United States v. Michael Dreyer
2015 U.S. App. LEXIS 19226
| 9th Cir. | 2015Background
- NCIS special agent Steve Logan used RoundUp software in 2010–11 to search Gnutella P2P traffic across the state of Washington for known child‑pornography file hashes; RoundUp queries were geographic, not person‑specific.
- RoundUp identified an IP address tied to Michael Dreyer; Logan downloaded files, sought an administrative subpoena through NCMEC/FBI, and NCIS passed its report to Algona (WA) police, who obtained a state warrant and uncovered extensive child pornography.
- Dreyer was prosecuted in state and federal court; in federal proceedings he moved to suppress evidence on the ground that NCIS’s involvement violated the Posse Comitatus Act (PCA) / 10 U.S.C. § 375 restrictions on military participation in civilian law enforcement.
- A three‑judge Ninth Circuit panel previously held NCIS’s conduct violated PCA‑like restrictions and ordered suppression; the en banc court granted rehearing to reconsider applicability and remedy.
- The en banc Ninth Circuit held (1) PCA‑like restrictions under 10 U.S.C. § 375 apply to NCIS and its civilian agents, (2) Logan’s statewide, active file‑search investigation constituted prohibited ‘‘direct assistance’’ and therefore violated those restrictions, but (3) exclusion of evidence was not warranted because suppression would not further deterrence given institutional confusion and corrective steps taken by DoD and Navy.
Issues
| Issue | Plaintiff's Argument (Dreyer) | Defendant's Argument (Government/NCIS) | Held |
|---|---|---|---|
| Do PCA‑like restrictions under 10 U.S.C. § 375 apply to NCIS and its civilian agents? | NCIS is a civilian agency; § 375/regulations shouldn’t bind NCIS civilians. | NCIS is part of the Navy’s investigative apparatus and subject to DoD/SECNAV PCA‑like restrictions. | Yes — PCA‑style limits apply to NCIS and its civilian agents. |
| Did Logan’s RoundUp investigation violate PCA‑like prohibitions on "direct assistance" to civilian law enforcement? | Logan’s statewide, active searching and downloading was a military investigation that exceeded permissible indirect assistance. | Logan merely transferred information and ceased involvement once civilian status was known; his conduct was indirect/covered by military exception. | Yes — the statewide, active probe constituted prohibited direct assistance and violated PCA‑like restrictions. |
| Is suppression (exclusionary rule) the appropriate remedy for the statutory PCA violation? | Suppression is warranted to deter future PCA violations and vindicate statutory/constitutional concerns. | Suppression is an extraordinary remedy; government argues (later) exclusion never warranted absent constitutional violation and urges deference/self‑correction. | No — suppression denied. Court exercised discretion, concluding deterrence not shown given institutional confusion, remedial steps, and high societal costs of exclusion. |
Key Cases Cited
- United States v. Chon, 210 F.3d 990 (9th Cir.) (NCIS bound by § 375; PCA‑like restrictions apply)
- United States v. Hitchcock, 286 F.3d 1064 (9th Cir.) (PCA‑like limits and military‑purpose exception analysis)
- United States v. Roberts, 779 F.2d 565 (9th Cir.) (exclusionary rule for § 371–378 violations only when deterrence necessary)
- Hudson v. Michigan, 547 U.S. 586 (2006) (exclusionary rule is remedy of last resort; weigh costs/benefits)
- Sanchez‑Llamas v. Oregon, 548 U.S. 331 (2006) (exclusionary rule primarily deters constitutional violations; statutory suppression rare)
- Davis v. United States, 564 U.S. 229 (2011) (rigorous assessment of exclusionary rule’s deterrence justification)
- United States v. Ganoe, 538 F.3d 1117 (9th Cir.) (no reasonable expectation of privacy in files shared via P2P software)