United States v. Comprehensive Drug Testing, Inc.

categori- of a rule promulgation the BOP’s prior inmates with certain

cally excluding early eligibility. release

convictions from arguments appeal on rationaliza- impermissible post-hoc

are in Ar- precedent

tions. follow the set We the district

rington, and reverse court’s corpus petition.

denial of habeas Crickon’s grant the district court to

We remand for petition

Crickon’s and instruct BOP to eligibility early

reconsider Crickon’s 3621(e)(2)(B) § without re-

release under voluntary

gard prior to his conviction

manslaughter. AND REMANDED.

REVERSED America,

UNITED STATES

Plaintiff-Appellant,

v. TESTING,

COMPREHENSIVE DRUG

INC., Defendant-Appellee.

Major Players League Baseball

Association, Petitioner-

Appellee,

v. America, Respondent-

United States of

Appellant.

In re Search Executed Warrants 8, CDT,

April Inc., 2004AT re, Plaintiff-Appellant, Seal 2, Defendant-Appellee.

Seal 05-10067, 05-15006,

Nos. 05-55354. Appeals,

United States Court of

Ninth Circuit.

Argued and Dec. Submitted 2008. Aug.

Filed Wilson, by Joseph Douglas As-

Argued Attorney, Fran- States San sistant United CA, cisco, joined on the briefs who was Frick, Erika R. Assistant United States Francisco, CA, for the Unit- Attorney, San ed States. Peters, Keker & by Elliot R.

Argued Francisco, CA, LLP, who Van Nest San David joined on the briefs J. Sil- LLP, bert, San Fran- Keker & Van Nest CA, cisco, Balogh, Ethan Atticus Cole- and Francisco, CA, LLP, Balogh San man & Players Major League Baseball for the Association. Bancroft, & Bancroft

David P. Sideman LLP, Francisco, CA, Jeffrey C. San LLP, Hallam, & Bancroft San Sideman Francisco, CA, Comprehensive Drug Inc. Testing, Buscemi, & Bocki- Morgan, Peter Lewis DC, LLP, curi- Washington, for amicus us of the United ae Chamber of Commerce States. KOZINSKI,

Before: ALEX Chief KLEINFELD, J. Judge, ANDREW GRABER, P. KIM McLANE SUSAN FLETCHER, WARDLAW, W. PAEZ, S. RICHARD A. MARSHA CALLAHAN, BERZON, M. CONSUELO SMITH, BEA, T. MILAN D. CARLOS IKUTA, JR. and SANDRA S. Circuit Judges. Inc., KOZINSKI; Judge laboratory.

Opinion Chief CDT maintained the and Partial Dissent players Partial Concurrence list of their respective test CALLAHAN; Partial by Judge results; Quest kept specimens the actual by Judge and Partial Dissent Concurrence on which the tests were conducted. BEA; IKUTA. Dissent During investigation, the Baleo federal authorities learned of

KOZINSKI, ten who Judge: had Chief positive tested in the CDT program. The investigation This case is about a federal grand jury subpoe- secured a by professional into steroid use baseball na in the Northern District of California however, players. generally, More it’s seeking “drug testing spe- records and procedures safeguards about the pertaining Major cimens” League Base- issuing federal courts must observe in possession. ball CDT’s CDT and the administering search warrants and sub- Players negotiate tried to a compliance poenas electronically stored informa- agreement but, tion. with the when failed, negotiations quash moved to Facts subpoena. The facts complex underlying this case day The that the motion to quash was are inup panel’s opinion well summed filed, government obtained a warrant dissent, and and we refer the interested in the Central District of California autho- reader there for additional information. rizing the search CDT’s facilities Comprehensive Drug United States v. Long Beach. Unlike the subpoena, the (9th Inc., Cir.2008). Testing, 513 F.3d 1085 warrant was limited to the records of the key We reiterate here facts. players ten as to government whom the the federal government com- probable had cause. When the warrant investigation Bay menced an into the Area executed, however, was government (Baleo), Cooperative Lab it suspect- promptly seized and drug reviewed the providing professional ed of steroids to testing players records for hundreds of players. year, Major baseball That (and Major League great many Baseball League Players Baseball Association also people). other bargaining agree- entered into a collective The also obtained a warrant Major ment with League provid- Baseball from the District of Nevada for the urine ing suspicionless for drug testing of all samples drug on which the tests had been players. samples Urine were to be collect- performed. kept Quest’s These were at during year agreement ed the first of the facilities in Vegas. Subsequently, Las sample and each was to be tested for government obtained additional warrants players banned substances. The were as- at Long records CDT’s facilities in anony- sured that the results would remain Quest’s Beach Vegas. and lab in Las Fi- confidential; purpose mous and of the nally, served CDT and testing solely to determine whether Quest subpoenas with new in the Northern more than percent five tested California, demanding District of produc- positive, in which case there would be ad- tion just of the same records it had seized. testing in ditional future seasons. Players CDT and the moved the Cen- Comprehensive Drug Testing, Inc. California, pursuant tral District of to Fed- (CDT), business, independent an adminis- 41(g), eral Rule of Criminal Procedure program speci- tered the and collected the return players; property mens from the the actual seized there. tests Quest performed by Diagnostics, Judge Cooper were found that the Discussion comply procedures had failed and, on that basis the warrant specified apparent, reasons that will become For others, property returned. ordered and below consider the three orders we don’t Cooper to this as the Order. will refer We Rather, we consider the chronologically. first, Mahan Order next Cooper Order Players subsequently and the CDT Quashal Throughout, and the Illston last. Nevada, pursuant in the District of moved our dis- opportunity guide we take Procedure Federal Rule of Criminal proper magistrate judges trict and property seized 41(g), for return administration of search warrants by that district the warrants issued under electronically jury subpoenas for grand matter Ma- court. The came before information, proper so as to strike a stored han, granted the motion and ordered who legiti- between the balance property to return the it mate interest in law enforcement and seized, exception with the of materials had privacy property people’s right to to the ten identified baseball pertaining effects, guaranteed by papers their will refer to this as the Ma- players. We the Fourth Amendment. han Order. Cooper Order Players finally moved CDT judge panel unanimously The three held California, pursu District of the Northern government’s appeal from the Rule of Criminal Procedure ant to Federal untimely. Cooper Comprehen- Order was 17(c), subpoe the latest round of quash 1096-1101, Drug Testing, sive by Judge matter was heard nas and the agree panel adopt 1128. with the and We (The and original subpoena, the Illston. issue, analysis no seeing reason it that in quash was filed motion Re- pages to burden the of the Federal us.) ruling, Judge In an oral before aren’t by re-doing panel the porter work subpoenas. quashed Illston We will basis, already performed so well. On that Quashal. as the Illston refer to this See government’s appeal dismiss the No. we Garner, Dictionary A Bryan A. Modern of 05-55354. (2d ed.1995). Legal Usage American This does not end our discussion of the judges expressed grave All three below Order, however, it has Cooper because han- dissatisfaction with remaining consequences substantial dling investigation, going some so cases before us. As Thomas two government far to accuse the manip- as of dissent, pointed panel out in his once the misrepresentation. gov- ulation and final, Cooper govern- Order became appealed ernment nevertheless all three ment became bound the factual deter- panel and a divided court orders our against byit minations and issues resolved the Mahan Order and the Illston reversed Drug Testing, Comprehensive that order. Quashal, (unanimously) but found that the Specifically, Judge at Coo- appeal Cooper from the Order was untime- per government found that failed to ly. Upon eligible judges, a vote of we took with the of the warrant comply conditions it, luck the case en banc. As would have as to designed segregate information original on judges none the three probable had cause government which the court. panel swept up only was drawn this en banc be- from that which was Nevertheless, rely heavily government we on their didn’t have the time cause the segregate or facilities to it at the time and resolving work the case now before us. hazards, at 4. place Cooper By reciting of the seizure. Order these Relatedly, Judge Cooper determined that strong ment made a case for off-site exam- comply failed to with the government segregation ination and of the evidence prec outlined our venerable procedures seized. The sought the au- Tamura, edent, United States v. 694 F.2d thority considerably to seize more data (9th Cir.1982), designed which are to than cause, that for which it had probable purpose pro much the same as the serve including computers various or computer Finally, cedures outlined in the warrant. media, hard storage drives and related Judge Cooper concluded that the govern to have the information examined seg- displayed ment’s actions a callous disre regated environment, in a “controlled such viz., gard rights parties, for the of third laboratory.” law enforcement While those as to whom the point any did not specif- already probable did not have cause and dangers CDT, ic associated with which is could personal profes who suffer dire after all a legitimate business not suspect- consequences sional from disclosure. any ed of wrongdoing, it nevertheless The affidavit the first search supporting a strong generic made case that the data warrant, sought the one that drug in question could not thoroughly exam- testing suspected records of the ten base- segregated ined or spot. an players, ball contains extensive intro- surprisingly, Not the magistrate judge precedes any spe- duction that information persuaded showing and grant- cific to this case. The introduction seeks data, ed authority broad for seizure of justify rec- broad seizure including right to remove pretty much by explaining generic ords from CDT any computer equipment retrieving data that found CDT’s hazards are stored essence, electronically. Long facility, along any Beach data explains, computer disguised files can be devices, manuals, storage logs or related ingenious ways, number of the sim- materials. The warrant also authorized plest give of which is to a misleading files government agents to examine all the data (pesto.recipe blackmailpho- name lieu of computer equipment contained tos) (.doc or a false extension in lieu .jpg of devices, storage attempt and to to recover addition, .gz). might the data be or restore hidden or erased data. The hidden; erased or there might booby be however, magistrate, wisely made such traps that “destroy or alter data if certain subject broad seizure to procedural certain procedures followed,” are scrupulously safeguards, roughly based on our Tamura 3; at Warrant Affidavit certain files and Thus, opinion. was first programs might not at all be accessible required to computer equip- examine the software, proper without the may storage ment and at devices CDT to deter- computer not be available on the that is mine pertaining whether information to searched; being there simply be too the ten identified be “e[ould] much information to be at the examined searched on-site in a reasonable amount of site; might encrypted or data be or com- time and jeopardizing ability without pressed, requiring passwords, keycards or preserve to the data.” Id. other external devices to retrieve. at The warrant significant also contained represented 4. The also restrictions on how the seized data were to “[sjearching computer systems requires be handled. procedures These were de- precise, procedures the use of scientific signed to designed beyond which are to maintain ensure that data integri- ty of the evidence.” scope of the warrant would not fall into the of Thus, the wholesale seizure disapproved agents. We investigating

hands of the gov- segregation particularly and and the initial review the documents by the inves- conducted was not be materials data failure to return the ernment’s by “law enforce- agents but tigating case object the search once not the of were searching and trained in personnel ment Id. at 596-97. they segregated. had been person- (‘computer data seizing computer However, suppress no reason to we saw nel’),” job it would be to determine whose just because properly seized materials segregated on- the data could be whether than au- had taken more computer personnel These site. —not future, For the by the warrant. thorized authorized specifically agents case —were the com- suggested that though, “[i]n we location to all the data on to examine instances where documents paratively rare much had to be seized determine how intermingled they cannot feasi- are so search. More- integrity ensure site, ... the Govern- bly sorted on be over, personnel deter- if the the docu- seal[] hold[] ment[should] data did not “fall within mined that by magistrate of approval pending ments any pursuant the items to be seized search, in accordance with the a further legally or is not otherwise this warrant in the American Law procedures set forth seized,” government was to return Pre-Arraign- Code of Institute’s Model period items “within reasonable those Id. at 595-96. “If the ment Procedure.” days from the date time not to exceed 60 transporting for the documents need authorization unless further seizure search,” prior known to the officers Subject from the Court.” obtained [was] continued, “they may apply specific we assurances, representations to these removal of large-scale authorization for authorized the Magistrate Judge Johnson material, granted by which should seizure. only where issuing the warrant magistrate order, A word about Tamura is infeasible and no other sorting on-site it. good place any as as this seems alternative exists.” Id. practical Tamura, 1982, just preceded decided in age, and all of the dawn of the information suggestion response doubt in to this No paper. the records there were on Tamura, here seek did authorized to seize evi- government was seg- sorting authorization for advance by Ta- payments dence of certain received But, regating the seized materials off-site. among mura from the records of Marube- found, Cooper the items “[o]nce ni, identify To the materials employer. his seized, requirement were the War- pertaining payments involved a rant that seized items not covered step procedure: Examining comput- three segre- and the warrant be first screened transaction; lo- printouts identify er a personnel was com- gated by computer cating the voucher that to that pertained Brushing aside an offer pletely ignored.” cor- payment; finding the check that by personnel provide on-site CDT 694 F.2d at responded to voucher. to the ten pertaining information identified government agents 594-95. soon re- The copied players, government baseball long process alized that this would take parties what from CDT’s Maru- they got help time unless from the “Tracey Directory” have called the employees present. beni were The who contained, words, in “infor- Judge Cooper’s refused, however, steadfastly employees, hundreds involving mation and test results agents so the seized several boxes players and athletes en- of other baseball in dozens of file drawers to be sorted out professional sports.” in gaged other their offices their leisure. CDT, by phone, § for contacted Procedure 4425 (Supp.1996)). Counsel The de- per- in that “all material not pleaded vain Cooper terminations and Illston Or- taining specific items listed significant ders are because orders the by warrant reviewed and redacted government appeal does contain similar it Magistrate Special Master before was findings government’s as to the conduct. Instead, by seen the Government.” government The cannot contest those rul- agent case “himself reviewed the seized if it ings by is bound the identical rulings computer data and used what he learned Cooper and Illston Orders. subsequent search to obtain the warrants California, in Northern issued Southern 2. The Mahan Order California, Judge Cooper and Nevada.” Judges Illston, Like Cooper and that, in conducting also found the seizure Judge-Mahan determined that gov “[t]he did, it the manner Government “[t]he callously ernment disregarded the affected disregard demonstrated callous players’ rights.” constitutional Judge Ma rights persons of those whose records han also concluded that and searched outside the war- were seized “unreasonably] ... refuse[d] follow the rant.” procedures set forth in United States v. noted, previously As upon Tamura ... learning that drug-test timely appeal Cooper failed Order ing records for the ten athletes named in by is therefore its factual bound deter- original April 8 warrants executed at legal rulings. minations and The Quest and at were intermingled [CDT] appeal ment also failed to another ruling records other athletes not named by Judge Illston that ordered return of the in those warrants.” We can and do uphold Tracey directory all copies thereof. findings these based on the preclusive ef We will call this the Illston Order. It held fect of the Cooper and Illston Orders. government’s segre- unlawful the failure to However, because the matter important, gate data covered the warrant any quibble and to avoid about the proper simply data not covered it because both preclusion, scope we also dispose of the types intermingled Tracey were di- government’s contrary arguments. conclusion, rectory. reaching Judge necessarily rejected Illston ar- Compliance A. with Tamura gument scope about the of the warrant the made before Mahan. government argues did com- it The Illston therefore preclusive Order has ply procedures with the articulated in Ta- legal questions effect on the core resolved mura, not required but was to return Order, viz., in the Mahan it showing data found steroid use by other data, segregate intermingled failure to as baseball because that evidence was required by Tamura. plain view once agents ex- Tracey amined the Directory. Officers when, preclusion Issue attaches may lawfully seize evidence of a crime that here, “the first and second action involve view, plain is in the government argues, application principles of the same of law to it .obligation and thus had under no. Tamu- an fact setting complete historic that was property. ra to return that The warrant adjudication.” the time of the first contemplated even Co., eventuality, says this Steen v. John Hancock Mut. Ins. Life (9th Cir.1997) government, the it n. 5 when excluded from (quot 913 the ing Wright, obligation property any 18 Charles A. Arthur R. to return that Miller Cooper, & Edward H. legally Federal Practice & “otherwise seized.” govern- ferring any to evidence Judges Coo- the fact Putting aside Illston, entirely indepen- courts issued retain whose ment is entitled to and per final, orders are now and whose warrants dent of this seizure. any rate too it is

rejected argument, this result, govern- illogical avoid this To point of the Ternura by half. clever should, applica- in future warrant ment privacy maintain the of to procedures is tions, plain view reliance on forswear intermingled with seiza- that are materials doctrine that would doctrine or similar materials, turning a limit- to avoid ble to which it has allow it to retain data into a information particular ed search required only because it was gained access systems file of office search general from non-seizable seizable segregate to government If the computer databases. consent If the doesn’t data. con- may be whether data can’t be sure waiver, judge magistrate to such booby- or cealed, erased compressed, the seizable and non- should order carefully examining the without trapped indepen- an separated by be seizable data have no every file—and we contents supervision party dent third under proposition general this cavil with —then court, deny altogether. the warrant to government chooses everything the automatically will, theory, under this seize addition, perfectly appro- In it is while plain into view. Since come application to ac- priate for the warrant ultimately how much agents decide ment issuing judicial officer with the quaint the take, powerful create a actually this will and de- theoretical risks of concealment more rather them to incentive for seize evidence, struction at the list of all Why stop than less: fairly degree actual must also disclose the can you when seize baseball to the presented of such risks the case just that Tracey Directory? Why entire case, example, judicial officer. this entire hard drive? directory and not the application presented the warrant not the one in Why just computer this the numerous theoreti- Johnson discussed room and the next room after the next destroyed, might cal risks that the data computer? find the Seize the that? Can’t Comprehensive but failed to mention that in the room where Zip disks under bed keep the data Drug Testing agreed had have See might once been. subpoe- quash intact until its motion to Hill, F.Supp.2d United States by the Northern na could be ruled on (C.D.Cal.2004). everything Let’s take court, and that the Unit- California district lab, good have a look around back Attorney’s accepted Office had ed States might upon. what we stumble and see This omission created representation. this mockery make a of Tamura This would that, impression the false unless the data carefully crafted safe- and render once, was seized at it would be lost. Com- District warrant a guards the Central at 1132 prehensive Drug Testing, 513 F.3d rejected judges All below nullity. three (Thomas, J., dissenting). pledges Such construction, good reason. obviously highly rele- data retention are in the warrant cannot be read phrase One determining whether a warrant vant eviscerating parts, other and, so, scope at all if what needed legal- if would be the result the “otherwise If the believes should be. ly language permit were read to seized” unreliable, may say to be it pledges such keep anything one of its why. omitting But such explain so and agents happened performing to see while altogether information highly relevant analysis of a hard drive. The forensic duty of with the plausibly more construed as re- inconsistent phrase is application. computer specialist effort a dedicated a warrant presenting candor any or other of candor separate government A lack data for which the application shall of the warrant aspect probable everything had cause from else in heavily against government the bear Instead, Tracey Directory. the as soon as motion to re- any subsequent calculus of Tracey Directory the was extracted from the seized data. suppress turn or computers, agent CDT case as- it, sorting, segregat- sumed control over examined the list of Finally, process separating decoding and otherwise ing, professional players all baseball and ex- warrant) (as data defined seizable the names of who had tested tracted those designed to data must be other positive Comprehensive steroids. See purpose that purpose that achieve (Thom- Testing, at Drug 1134-35 Thus, is allowed only. government if the as, J., Indeed, dissenting). to ten pertaining information seize at hearing Judge ment admitted before names, protocol must be de- the search that taking Mahan “the idea behind [the pertaining to those signed to discover data Tracey copy Directory] was to take others, not to and not those only, names briefly peruse it and later on it to if see illegality. For exam- pertaining to other anything beyond there was above and that sophisticated has ple, which was authorized for seizure in the disposal that allow the hashing tools initial The agents warrant.” illegal files identification of well-known obviously counting were on the search to (such actual- pornography) as child without bring constitutionally protected data into ly opening the files themselves. These plain investigating agents. view of the may not be used and similar search tools authorization in the war- specific without wholly unnecessary But it was for the rant, permission may only be and such agent case to view data for which the to believe given probable if there is cause already did not have probable that files can be found on the elec- such agent cause because there an at the was tronic medium to be seized. specially comput- scene who was trained in ini- agent er forensics. This did make an by Computer Per- B. Initial Review tial determination that the CDT sonnel containing Tracey Directory could comply The also failed on-site, segregated be searched and procedure speci- important with another copy Tracey that it would be safe to warrant, namely “computer fied than Directory, seizing rather the entire initial review of the personnel” conduct the computer. copy After that hard drive or segregate materials not seized data and made, however, it was turned over to object the warrant for return to agent, specialist the case and the did noth- noted, Judge Cooper their owner. As ing segregate target further to data procedures were com- found these swept up simply from that which was be- rather, pletely ignored; agent the case nearby commingled. cause it was immediately per- rooted out information sequence supports suspicion of events taining professional to all baseball in the warrant about representations generate it additional warrants and used to necessity authority for broad to seize subpoenas investiga- to advance the designed give gov- materials were the same. The tion. Illston found profes- ernment access to the full list of analysis, record reflects no forensic lab no players and their confiden- sional baseball decryption, no defusing booby traps, no certainly drug testing no tial records. cracking passwords segregate gov- the data. The argues that it didn’t examine and government The because the protocol the warrant that com- agree violate ernment must also such specify only computer that warrant didn’t any will not communicate puter personnel files, examine the seized could personnel during segrega- the they information learn entitled agent the case was therefore approval absent further of the process tion alongside computer spe- them the to view court. This, It again, sophistry. once cialist. judicial issuing At the discretion of the that represent make no would sense officer, depending on the nature and personnel seg- would be used to sensitivity of the interests in- privacy if regate investigatory personnel data were volved, computer personnel question the all the data seized. going also to access may government employees indepen- be or point? be the The What would parties dent third not affiliated with the ment doesn’t need instruction from the judicial government. issuing The officer what kind of to use employees court as to may appoint independent expert spe- an or purposes; representa- to serve its own the supervise cial master to conduct or the computer person- tion in the warrant that and redaction of the data. segregation segre- nel would be used to examine and one, a where the party case such as this gate obviously designed the data was issuing magistrate subject suspected to the warrant is not reassure sweep up large quan- wouldn’t government crime, privacy and where the interests hope up dredging tities of data parties who are not of numerous other lawfully information it could not otherwise suspicion wrongdoing under of criminal Judge Cooper gov- seize. found that the search, implicated by presump- are utterly ernment failed to follow the war- segregation tion should be that the protocol. Judge Illston found rant’s also by, data conducted or under the will be seizure, in callous of, supervision independent close an third Amendment, disregard of the Fourth party by selected the court. clearly reached information not covered (and, segregated Once the data has been findings binding a warrant. These are redacted), necessary, if government, simple but common sense agents investigation may involved in the precisely leads to the same conclusion: only examine the information covered an This was obvious case deliberate the terms of the warrant. Absent further overreaching by in an ef- judicial authorization, any remaining cop- fort to seize data as to which it lacked or, destroyed must long ies be least so probable cause. they may lawfully possessed by as against guard To such unlawful conduct seized, they party from whom were re- future, application the warrant along physical turned with the actual medi- include, normally issuing ju- should or the (such may um that have as a been seized insert, protocol dicial officer should a computer). hard or drive preventing agents involved in the investi- copies not retain of such returned gation examining retaining any data, specific judicial unless it obtains au- than that probable data other for which Also, thorization to do so. within time in- procedure might cause is shown. The warrant, specified which should be volve, case, requirement practicable, as soon as segregation by specially be done provide issuing must officer with computer personnel trained who are not disclosing precisely return what data it has investigation. involved It should be search, personnel may consequence made clear that those obtained as a by erty: The former is limited the exclu- party it has returned data and what rule, return latter not. sionary seized. The is United it was from whom Calandra, 338, 6, that the a certifícate 414 n. include sworn States v. U.S. 348 must destroyed or returned 613, (1974), has 38 L.Ed.2d 561 94 S.Ct. not entitled to it is of data copies 727, 728, Payner, 447 U.S. United States believes it is If the keep. 7,& n. 100 S.Ct. 65 L.Ed.2d 735-36 prob- to which no to retain data as entitled (1980), sup- addressed the 468 Court original in the war- was shown able cause return, not the of seized materi- pression, rant, justify a or may it seek new warrant perhaps detail obscured because the als—a by some means warrantless seizure 41 version of Rule then existence ad- plain view. other than suppress and motions dressed motions to return the same subsection. Lest Rule of Proce- C. Federal Criminal any these there be doubt are 41(g) dure cases, note that suppression Calandra long 41(g) held that Rule We have return, availability a used the of motion to obtaining means of appropriate is an remedies, as a among other reason the by improperly seized property return of exclusionary rule need not apply grand Ramsden v. United government. jury 414 at n. proceedings. See U.S. 354 Cir.1993). (9th States, Though 2 F.3d 322 Payner, which 94 S.Ct. 613. never of a motion under a Federal Rule styled as return, 41 mentions Rule or a motion to Procedure, when the motion is Criminal simply supervisory power held that “the against whom no criminal by party made a a sup- does not authorize federal court to brought, such a motion charges have been evidence press otherwise admissible on the petition a that the district court is fact ground unlawfully that it was seized jurisdiction. Id. equitable invoke its civil not before the court.” party third that the agree panel at with the 324. We rule U.S. S.Ct. This has case did not abuse its district court no relevance here because no motion to choosing ju to exercise that discretion 41(h) suppress, whether based on Rule or Drug Testing, Comprehensive risdiction. supervisory power, is before us. at 1104. than 41(g) That Rule is broader 41(g) government argues that Rule be in exclusionary longer rule can no doubt designed it is not inapplicable is because light of the 1989 amendments which suppression motion. But be used as authorize a motion to return explicitly Players are not CDT and the Association property “person ag on behalf of seeking suppressed, to have evidence by an unlawful search and seizure grieved Rather, they are not criminal defendants. deprivation prop property prop- to return by forcing 41(g) (emphasis erty.” Fed.R.Crim.P. seized, properly it not CDT erty that had added). language designed This to ex integrity of its business preserving coverage proper the rule’s to include pand Players protecting Association is and the advisory ty lawfully seized. See id. com well-being economic of its privacy goes saying mittee notes. It without members, easily if impaired which could be sup lawfully seized evidence release the test were to pressed. dragnet. swept up results property un The return of seized

Judge Ikuta’s dissent overlooks exclusionary 41(g) Rule and the rule der a motion to crucial distinction between fundamentally purposes. different prop- a motion for return of serve suppress and interest; ownership of an speaks ensure that law enforce- nowhere Suppression helps adhere to constitutional personnel rather, terms, ment plain it authorizes them, and the by denying norms anyone aggrieved by deprivation prop serve, property they the benefit ment Here, Players erty to seek its return. 41(g) Rule unlawfully seized. is aggrieved by the seizure as Association is or property with those whose concerned specimens the removal of the and docu impaired by are the sei- privacy interests negotiated agreement ments breaches its only to criminal Suppression applies zure. confidentiality, for violates its members’ ag- the class of defendants whereas those privacy interests and interferes with the illustrates, be, can as this case grieved operation of its business. NAACP Cf. much broader. Patterson, 449, Alabama ex rel. 357 U.S. importantly, judicially-im Most 458-60, 2 78 S.Ct. L.Ed.2d 1488 scope on the of the ex posed restrictions (1958). event, any again we are bound judicially-created a clusionary rule —itself by preclusive effect of the Illston and remedy applicable to orders for —are Cooper orders. au property return of which derive their only fairly The factor Ramsden dis- thority Rules of Federal Criminal ' (4) pute is whether enabling legislation. Procedure and their disregard rights showed a callous not, event, question prop is This erly in the case now before us: presented parties. Judge third Mahan concluded government may uses the make of What it every did—as did other district Quest during pro evidence a criminal judge question. who examined the There ceeding must be decided in the context of ample support evidence to this determi- if proceeding, such when and criminal nation, even if the government were not charges brought against any are of the finding Cooper bound that same players. and Illston a factual finding, Orders. As Ramsden,

Under the district court is we only review such determination required discretionary to balance four fac- Coldicutt, clear error. SEC v. F.3d 258 tors to determine whether to allow the (9th Cir.2001). 939, 941 We find none property, to retain the order here. (as Ramsden) it or happened returned Contrary dissenting colleagues’ to our a compromise craft solution that seeks to matter, view of the Ikuta dissent at 11924- parties. accommodate the interests of all 41(g) contemplate Rule does indeed (1) Players plainly ag- Association is judges may that district order the return grieved by deprivation, Fed.R.Crim.P. (2) originals, any copies, as as likely well 41(g), irrepa- Rule to suffer circumstances, if injury rable it’s not returned. And as seized evidence: “In some judge panel recognized, gov- the three however, equitable might considerations (3) ernment has conceded the lack of an justify requiring an order adequate remedy Comprehensive at law. destroy copies return of records Drug Testing, F.3d at 513 that it has seized.” 41 ad- Fed.R.Crim.P. (1989 visory committee notes amend- Judge Ikuta is thus mistaken when ments). What circumstances merit this suggests Players she that the Association remedy is left to the discretion of the bring 41(g) is not entitled to motion instance, district court the first and our it property because lacks a interest review of limited the Illston this issue is samples bodily urine and other fluids. n. 2. preclusive Ikuta dissent at 11924-25 The rule Order’s effect. however, and we will reverse if that discretion preclusion, we

Apart from Jury abused. In re Judge Mahan abused his has been Grand Pro- cannot see how (9th Cir.1994) ceedings, F.3d by concluding “equitable discretion curiam). sequestration and required (per considerations” The risk to the copies. return of quashed af- Judge subpoena Illston disclosure, associated players Cooper ter both the and Mahan Orders. ability Players Associ with that the subpoena Illston described the voluntary compliance with ation to obtain after “served had obtained fu testing from its members drug ... evidence which has been determined Indeed, ture, some very high. illegally now to have seized.” been Under already very to have suffered appear circumstances, Judge regarded Illston government’s sei harm as a result of an subpoena as unreasonable “insur- Schmidt, See, Michael S. Ortiz e.g., zure. policy” having ance seized materials un- — Doping to Be on 2003 and Ramirez Said lawfully, subpoenaed then 2009, Al; List, Times, 31, at July N.Y. very in attempt same materials an Schmidt, Is Said to Have Michael S. Sosa proceedings moot future for a return 2003, Times, N.Y. June Tested Positive in property. Manning Corp. of J.B. Cf. Bll; Schmidt, 17, 2009, S. Rod Michael (9th States, Cir.1996). 86 F.3d 926 United 2003, N.Y. to Test Positive riguez Said It per isn’t se unreasonable to 8, 2009, Times, February Judge at Al. investigation using conduct an both search certainly did not abuse his broad Mahan subpoenas. E.g., warrants In re balancing equities. these discretion Jury Subpoenas Grand Dated Dec. Judge Mahan an affirm We (9th Cir.1991). 851-55 When, here, ground as well: alternative presence govern But of substantial possession comes into of of ment misconduct unlawful seizure willfully circumventing or dis evidence (which evidence was absent from In re warrant, in a search regarding limitations Jury Subpoenas) quite properly Grand allowed to benefit from its it must not be determining taken into account when by retaining wrong wrongdoing own subpoena is unreasonable. whether any fruits there evidence or fully obtained Moreover, Judge Illston found court determines of. the district When entire had course of conduct has obtained the evi that the prevent Players As been intended wrongdoing— through intentional dence litigating sociation and CDT from the le good or through rather than a technical This, too, gality original subpoenas. order return of faith mistake —it should evaluating a valid consideration in without the need for balanc property quashal. ordinary in the more ing applicable that is For us to a decision as reverse case. discretion, an abuse of we must have “a Quashal 3. The Illston and firm conviction that the dis definite judg error of trict court committed clear Judge quashed gov Illston it reached.” ment conclusion Coldi under Federal subpoena ernment’s final cutt, 258 F.3d at 941. That standard— 17(c), Rule of Criminal Procedure any circum difficult to meet under if quashal compliance would be authorizes here, satisfied possibly stances—cannot Determin oppressive.” “unreasonable or find light Judge Cooper’s preclusive is met is com ing whether this standard discretion, well-reasoned or- judge’s ings and Mahan’s mitted to the district equivalent pages affirm the Illston of millions of of informa- der. therefore We so, that, Quashal. doing emphasize we tion. pursue is free to while the Wrongdoers and their collaborators warrants, subpoenas investigato- and other have obvious incentives to make data dif- tools, may judi- do ry so whichever find, parties ficult in law- but involved appropriate light cial district is encrypt ful activities also or com- sought, information it must location of the entirely press legitimate data for reasons: fully judicial prior to each officer disclose protection privacy, preservation judicial in other fora to obtain the efforts communications, privileged warding off in- information, related and what same or espionage preventing general dustrial or efforts have achieved. This is no those identity mischief such as theft. Law en- of, example, a require more than we today a far forcement thus has more diffi- seeking to file a second or succes- prisoner cult, exacting and in pursu- sensitive task petition. sive habeas ing of criminal than evidence activities judges More than one involved relatively past. even in the recent they below commented that felt this case legitimate scoop up large quanti- need manipulated by misled data, through carefully ties of and sift it strategy moving from apparent ment’s for concealed or disguised pieces of evi- judicial district to district and officer to dence, recognized. is one we’ve often

judicial in pursuit officer of the same infor- See, Hill, e.g., United States v. mation, fully disclosing and without its ef- (9th Cir.2006). justice forts elsewhere. The cause of will pressing This need of law enforcement judicial if such reactions to best served for broad authorization to examine elec- conduct be avoided can records, persuasively tronic so demonstrat- in the future. original ed in the introduction to the war- case, rant in p. supra, see creates Thoughts Concluding every a serious risk that warrant for elec- This case well illustrates both the chal- become, effect, tronic information will a lenges faced modern law enforcement warrant, general rendering the Fourth retrieving pur- information it needs to irrelevant. problem Amendment can prosecute wrongdoers, sue and and the very simply: way be stated There no privacy parties threat of innocent exactly be sure what an electronic file a criminal At vigorous investigation. contains without examining somehow its Tamura, the time of most individuals and by opening looking, contents —either it and enterprises kept records in their file cabi- software, using specialized key- forensic physical Today, nets or similar facilities. searching word or some other such tech- usually the same kind of data is stored nique. But electronic generally files are electronically, premises. often far from the found on media that also contain thousands storage intermingle Electronic facilities among or millions of other files which the data, making them difficult to retrieve sought-after data be stored or con- thorough understanding without a By necessity, government cealed. efforts filing systems and classification used-—(cid:127) particular require to locate files will exam- something only that can often be deter- many ining great a other files to exclude by closely analyzing mined in a the data possibility sought-after that data controlled environment. Tamura involved are concealed there. a few dozen boxes and was considered seizure; examined, however, Once a file is inexpensive broad but even elec- (as storage today government may tronic media can claim it did in this store case) commingled many pro- with those of other plain view contents are Here, kept entirely separate. or fessionals can and, incriminating, if example, Tracey Directory con- some to search it. Authorization keep drug huge testing tained a number of rec- automatically be- files therefore computer ords, of the ten whom to search files authorization comes probable had cause but an and all files in subdirectory, the same professional hundreds of other baseball neighboring hard directory, a enveloping sports organiza- thirteen other players, drive, nearby stor- nearby computer tions, competi- sporting three unrelated are not computers age media. Where tions, entity— business non-sports other, elec- are connected each but near all, reflecting the test thousands of files justify might tronically, original search an number of people, results of unknown many miles examining computers files in having relationship professional no most theory incriminating elec- away, on a except they had the bad luck baseball shuttled and data could have been tronic having their test results stored on the there. concealed players. same baseball fast, networking cheap The advent Second, very important there are bene- to store information possible has made it storing electronically. Being fits to data locations, where it is third-party at remote up able to back the data and avoid the loss of other users. For intermingled with that fire, earthquake flood or is one of them. keep their many people longer no example, Ease of access from remote locations while comput- personal on their primarily email ability traveling swiftly is another. The er, use a web-based email and instead among professionals, share the data such messages their provider, which stores sending by MRIs for examination a messages from and to along with billions of specialist half-way cancer around the services people. millions of other Similar world, can mean the difference between shows, comput- slide photographs, exist for recovery. death and a full Electronic stor- code, many types of data. As er other longer of data is no a age and transmission result, personal now have data people a rich; luxury very or a of the it’s peculiarity that of innumerable that are stored with way a of life. Government intrusions into of, strangers. example, for Goo- Seizure po- thus have the large private databases in- servers to look for few gle’s email exceedingly in- expose tential to sensitive criminating messages jeopardize could individuals not formation about countless privacy of millions. activity, criminal implicated who that the information might not even know suggest, no answer to as did the It’s can about them has been seized and thus majority three-judge panel, of the nothing protect privacy. do their by hazards not people can avoid these electronically. begin To storing their data then, surprising, It that all three is with, choice about how information is judges severely below were district by often made someone other stored is by government’s conduct in troubled privacy than the whose would individuals Mahan, Judge example, this case. people invaded the search. Most happened ever to the Fourth asked “what doctor, lawyer no idea their have whether repealed it ... some- Amendment? Was paper records in or accountant maintains im- Judge Cooper how?” referred to “the format, they are skillfully moving or electronic whether age of quickly pea.” farm can find the And premises cup on the or on server so no one stored government’s they Judge regarded are Illston Cucamonga, in Rancho whether problem “unreasonable” and found that Tamura’s solution to the of neces- tactics as they constituted “harassment.” sary over-seizing of evidence: When Thomas, too, dissent, panel in his ex- government wishes to obtain a warrant to frustration with the pressed a computer examine hard drive or elec- it a position, calling conduct and “breath- storage tronic in searching medium taking expansion ‘plain view’ doc- files, incriminating certain or when a trine, clearly application has no to search for evidence could result intermingled private electronic data.” see, computer, seizure of a e.g., United Comprehensive Drug Testing, 513 F.3d at (9th Giberson, States 527 F.3d 882 Cir. 1117. 2008), magistrate judges vigilant must be

Everyone’s if interests are best served observing guidance we have set out there are clear rules to follow that strike throughout opinion, our which can be legitimate fair balance between the needs up summed as follows: right of law enforcement and the of indi- Magistrates 1. should insist enterprises privacy viduals and to the government waive upon plain reliance is the heart the Fourth Amendment. digital view doctrine in evidence cases. provided Tamura has a workable frame- p. supra. See 997-98 decades, might work for almost three Segregation 2. and redaction must be well have sufficed in this case had its by specialized personnel either done anor teachings been followed. believe it We independent third party. pp. See 1000-01 useful, therefore, update Tamura to supra. If the segregation is to be done apply daunting realities of electronic government computer personnel, it must nearly always present searches which will agree in application the warrant that the the kind of situation that Tamura believed computer personnel will not disclose to the would be rare exceptional inabili- —the investigators any information than other ty government agents to segregate seiz- that which target is the of the warrant. able from non-seizable materials at the search, necessity scene of the and thus the subpoenas Warrants and must dis- to seize far than actually more author- the actual close risks of destruction ized. information as prior well as efforts to seize that judicial information in other fora. See accept reality We that such 998-99,1003-04 pp. over-seizing supra. an part inherent of the elec process proceed tronic search on the The protocol search that, assumption when it comes to the designed must be only uncover the in- records, seizure of electronic this will be cause, probable formation for which it has far more common than in days that information be exam- paper records. This calls for greater vigi agents. ined the case pp. See judicial lance on the part of in officers supra. 1000-01 striking right balance between the gov government or, 5. The destroy must if ernment’s interest in law enforcement and recipient may lawfully it, possess re- right of individuals to be free from data, turn non-responsive keeping the issu- unreasonable searches and seizures. The ing magistrate informed about when it has process segregating electronic that data done so and what it kept. p. has See 1000- is seizable from that which is not must not supra. become vehicle for the gain access to data which it has Just as Tamura proba guide- no has served as decades, ble cause to collect. In general, adopt post we proce- we trust that the factual is bound prove above will outlined we have dures in contained Coo- end, legal determinations future. In the for the tool useful Maj. , Op. the Illston Order. per Order and sense rely good on the however, must we estop- on the collateral at 997-98. Based judges, magistrate of our vigilance preclusive effect of these or- pel or issue preserving line of in the front who are ders, majority Judge Mahan’s upholds of our citizens freedoms constitutional “ callously findings ‘[t]he legiti- in its assisting while constitu- disregarded players’ the affected activity. criminal prosecute mate efforts “unreasonably] and that it rights,” tional substitute for say could would Nothing we procedures ... to follow the set refusefd] judicial officers judgment the sound upon ... in States v. Tamura forth United delicate bal- striking in exercise must for the drug-testing records learning ance. original April named in the ten athletes Quest and at [CDT] executed at warrants (the Cooper in No. 05-55354 appeal The for other intermingled were with records ” Order) untimely. is dismissed athletes not named in those warrants.’ (the (internal 05-15006 judgments Nos. quotation The at 997 marks omit- Id. (the Order) ted; Illston original). and 05-10067 Neither the Mahan alterations the Illston Order Cooper Order nor has are affirmed. Quashal) effect over our review of the preclusive CALLAHAN, with whom Judge, Circuit Order, and I address each order Mahan IKUTA, Judge, joins, concurring Circuit turn. dissenting part: part and Cooper Order has disagree I that the , majority gov- that the agree I with the respect effect with to the Ma- preclusive Cooper from the Order1 appeal ernment’s temporal The is a problem han Order. appeal case untimely Order, and that entered October Cooper one—the I 1, 2004, be dismissed. preclusive 05-55354 should not have effect number does however, majority’s con- of the Mahan Or- with the over this court’s review disagree, it entered the Ma- in the Coo- der because was findings stated clusion that after Order, September which was entered han have dis- the Illston Order per Order 7, 2004. respect effect with positive preclusive of the Mahan Order.

this court’s review majority relies single case that Cooper Order and the Setting aside the preclu- application issue on for Order, I the Mahan would reverse doctrine, Illston Hancock Mu- Steen v. John sion addition, I would Co., on the merits. Order wheth- Insurance addressed tual Life Quashal. the Illston and remand in an earlier decision had vacate er issues decided dissent, in part, subsequent in a deci- Accordingly, respectfully preclusive I a effect (9th 904, 908-09 Cir. sion. See 106 F.3d majority’s opinion. the from 1997). support proposi- the Steen does I. has a retro- tion that a later-in-time order respect that with on an earlier one.2 majority preclusive holds active effect The presents peculiar case a findings Although the and con- this court’s review of this Order, of the issue backdrop application for the Mahan the stated clusions major- reference, by the language Steen cited adopt majority's 2. The from I 1. For ease of as to the orders re- definition conventions under which ity discusses the circumstances Cooper majority opinion: ferred to Order, Order, Order, the Illston the Median Quashal. and the Illston doctrine, order, preclusion through separate our decision Na- a the district court Company Mutual Insurance v. denied tionwide motion to dismiss (9th Liberatore, Cir.2005), 408 F.3d 1158 and denied Nationwide’s motion for sum- mary a judgment. appeal instructive. Liberatore was member On in the Nation- action, Navy traveling the U.S. who was on orders wide argued that friend, up Ivey, for a picked by his social Nationwide was bound decision evening during trip. Ivey his Liberatore drank action that Liberatore was not drove, causing acting a traffic accident in within the scope employment of his Ivey injuries. accident, suffered serious duties at the time of the which (1) contrary accident resulted two lawsuits: was to the position by taken Na- Ivey’s negligence against action Libera- tionwide in its rejected lawsuit. We tore, the rental car company, attempted application and the Unit- preclu- issue (2) States; doctrine, declaratory ed a relief stating sion “[although Nationwide, action judgment Liberatore’s insur- district court preclusive carries Liberatore, forward, ance company, against effect going operate it cannot States, United rental car company, and bar direct review of an extant judgment.” lawsuit, Liberatore, Ivey. Ivey’s negligence gov- at (citing 408 F.3d Orion ernment for summary judgment Corp. Co., moved on Tire v. Goodyear Tire & Rubber (9th Cir.2001) grounds that Liberatore not acting (holding within the scope employment appeal his and that could not be barred claim sovereign preclusion thus there was no waiver of judgment based on a that post- immunity under the Tort judgment Federal Claims dated the on appeal)). We thus lawsuit, Act. In Nationwide’s Nationwide held that precluded Nationwide was not summary moved for judgment arguing on the appeal on in the Nationwide grounds coverage insurance did not case that Liberatore acted within the exist acting because Liberatore was scope employment, within and we decided that scope employment of his and thus the issue on the merits. Id. (stating that “a government had indemnification responsi- decision judg- entered coincident with the bility; also filed a motion ment appeal, just on as a judgment en- subject juris- dismiss for lack of matter judgment tered after the appeal, ‘can diction. question The central scarcely both law- constitute bar to the instant ” (citation omitted)). suits scope was the employ- Liberatore’s action’ ment. See id. 1160-61. Here, majority’s use of the later-

The district court granted Cooper preclude decided Order to or limit ment’s summary motion for judgment in review of the earlier-decided Mahan Order Ivey’s action, negligence and that order contrary to our opinions well-reasoned appealed. was not day, On the same and in Therefore, Liberatore and Orion Tire.3 I preclusion principles issue extends to of law. 3. The Second Circuit has held that an issue later-in-time, example, non-appealed decided in a legal principle applied For ac- in an preclusive tion can have issue effect on the preclusive earlier action have a effect in prior appeal. decision that is on See Grieve v. a later action if the factual scenario in the Tamerin, 149, (2d Cir.2001) 269 F.3d 153-54 Steen, earlier and later action are the same. (“The effect of the Southern District's final sup- F.3d at 913 & n. 5. Steen does not judgment simply was no different because the port proposition the that a decision in a later Eastern District action was the first to be preclusive action has a effect on an earlier level.”). ruled on at the district court Howev- action. er, adopted we have not this variation of the II. without the Mahan Order review would Cooper effect preclusive issue giving Order, I agree the Mahan Regarding majority’s Order. thor three-judge panel the with (1) the analysis and conclusions ough the majority’s analysis of Although equita exercised its properly district court from the not suffer does Ulston Order jurisdiction under Ramsden v. United ble Cooper by the presented flaw temporal (2) (9th States, Cir.1993); F.3d 322 effect Order, preclusive reliance on display did not callous disre questionable. is also Order of the Alston rights of others gard for the constitutional First, dealt with the Alston Order conducting in its seizure of the materials 30, govern- 2004 warrant April Testing, Inc. Comprehensive Drug from Judge Lloyd to search (“CDT”), to presented gave ment rise to Ma possession, han’s decision and order to return government’s in the flies Quest Diagnostics, materials seized to sought 2004 warrants April (3) (“Quest”); Inc. it was not Quest. This raises search CDT circumstances for reasonable under scope preclusion about the concern the district court to order the return of the actually decided terms of what was subject under Federal Rule of property Second, relies majority Alston Order. 41(g). Procedure See United Criminal Ma- uphold Judge to the Alston Order on Testing, Comprehensive Drug States v. refused finding that the han’s (9th Cir.2008). Inc., 1085, 1103-13 513 F.3d procedures set forth Unit- to follow the here, points I do not restate those but Tamura, 591, 596 v. ed States highlight aspects my disagree write to Cir.1982). (9th But Maj. Op. at 997-98. panel majority’s ment with the en banc finding a clear did not make Judge Alston resolution of the Mahan Order. to adherence regarding government’s respect Judge Mahan’s decision majority upholds Finally, the Tamura. Quest of materials seized from return that “the finding Judge Mahan’s April on 2004 was Vegas, in Las Nevada affected callously disregarded the ment that these materials premised on his view rights” based on constitutional players’ their acquired fruit which poisonous were However, whereas Id. Alston Order. sei- taint as a result of finding disregard” “callous Judge Alston’s materials from CDT intermingled zure of gov- entirely premised almost Beach, majority Long California. seeking issuing subpoenas ernment’s appear to take issue with the here does not courts, district warrants different search seizure and removal government’s physical finding appears Judge Mahan’s CDT, intermingled materials from government’s adherence on the premised “Tracey directory.” including copy a mini- At procedures. the Tamivra with our recommendation Consistent issue mum, powerful a tool as the use of Tamura, government, United States dispari- of such the context preclusion inter- might that it encounter anticipating unwise, Judge Ma- especially where ties is evi- relevant and non-relevant mingled preclusive effect han did not rule on computers dence in its search CDT’s Accordingly, I would not be might the Alston Order. that an on-site search feasible, reliance 2004 warrant April Order without crafted its review the Mahan removal of such for seizure and provide Order. on the Alston not do so sub silentio. preclusion and should issue doctrine (9th Adjani, States v. intermingled evidence for offsite review. 452 F.3d 1140 Cir. (“If See 694 F.2d at 596 2006) the need for (finding permissible the removal for transporting documents is known to the suspect’s off-site search of a computer search, prior they may ap- officers along computer with the of a living woman for ply specific large- authorization for suspect who was not identified material....”). scale removal of Our sub- warrant). sequent computer decisions context Apart government’s from the arguments have approved seizing of units that plain doctrine, related to the view I inter- contain information authorized for seizure pret majority’s primary concern to be and information not described in the war- Agent Novitsky’s Tracey search of the di- rant where an on-site search is infeasible. rectory after it was removed from CDT’s Giberson, See United States v. 527 F.3d See premises.4 Maj. Op. 999-1001. The (9th Cir.2008) 882, 889-90 (holding that majority focuses on statements made suspect’s seizure of computer justified, was Assistant United Attorney States Nedrow despite potential intermingling for hearing at the Judge before Mahan that material, relevant and non-relevant based taking the idea behind Tracey directo- on officers’ reasonable belief that items ry provide Agent was to Novitsky with an enumerated in the search warrant could be opportunity “briefly peruse it to see if Hill, therein); United States v. found there was anything beyond above and (9th Cir.2006) F.3d (stating 975-76 which was authorized for seizure that wholesale seizure of per- materials is initial warrant.”5 Although missible where Nedrow’s lan- support affidavit of war- face, rant provides explanation guage troubling reasonable Agent Novit- why such a seizure United necessary); sky acted with the reasonable purpose of I do not address drug testing here the subdirectory ar- with thousands of files, gument plain indepen- that the view doctrine thousands agents of files on it. And the it, dently justified they its search of the identified materials knew some of those files going were majori- definitely seized from CDT. I to have share some of the information au- ty’s thorized regarding Judge for seizure under application concerns broad Johnson warrant, also, [April they plain frankly, 2004] but view doctrine to the search of com- ability say respect had no puter However, every that with data in this case. there are ridiculous, file. Of course not. It’s it's too other application plain contexts where large. might view appropriate. doctrine be more See, taking So idea behind that was to take it e.g., Wong, United States briefly peruse and later it to (9th see if there was Cir.2003) (applying plain view doc- anything beyond above and that which was discovery trine to pornography of child authorized for seizure in the initial warrant. context of a valid search of a did, Agent And Nivitsky that’s what [sic ] investigation). evidence related to a murder why Agent Nivitsky that’s [sic ] went to below, Accordingly, as discussed I cannot Francisco, Lloyd in San perus- because after majority’s generalized subscribe to the re- ing it he found some documents con- quirement that the foreswear re- tained information for the in the case plain liance on the view digital doctrine in and some lists that contained that informa- evidence magistrate judges cases or that insist tion, players, the ten but he also saw other government. on such a Maj. waiver said, things on okay, there. And he there are Op. at 1006. things positive drug other on here that show plain tests and that’s of interest and as a view 5. Nedrow stated: matter, case, experience based on the I agents, cooperation, some possible [sic] know constitutes criminal activi- CDT, cooperation limited ty had identified on its face going but what I’m to do is I’m subdirectory a set—a employee’s on an going get Judge Lloyd's com- authorization to [sic], puter Tracy named and this seize all these other items.

1011 any explicit anee on the lack of exclusion in of the relevant mate- the location learning en- Tracey directory. Upon “sophistry,” arguing the warrant that “the in the rial incriminating potentially countering representation comput- other in the warrant that directory, sought he Tracey material would be used to examine personnel er and previous- have subsequent warrant. We a obviously designed the data was segregate acceptable. See approach this ly found issuing magistrate to reassure the that the Giberson, (holding that F.3d at 889-90 527 large sweep up quan- wouldn’t denied motion properly the district court hope dredging up tities of data in the pornography of child suppress evidence lawfully it information could not otherwise computer hard drive copied found on a However, Maj. Op. seize.” at 1000. that produc- of the during a search for evidence majority is an inference drawn pursuant identification cards tion of false is but one of several reasonable infer- warrant); Adjani, valid pre- ences.6 The record does not indicate (“There rule ... that evidence 1151 is no cisely why language was included in rightfully officers are up turned while computer specialist may the warrant. The is- properly a location under searching have been included to facilitate the search be- simply must be excluded sued warrant efforts, segregation to ensure that may support the evidence found cause destroyed, not be data would assist (or against a related crime charges for through files, navigation computer contemplated suspect) expressly or to uncover mislabeled or hidden warrant.”). Therefore, majority’s de- purposes necessarily files. These do not government’s actions that the termination require agents. exclusion of other case with Tamura case were inconsistent assuming overreaching by Even some case law. inconsistent with our I would conclude that the government, addition, majority reads the war- property pursuant return of the to Rule specialist, computer that the rant to state 41(g) necessarily appropriate is not computer specialist, per- Advisory relief this case. The Commit- the initial review of the mitted to conduct tee Notes to the 1989Amendments to Rule seized from CDT. commingled evidence 41 all of state that “reasonableness under majority premise, From this concludes the circumstances must the test when a Novitsky’s involvement Agent person prop- seeks to obtain the return of con- initial of the seized materials review States, erty.” Ramsden v. See also United over-reaching.” See stituted “deliberate (9th Cir.1993). These F.3d But, Maj. majority as the Op. at 1000. further state that “[i]f 41(e) 2 erty investigation in an or prosecution.” upheld bered Rule the district 326; F.3d at see also United States v. court’s conclusion that the marshals had (9th Cir.1996) Fitzen, 387, 388 demonstrated disregard callous for 41(e) (“Generally, proper a Rule motion is rights. Ramsden’s constitutional Id. at ly ‘if ... denied need for Although 325-27. we affirmed the district ”) property as evidence continues.’ court’s that government order return Mills, (quoting F.2d United States 991 original to prevent documents Rams- (9th Cir.1993)). 609, government The business, suffering den from harm to his in argument stated its briefs and at oral government, we allowed the in what the that it a continuing has need for the seized majority here calls a “compromise solu- in property ongoing connection with its tion,” to retain a copy of the documents investigation illegal into the distribution ongoing investigative purposes. See id. at professional steroids in baseball. 327; Maj. see also Op. at 1002. Mahan’s order govern did not address this minimum, ment need. At a a remand is Assuming government that over- develop warranted to this issue in the dis case, in reached its conduct was not as in trict court the first instance. egregious as the marshals’ conduct Ramsden, Furthermore, where gov- government per- I would find that ernment’s conduct in this case is not suffi- mitted retain a copy of the documents ciently law, egregious, light of our case ordered to be returned. Unlike the war- to warrant an order that the Ramsden, rantless search conducted return property the seized without retain- sought and received valid ing copies for its investigatory purposes.7 case, search warrants in this but then ar- guably Ramsden, erred its

Our execution of the war- decision F.3d There, circumstances, illustrative. rants. Under these deputy U.S. marshals Rams- a provisional executed arrest warrant for den compromise counsels a solution as at Ramsden his hotel room. The marshals contemplated by 41(g). Rule asked Ramsden to enter hallway I must express several regard- concerns then arrested him. When the marshals ing the majority’s breadth of the new accompanied Ramsden back into the hotel guidelines purport govern future clothes, room to retrieve some mar- digital Maj. Op. evidence cases. See shals seized documents in a contained 1006. Although appreciate I can the ma- They closed briefcase. made this warrant- jority’s desire to set forth a new frame- despite less seizure having opportunity respect work with to searches of commin- to obtain a search warrant and conceded data, gled wary electronic I am of this before the district court “that the search prophylactic approach. majority’s and seizure violated Ramsden’s Fourth prescriptions go significantly rights.” beyond Amendment what Id. at 325. We held necessary the district court it properly invoked its to resolve this case. equitable jurisdiction under then-num- Accordingly, protocols are dicta and Advisory 7. The Committee Notes to "equitable Rule 41 some circumstance under which nothing state that the rule “avoids an might justify all or requir- considerations an order approach whereby ing must ei- destroy to return or copies seized," ther return copies records and make no they it records has keep originals rule, notwithstanding hardship further state that the as amended in Advisory “contemplates judicial owner." Fed.R.Crim.P. action that will Committee respect possessory computer-related technology, which is con- without carry out their work can personnel stantly quickly evolving. Accordingly, authority support that would legal to citing join majority’s approach in the I cannot majori- example, the rules. For these new plain of the view doc- regarding application appropri- why it is now ty explain does digital trine to evidence cases. Fourth Amend- grant heightened ate to in the context of searches protections ment Moreover, majority offers sup- the no on the nature of the based computers requiring segrega- the port protocol for its previ- we have technology involved when by specialized per- data computer tion of See Gi- just opposite. the ously cautioned party. third independent sonnel or an See berson, (declining to at 887-88 527 F.3d 1000-01, Maj. Setting at 1006. aside Op. Amendment Fourth impose heightened legal authority, of supporting the omission as a in search cases protections this new ex ante restriction on law en- ability large to store computer’s result of a investigations prac- also raises forcement infor- intermingled potentially amounts of tical, respect cost-related concerns. With heightened mation, stating that such computer specialist an in-house to using principle on a must be “based protections data, majority’s guideline es- segregate technology-specific”). This is is not that sentially requires that law enforcement that prior from our decisions departure “walled-off,” keep a non-investi- agencies explanation. warrants on for gatory computer specialist staff use jet- addition, majority essentially To com- digital in searches of evidence. digital plain view doctrine tisons agency expand an would have to its ply, cases, requiring magistrate that evidence cost, in- likely significant at a personnel, government waive judges “insist that the computer specialists who could clude both view doctrine upon plain reliance computer spe- data and forensic segregate Maj. Op. at 1006. evidence cases.”8 digital subsequent who could assist cialists however, so, explaining without It does The alternative would be investigation. Supreme Court’s why our case law or the consultant, third independent party use an plain that the suggest case dictate or law significant no doubt carries its own entirely aban- doctrine should view options Both of these would force expense. Instead of digital evidence cases. doned agencies great to incur law enforcement plain view doc- tailoring analysis of the expense, perhaps crushing expense case, majority the facts of this trine to already police departments smaller step casting that doctrine takes the bold budget pressures. face tremendous efficient adopting Rather than this aside. disagree majority’s I decision to prudent approach, overbroad but disagree the Mahan Order. I also the contours of affirm course would be to allow observing guidance” vigilant in set Although majority’s guideline is framed “be insist,’’ magistrate of what a “should majority opinion. Maj. Op. in terms at forth guideline pre- is to practical effect of this hardly magis- can be said that a 11891-92. It majority mandatory procedure. The scribe a guideline in judge trate will cast aside this guideline arguably permis- frames this first warning. light majority's terms, magistrate judges requires but sive majority’s guidelines Jury with the broad Subpoenas Grand Dated Dec. (9th Cir.1991) cases, digital in future searches evidence 854-55 (upholding validity explained grand jury which are not reference to sub- at poenas far served the same time “func- existing go beyond case law and what warrants, tionally equivalent” search majority needs to resolve case. allegedly sought where officers to enforce III. the subpoenas through immediate seizure issue). Finally, I would vacate and remand the Accordingly, materials Quashal. Judge Illston quashed Illston Illston’s conclusion that subpoe- Quest subpoenas two served on and nas were unreasonable is infected her grounds misapprehension CDT their issuance pro- the law did not constituted harassment and abuse of the vide for the simultaneous use of warrants grand jury process and subpoenas. was unreasonable and under Federal Rule of Criminal Procedure legal This error also Judge underlies 17(c). essence, In she stated two reasons Illston’s determination govern- that the (1) quashing for subpoenas: the the sub- ment made an unreasonable tactical deci- poenas “served as an unreasonable insur- pursue sion to search warrants in different policy” govern- ance for materials that the districts in an attempt “prevent” to Judge already ment had through seized the use from ruling White on earlier-issued sub- (2) warrants; of search govern- and the But, poenas.9 as the preceding discussion ment impermissibly executed a series of indicates, government the was entitled to search warrants three different districts parallel seek search warrants subpoe- once it learned that CDT would move to nas, and the use of those judged devices is quash January the subpoenas, and March Therefore, different standards. as the which was a “tactical designed decision” to three-judge panel majority concluded, the prevent Judge ruling White from on the government could sought have the search subpoenas. Judge earlier-served Illston notwithstanding warrants the motion to government’s stated that the tactical deci- quash subpoenas the pending Judge before sion was unreasonable and constituted White, and even if Judge White had harassment. quashed the subpoenas. See Comprehen- sive, at 513 F.3d 1114-15.

Judge based, Illston’s decision was part, legal on the error that govern- the addition, In Judge gleaned Illston ment may not simultaneously seek the government’s intent behind the issuance of same information through grand jury sub- subpoenas her view to harass CDT —in poenas and search majori- warrants. The Quest contemporaneous on its —based ty agrees legal that this Maj. error. See seeking of a series of search warrants. (“It Op. at per 1003 isn’t se unreasonable hearing transcript indicates that to investigation conduct an using both Judge Illston was focused on the search subpoenas.”). warrants and Our ment’s motivations placed the burden case law allows the simultaneous use of on the provide to “a substan- subpoenas light warrants and explanation” tial executing for both search substantial differences between these de- issuing subpoenas, warrants and implying vices, e.g, differing levels of intrusion that doing gave so rise to a presumption person’s privacy, on a ability man- record, faith. bad From the existing it is ner of challenging each device. See In re difficult to discern the actual original 9. As panel majority’s noted in the subpoenas "oppressive.” Compre- were opinion, Judge finding Illston made Drug Testing, no hensive 513 F.3d at 1114 n. 52. May compliance violate some valid issuing subpoe- privi- 6th would motive behind event, indicated, Judge gov- lege. quashing Illston’s reasons nas. provide an obligated subpoenas to were infected ernment was not erro- decision use two view explanation for its neous is not disposal. tools types investigatory employ parallel entitled warrants and result, subpoenas. Quash- a the Illston As prejudice Finally, al should be vacated and remanded an misconception Illston’s Judge prem- on that explanation that is not based failure analyze in her may law be seen ise. subpoenas under the propriety A district court legal correct standard. IV. subpoena “if com- may quash modify I disagree majority’s with the conclusion pliance oppres- be unreasonable or would and the Cooper Order Illston 17(c)(2) (emphasis sive.” Fed.R.Crim.P. preclusive are Order entitled issue ef- added); Berge- also United States v. see (9th Cir.2005). fect with our review of son, connection Mahan Order. On the merits quash court Ma- example, For a district Order, han I compliance destroy would reverse Mahan’s subpoena when would Bergeson, F.3d at decision privilege, valid see because the acted 1225, subpoena reasonably material searching Tracey when the seeks the direc- of a scope legitimate tory. that is outside of the assuming government Even that the In grand jury investigation, see re overreached, Grand the district court’s order for 10, 1987, Dec. Jury Subpoenas Dated 926 property the wholesale return of failed to 854, subpoena F.2d at the would or when government’s ongoing account the need compel to incriminate person a himself information, for the a valid consideration legitimate privacy would violate a interest evaluating when a motion under Rule served, of the see v. person United States 41(g). Finally, Judge because Illston ap- Calandra, 338, 346, 613, 94 414 U.S. S.Ct. pears misapprehended the propri- have (1974). 38 L.Ed.2d 561 government ety using of the both warrants subpoenas, I the would vacate Illston Here, Judge Illston focused on the con- Quashal explana- and remand for further subpoenas temporaneous use of and search Accordingly, tion or proceedings. I re- warrants, improper, is not and the spectfully dissent. conduct,10 did not related but identify aspect subpoenas what of the BEA, concurring Circuit Judge, part would “unreasonable or compliance render dissenting part: not, for oppressive.”11 example, She did agree majority’s analysis I finding with the base on a that the her decision case, presented subpoenas legitimate the issues in this scope ap- exceeded as jury’s investigation plied only.1 of the or that case grand harassment, charge grounds government allegedly 10. In on the the context of repeated already questions has held that the Third Circuit had the answers to to be subpoenas grand jury witness). service of on an individ- asked of the justi- ual does not constitute harassment that Quest Indeed, subpoena. complied quashing subpoena See re 11. with the fies In Grand 96, Matter, (3d 1986) Jury ComprehensiveDrug Testing, F.2d 102 Cir. 802 served on it. See Jury (citing Applicants, re Grand C. F.3d at 513 1094. Sons, Inc., 1022, Schmidt & 1028- however, (3d Bell, agree, Judge 1980)); I Callahan and 29 United Cir. States cf. (7th Cir.1990) Cooper (holding Ikuta that the later-filed Order 902 F.2d 566 preclusive on the grand jury testify not does not have effect earlier- witness could refuse to procedures results, failed to follow either the column containing agent Tamura, right spreadsheet, United States v. 694 F.2d 591 had to scroll on the (9th Cir.1982), However, to another or those outlined screen. once he warrant, right, agent scrolled to the approved which would have re- could see only not testing target- results for the quired to conduct ten, ed but also the results for all of the intermingled computer search of the seized other ballplayers whose technicians, results were listed by using files not spreadsheet. on the investigators. case A “plain valid view” seizure of items Further, I would affirm Cooper, Ma- truly “immediately are apparent” would han, and Illston orders because the seized required agent have display only names at issue in “plain were not view” testing results' for the ballplayers when plain seized. The view doctrine re- warrant, whom he had only seize quires illegality evidence of to be “immedi- illegality evidence of additional if such evi- ately apparent” to the searching investiga- “immediately dence is apparent” part tor. California, Horton v. 496 U.S. the segregated results for ballplay- those 139-140, 110 S.Ct. L.Ed.2d instance, ers. For agent could have (1990). Here, portion spread- spreadsheet selected the rows for the ten (located “Tracey” sheet within the directo- ballplayers warrant, for which he had a ry) which contained drug testing re- copied pasted then those rows into a sults, contained both the names of the ten spreadsheet.2 so, blank If he had done he ballplayers subjects who were the would have seen those drug testing warrant and many the names of other results for which he had a warrant. ballplayers for whom the did probable have cause search and However, as the conceded spreadsheet not, however, seize. The did at oral argument Mahan, before Judge initially display agent’s on the rather than limiting scope the of his search screen the testing results of steroid any as to in way, seizing only that evidence of ballplayers. the To spreadsheet see the illegality “immediately apparent” on the said, filed majority Mahan Order. key, That the Control he would click on the numbers reaches the correct result this case even if spreadsheet on the left side of the that corre- Cooper given preclusive the order is not sponded ef- the rows that contain the names of fect. targeted ballplayers. the containing The rows ballplayers’ those high- names would become 2. spreadsheet The record the reveals was in lighted. Novitsky would then release the Agent Novitsky Microsoft Excel format. key. go Control top He would next to the spreadsheet viewed the April on or about screen, menu, the click on the "Edit” and time, By that Microsoft Excel was the Then, "Copy.” choose he would click on the widely spreadsheet most application used screen, "File” top menu at the the and available for Microsoft Windows and Mac OS "New choose Blank Workbook.” When the operating systems. X http://en.wikipedia. See spread-sheet new appeared blank on the orgAviki/MicrosofLExcel. Microsoft Excel be- screen, he would click on the "Edit” menu in commercially came available in and spreadsheet the new blank and choose currently http:// $229 sells for retail. See "Paste.” targeted The rows of the ten ball- office.microsoft.com/en-us/excel/FX original spreadsheet selected in the .aspx. only and appear those rows—would in the Excel, scrolling spreadsheet. Novitsky Microsoft new to avoid to the would then scroll right viewing right the spreadsheet results column for to the in the new all of blank ballplayers just the targeted only testing instead of for would see results for the ten, Agent Novitsky targeted had ballplayers to do was the proba- for whom he had following: depressing While holding ble cause to search and seize. Novitsky some other article of incrimina- across up, Agent he called screen first character.... right ting volitionally scrolled intentionally and having without first in com- spreadsheet, ‘plain on the view’ cases have What files, “to police in each of responsive mon is that officer segregated prior justification above and be- had a for an anything was them see if there serves to yond which was authorized seizure intrusion.... doctrine that justification— supplement prior warrant.” This demonstrates the initial it be a for another illegality whether warrant evidence the seized object, pursuit, hot search incident to apparent” “plain nor “immediately arrest, or legitimate lawful some other view.” being unconnected present reason for Thus, majority with and vote agree I against the ac- with a search directed I the district orders. affirm courts’ permits sei- cused—and the warrantless however, I can- because separately, write course, extension of the zure. Of es- proposed guidelines not concur justification legitimate only original three by majority opinion, tablished immediately it is apparent where reasons. they that police have evidence before them; ‘plain may not view1doctrine I general exploratory be used to extend a First, guidelines would re proposed from one until object search to another quire to forswear use of evi police something incriminating emerges, at last “plain searching if found view” dence Horton, added); (emphasis see also intermingled files. Such computers (af 137, 139-140, 110 S.Ct. 2301 U.S. existing Supreme Court departs rule firming Coolidge, binding prece precedent regarding “plain view” ex dent). Fourth war ception to the Amendment’s be, asserts, majority It requirement, rant do so without perhaps significantly it is more ex single Supreme citation to the Court’s difficult— to en- the electronic search context so—in subject or an precedent tensive in- a warrant-based search of seized sure why precedent longer explanation no termingled possible” files is limited as “as applies. In its seminal discussion of “plain police may employ before the “plain exception Coolidge v. New view” not exception to seize materials de- view” 464-466, 443, 91 Hampshire, 403 U.S. 403 Coolidge, the warrant. U.S. scribed (1971), 2022, over 29 L.Ed.2d 564 S.Ct. 467, no gives 91 2022. But that us S.Ct. other v. part grounds, ruled in on Horton entirety to in its legal ground eliminate 2301, California, 496 U.S. 110 S.Ct. constitutional rule the Su- established (1990), plurality 112 of the 110 L.Ed.2d Court, when to com- preme applied to be explained that: Supreme Court puter searches. It is well established that under certain police may seize evi- circumstances Rather, yet not because the Court has plain without a war- dence view view” “plain a distinction between drawn rant. ... automobile, in a motel on seizures room other, hand, and a example computer An of the of the the one on the applicability exception, “plain doctrine must follow the view” ‘plain view1 is the situation we to until the decides police Supreme which the have a warrant Court otherwise; objects, area our task to ensure the search given specified search a the nu- possible. come limited as Given and in the course of the search is as 1018 majority particularly in a privacy rapidly

merous risks to iden- troublesome de- veloping one, such area of law as this as tifies, require magistrate to ought we improve capabilities expo- search scrutiny give exacting scope to the nentially by the month. search, the search so to ensure is as nar- rowly goal possible tailored as of I recognize although we lack the seizing specifically described in a competitive Congress evidence advantages to set specific, out magistrate bright-line through must rules de- warrant. The ensure testimony liberation and from interested particularized that a search for evidence parties, obligation, it is our and our obli- probable based cause authorized alone, gation to determine what constitutes a warrant into the does not devolve kind of unreasonable searches and seizures. See general police search conducted here. Madison, Marbury v. Cranch 5 U.S. end, To this behind the ideas some of the (1803) (“It 137, 177-78, 2 L.Ed. is em- majority’s guidelines are sensible: special- phatically duty province personnel, investigators, ized and not judicial department say what the law searches, ought to conduct electronic is.”). said, That precisely because we lack the search should be protocol designed to advantages Congress, those we must uncover information for which the treat brightline our establishment rules probable has cause. Unit- great deliberation; care and at the Tamura, (9th ed States least, very opportuni- amici have an should Cir.1982), magistrate we held should ty weigh dramatic on the doctrinal process; oversee perhaps the search shift the majority’s guidelines contemplate. instant case that such oversight counsels Here, there no briefing has been whatso- ought quite to be close. But identifying ever plain on whether view exception important these Amendment goals Fourth longer apply should no to computer does permit disregard tous the Su- searches. preme jurisprudence Court’s on “plain By focusing “plain on the view” excep- view” as to computer simply searches be- case, applied tion as to this rather than prefer cause we policies conflict with diktats, issuing bright-line we would be the rules the Court has established. employing the traditional common law law,

method of deciding questions novel recognizes method II limitations of wisdom, human ingenuity limiting Second, guidelines the establishment of our precisely possible decisions as (which are than little more dicta but are the case at hand. The common law meth- binding precedent nonetheless in this cir- permits od us to evaluate different cases cuit, FCC, see Brand X Internet Servs. v. over time to discern the most sensible rule (9th Cir.2003)) 345 F.3d 1130 the given the technologies develop; I’m manner majority chosen the goes opinion afraid the majority short-circuits against grain the the common of law meth- process this capabili- an area where the od of decisionmaking, reasoned by which ties of rapidly software are still rules evolve from cases over time. evolving.3 This is Further, Cir.1999) guidelines 3. majority's question if the ("Although are now the of what circuit, they the law of our conflict with the 'plain constitutes in the view' context of com- cautious, law-style approach more common of puter appears intriguing files and is to be an Circuit, the implicitly recog- Tenth which has court, impression issue of first for this "plain exception nized the view” exists in the others, many we do not need to reach it here. context of electronic searches but has not facts, Judging only by this case its own we precise scope. delineated its See United conclude the items were not seized authorized 1268, (10th Carey, States v. F.3d 172 1274

1019 56, itz, 430, ill U.S. 70 94 L.Ed. 339 S.Ct. 653 (1950), part grounds, overruled in other a more Third, adopting reason one 752, California, 395 U.S. Chimel 89 deliberative, law is be- approach common (1969). 2034, 23 S.Ct. L.Ed.2d sub- majority’s guidelines raise cause the contraband,4 pornography is Child problems, opin- which the stantial practical right no citizen ever there is for a to address, to the respect ion to with fails possess opinion explain it. The not does bright the line rules consequences a “third party” computer whether techni- the example, For majority establishes. police the majority requires cian—as the has held that if evidence Supreme Court they voluntarily if will to hire fore- contraband, it can never by police seized “plain exception— swear use view” be returned: yet pornography who comes across child designed The Fourth Amendment was report immediately, to it or refuses re- protect to both the innocent and part turns it as of data seized and unreasonable intrusions guilty from searched, can himself held liable for be leaving upon right privacy their of while Indeed, of child possession pornography. necessary pro- room for the adequate explain does not whether opinion people The of law enforcement. cesses destroy police illegally must seized contra- writing of States insisted on the United implicates par- party band that a third —a Amendment into the Consti- the Fourth in the ticipant pornography contraband sad had experience because tution proper- a or video—who does not have still right that the to search taught them ty illegally interest seized evidence mere not be left to the seize should therefore, and, standing would not have to should, a police, but discretion of its use in suppress evidence. Such to the subjected be principle, matter of issuing bright line rules at problem requirement previous judicial of sanction expense developing through the law [Thus, was er- possible.... i]t wherever common law method. petitioners’ ror this refuse case] [in whether, Perhaps the test un should suppress exclude and motion to case, particular the facts der was seized. property improperly warrant in police have executed the search contraband, property But since “narrowly tailored” manner. For exam they right no have it returned have context, search ple, electronic them. start-up may well create company dotcom States, Trupiano 334 U.S. v. United next week next month can software 709-710, L.Ed. 1663 68 S.Ct. electronic accurately through search stor (1948) added), part on (emphasis report rev’d in the handful age media likely responsive Rabinow- most to warrant.5 grounds, other United States v. files Further, Mack, States v. they were in closed 4. See United the warrant. view.”). Here, plain Cir.1999). (9th files thus not view, testing ballplayers my results of targeted were also other than ten See, e.g., Google Kopytoff, Verne Reveals plain and thus not in view.” "closed files Images, S.F. Chron., Tool That Seeks Similar investigating “opened” files officer 21, 2009, (noting Google April C3 scrolling act through volitional his Monday tool experimental an "introduced right spreadsheet, an act he knew the [April that allows users narrow 2009] testing only the produce results not would photographs results are their search ten, targeted remaining ball- but also for the content, perspective in terms of alike their spreadsheet. We do not on the listed color”). and beyond Carey. really go have to Then a specialist conducting the a sufficiently narrow search of seized in- search would to open be able a small num termingled files to comport with the files, ber potentially responsive selected Amendment, Fourth given the specific software, the instead of In thousands. facts of the case. world, perfect specialist the would find responsive click; then, the file on the first above, For the reasons discussed I con- specialist the. stop. suppose must But the cur in majority’s the analysis of the facts responsive file is the second file opened, applied not, and law as to this case. I do and the first file an image contains of child however, concur in majority’s proposed pornography. According to the majority, guidelines. It would give magis- be nice to the specialist ignore must por child “guidance” trates clear possible. when nography and cannot use it probable cases, But that is true all yet and we cause for a future search warrant. But still approach goal by issuing rulings why be, given should that the limitations us, on the facts nothing before more. scope on the of the search the put software place? Are we certain that such a IKUTA, Circuit Judge, with whom automatically search always fails to Circuit Judge joins, CALLAHAN comport with the Constitution? dissenting: Rather, it is permit more sensible to agree I Judge with Callahan’s dissenting specialist report the child pornography opinion, join I it in full. I write image to a police investigator, who separately to underline Callahan’s seize the file to use as evidence at a trial. concern that “the return of property pur- investigator may opt also to return to suant to Rule 41(g) is not necessarily the magistrate that, and explain although appropriate relief in this case.” Dissent at the government employed the narrowest 1011. if Even had violat- protocol search possible, the specialist una- plaintiffs’ ed the Fourth Amendment voidably contraband, “came across”6 rights, remedy alleged for the violation illegality of which “immediately was appar- imposed by the Nevada district ent.” court The magistrate ought to have dis- (Judge Mahan), and upheld by majori- cretionary power to expand the warrant to ty, unprecedented is both and in permit a conflict search for por- additional child past several decades nography, after of the Su- deciding spe- whether the preme Court’s Fourth juris- cialist’s search of the Amendment data that uncovered prudence. Although party first child can pornography seek the truly file was return of property based on the most under Rule possible 41(g), limited search parameter, the exclusionary or if specialist may prevent rule illegally took some volitional seized step to evidence from beyond being partic- view the data used for what ular necessary purposes procure during criminal proceedings, the evi- dence in the latter, ordering warrant. If to expunge subject seized file would be to a the information it motion to obtained from a search or, suppress, non-contraband, if property a motion seizure of is inconsistent with for return of evidence under Rule the limited 41(g). scope of the modern exclusion- general, magistrate suited, is best ary rule. But that just what the district and is perfectly capable, of deciding court’s order did: it directed the “plain whether a view” seizure is based on ment not to return property Coolidge, 6. U.S. 91 S.Ct. 2022. Id. at 466.

1021 Cir.1996) (holding facili- that Rule 41 does not during Quest’s its search of seized beyond provide “any protection movants ties, destroy traces of informa- to but rule”). by exclusionary provided that that I therefore search. tion derived Accordingly, courts follow the Su- must affirmance of majority’s from the dissent preme exclusionary jurispru- Court’s rule this order. fashioning suppression when reme- dence proceeding is no criminal there Because equitable Rule 41(g) dies under or its case, plaintiffs in this against pending counterpart. prop- of their motion for analyze we return decades, few past Supreme Over the motion analog to a erty equitable as an governing sup- has refined rules Court v. Unit- 41(g).1 Rule See Ramsden under pression of evidence due to the Cir.1993) (9th States, 322, ed 2 F.3d 324 ment’s Fourth Amendment violations and have the that “district courts (recognizing a circum- suppression made clear prop- to return power to entertain motions stance-specific remedy. As the has Court there by when erty seized recently explained: proceedings pending criminal are no movant”). always of ... Suppression evidence has against pre-indict- Such resort, our last not our first im- civil been 41 motions “are treated as Rule ment id., pulse. exclusionary generates The rule under equitable proceedings,” arising costs, social which sometimes substantial “supervisory jurisdiction.” courts’ (5th Smith, 1239, setting guilty include free and the 1245 Richey v. Cir.1975). large. at have therefore dangerous has ex- We Supreme Court it, against expanding cautious been plained authority suppress that a court’s repeatedly emphasized have evidence, super- whether under the court’s upon costly truth-seeking rule’s toll provi- or those visory jurisdiction under objectives presents law enforcement proce- the federal rules of criminal sions of high urging appli- obstacle for its those providing suppression, expressly dure rejected cation. We have indiscriminate exclusionary by scope is limited rule, it application and have held 447 Payner, v. rule. See United States applicable only its remedial 735-36, 2439, where 727, 100 65 U.S. S.Ct. objectives efficaciously are (1980) thought most (holding 468 federal L.Ed.2d is, served—that where its deterrence su- equitable court could not exercise its outweigh substantial social benefits pervisory powers to evidence suppress costs. exclusionary where rule circumstances suppression); 586, 591,

did not allow such United Michigan, Hudson v. 547 U.S. Calandra, 6, 338, (2006) (in- 414 n. 2159, 348 States v. U.S. S.Ct. 165 L.Ed.2d 56 126 (1974) (hold- 613, alterations, marks, 94 38 L.Ed.2d 561 S.Ct. quotation ternal omitted) proper- a motion for ing that the return (citing citations United States Leon, 897, 3405, ty statutory expan- constitute a “does not 468 U.S. 104 S.Ct. 82 rule”); (1984), Calandra, exclusionary also sion of the see L.Ed.2d 677 414 (9th Comm’r, others); 613, among Grimes v. F.3d U.S. S.Ct. 41(g), property seized. must receive Rule of Criminal Procedure The court Federal 41(e), previously which was codified at Rule necessary evidence on factual issue follows: motion, states as grants motion. decide the If it person ag- Property. to Return A Motion property must the court movant, return the grieved an unlawful search and seizure may impose but reasonable condi- deprivation property property protect property and its tions access to property's return. The move for proceedings. use in later where the must be filed the district motion 1022 — States, Grimes, (“Because United 291 Herring gov

see also v. U.S. 82 F.3d at 695, 700, -, may 172 L.Ed.2d ernment illegally 129 S.Ct. 496 now use obtained (2009) (“We situations, repeatedly rejected variety evidence in a of have it should argument necessary permitted copies that exclusion is a to of retain such evi consequence of a Fourth Amendment vio- dence absent extreme circumstances not cases)). record.”); (citing apparent lation.” from this see also In 404, re Office, Search Law 341 F.3d 412 Ohio, 643, Mapp Since v. 367 U.S. of 81 (5th Cir.2003) (noting changes that in the 1684, (1961), 6 L.Ed.2d 1081 S.Ct. exclusionary jurisprudence Court’s rule exceptions Court numerous adopted has to opinions east doubt on holding earlier that rule, exclusionary such as the “good victims of an unlawful search right had the faith” exception first enunciated in Leon. to all copies obtain return of of docu case, Most significant the Court ments). illegally has held that seized even evidence variety purposes. be used for a majority acknowledges that Calandra, 351-52, at See 414 U.S. 94 suppression power S.Ct. court’s by is “limited (holding rule,” 613 the exclusionary exclusionary rule but contends that jury does not apply grand proceedings); Payner and are inapt Calandra because Havens, they see also United States 446 involved suppression, U.S. “the not 620, 627-28, 1912, return, materials,” 100 S.Ct. 64 L.Ed.2d 559 seized and in this (1980) (holding that evidence suppress obtained in case “no motion ... is before violation of the Maj. op. Fourth Amendment can be us.” majori- at 1001-02. But the impeach ty used to a defendant’s testimony appears to misunderstand the Nevada trial); Illinois, 128, Rakas v. 439 U.S. district court’s In conducting order. 148-49, (1978) 99 S.Ct. 58 L.Ed.2d 387 search of Quest facility, govern- (holding that evidence obtained in specimens violation ment seized urine and made person’s of one copies Fourth Amendment rights information maintained can be against person Quest’s used another computers. whose part The first of the Fourth rights Amendment were not violat district court’s order directs the seizure). by ed the search or Accordingly, moving ment to “return party MLBPA Supreme under Court’s ... precedents, Quest materials seized from ... remedies for Fourth Amendment viola other than relating materials to the ten carefully tions must be tailored to fit baseball both named the original the underlying violation and govern April part warrant.” This of the order legitimate competing ment’s applies only interests in samples, to the urine using the illegally physical seized evidence. Quest.2 See materials seized from It part is uncertain whether even this tect both the law enforcement interests of the property rights United prop- States and the order order prop- constitutes an for return of holders.”). erty owners and I am aware of no order, erty, suppression given rather than a bodily court which has held that fluids volun- property the MLBPA’s interest in the tarily given away, possession held samples urine prop- is unclear. Unless "the party, third are owned the donee. Nor erty question longer is no needed for evi- possession, does the standard of lawful dentiary purposes,” the "movant bears the opposed ownership, resolve the matter. proving burden of ... that he or she is enti- Quest MLBPA, samples, had the urine not the possession tled to lawful property.” argument attorney at oral the MLBPA's Martinson, United States v. property admitted that no contractual interest (9th Cir.1987); accord Fed.R.Crim.P. samples granted by laboratory. Advisory Notes of Committee on 1989 Finally, the Nevada district court’s order in- ("The recognizes amendments amended rule structed the to surrender might pro- samples third-party laboratory, reasonable accommodations urine to a court’s, faith, good but returning whether the of the order re- part second The seal, to government “segregate, ‘rea- illegally the seized documents would be quires direct or indirect .use make no further under all the circumstances.’ sonable of summaries, notes, of, and other records If government’s investigatory the Quest April from seized of information by be prosecutorial interests can served relating testing persons to of May 6 8 and documents, the it is retaining copies of named than ten baseball other the government for to re- unreasonable the of the April part This 8 warrant.”3 fuse to the original to return documents copies government applies to the the order owner. Quest’s computer files. Whether made of States, Manning Corp. v. United 86 J.B. as “sequestration,” the the use label we (9th Cir.1996) 926, (quoting F.3d 928 1002, does, op. or some majority maj. at 326-27) (internal Ramsden, 2 F.3d at cita- “expunge- “divestiture” or other term like omitted). Accordingly, tion and alteration of ment,” part of this the the substance ordering of urine even in a return the required it the is the order same: im- samples, the district court should have information using to refrain from ment conditions,” as al- posed “reasonable such prop- the not to return their players, about lowing government keep to part the property is a erty. A motion for return of samples returning Quest while the rest to by a remedy “aggrieved depri- for party “protect the players, or order to access In re Search property.” of its vation to the use in property pro- and its later (10th 1367, East, F.2d 1375 Kitty’s 905 41(g). Nothing ceedings.” Fed.R.Crim.P. Cir.1990) added). Here, the (emphasis have necessary, else would been since “aggrieved by is Players Association not (the Quest original retained the records maj. property, op. of its at deprivation” the Quest government copies) took never 1002; it is the aggrieved government’s notes in first owned the the inculpatory possession of evidence. place. Moreover, for a successful motion Instead, the denies district court’s order prevent does not property return of which, at use of evidence to use infor- continuing from to according majority least from the or from property mation derived court, district obtained violation using property later as evidence. See the Fourth Amendment. The district (if grants a 41(g) a court Fed.R.Crim.P. remedy differs “sequestration” court’s it “im- property, motion return typical suppression remedy from a protect ac- reasonáble conditions pose broader; categorically pro- it is it because to the and its use later property cess from using hibited the explained: weAs have proceedings”). any purpose, despite seized evidence prop- If a court determines that district clear instruction Supreme Court’s seized, illegally proper erty has been 41(e) suppression specific must tailored deciding merits of question Calandra, purpose. 414 at is whether the officers acted See U.S. motion Quest. proceeding during a criminal must be decided the MLBPA or return them to majority’s players’ "privacy maj. op. on the proceeding,” reliance in the context of such a samples, maj. op. urine at interests’’ in the language with the is inconsistent interests, opposed property their order, precludes its terms majority simply highlights the fact that the making direct "further affirming a suppression order. Quest or use” of the information. indirect majority’s 3. The statement that "uses Quest government may evidence make of the (“[T]he exclusionary have engaged S.Ct. 613 rule has criminal behavior runs interpreted proscribe

never directly contrary been Supreme Court’s illegally pro- use of in all seized evidence jurisprudence modern Fourth Amendment against all ceedings persons.”). Thus and fails to consider the “substantial social majority’s position essence of the Leon, cost” exclusionary rule. “sequestration” the district court’s very U.S. at At S.Ct. 3405. subject remedy Supreme is not to the least, preventing government from us- against categorical Court’s rule broad and ing any evidence from derived the search long suppression remedies so as it is la- Quest’s of facilities cannot be reconciled property.” of beled an “return order Calandra, which would allow the use court, majority Like the district illegally grand seized evidence future precedent “sequestra- cites no for such a 351-52, jury proceedings. See 414 U.S. at Ramsden, remedy. quoting tion” the Ad- 94 S.Ct. 613. visory Committee notes United stated, the warrant three-judge panel property a need for the in an States has limit the initial review to expressly did not investigation prosecution, its retention computer specialist. Comprehensive property generally reasonable.” provid- F.3d at 1111. It Drug Testing, 513 41, Advisory Fed.R.Crim.P. Committee computer specialist that the would be ed (referring to Notes to 1989 Amendments of whether involved in the determination 41(e)). then-existing Rule In Ramsden v. files was on-site review States, that “[t]he United we stated United It segregation process. and in the feasible generally not, however, property retention of the by its terms exclude States’ did prop- if it has a need for the majority calls reli- is reasonable agents. other case newly investigation may segregate Interestingly, majority's minted examine protocols direct that a warrant make search data. only persons not involved in the clear that

Notes

Notes 1989 Amendments. Al- both and law enforcement though these notes state that there interests.” Id. develop plain view doctrine to incre- practices” as a “best viewed might be best manual, binding mentally through law. the normal course of than rather adjudication. A fact-based case measured guide- Furthermore, majority’s new of a particular based on the facts approach they are over- troubling because lines are especially warranted the case of case is enforcement how law and restrict broad

notes By affirming the Nevada district court’s 41, merely open amendments to Rule left order, label, whatever the majority that, possibility “in circum- some ignores Supreme Court’s direction that equitable might stances ... considerations there is no such thing categorical as justify an requiring order suppression remedy. reason, For this destroy to return copies records it well expressed as the reasons in Judge (alteration has seized.” F.3d at 327 dissent, I respectfully Callahan’s dissent. omitted). As Callahan’s dissent points out, Ramsden did not decide this question; although we determined the disregard acted with “callous rights,” Ramsden’s constitutional we justi- concluded that the fied in “copying the documents and turn- ing them over British authorities” while returning originals to Ramsden so that America, UNITED STATES of he could run his business. Id. Ramsden’s Plaintiff-Appellee, dicta must to Supreme prece- bow Court dent. although Thus I acknowledge that Ramsden did not rule possibility out the CARDENAS-MENDOZA, Jose a “sequestration” remedy, I conclude that Defendant-Appellant. the Supreme exclusionary Court’s recent rule jurisprudence prevents us from ex- No. 07-10553. panding suppression the district courts’ Appeals, United States Court of authority broadly. so Ninth Circuit. case, assuming the seizure of evidence of wrongdoing criminal Argued and Submitted Dec. 2008. violated the Fourth rights Amendment Filed Aug. parties, Supreme precedent may Court support an order precluding ment using such evidence subse- quent criminal proceedings against players. ordering But forget large that a number of individuals

Case Details

Case Name: United States v. Comprehensive Drug Testing, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 2009

Citation: 579 F.3d 989

Docket Number: 05-10067, 05-15006, 05-55354

Court Abbreviation: 9th Cir.