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In an en banc decision issued yesterday, the Ninth Circuit ruled that an NCIS agent’s use of a software query to search military and civilian computers throughout Washington state for child pornography violated restrictions related to the Posse Comitatus Act (PCA), but declined to suppress the evidence resulting from the agent’s investigation.
NCIS obtained this evidence by using RoundUp, a government software application that searches public peer-to-peer file sharing networks for unique digital identifiers associated with child pornography files. RoundUp queries are limited by geographic parameters, but the software does not distinguish between military and civilian computers. In 2011, civilian NCIS agent Steve Logan performed a RoundUp query encompassing the entire state of Washington, and detected a computer that had shared child pornography files. After learning that the computer belonged to Michael Dreyer, an individual without any military affiliation, Logan passed the results of his investigation to civilian law enforcement. Federal prosecutors subsequently charged Dreyer with distribution and possession of child pornography, and Dreyer moved to suppress the RoundUp evidence on the grounds that Logan’s search had violated the PCA.
The district court denied the motion, and Dreyer was convicted after a jury trial. Dreyer appealed, and in September 2014 a divided panel of the Ninth Circuit ruled that Logan’s actions violated restrictions imposed pursuant to the PCA, and that the district court erred by failing to suppress the RoundUp evidence. The government petitioned for rehearing en banc, arguing that the PCA does not apply to civilian NCIS agents, and that in any event suppression of evidence was not an appropriate remedy.
In yesterday’s opinion for the en banc Ninth Circuit, Judge Morgan Christen first determined that ‘PCA-like restrictions’ apply to NCIS and its civilian agents. These restrictions derive from DOD regulations adopted pursuant to 10 U.S.C. § 375, a federal statute related to the PCA that directs the Secretary of Defense to prescribe regulations prohibiting direct military participation in civilian law enforcement. Judge Christen then ruled that Logan’s investigation violated these restrictions, rejecting the government’s arguments that his actions constituted permissible ‘indirect assistance’ to civilian law enforcement. She also ruled that Logan’s actions did not qualify for the exception to PCA-like restrictions when the military’s participation is undertaken for the primary purpose of furthering a military function, such as investigations related to enforcing the UCMJ (which forbids possession of child pornography.) Although “properly executed” child pornography investigations by NCIS might be excepted, Judge Christen noted that Logan’s RoundUp query was not limited to members of the military, and instead “cast a net across the entire state of Washington, [including] countless devices” falling outside the jurisdiction of the UCMJ. This “[clear violation]” of DOD policy and congressional intent by NCIS precluded any possibility of the exception applying to Logan’s investigation.
Judge Christen then determined that the court could remedy NCIS’s violation by suppressing the RoundUp evidence, but that suppression was not appropriate given the circumstances in this case. This ruling was particularly critical because the Supreme Court has significantly limited the exclusionary rule in recent years, and has further suggested that suppression is available to remedy violations of constitutional rights, not purely statutory ones. The government had argued this point strenuously, contending that suppression is never warranted for PCA violations that do not implicate constitutional rights. In rejecting that argument, Judge Christen reasoned that the PCA has “constitutional underpinnings,” including the Third Amendment’s restrictions on quartering soldiers in private domiciles, and that no controlling precedent precluded application of the exclusionary rule for a violation of the PCA or PCA-like restrictions.
However, Judge Christen also noted that suppression is an exceptional remedy, and that the exclusionary rule does not apply absent a demonstration of the need to deter future violations of government misconduct. Although the facts of this case were “troubling and unprecedented,” they also suggested that NCIS’s violations were attributable to a “misunderstanding” of its statutory authority, and that the Navy was “already in the process of limiting its participation in civilian law enforcement to conform to PCA-like restrictions.” Thus, there was no need to deter future violations, at least not “at this juncture.” Accordingly, Judge Christen affirmed the district court’s denial of Dreyer’s motion to suppress and remanded the case for consideration of other issues.
Judge Marsha Berzon joined the majority opinion in full, but wrote a separate concurrence to explain her support given her prior panel opinion that ruled suppression was an appropriate remedy. After explaining how the PCA is “deeply grounded” in constitutional principles, Judge Berzon noted that the violations here were “extreme” and capable of repetition. However, she was persuaded by the Navy’s assurances at oral argument that its policies had since changed to ensure compliance with PCA-like restrictions, and accordingly determined that suppression was not “[clearly]” necessary to deter future violations. Judge Berzon’s opinion concluded with the warning that suppression would be appropriate if the “same or closely similar violations” occurred again in the future.
Judge John Owens, joined by Judges Barry Silverman and Consuelo Callahan, wrote an opinion concurring in the judgment but rejecting the majority’s conclusion that it could remedy future PCA violations through suppression of evidence. In their view, an express congressional authorization would be needed to support this conclusion, given the Supreme Court’s recent jurisprudence limiting the availability of suppression. They further reasoned that in the “extremely rare” cases where suppression was permissible to remedy statutory violations, the relevant statutes had protected “important Fourth and Fifth Amendment interests” that were absent here. Judge Owens’ opinion also criticized the majority for relying on flimsy authority to “convert the PCA into the Third Amendment 2.0,” and noted that Congress has had “ample time” to authorize suppression of evidence for PCA violations, but has instead elected to enforce the PCA’s restrictions with criminal sanctions. He concluded by reemphasizing that a suppression remedy must come from Congress, not the judiciary.
Judge Silverman wrote another concurring opinion, joined only by Judge Callahan, concluding that NCIS’s actions did not violate the PCA or PCA-like restrictions. He began by noting three things:
First, as a Naval criminal investigator, Logan was tasked with looking for Navy personnel who were misusing peer-to-peer software to traffic in child pornography. . . . Second, peer-to-peer software, by definition, opens up one’s computer to the world. . . . Third, when Logan discovered that he had stumbled upon a civilian sharing child pornography, he dropped the investigation like a hot potato and did nothing more than turn over his findings to civilian authorities.
Given these circumstances, Judge Silverman would rule that Agent Logan’s role in civilian law enforcement was limited to indirect assistance, and that the primary purpose of his investigation was related to the military function of enforcing the UCMJ. Thus, Logan’s investigation qualified for both of the exceptions considered (and rejected) in the majority opinion, and no violation of PCA-like restrictions occurred in this case.