United States v. Michael Dreyer
2014 U.S. App. LEXIS 17717
9th Cir.2014Background
- NCIS Special Agent Steve Logan used the RoundUp program from Georgia to scan Gnutella file‑sharing traffic across Washington State and identified IP 67.160.77.21 as offering known child pornography.
- Logan downloaded three files, sought an administrative subpoena via NCIS/NCMEC/FBI to Comcast, which returned Michael Dreyer’s name and Algona address; Dreyer had no current military affiliation.
- NCIS forwarded the results to Algona police; local officers obtained a state search warrant, executed it (with an on‑site preview), and seized Dreyer’s computer; a later federal warrant led to a forensic exam revealing extensive child pornography.
- Dreyer was indicted, convicted of distribution and possession of child pornography, moved to suppress the evidence obtained after NCIS’s involvement, and appealed following denial of suppression and a 216‑month sentence.
- The Ninth Circuit held NCIS’s investigation violated PCA‑like restrictions (applicable to NCIS civilian agents), characterized the RoundUp statewide surveillance as impermissible "direct" military involvement (not an "independent military purpose"), and concluded suppression was warranted because deterrence was necessary given widespread/repeated practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCA‑like restrictions apply to civilian NCIS agents | Dreyer: NCIS civilians are bound by DoD/SECNAV PCA policies; military may not enforce civilian law | Government: PCA/§375 do not apply because NCIS is civilian‑led and many agents are civilians | Held: PCA‑like restrictions apply to NCIS agents (reaffirming Chon) |
| Whether Logan’s RoundUp search was permissible "indirect" assistance or impermissible "direct" enforcement | Dreyer: Nationwide/statewide surveillance and investigation constituted direct active involvement (investigative role) | Government: Activity was permissible as indirect assistance or under an "independent military purpose" | Held: The search was direct military involvement (investigative), not mere indirect assistance; independent military‑purpose exception did not apply because search was not reasonably focused on military interests |
| Whether evidence must be suppressed for PCA‑like violations | Dreyer: Exclusionary rule warranted to deter repeated/widespread violations | Government: Exclusion is inappropriate; prior cases typically decline suppression for PCA violations | Held: Suppression warranted—exclusion appropriate because record showed widespread/repeated NCIS practices and a need to deter future violations |
Key Cases Cited
- United States v. Chon, 210 F.3d 990 (9th Cir. 2000) (NCIS civilian agents are subject to PCA‑like restrictions)
- United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002) (three‑part test for permissible "indirect" military assistance)
- United States v. Khan, 35 F.3d 426 (9th Cir. 1994) (framework distinguishing direct/indirect military participation)
- United States v. Walden, 490 F.2d 372 (4th Cir. 1974) (Marines’ undercover investigations violated PCA‑type rules)
- United States v. Roberts, 779 F.2d 565 (9th Cir. 1986) (exclusionary rule for PCA violations requires showing of need to deter widespread/repeated violations)