A number of readers have written to me with thoughtful comments about the Ninth Circuit’s recent decision in United States v. Dreyer (link to slip op.) in which Judge Berzon, writing for a divided three-judge panel of that court, held that an NCIS agent’s violation of Posse Comitatis Act-like restrictions on direct assistance to civilian law enforcement activities requires application of the exclusionary rule as a deterrent:

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason.

Slip op. at 21-22. The opinion also notes that a deterrent is needed because of “the government’s litigation positions” that include “arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.” Slip op. at  22.

I haven’t seen this as much of a military justice issue, but this analysis by Professor Orin Kerr at The Volokh Conspiracy puts the opinion in a new light. Professor Kerr sees the decision in Dreyer as “a vestige of the mid-20th century free-form view of the exclusionary rule” that “if the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.”

His take reminds me of opinions in three recent CAAF decisions in Air Force cases involving application of the exclusionary rule: Chief Judge Baker’s dissenting opinion in United States v. Cote, 72 M.J. 41 (C.A.A.F. Mar. 8, 2013) (CAAFlog case page), Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry, 72 M.J. 100 (C.A.A.F., Apr. 15, 2013) (CAAFlog case page), and Chief Judge Baker’s opinion of the court in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).

In Cote, a divided CAAF addressed a military judge’s ruling that suppressed the results of a search conducted in violation of an express time limitation in a warrant issued by a federal magistrate. Judge Erdmann, writing for the majority, rejected per se exclusion due to the violation but found that the Government was required to prove that the violation was de minimis or otherwise reasonable. He then concluded that the Government failed to do so and affirmed the military judge’s ruling that suppressed the evidence. But Chief Judge Baker dissented, writing:

In this case, I do not believe suppression would serve the purpose of the exclusionary rule. The Supreme Court stated in Herring that deciding whether to apply the exclusionary rule “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” 555 U.S. at 137. The Court went on to hold that the exclusionary rule is triggered when police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. This includes “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Id. Where a Fourth Amendment violation is a product of isolated police negligence rather than overreaching, there is no wrongful police conduct, nor pattern of repeated negligence, to deter.

Cote, 72 M.J. at 49 (op. of Baker, C.J. dissenting at 8).

The following month, in Irizarry, CAAF considered the admission of evidence discovered during a warrantless entry by two military superiors into an Airman’s off-base apartment. Writing for the court, Judge Stucky concluded that the military judge did not abuse his discretion in admitting the evidence because there was no Fourth Amendment violation due to the reasonableness of the superiors’ entry into the apartment. But Judge Erdmann, joined by Chief Judge Baker, dissented in part (though concurred in the result), disagreeing that the search did not violate the appellant’s Fourth Amendment rights yet concluding that “the circumstances of this case do not warrant the application of the exclusionary rule.” Irizarry, 72 M.J. at 107 (op. of Erdmann, J., dissenting in part at 1).

I recalled these two separate opinions the following year in my argument preview of CAAF’s consideration of Wicks. That case involved a Government interlocutory appeal of a ruling that suppressed evidence discovered on the accused’s cell phone after it was stolen by one of his co-workers and delivered to a security forces detective who first conducted her own search of the phone and then sent the phone for a comprehensive forensic examination, all without obtaining any search authorization. Writing for a functionally-unanimous court (Judge Stucky dissented in small part), Chief Judge Baker seemed to go out of his way to detail the Government’s misconduct in violating the accused’s Fourth Amendment rights. That misconduct included conducting a third warrantless search – after the trial judge issued the suppression ruling – specifically for the purpose of (illegally) obtaining additional evidence to backstop a motion for reconsideration.

I concluded my opinion analysis of Wicks with some thoughts about the exclusionary rule in general:

As for what the Government did wrong… well, there are many who would abandon the exclusionary rule in favor some sort of disciplinary consequence for the violator. For instance, in the Spring 2012 edition of the Military Law Review there was an article by Eugene R. Milhizer (President, Dean, and Professor of Law, Ave Maria School of Law) calling for abandonment of the Fourth Amendment exclusionary rule: Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Mil. L. Rev. 211 (2012) (link to article) (link to CAAFlog post discussing article). And the article was given as a speech at the 54th Judges Course at The Judge Advocate Generals School on May 5, 2011. If the judicially-created rule were abolished, the presidentially-prescribed rule [the prohibition in the Military Rules of Evidence against admission of unlawfully obtained evidence] would likely also disappear. That would leave only administrative or disciplinary action as a remedy for Government misconduct that violates an individual’s Fourth Amendment rights.

The Ninth Circuit’s decision in Dreyer is marching in the opposite direction, with Judge Berzon’s penultimate paragraph making a powerful closing statement about the existence of the exclusionary rule as a judicial scythe to bring down Government intransigence:

[W]e have here abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible, despite prior cautions by our court and others that military personnel, including NCIS agents, may not enforce the civilian laws. Accordingly, we find that the district court erred in denying Dreyer’s motion to suppress.

Dreyer, slip op. at 23.

CAAF may re-enter this debate this term in its consideration of the interlocutory appeal in United States v. Buford, No. 14-6010/AF (CAAFlog case page).

8 Responses to “The military justice connection in the Ninth Circuit’s Posse Comitatus Act decision in United States v. Dreyer”

  1. Former DC says:

    Two thoughts on this opinion:
    1)  It has been widely reported in the media that the NSA has fed information on drug dealers and similar criminals to the DEA and other appropriate agencies.  Assuming for the sake of argument these reports are true, it should be remembered that the NSA is a DoD command, under the command of a 3-star general.  This would mean, under this precedent, that such activities would be prohibited.
    2) As an amusement:  when the NINTH CIRCUIT supports its opinions through addressing the original meaning of the Constitution, it is clear that Justice Scalia’s method of interpretation has become the mainstream.

  2. stewie says:

    I don’t get your second point. No one disputes the concept that if you can divine original intent, it matters. The difference is that you can’t always divine original intent particularly in situations the Founders never even thought about/imagined. The Constitution as a living document is not the same thing as the Constitution as a completely amorphous document that says whatever you want it to say…there’s a difference.

  3. RKincaid3 (RK3PO) says:

    Simply amazing!  This is government investigative activity that is out of control simply because it KNOWS NO BOUNDS.  I am bordering on fury with this one…
    Begin Rant:
    Who on earth thought that using a Military Criminal Investigative Organization (MCIO) in this way against CIVILIANS simply “because they reside in a state with a military installation” would be even remotely legal–maybe the same “independent” legal advisors who were too busy telling their government clients what they “wanted” to hear instead of what they “needed” to hear (think of the Boumadiene case at the SCOTUS involving detainee habeas rights or the early Presidentially established Military Commissions cases that were ruled unconstitutional by the SCOTUS and eventually led to the passage by Congress of legal Military Commissions created under the Military Commissions Act).

    Either that or these are some rogue clients clearly violating the law AGAINST and maybe even despite the sage and correct legal advice of their wise attorneys speaking truth to power.  In either case–this is BAAAD!! Absolutely unthinkable pre-9-11. Now with the Patriot Act and other such idiotic statutes or similarly bad schools of thought (like an out of control NSA who has apparently never heard of the 4th Amendment), we have the military actively searching through civilian property for evidence of criminal activity (as if they have never heard of the PCA) and then reporting it to civilian law enforcement for no better reason than they CAN and have the technology to do so, coyly admitting without a degree of shame or timidity that:

    Mr. Logan [the civilian investigator] and a colleague in the Georgia office had started investigating child pornography cases because “we had the opportunity and the equipment,” particularly the RoundUp program, and that he had been involved in at least 20 other child pornography investigations. It was standard practice, he said, to scrutinize computers within a designated geographic area, without any way to limit searches to those owned by military or government personnel.

    WHAAAT???  Where is the probable cause that justifies the search of this particular individuals computer property (assuming a reasonable expectation of privacy exists in this situation)?  We, the government are going to start searching just because—umm—we can???  And we have the time???  And the equipment, skills and experience???  Sounds like a great way for tyranny to justify getting started, too!  My last examination of both PCA precedent and 4th Amendment precedent didn’t reveal to me any “because we can” or “it is a good idea” or “the subject is a really bad guy” exceptions.
    Most scarily:

    Federal prosecutors argued that because the N.C.I.S. investigator was a civilian employee, he was not covered by the rules barring military involvement in civilian criminal investigations. They also argued that the agency had a legitimate military-related purpose in seeking child pornography offenders in a region with several naval facilities.

    Do they even know the law that is the PCA and its exceptions?  Civilians working for the military or “under the command and control of Title 10 officer” are in fact covered by the PCA.  Even if this was a so-called “civilian investigation,” for MCIOs to get involved their must be a “military nexus”–which is absent in this case.  A “legitimate military purpose” in seeking…” out criminals in states with a military presence?  Give me a break.  That sounds like the PCA exception that swallows the PCA rule because it is sooooo overly broad…almost like a “contraband exception” to the 4th Amendment or a “crime scene” exception–two arguments that were rightly and resoundingly rejected by courts in the past for the simple reason that they utterly destroyed the protections of the 4th Amendment.
    This is NOT just a case where the government merely relayed information in its possession to the appropriate civilian agency for action by the civilian authorities (perfectly okay under the PCA). This is a case where military law enforcement is in fact conducting investigations into civilians (without even a modicum of suspicion–just because they can) and then reporting their findings to civilians. That is a PCA violation!  I hope the SCOTUS gets involved in this.
    As for suppressing the evidence, especially now in the post-Riley/Wurie (a cell phone case, yes, but it dealt with the same issue–the sheer volume of digital data–not all of which is evidence of a crime–so it is absolutely applicable) environment, suppression is the appropriate conclusion.  Even if the PCA violation itself, arguably doesn’t justify such an extreme remedy, the 4th Amendment violation would if a 4th Amendment violation occurred.  At this time–I would need to see more about the case (like read the whole opinion–which I have not yet had a chance to do) to determine whether a 4th Amendment violation occurred–but if so–the evidence is AND SHOULD be gone.  I think that such a massive PCA violation should result in the extreme remedy or else what good is the statute at preventing the harm that is military enforcement of laws upon civilians not subject to military jurisdiction.
    The money quote, for me, from the NY Times article is:

    The naval investigative service’s role in the case “amounts to the military acting as a national police force to investigate civilian law violations by civilians,” Judge Andrew Kleinfeld wrote in a concurring opinion.
    “Letting a criminal go free to deter national military investigation of civilians is worth it,” Judge Kleinfeld wrote, defending the mandate to exclude the computer evidence in any retrial.”

    And the best that the government could come back with was:

    The third member of the appeals panel, Judge Diarmuid O’Scannlain, while agreeing that the surveillance had violated regulations, objected to the decision to exclude the evidence. “This case provides no justification for setting a convicted child pornographer free,” he wrote.

    Who cares what the guy was convicted of?  The offense doesn’t matter–THE LAWFULNESS OF THE PROCESS THAT CONVICTED HIM matters.
    I cannot believe that we are still debating the role of “limited government” in this country–in the 21st Century–an “ends justifies the means” philosophy–be it in politics, law, business, war or what have you.  Where are the limits that accompany the concept of “limited government” as enshrined by the founders in the Constitution?  Without harsh penalties that effectively let bad guys get away with crimes–THERE IS NO SUCH THING AS A LIMITED GOVERNMENT.
    We fail ourselves as a nation when we adopt the tactics of our enemies, past (King George) and present (terrorists), and turn our backs on our principles by resorting to illegal tactics and then justifying them in the name of “public safety”–the universal cry of every two bit tyrant or tyrannical government throughout history.
    I know we are better than this–what I don’t know about–what I cannot understand–is that so many American’s have either forgotten that we are better than this–or worse, have decided that they don’t care to be better than this–better than our enemies.
    As a nation, we need to decide which is the greater threat to life and liberty: the occasional criminal who gets away with murder or a government that knows no limits?  In the past, that answer was fairly obvious to the courts–hence the extreme penalty of suppression.
    So, America: which is our priority now? 
    End of Rant. 

  4. SomeJAG says:

    Do I understand the opinion incorrectly?  The opinion seems to turn on surveillance beyond authority versus an unreasonable search mandating use of the exclusionary rule.  I don’t necessarily disagree with this point, but I do want to ask, is it really a search?  
    Law enforcement working these cases routinely have hash numbers of known CP files and can identify potential CP violators simply by the files a user is sharing openly to the internet.   Sharing files openly on the internet can be likened to the exception for evidence in plain view or for searching abandoned property (garbage) for evidence.
    Just a little quibble I had.  I think the opinion gets it more right than wrong, but I don’t see a moral hazard for law enforcement to look at publicly shared files within a reasonable distance of a military base.  It doesn’t seem like a search to me.

  5. RKincaid3 (RK3PO) says:

    SomeJAG:  To answer your question, I find the key part of the opinion to be the following quote:

    The government’s position that the military may monitor and search all computers in a state even though it has no reason to believe that the computer’s owner has a military affiliation would render the PCA’s restrictions entirely meaningless. To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution.

    This isn’t really about WHERE the electronic data is located–on the web in the cloud or in a home–it is the fact that the simple act of INVESTIGATING–if only to determine the military nexus–is itself a violation of the law and certainly violates the spirit behind the constitution.
    My biggest concern at this time is that everyone opposed (based upon commentary at other cites by many diverse people–lawyers and civilians) to this decision is opposed mostly because a child pornographer potentially is getting away with it and to avoid that result–they are willing to engage in all types of mental and LEGAL gymnastics to realize a means that gets them a satisfactory result.  THAT is the danger of an “ends justifies the means” mentality towards justice.  And injustice results from such a less-than-blind administration of a justice process.
    Such mental and legal gymnastics include delving into arcane discussions of “reasonable expectations of privacy” and “public search” vs “private search” minutiae.  I find that this search does raise 4th Amendment implications that, depending upon the software (high tech vice low tech; or technology that is in common or general use, etc.) being used, the Riley/Wurie cell phone privacy case (dealing with digital evidence of some sort) would or should govern and would further militate in favor of SUPPRESSION.  Ultimately, if this case stands–it could be because it simply SHOULD stand based upon the legal history (and theory and principle) underlying the reason for the PCA itself:

    The PCA was originally enacted on the understandings that “[t]he great beauty of our system of government is that it is to be governed by the people,” and that if we use the “military power . . . to discharge those duties that belong to civil officers and to the citizens,” we “have given up the character of [our] Government; it is no longer a government for liberty; it is no longer a government founded in the consent of the people; it has become a government of force.”

    I find that quote most appropriate–especially now, in this NSA-heavy, Patriot Act induced Orwellian drama that is modern American life.  To me, the legal question is NOT: have the limits on government power imposed by the 4th Amendment been rendered obsolete and less important by technology?  The question is more appropriately: hasn’t technology made the 4th Amendment’s protective limitations upon government MORE important now than ever before?
    The big question is going to be will this case be the next 9th Circuit overturned simply because that is typically what happens with 9th Circuit cases.  Sadly, this is one of those cases that should NOT be overturned and should become the law of the land–not just in the 9th Circuit footprint.

  6. JOJA says:

    RKincaid3 (RK3PO):
    You appear more certain in your last post that this is Constitutional violation.  I don’t see it if person has made certain contraband files public through peer-to-peer file sharing systems.  Seems kind of like claiming a privacy interest after posting a picture on the outside of a mailbox (but with clearer attribution).  Despite concurring opinion claim of hacking (which is not supported by facts), is there a doubt that non-DOD agents could have provided the same info to local police and prosecutors?

  7. RKincaid3 (RK3PO) says:

    JOJA:  You ask:

    [I]s there a doubt that non-DOD agents could have provided the same info to local police and prosecutors?

    Let me clarify my prior post and answer your question as follows: Yes, had non-DoD agents performed this particular “search” (which is what it was), then there would have been no PCA violation.  Certainly, such non-DoD agencies could easly forward the results of their investigations involving or revealing DoD personnel to the DoD MCIOs to run with and not violate the PCA.   But that is not the case.  Had non-DoD agent’s performed this particular search (as I am sure they are in fact doing), then the court would have had to address the 4th Amendment issues in the post-Riley/Wurie environment.  However, because this was a DoD search, the PCA had to be addressed by the court first–and thus, having found the PCA violated, the analysis ended.  Rightly so.
    As for applying the exclusionary rule, the evidence was excluded as an extreme remedy to prevent and deter further government violations of the PCA–it was not a remedy for a 4th Amendment violation.  You can bet that if the NCIS is (or was) doing this, this you can bet all the MCIOs (AFOSI and CID) are (or were) doing this.  That is a huge volume of military investigations into people who the MCIOs cannot state UNTIL AFTER THE INVESTIGATION were in a Title 10 status–and thus within the MCIOs investigative jurisdiction.  I will state that I am not a fan of “harmless” or “minimalist” (cost-benefit analysis) approaches to exclusionary rule application:  either the government violated the law or it didn’t:  if so, the violation itself is, to my mind, the only appropriate remedy–otherwise future violations become games of analysis to justify yet another exception to the rule and in the end, the government misconduct goes un-deterred and un-punished.  Such disregard by government for the limitations on its own power become the exception that swallows the rule–slowly and individually at first–and then societally and nationally as a matter of policy de cursu.
    As for non-DoD agencies doing this exact same thing, the 4th Amendment in the post-Riley/Wurie environment will have to be addressed at some time–it is unavoidable.  Depending upon how the software actually works (the opinion is short on details–and there is some possibly valid criticism that the 9th Cir judges failed to understand the software and technology involved), and how the technology operates (for example a computer can have child porn in a “system accessed” but not “user accessed” cache and that does not constitute illegal “possession” of the image even though the contraband image is there on the computer), a court may find a 4th Amendment violation, or it may find that there is no violation.  I think that if a 4th Amendment violation occurs in that case–then suppression is appropriate no matter how hideous the offender and offense and no matter how widespread the government misconduct; if no 4th Amendment violation, then no suppression.
    As for hacking, I am eager to see/learn more details from future cases about the technology to see if the there was an illegal “hacking” into someone’s “reasonable expectation of privacy” by a “government intruder” or was this simply the government following a virtual, but public, bread crumb trail left in the open which leads back to the perpetrator leaving the trail.
    So, thanks to your thought-provoking response, I must and do clarify that I need more info to determine how the 4th Amendment might be violated by n0n-DoD agencies using this same technology in the same way.   Depending upon the details, especially in the post-Riley/Wurie environment, suppression might still be appropriate and absolutely necessary.