcement databases than from official law enforcement databases.

your average credit card company or mortgage broker knows more about you than the FBI does, and certainly than local police does.

contrary to the fear of "big brother" (govt.), the real fear is little brother (business) who have infinitely more surveillance cameras, and personal information on you, than govt. does

kelvin, i think your concerns are ridiculously overblown but i live in a "no pretext stop" state fwiw.

as for the whole feds thing, the general rule has always been that the feds will access (and expect) all sorts of info from locals, but are extremely hesitant to share THEIR info with locals.

also, cops (LEA's) have tons of prohibitions on collecting NON-criminal intelligence, none of which apply to private businesses.

law enforcement (like journalism) even in our computer age still comes down quite frequently to people skills and contacts (again, much like journalism).

a GOOD cop has informants on the street that can tell him far about Johnny Smith's criminal activities than ANY computerized database can, and also has buddies in various federal agencies, real estate agencies, public utilities, cell phone companies, etc. etc. that can feed him information

and i repeat, the feds (and the locals) keep way less information, especially that kind of information that is deeply personal and non-criminal but potentially damaging, than private businesses do.

i frequently work with the feds, btw and they ALWAYS accessed a private database for info on their targets, and we got WAY more info than we got from police resources by using these databases.
12.27.2006 4:29am
kelvin mccabe (mail):
I hope my fears are drastically overblown. But i doubt it. Let me ask this question then: At what point does cooperation between fed police agencies and state/local agencies become so interwoven that there is no practical difference between the two? No doubt the last 50 yrs have seen an explosion in the federal criminal law, often overlapping already existing statutes on the state or local level. This is something which many here on this site disagree with, myself included.

The wall between federal and state has been crumbling during this time. This new information sharing is just another example, in a long list of previous examples. So is federalism dead when it comes to the arena of law enforcement? Does the federal government have a general police power, similar to that of the state's? Should it? Should the federal government interject itself into local matters as a matter of course?
12.27.2006 1:19pm
i am of the opinion that the feds (now) have way too much jurisdiction for way too many crimes, etc. that should not be under federal jurisdiction, and should not be federal crimes at all. but as long as congress continues to pass Brady Act, Violence Against Women Act, and as long as the SCOTUS continues to view the commerce clause as relating to everything under the sun, even a guy growing medical marijuana for personal use, under state law, in his living room, there is no solution in sight.


there is no general federal police power, nor should there be. federal police power should be restricted to interstate crimes, border crimes, etc.

but when it comes to INTELLIGENCE< that is an entirely different matter. it is absurd how segmented and proprietary LEA's are with their intelligence info. sure, if its highly sensitive and ongoing (like when I was a deep undercover), that info needs to be strictly limited. but, in general, people have no right to privacy, to their criminal records. and certainly not from LEA's
12.27.2006 4:40pm
Kelvin McCabe (mail):
Well i am glad that we at least agree on some things. However, if you noticed from the original article, its not just criminal records (arrests, convictions) that are being shared. Its also things like DEA investigation reports. DEA reports, as you know, contain all kinds of various information - some of it mundane (details of surveillance activity where nothing of significance takes place) to the highly specific. "Target A met with an unknown white hispanic in a blue ford van, license plate number _ _ _ _ _ registered to a Juan Gonzalez of 3483 Northpark Ave."

The Juan Gonzalez above may be a family friend, relative, or someone who loaned his car to someone else - but now he is forever linked to someone else (someone he might not even know)who is under surveillance so he too is now suspect. The fact that the information in the database likely is not destroyed, means that everytime this cat gets pulled over or has his plates run, he is going to be given the third degree. Assuming the guy in my hypothetical is truly innocent of any criminal activity, what can he do to rid himself of this taint? And as an aside, if you are a traffic cop who pulls this guy over and you run his license # and notice his name has come up in connection with a multi-state drug trafficking investigation - what is your next step? Now imagine you are Juan Gonzalez.
12.27.2006 6:10pm
of course there are concerns,and like everything in LE, it's a matter of balancing.

again, i find the worries about GOVT intel files amusing, just because private industry has so much more info, and so much less regulations on how they collect and use it


do non-criminals get "associated" in intel, surveillance,and crime reports even if they did nothing wrong?

of course. if you ride around in stolen cars with your boyfriend, you may not get criminally charged, but you will be 'associated' with him in crime reports.

if the cops run your name, and it was a local crime (and they have a decent database), they will be privy to that nfo. should they be? yes, imo

but how can they USE it, is of course the question.

like i said, i work in a nopretext state, so i am much more restricted than a federal officer, or many local officers in other states.

it certainly would not be enuf for a traffic stop in any jurisdiction, but GIVEN the stop,i think it's good that cops have intelligence on who they are dealing with
12.28.2006 11:40am
kelvin mccabe (mail):
I have a question, it was my understanding that the U.S. supreme court said that pretexting is legit so long as there is some "objective" reason for the stop. I.e, some minor traffic violation, no matter how trivial. Subjective reasons (of the officer) do not count. You keep talking of not living in a pre-text state, as if this makes a big difference. Even if a cop in your state stops someone because a)the driver is black in an all white neighborhood and the officer thinks he is a gang-banger or b) he is a white kid in an area where the only white people around are there to buy drugs - -- but in both cases there is some traffic violation (think license plate light is out, or didnt signal within 75 feet of a turn, whatever) - How do you prove the subjective intent of the officer? Lawyer: You pulled him over because he was black didnt you? Cop: No, i pulled him over because i noticed a traffic violation committted in my presence. Lawyer: You dont pull white people over for the same offense, do you officer? Officer: I have in the past.

I suppose if in your non-pretexting state there are massive data records on the number of stops each officer makes, for what offense, and the race of the drivers one could find an avenue to prove the pretextual nature of the stop, but without that -you have the prosecutors best friend: A cop who says what the court needs to hear to make everything legit. This is what we enjoy in our pretext allowed states. Especially in IL and most especially in Chicago. I think here some 60% of judges believe officers lie at least some of the time, 75% of prosecutors believe cops lie half or more of the time*, and defense attorneys are convinced that not a single cop who has ever testified at a suppression hearing has told the truth throughout the entire hearing. I guess my environment has made me very mistrustful of anything that gives the Chicago PD more reasons to "embelish" the reports and more crap to spew at the suppression hearings.

*these percentages are made up - but the real numbers arent that far off.
12.28.2006 12:11pm
kelvin, i work in a state that recognizes (as any state can and most do) more rights than the federal const. thus, under my STATE constitution, pretext stops are always wrong. your analysis of the federal case is correct.

as to how do you PROVE it? this is where pretext law gets stupid.

example: i am behind a car with a burned out taillight. i have NO idea who is in the car.

i pull it over. turns out the guy has 10 warrants, stolen property, and a dead body in the passenger seat! kewl! no pretext there.

second example: i am behind a car with a burned out taillight. i also happen to recognize that it's Paul Jones' car. I've arrested Paul twice for unlawful possession of stolen property.

i pull it over. when i approach the car, I see 14 VCR's, 10 car stereos (freshly ripped), and a dead body. kewl!

ooops! the defense attorney will argue that even though i had an objective reason, my REAL reason was because i wanted to see what Jones' was up to

the reality is - it's both. of COURSE, i want to see what jones is up to, BUT i would have pulled him over even if i didn't know who he was, because he had a burned out taillight.

so, these pretext decisions turn judges, and cops into a bunch of people playing at subjective issues that really should have NO place in an investigation

and it creates the perverse result that an officer is better off being completely ignorant, than knowing who he is stopping, because then (unless he has a terry stop), he is going to get second guessed as to intent, no matter that he had a perfectly valid objective reason for the stop

it is absurd.

as for the lying thing, you sound like a typical lawyer. maybe you think it's ok to lie, but i have testified hundreds of times, and i have never lied in court.

and no, there are not databases of officer's traffic stops. thank god my agency is not so PC as to keep track of that crap, although i do know SOME that do, to include the race, gender, etc. of every person they stop

the problem with disparate impact (racial: see above) and stats like that is that they cause the perverse result of officers TRYING to find white people to pull over, because then they know at least they won't have some dork lawyer (not to mention the driver) claiming "racial profiling" or some such rubbish. seriously. many cops DO racially profile, to the extent they do anything possible to avoid "onviewing" any sort of criminal activity involving a minority, since they can get that card thrown in their face

i do know that cops from a neighboring agency, where they get micromanaged and accused of this crap, they just responded by "depolicing". they sit in parking lots doing crossword puzzles in between 911 calls, since that completely eliminates the possibility of this sort of rubbish. GREAT for the criminals, terrible for the victims, but depolicing is the result of this sort of pretext nonsense.
and no, i am not speaking bitterly of past experience, since in 20 yrs, i never had 1 iiu complaint. lucky me
12.28.2006 3:17pm
Kelvin McCabe (mail):
I applaud your honesty. And i agree with you that "proving" pretextual stops is rather pointless, hell, proving any mental state can be hard to do.

As far as the lying - perhaps the Chicago PD (or at least some of them) are simply not as professional as you. Seriously, if i had a dime for every cop who testified that the suspect dropped a white powdery substance as the cop approached - and the "drop" was not in the police report, what is the logical explanation for its absence? The very act that gave the cop probable cause to arrest was not in the report? (assuming no pc prior to encounter with suspect). Ill tell you what happens, the cop stops and frisks the suspect, with no pc or reasonable suspcion, and finds drugs in the pocket, cigarette box, whatever. Since he needs a reason at the suppression hearing to do the stop and frisk or risk suppression, he testifies there was a "drop". This is routine. It happens so often that lawyers just refer to it as another "drop" case. Judges, unfortunately, overlook the omission regarding the police report, notes that the officer testified credibly with little impeachment (the missing drop usually the only major point of impeachment), and the defendant is some peice of crap gangbanger with no credibility - motion to suppress denied. This lying business is not some cynical view of lawyers - IT IS FACT. BTW, if it werent, why would the judges and prosecutors feel that cops lie as often as they do as well? I know i didnt have exact percentages, but the ones i gave were close. How do you explain that?
12.29.2006 4:44pm
i am not saying no police officers ever lie. i am saying that IN MY EXPERIENCE it has not happened.

the above actions (stop and frisk) w/o RS are what we refer to euphemistically in my agency as a "shake".

shakes do occasionally happen. but what happens is the cop finds the drugs and does a "narcotics for disposal" type case, and simply puts in the narrative that the case does not meet filing standards and leaves it at that. either that, or just dumps the drugs in front of the suspect and tells him to have a nice day.

but, lying to "make a bad case good" is simply unacceptable.
12.30.2006 12:21pm
btw, to answer your question - i don't work in chicago, so i can't speak to the level of corruption that you claim.

nor can i speak to the #'s that you (frankly) pulled out of yer #$(#$ regarding the percentages :)

"dropsy" testimony is not something i am unfamiliar with IN CONCEPT, but i have never witnessed it, nor would i stand for it.

fwiw, i have seen (in 20 years) literally a few examples of people dropping contraband when police approached. i even saw an episode of cops where the guy did it ON CAMERA.

i once had a suspect drop 10thousand dollars in counterfeit bills right in front of me.

of course, the fact that I was pointing my firearm at him and telling him to "stop" and "put your hands up" may have had something to do with him raising his hands and dropping the bills :)

that was a pretty sweet case.
12.30.2006 12:26pm