United States v. Dreyer Ninth Circuit Suppresses Evidence Based on Violations of Regulations and Policies Implementing Posse Comitatus Act-Like Restrictions
United States v. Dreyer
In recent years, the Supreme Court has cut back on application of the exclusionary rule, a “judicially created remedy designed to safeguard” certain constitutional rights by rendering inadmissible illegally obtained evidence. Circuit courts of appeal, bound by Supreme Court precedent, have similarly constrained application of the rule, and there has been a discernible trend toward letting more evidence in at trial. Recently, in United States v. Dreyer, the Ninth Circuit held that a Naval Criminal Investigative Service (NCIS) special agent who launched a broad investigation into the sharing of child pornography on a peer-to-peer network by anyone in the State of Washington, and discovered and investigated such activity by a Washingtonian with no current military affiliation, violated policies and regulations restricting naval participation in civilian law enforcement activities. Upon finding the violation, the court held that the district court erred in denying the defendant’s motion to suppress evidence gathered as a result of the agent’s investigation. The Ninth Circuit’s application of the exclusionary rule diverged from recent trends in both its own and Supreme Court precedent. Both courts have suggested that application of the exclusionary rule is not required and indeed may be inappropriate where a regulatory violation does not also constitute a constitutional violation. Because Fourth Amendment protections do not extend to file-sharing networks, the court should have found that the exclusionary rule did not apply in this case, and affirmed the district court’s decision to deny the motion to suppress.
In late 2010, Georgia-based NCIS Special Agent Steve Logan, a civilian naval employee, began using the software program RoundUp to search for any computers located in Washington State that were sharing child pornography on the Gnutella file-sharing network. Some months later, Agent Logan found a computer sharing files identified by RoundUp as child pornography, downloaded the images from that computer, viewed the images, and concluded that they were child pornography. Agent Logan then requested an administrative subpoena for information about the user associated with the computer and received Michael Dreyer’s name and address. Agent Logan checked a Department of Defense (DOD) database, determined that Dreyer had no current military affiliation, summarized his investigation, and forwarded his report and supporting material to the Washington State NCIS office, thereby concluding his role in the investigation of Dreyer. The local NCIS office passed the information to local police, who secured a search warrant and executed a search of Dreyer’s residence. During the search, a detective identified images of possible child pornography on a desktop computer and directed officers to seize the computer. A Department of Homeland Security special agent conducted a forensic examination of Dreyer’s computer that discovered many videos and images of child pornography.
Dreyer was charged with one count of possessing and one count of distributing child pornography. Arguing that the NCIS agent did not have lawful authority to investigate civilian crime, Dreyer moved to suppress both the evidence seized in the search of his residence and the evidence discovered during the examination of his computer. Following an evidentiary hearing, Chief Judge Pechman of the United States District Court for the Western District of Washington orally denied Dreyer’s motion. Dreyer was subsequently convicted and sentenced to 216 months of incarceration and a lifetime of supervised release. He timely appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed and remanded. Writing for the panel, Judge Berzon held that the NCIS agent’s investigation flouted the spirit of the Posse Comitatus (PCA) — an act limiting the involvement of the Army and Air Force in civilian law enforcement efforts— and directly violated DOD policies and regulations imposing PCA-like restrictions on naval personnel. The court held that evidence collected as a result of the agent’s investigation should have been suppressed.
First, Judge Berzon rejected the government’s contention that PCA-like restrictions do not apply to civilian NCIS agents. Judge Berzon noted that, as a matter of policy, the DOD made PCA-like restrictions applicable to the Navy despite the fact that the PCA itself applies only to the Army and the Air Force. In addition, the Ninth Circuit had previously found in United States v. Chon that “PCA-like restrictions adopted by DOD with respect to the Navy apply to the NCIS” largely due to the imperceptible distinction between military and civilian NCIS agents. Judge Berzon maintained that Chon resolved this matter and declined to revisit the court’s prior interpretation.
Next, Judge Berzon determined that Agent Logan’s surveillance of all computers in Washington that were sharing files on the Gnutella network amounted to direct involvement in civilian law enforcement activities and was impermissible under the DOD’s PCA-like restrictions. Judge Berzon found that Agent Logan “acted as an investigator, an activity specifically prohibited as direct assistance” under a DOD directive in force during the investigation. Further, his investigation did not merely supplement the work of civilian law enforcement. Instead, “[w]ithout Agent Logan’s identification of Dreyer, his computer, and the child pornography on his computer, there would have been no [subsequent] search[es] and no prosecution. Agent Logan was only authorized to search areas where there was a Department of Navy interest, and his sweeping search did not honor those limitations.
Finally, Judge Berzon considered whether to suppress evidence procured based on Agent Logan’s investigation. In United States v. Roberts, the court had held that “an exclusionary rule should not be applied to violations of [PCA-like restrictions] until a need to deter future violations is demonstrated,” and, in particular, until violations are “widespread and repeated. “According to Judge Berzon, the record in Dreyer demonstrated such a need since “Agent Logan and other NCIS agents routinely carry out broad surveillance activities that violate the restrictions on military enforcement of civilian law.” Judge Berzon contended that the government’s position that military personnel may permissibly “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” displayed “a profound lack of regard for the important limitations on the role of the military in our civilian society.” Judge Berzon held that the district court erred in denying Dreyer’s motion to suppress.
Judge O’Scannlain concurred in part and dissented in part. Though he agreed with the court’s conclusion that Agent Logan violated the PCA-like restrictions, he disclaimed the court’s invocation of the exclusionary rule, a remedy of “last resort.” Judge O’Scannlain contended that the court failed to conduct a “rigorous weighing of [the exclusionary rule’s] costs and deterrence benefits” as performed in recent Supreme Court and Ninth Circuit cases. Had the Dreyer court done so, it would have seen that “the costs of exclusion substantially outweigh the evanescent benefits: application of the exclusionary rule would likely result in a convicted child pornographer walking free, a significant cost in light of the “paucity of evidence” of widespread violations of PCA-like restrictions.
The Dreyer court deviated from the recent Supreme Court and Ninth Circuit trend limiting the application of the exclusionary rule. Both courts have suggested that the exclusionary rule is not triggered by the gathering of evidence in violation of a regulation. Instead, a court should determine whether a defendant’s constitutional rights have also been violated by the government agent’s conduct. Absent such a showing, recent precedent indicates that application of the exclusionary rule is inappropriate. Because the Ninth Circuit has held that Fourth Amendment protections do not extend to file-sharing networks, the court should have found that the exclusionary rule did not apply.
As the court in Dreyer made clear, the Navy is not subject to the PCA. Instead, “as a matter of policy” the DOD has, through regulation, voluntarily made PCA-like restrictions applicable to the Navy. Both the Supreme Court and the Ninth Circuit have suggested that a regulatory violation is insufficient to trigger the exclusionary rule. In United States v. Caceres, the Supreme Court held that the failure of an Internal Revenue Service agent to follow agency electronic surveillance regulations before recording conversations between a taxpayer and the agent did not require suppression of the tape recordings in the taxpayer’s bribery trial. The Court reasoned that “rigid application of an exclusionary rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures.” The Ninth Circuit went even further in United States v. Hinton, stating that “suppression is not the appropriate remedy for a failure to follow agency regulations.” Instead, “the relevant query is whether a constitutional right, not an agency regulation, has been violated,” and “[c]onsequently, rather than automatically suppress the evidence due to a violation of agency regulations, [the court] must determine whether [the defendant] has a constitutional right of privacy to the information” allegedly subject to search. The Dreyer court relied upon Roberts to reach its decision; Caceres and Hinton, which reflect the jurisprudential trend toward limiting the application of the exclusionary rule that has emerged since Roberts was decided, provide a more up-to-date framework for assessing the applicability of the exclusionary rule to the regulatory violation at issue in Dreyer.
Had the court proceeded under Hinton, it would likely have found that its own precedent establishes that Agent Logan’s conduct did not constitute a Fourth Amendment violation. The Fourth Amendment protects against “unreasonable searches and seizures.” A governmental intrusion will constitute a search if it violates an individual’s “legitimate expectation of privacy.” The inquiry to determine whether such a violation has occurred asks whether (1) “the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy’” and whether (2) “the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable.”’” The Ninth Circuit has held that Fourth Amendment protections do not extend to file-sharing networks. In United States v. Ganoe, the court plainly indicated that a defendant has no reasonable expectation of privacy and therefore “cannot invoke the protections of the Fourth Amendment” when he “install[s] and use[s] file-sharing software, thereby opening his computer to anyone else.” In United States v. Borowy, the court extended the Ganoe principle: even when a defendant made an “ineffectual effort to prevent [a peer-to-peer network] from sharing his files,” his “subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access.” In recent years, other circuit courts of appeal have agreed.
In this case, Dreyer used peer-to-peer software, opening his computer up to anyone. According to Ninth Circuit precedent, his constitutional rights were not violated. With no constitutional violation, and in accordance with Caceres and Hinton, the court should have found that the exclusionary rule should not apply, and affirmed the district court’s denial of Dreyer’s motion to suppress. But instead, when faced with two potentially, but not necessarily, conflicting lines of precedent, the Dreyer court opted to maintain the outdated line rather than adopt the one more in keeping with recent jurisprudential trends. The Supreme Court’s recently imposed limitations on the application of the exclusionary rule seem to suggest that the rule itself may be on its last legs. Dreyer further muddies the doctrinal waters and may generate confusion going forward until the Supreme Court determines outright the contours of its contemporary exclusionary rule doctrine.