The military justice connection in the Ninth Circuit’s Posse Comitatus Act decision in United States v. Dreyer
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).