UNITED STATES of America, Plaintiff-Appellee, v. Michael Allan DREYER, Defendant-Appellant.
No. 13-30077
United States Court of Appeals, Ninth Circuit.
November 4, 2015
803 F.3d 1266
Argued and Submitted En Banc June 17, 2015.
C.
Mancilla‘s reliance on the Fourth Circuit decision in Soliman v. Gonzales, 419 F.3d 276 (4th Cir.2005), is unavailing. Unlike the Virginia statute at issue in Soliman,
IV.
Because an intent to defraud applies to all conduct proscribed by
Hanni Fakhoury and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, CA; Nancy L. Talner, T. Jared Friend, American Civil Liberties Union of Washington, Seattle, WA; Venkat Balasubramani, Focal PLLC, Seattle, WA; and David M. Porter, Co-Chair, National Association of Criminal Defense Lawyers Amici Curiae Committee, for amici curiae.
Erik B. Levin (argued), Law Office of Erik B. Levin, Berkeley, CA, for Defendant-Appellant.
Helen J. Brunner (argued), Marci Ellsworth, Assistant United States Attorneys; Scott A.C. Meisler, Criminal Division, Appellate Section, U.S. Department of Justice; Jenny A. Durkan, United States Attorney, and Annette L. Hayes, Acting United States Attorney, Western District of Washington, Seattle, WA, for Plaintiff-Appellee.
Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, BARRY G. SILVERMAN, MARSHA S. BERZON, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., MARY H. MURGUIA, MORGAN CHRISTEN, PAUL J. WATFORD, JOHN B. OWENS and MICHELLE T. FRIEDLAND, Circuit Judges.
Opinion by Judge CHRISTEN; Concurrence by Judge BERZON; Concurrence by Judge REINHARDT; Concurrence by Judge OWENS; Concurrence by Judge SILVERMAN.
OPINION
CHRISTEN, Circuit Judge:
This case requires us to decide whether a Naval Criminal Investigative Service agent‘s involvement in civilian law enforcement constitutes a violation of the Posse Comitatus Act, and if so, whether that violation warrants excluding evidence obtained as a result of the involvement. We
BACKGROUND
Steve Logan is a special agent of the Naval Criminal Investigative Service (“NCIS“), “the investigative unit of the Navy.” See United States v. Chon, 210 F.3d 990, 992 (9th Cir.2000). He is a civilian employee stationed in Brunswick, Georgia. In 2010, Logan and two other NCIS agents initiated a criminal investigation of the distribution of child pornography on the Internet. They used RoundUp, a software investigative tool that monitors online distribution of known child pornography files around the world.
RoundUp was developed for the Internet Crimes Against Children Task Force. The task force comprises federal, state, and local law enforcement officers investigating internet crimes against children, including distribution of child pornography. RoundUp software is not commercially available because it was designed to be used almost exclusively by task force members. It uses a database of known child pornography files compiled by the National Center for Missing and Exploited Children. To ascertain the presence of such files, RoundUp relies on unique file identifiers called SHA-1 hash values, which are essentially “digital fingerprint[s]” associated with electronic media. SHA-1 hash values remain unchanged as long as the file itself is not altered. RoundUp searches for these identifiers on peer-to-peer file-sharing networks, where individuals upload documents and media to share with others. Uploaded images are publicly available to all users of the file-sharing network.
In 2011, NCIS agents in Washington state asked Logan to investigate computers in Washington sharing child pornography. Logan agreed and used RoundUp to search Gnutella, a peer-to-peer file-sharing network. The RoundUp query encompassed the entire state of Washington. Logan later testified that RoundUp cannot “isolate and look for military service members” because it has only geographic parameters. The software detected a computer at Internet Protocol (“IP“) address 67.160.77.21 that had shared several files identified as child pornography. Logan downloaded two images and a video from the IP address and verified that they depicted child pornography.
Logan contacted NCIS‘s representative at the National Center for Missing and Exploited Children and requested an administrative subpoena for the name and physical address associated with the IP address. The form required a “Reason for Subpoena,” where Logan wrote: “Suspect IP was identified in area of large [Department of Defense] and [U.S. Navy] saturation indicating likelihood of USN/DOD suspect.” The Center forwarded the request to the FBI, and the FBI sent an administrative subpoena to Comcast. Comcast identified Michael Dreyer of Al
When Logan learned through a background check that Dreyer had no present military affiliation, he prepared a report of his investigation and sent all relevant materials to an NCIS agent in Washington.2 That agent passed the information along to the Algona Police Department in May 2011, and the police department obtained a search warrant from a state court.
On July 6, 2011, local police officers executed the warrant on Dreyer‘s residence, where an examination of Dreyer‘s computer revealed several images and videos of child pornography. The officers arrested Dreyer and seized his computer and several other digital devices. Dreyer was charged with six counts of possessing depictions of minors engaged in sexually explicit conduct in violation of
In December 2011, a special agent of the United States Department of Homeland Security obtained a federal warrant to search Dreyer‘s computer and other devices. A subsequent search of the computer yielded 21 videos and over 1,300 images of child pornography. Dreyer was charged with one count of distributing child pornography in violation of
In the federal case, Dreyer moved to suppress the evidence seized pursuant to both the state and federal warrants. Among other claims, Dreyer argued that Logan‘s search violated the Posse Comitatus Act, which generally prohibits use of the military to conduct civilian law enforcement activities. See
Dreyer was convicted of both federal charges after a four-day jury trial. He was sentenced to 216 months’ incarceration and lifetime supervised release. After Dreyer timely appealed, a divided three-judge panel of this court reversed and remanded. United States v. Dreyer, 767 F.3d 826, 837 (9th Cir.2014).
The panel held that Logan‘s actions violated restrictions imposed pursuant to the Posse Comitatus Act (“PCA“), id. at 829-35, 838-39, and that the district court erred by failing to suppress the evidence seized as a result of NCIS‘s investigation, id. at 837. The dissent argued that the exclusionary rule is an extraordinary remedy that is unwarranted in this case. id. at 838-42 (O‘Scannlain, J., dissenting).
A majority of the active judges of our court voted to rehear this case en banc to reconsider the important issues it presents. United States v. Dreyer, 782 F.3d 416, 417 (9th Cir.2015). We have jurisdiction pursuant to
STANDARD OF REVIEW
“A district court‘s grant or denial of a motion to suppress is reviewed de novo.” United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir.2010). We also review de novo the question whether the PCA was violated because it is a mixed question of fact and law that is primarily legal. United States v. Hitchcock, 286 F.3d 1064, 1069 (9th Cir.), as amended by 298 F.3d 1021 (9th Cir.2002).
I. PCA-like restrictions apply to NCIS and its civilian agents.
“Posse comitatus (literally ‘power of the country‘) was defined at common law as all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder.” See H.R.Rep. No. 97-71, pt. 2, at 4 (1981) (citing 1 William Blackstone, Commentaries 343-44). In 1878, Congress codified a prohibition on the use of the military in civilian law enforcement activities by enacting the PCA. See Act of June 18, 1878, ch. 263, 20 Stat. 152 (1878) (current version at
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
In 1981, Congress enacted a separate statute directing:
The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) . . . does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
[T]he prohibition on use of military personnel “as a posse comitatus or otherwise to execute the laws” prohibits the following forms of direct assistance:
(i) Interdiction of a vehicle, vessel, aircraft or other similar activity.
(ii) A search or seizure.
(iii) An arrest, stop and frisk, or similar activity.
(iv) Use of military personnel for surveillance or pursuit of individuals, or as informants, undercover agents, investigators, or interrogators.
In 1993, the Secretary of Defense removed 32 C.F.R. part 213, stating that the regulations had “served the purpose for which they were intended and are no longer valid.” Removal of Parts, 58 Fed.Reg. 25,776-01 (Apr. 28, 1993). Though the congressional directive in
In United States v. Chon, our court considered a PCA challenge to NCIS‘s involvement in the investigation of theft of military property. 210 F.3d at 991-93. We held that the “PCA-like restrictions” adopted pursuant to
The Government argues that PCA-like restrictions do not apply to NCIS or its agents because NCIS is a civilian law enforcement agency with no direct reporting relationship to a military officer. Chon rejected these arguments, holding that “NCIS is bound by the limitations of
exempt four categories of people from PCA-like restrictions: (1) members of reserve components when not on active duty; (2) members of the National Guard when not in the Federal Service; (3) civilian employees of DoD unless under the direct command and control of a military officer; and (4) military service
members when off duty and in a private capacity.
Id. at 993. We interpreted “these exemptions to mean that the PCA and PCA-like restrictions function to proscribe use of the strength and authority of the military rather than use of the private force of the individuals who make up the institution.” Id. We specifically held that PCA-like restrictions do apply to “civilian NCIS agents [who] represent[] and further[] the interests of the Navy,” and whom civilians are unable to distinguish from military agents. Id. We reached this result relying on
The Government correctly points out that the reporting relationship between NCIS and the Navy has changed since Chon was decided, but that change does not affect the outcome of Dreyer‘s case because NCIS continues to “report[] directly” to the Navy. See SECNAVINST 5430.107(5)(a) (Dec. 28, 2005). The Navy‘s current policies also require that a Board of Directors oversee NCIS strategy and operations and facilitate the Navy‘s “corporate governance” of NCIS. See SECNAVINST 5430.107(5)(c). The Board includes military officers such as the Vice Chief of Naval Operations and the Assistant Commandant of the Marine Corps. Id. This structure leaves no doubt about the existence of a reporting relationship between NCIS and military officers. In short, nothing in the current policies undermines Chon‘s rejection of the same argument the Government asserts here.
New DoD regulations comport with the conclusion that PCA-like restrictions apply to NCIS. Although these regulations were issued after NCIS conducted the subject investigation, they are notable because they are an agency interpretation of a statutory provision that has remained unchanged. Cf. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 411-12, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972) (considering later legislation in interpretation of earlier enactment). The regulations define “DoD personnel” as “Federal military officers and enlisted personnel and civilian employees of the Department of Defense.”
We reaffirm Chon‘s holding that NCIS and its civilian agents are subject to PCA-like restrictions proscribing direct assistance to civilian law enforcement. See Chon, 210 F.3d at 994. Congress did not make voluntary its requirement that the Secretary of Defense establish regulations prohibiting military involvement in civilian law enforcement, and NCIS was subject to these restrictions when it undertook its investigation of Dreyer.
A. Logan‘s investigation violated PCA-like restrictions.
PCA-like restrictions prohibit direct military involvement in civilian law enforcement activities, but they permit some indirect assistance, such as involvement that arises “during the normal course of military operations or other actions that ‘do not subject civilians to the use of military power that is regulatory, prescriptive, or compulsory.‘” Hitchcock, 286 F.3d at 1069 (alterations omitted) (quoting DoDD 5525.5 § E4.1.7.2). Permissible indirect assistance “must not ‘constitute the exercise of regulatory, proscriptive, or compulsory military power,’ must not ‘amount to direct active involvement in the execution of the laws,’ and must not ‘pervade the activities of civilian authorities.‘” United States v. Khan, 35 F.3d 426, 431 (9th Cir.1994) (quoting United States v. Yunis, 924 F.2d 1086, 1094 (D.C.Cir. 1991)). “If any one of these tests is met, the assistance is not indirect.” Id.
The Government argues that NCIS‘s involvement in the Washington investigation constituted permissible indirect assistance because NCIS merely transferred information to civilian law enforcement. Not so. In contrast to cases where military personnel offered only subsidiary support, Logan‘s investigation in this case pervaded the actions of civilian law enforcement. Cf. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1259 (9th Cir. 1998) (no violation where the Navy merely supplied equipment, logistical support, and backup security); Khan, 35 F.3d at 431-32 (same). Logan testified that he and two other NCIS agents initiated an operation to search for individuals sharing child pornography online. His report on the Washington investigation formed the basis of the state warrant to search Dreyer‘s home, and execution of that warrant yielded the evidence that led to the charges against Dreyer. Logan testified that he was not engaged in “surveillance,” which he described as “watching.” He explained that he was instead conducting an “investigation,” an activity he described as “active.” This conduct is expressly prohibited as direct assistance. See DoDD 5525.5 § E4.1.3.4 (identifying under “[r]estrictions on [d]irect [a]ssistance” the “[u]se of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators“); see also United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D.1975) (“Activities which constitute an active role in direct law enforcement [include] investigation of a crime. . . .“).
We have recognized that PCA-like restrictions allow “an exception to the general prohibition on direct involvement where the military participation is undertaken ‘for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities.‘” Hitchcock, 286 F.3d at 1069 (quoting DoDD 5525.5 § E4.1.2.1). This exception includes, for example, “investigations and other actions related to enforcement of the Uniform Code of Military Justice.” Id. at 1070 (alteration omitted) (quoting DoDD 5525.5 § E4.1.2.1.1). Courts have regularly construed that code to prohibit members of the armed forces from possessing child pornography. See, e.g., United States v. Stoltz, 720 F.3d 1127, 1130 (9th Cir.2013); United States v. Brown, 529 F.3d 1260, 1262 (10th Cir.2008); United States v. Allen, 53 M.J. 402, 407 (C.A.A.F. 2000). Properly executed, investigations of possession or distribution of child por
Logan did not undertake such an investigation. Instead, he used RoundUp to conduct a statewide audit of all computers engaged in file sharing. Logan represented to the FBI that he sought an administrative subpoena “in [an] area of large DOD and USN saturation indicating likelihood of USN/DOD suspect” (emphasis added), but the computer query employed in this case was in no way limited to members of the military. See
Logan and the NCIS agents who worked with him spearheaded a law enforcement investigation that would inevitably encompass mostly civilian-owned computers. We cannot conclude that the investigation had a legitimate independent military purpose because the methodology NCIS employed so clearly violated DoD and naval policy, as well as the boundary Congress imposed through the PCA and
B. The violations in this case likely resulted from institutional error.
Logan‘s testimony illustrates that the violations in this case likely resulted from institutional confusion about the scope and contours of the PCA and PCA-like restrictions. On the incomplete record available, we cannot tell whether Logan‘s practices were as widespread as Dreyer argues they were, but it is certain that the NCIS activity in this case was not an isolated incident. Logan and two other NCIS agents initiated their child pornography investigative operation in 2010. The operation involved at least three agents and had been under way for 19 months at the time of the trial in this case. Logan testified in another federal proceeding that “th[e] operation was cleared all the way through NCIS headquarters back in 2010.” See Transcript of Supplemental Motion to Suppress Evidence (Transcript) at 75, United States v. Gentles, No. 1:12-cr-120 (E.D.Mo. Oct. 16, 2014), ECF No. 112; see also Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir.2014) (“It is well established that we may take judicial notice of judicial proceedings in other courts.“).
Logan also testified that his duties as an NCIS agent were “[t]o investigate any federal, U.S. federal crimes, or crimes against the Uniform Code of Military Justice.” He also claimed he had authority to investigate “[p]ossession and distribution of child pornography across the [I]nternet” because it is “a federal crime” and NCIS agents “are credentialed U.S. federal agents.” Notably, at one point Logan specifically disavowed that his investigative authority was limited:
Q. [Y]ou are limited in the areas that you can investigate, wouldn‘t that be correct?
A. No, sir, that would not be correct.
Contrary to the suggestion in one of the concurrences, Logan at no point testified that he limited his investigations to military personnel, and the foregoing testimony indicates that he did not believe his authority to be limited to military personnel.
Indeed, Logan explained that he had a standard practice of “monitor[ing] all computers in a [certain] geographic area” without regard to military status. Yet RoundUp‘s geographic accuracy is limited to “a 25- to 30-mile radius.” We recognize that because some military bases are in remote areas, it might be possible to fashion a targeted RoundUp inquiry that would encompass only an insignificant number of civilian-owned computers. The record does not tell us whether the scope of the other NCIS investigations Logan described went beyond geographic areas that legitimately could be expected to include high concentrations of military personnel. What is clear is that the investigation in Dreyer‘s case resulted from an investigative technique that NCIS did not consider to be out of bounds. To the contrary, Logan testified that after the three-judge panel of this court issued its opinion unanimously finding that his conduct violated PCA-like restrictions, NCIS put “[a]bsolutely no[]” restrictions on him. See Transcript at 75, Gentles, No. 1:12-cr-120 (E.D. Mo. Oct. 16, 2014), ECF No. 112. NCIS‘s misunderstanding about the contours of the PCA and PCA-like restrictions is further evident in the Government‘s emphatic assertion before the district court and the three-judge panel that Logan‘s actions were permissible.
At best, the record demonstrates a poor understanding of the restrictions imposed on NCIS‘s involvement in civilian law enforcement. Authorization of the program described in Logan‘s testimony was apparently based on an entirely incorrect understanding of the PCA-like restrictions that apply to NCIS.
III. Although this case presents troubling violations, we do not order suppression.
A. We exercise our discretion to reach the issue of suppression.
The Government argues in its supplemental brief that suppression is never warranted for PCA violations that do not implicate constitutional violations. Dreyer strenuously counters that the Government waived this argument by failing to raise it before filing its petition for panel rehearing. Dreyer is correct that the Government did not raise this argument in the district court, or even when the case was originally briefed and argued on appeal. The three-judge panel that originally heard this case unanimously held that PCA-like restrictions apply to NCIS and that the conduct in this case violated those restrictions. Dreyer, 767 F.3d at 829-35, 838-39. One member of the panel concluded exclusion was not warranted. Id. at 838-42 (O‘Scannlain, J., dissenting).
Generally, an appellee waives any argument it fails to raise in its answering brief. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.2009). But “the rule of waiver is a discretionary one,” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.2012) (quoting Ackerman v. W. Elec. Co., 860 F.2d 1514, 1517 (9th Cir.1988)), and we can “make an exception to waiver . . . in the exceptional case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process,” id. (quoting Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985)).
B. The facts of this case do not demonstrate that suppression is needed to deter future violations.
“Suppression of evidence . . . has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Courts do not invoke the exclusionary rule absent compelling circumstances:
The exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large. We have therefore been cautious against expanding it, and have repeatedly emphasized that the rule‘s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.
Id. (alterations and citations omitted); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 347, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (“[T]he exclusionary rule is not a remedy we apply lightly.“). One of the concurrences cites Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2427, 180 L.Ed.2d 285 (2011), in support of its suggestion that the Supreme Court has, in recent years, made more stringent the test for invoking the exclusionary rule. But Davis is entirely consistent with Hudson and Sanchez-Llamas, and we recognize that all three cases reflect the Supreme Court‘s recent direction that the rule is a remedy of last resort that is warranted only when “the deterrence benefits . . . outweigh [the] heavy costs.” id. at 2427.
In its recent decisions, the Supreme Court has not held that suppression is never available for certain violations; rather, it explained that the exclusionary rule is applied “primarily to deter constitutional violations” and violations of statutes that enforce constitutional norms. Sanchez-Llamas, 548 U.S. at 348, 126 S.Ct. 2669 (emphasis added); see also United States v. Harrington, 681 F.2d 612, 615 (9th Cir.1982) (“There must be an exceptional reason, typically the protection of a constitutional right, to invoke the exclusionary rule.“). Notably, Dreyer does not argue that NCIS violated his Fourth Amendment rights.6
The exclusionary rule is certainly available for violations of constitutional rights, but the Supreme Court has approved of using the rule to remedy statutory violations only in rare circumstances. See Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (requiring suppression of evidence
Chon squarely held that PCA-like restrictions adopted pursuant to
We concluded that the Navy violated
RoundUp, file sharing, and related search technology did not exist when Roberts was decided. Although precedent from several of our sister circuits mirrors the Roberts rule that suppression may be appropriate for “widespread and repeated violations” of PCA-like restrictions, those courts either have not considered the use of similar search technology in the context of the PCA, or they have not encountered violations that are so “widespread and repeated” that they demonstrate the need for deterrence. See, e.g., United States v. Johnson, 410 F.3d 137, 149 (4th Cir.2005); Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir.1990); United States v. Bacon, 851 F.2d 1312, 1313-14 (11th Cir.1988) (per curiam); Wolffs, 594 F.2d at 85; United States v. Walden, 490 F.2d 372, 377 (4th Cir.1974).
The facts of this case are troubling and unprecedented in our case law, but they also point to institutional confusion and show that NCIS misunderstood the scope of its authority. Logan testified there were no limitations on his authority, but he also testified that NCIS agents “are charged with and mandated to conduct any criminal investigations as it relates to the Department of the Navy or its assets, its facilities or its personnel, to include areas in close proximity to the Department of Navy facilities.” (Emphasis added.)
Further, contrary to Logan‘s testimony that his investigative operation was approved by “NCIS headquarters” and that his supervisors took no actions to curb his activities after a three-judge panel of our court issued its decision, the Government represented at oral argument that the military is already in the process of changing its practices and limiting its participation in civilian law enforcement to conform to PCA-like restrictions. In its supplemental briefing and at oral argument, the Government strenuously argued that “th[is] [c]ourt‘s finding of a violation is more than sufficient to deter NCIS agents from engaging in any future investigative efforts of this type.” Moreover, after Logan‘s investigation of Dreyer, DoD adopted new regulations that acknowledge the applicability of PCA-like restrictions to the Navy and to NCIS. See
NCIS must conform its investigatory practices to the law, but we are persuaded that the Government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so. Unlike cases in which courts compel suppression to correct violations committed by law enforcement agencies, see, e.g., United States v. Sears, 411 F.3d 1124, 1125 (9th Cir.2005) (affirming suppression of evidence seized by local law enforcement agents pursuant to unreviewed portions of search warrant), this case arises from violations that took place under the purview of the military, which is unique in its command structure and its relationship to the other branches of government. Invoking the exclusionary rule in this case would do little to redress an ongoing investigative operation that appears to be the product of institutional error somewhere in the military‘s command structure, rather than intentional disregard of a statutory constraint. See Hudson, 547 U.S. at 593, 126 S.Ct. 2159 (noting exclusion may not be justified when “the interest protected by the constitutional guarantee that has been violated
To be clear, we do not suggest that the exclusionary rule might be inapplicable for a constitutional violation merely because government actors who committed the violation do not understand the legal prohibition. In the more common Fourth or Fifth Amendment context, institutional confusion or ignorance is not a ground for refusing to exclude evidence. See, e.g., United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir.1992) (“Fundamental errors . . . that result in clear constitutional violations . . . require suppression, unless the officers can show objective good faith reliance. . . . .” (citing
The military is best suited to correct this systemic violation, and it has initiated steps to do so. Therefore, on this record and at this juncture, we conclude that the facts of this case do not demonstrate “a need to deter future violations” by suppressing the results of Logan‘s investigation. See Roberts, 779 F.2d at 568. We affirm the district court‘s order denying Dreyer‘s motion to suppress.
CONCLUSION
On the issues arising from the Posse Comitatus Act, we affirm the district court‘s denial of Dreyer‘s motion to suppress.
AFFIRMED IN PART, REMANDED IN PART.
BERZON, Circuit Judge, joined by REINHARDT, Circuit Judge, concurring:
I join fully in the majority opinion. I write separately to explain why I am comfortable with the holding that suppression is not warranted, although the panel opinion I authored held otherwise. See United States v. Dreyer, 767 F.3d 826, 835-37 (9th Cir.2014).
As a preliminary matter, when the case was before our three-judge panel, the United States never contested that the exclusionary rule could apply to widespread and repeated violations of the PCA. The United States did not make this argument for good reason. Roberts held to the contrary, stating that the exclusionary rule can be “applied to violations of
Addressing, now, the availability of suppression as a remedy for violations of the PCA (and PCA-like restrictions), I emphasize that the PCA is deeply grounded in constitutional principles. The United States’ interest in checking military encroachments into civilian affairs finds expression in the earliest founding documents. See Charles Doyle, Cong. Research Serv., 95-964 S, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law 1-6 (2000). When the colonists set out to win independence from King George, their resentment of the Crown‘s use of troops to enforce customs laws and maintenance of standing armies
These grievances were at the forefront of deliberations at the Constitutional Convention, as the founders were reluctant to ratify a constitution that failed to guard against military dominance. Laird, 408 U.S. at 22-23, 92 S.Ct. 2318 (Douglas, J., dissenting); Major Clarence I. Meeks III, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil. L.Rev. 83, 87 (1975). The Constitution that emerged incorporates their concerns through the separation of Congress‘s power to raise and support the Army and to provide and maintain a Navy, in Article I, Section 8, from the President‘s power as the Commander-in-Chief, in Article II, Section 2. The Domestic Violence Clause, Article IV, Section Four, provides for military defense of the states upon invasion and, “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence“; the military can restore law in the states in the face of domestic disruption, but only upon a determination by Congress (or, in an emergency, the Executive) that military involvement is necessary. See 7 Cong. Rec. 4240 (remarks of Sen. Kernan).
The Bill of Rights also incorporates the principle of separating military force from civilian law. The Second Amendment provides for a civilian militia; the Third Amendment prohibits the mandatory quartering of troops; and the Fourth Amendment prohibits unreasonable government intrusion in the form of searches and seizures. See Laird, 408 U.S. at 15-18, 22-23, 92 S.Ct. 2318 (Douglas, J. dissenting); Doyle, supra, at 12; cf. Bissonette v. Haig, 800 F.2d 812, 814-15 (8th Cir.1986) (en banc), aff‘d on other grounds by 485 U.S. 264 (1988), abrogated on other grounds as recognized in Engleman v. Deputy Murray, 546 F.3d 944, 948 & n. 3 (8th Cir.2008) (holding that plaintiffs who alleged that they were seized by the Army in violation of the PCA had stated a Fourth Amendment claim). Indeed, “it is not unreasonable to believe that our Founders’ determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.” Laird, 408 U.S. at 23, 92 S.Ct. 2318 (Douglas, J., dissenting) (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L.Rev. 181, 185 (1962)).
In 1878, when Congress was considering enacting the PCA, its members repeatedly referred to these constitutional concerns. See 7 Cong. Rec. 3583 (remarks of Rep. Kimmel) (“In every page of the history of the earlier period, long before, at the time of, and long after the adoption of the Constitution, the warnings against the dangers of standing armies are loud, distinct, and constant.“); id. at 4240 (remarks of Sen. Kernan) (“I suppose no one claims that you can use the Army as a posse comitatus unless that use is authorized by the Constitution, which it clearly is not, or by act of Congress“); id. at 4243 (remarks of Sen. Merrimon) (“The Army, under the Constitution, is not to be used for the purpose of executing the law in the ordinary sense of executing the law. It can
Moreover, while it is true that courts generally have in the past applied the exclusionary rule only to statutory violations directly implicating the Fourth or Fifth Amendments, Sanchez-Llamas v. Oregon, 548 U.S. 331, 348-49, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006); see, e.g., Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); McNabb v. United States, 318 U.S. 332, 344-45, 63 S.Ct. 608, 87 L.Ed. 819 (1943), as Roberts and other PCA cases reflect, there is no reason why the rule should not be applied to the violation of a statute with such a substantial constitutional foundation. Because of the PCA‘s constitutional roots, I continue to agree that were an “extraordinary” violation shown, suppression would be warranted. See Roberts, 779 F.2d at 568.
I also continue to believe the violation here was extreme in scope, in that, without connection to a military purpose, the investigation reached all computers in the state of Washington running the Gnutella file-sharing network, and similar investigations have occurred in other parts of the United States. Dreyer, 767 F.3d at 827-28, 833-35, 836 & n. 14. But because the same variety of case has not arisen before and the Navy assured us at oral argument that its policy has changed, it is not clear that suppression is necessary on the facts of this case. That is, although the violations were widespread, repeated violations have not been shown, cf. Walden, 490 F.2d at 373 (“[B]ecause this case presents the first instance of which we are aware in which illegal use of military personnel in this manner has been drawn into question, we decline to impose the extraordinary remedy of an exclusionary rule at this time....“), and therefore it is not clear that suppression is necessary to deter future violations. Roberts, 779 F.2d at 568. If, however, the same or closely similar violations were to occur, suppression would be the appropriate remedy.
REINHARDT, Circuit Judge, concurring:
I concur in Judge Christen‘s majority opinion. I also concur in Judge Berzon‘s concurring opinion. I am in complete agreement with both Judge Christen‘s and Judge Berzon‘s views.
OWENS, Circuit Judge, joined by SILVERMAN and CALLAHAN, Circuit Judges, concurring in the judgment:
The majority correctly affirms the district court‘s denial of Dreyer‘s motion to suppress, and recognizes that “[c]ourts do not invoke the exclusionary rule absent compelling circumstances.” Majority at 1278 (citing Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), and Sanchez-Llamas v. Oregon, 548 U.S. 331, 347-48, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006)). But it says that future violations of the Posse Comitatus Act (PCA) could lead to suppression. Majority at 1279-80 (citing United States v. Roberts, 779 F.2d 565 (9th Cir.1986)). I write separately because I believe that absent express congressional authorization, suppression is not a remedy for PCA violations.
Since we decided Roberts nearly 30 years ago, the landscape on suppression has changed. The Supreme Court has “long since rejected” the broader application of suppression that its earlier decisions suggested, see Hudson, 547 U.S. at 591 126 S.Ct. 2159, and “imposed a more rigorous weighing of its costs and deterrence benefits.” Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2427, 180 L.Ed.2d 285 (2011). Hudson and Sanchez-Llamas instruct that before we determine whether police conduct warrants exclusion under the facts of a particular case, we should first decide if the violation can ever result in suppression. Hudson, 547 U.S. at 599 (no suppression for violation of the Fourth Amendment knock-and-announce rule); Sanchez-Llamas, 548 U.S. at 350 (no suppression for violation of the right to consular notification of the Vienna Convention on Consular Relations).
Exclusion of evidence to remedy a statutory violation is extremely rare. The exclusionary rule applies “primarily to deter constitutional violations.” Sanchez-Llamas, 548 U.S. at 348. In “[t]he few cases in which [the Court has] suppressed evidence for statutory violations . . . , the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.” Id. Those cases are easily distinguishable from the PCA.
In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the Court suppressed evidence obtained following violations of rules requiring prompt presentment of an arrestee before a magistrate judge. The “supervisory rules [at issue in McNabb and Mallory are] responsive to the same considerations of Fifth Amendment policy” underlying the Miranda doctrine. Miranda v. Arizona, 384 U.S. 436, 463, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
And in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the Court suppressed evidence obtained after police violated the knock-and-announce rule of
What constitutional right does the PCA implicate? The majority finds the PCA‘s “constitutional underpinnings” in the remarks of one senator1 and the Supreme Court‘s dicta discussing a “traditional and strong resistance of Americans to any military intrusion into civilian affairs . . . express[ed], for example, in the Third Amendment‘s explicit prohibition against quartering soldiers.” Laird v. Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). See Majority at 1279 & n. 7. A statement of a senator and dicta from Laird are not enough to convert the PCA into the Third Amendment 2.0. The actions of various U.S. Presidents—who at times called on the military to enforce civil laws in the first half of the nineteenth century—strongly suggest that the PCA is not constitutional. See H.W.C. Furman, Restrictions upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil. L. Rev. 85, 89 (1960), and sources cited therein.2
And even if we draw the lens back far enough to find an abstract constitutional principle against military incursion into civilian affairs, that principle cannot “fairly be characterized as expressly designed to protect the personal rights of [criminal] defendants.” United States v. Dreyer, 767 F.3d 826, 841 n. 3 (9th Cir.2014) (O‘Scannlain, J., dissenting) (quoting Walden, 490 F.2d at 377). Any right is “at best remotely connected to the gathering of evidence.” Sanchez-Llamas, 548 U.S. at 349, 126 S.Ct. 2669. An individual defendant like Dreyer has no interest in what uniform the official who monitors his public exchange of child pornography is wearing.
Rather than reach the issues discussed in Parts I–III, I would follow Hudson and Sanchez-Llamas to hold that PCA violations can never warrant suppression. The PCA‘s abstract constitutional foundation does not bear the extreme weight that the suppression remedy requires—far more is needed before we elevate the PCA to the same status as the Fourth and Fifth Amendments.
Congress has had ample time to authorize suppression for PCA violations, but it never has. It knows how. See, e.g.,
Because I agree with the majority‘s conclusion that Dreyer‘s suppression motion must be denied, I respectfully concur in the judgment.
SILVERMAN, Circuit Judge, joined by CALLAHAN, Circuit Judge, concurring in the judgment:
I am at a loss to understand what NCIS Agent Steve Logan did wrong here. At the outset, it is important to note three things:
First, as a Naval criminal investigator, Logan was tasked with looking for Navy personnel who were misusing peer-to-peer software to traffic in child pornography. He was not looking for civilians.
Second, peer-to-peer software, by definition, opens up one‘s computer to the world. See United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008).
Third, when Logan discovered that he had stumbled upon a civilian sharing child pornography, he dropped the investigation like a hot potato and did nothing more than turn over his findings to civilian authorities. He had no further involvement whatsoever in the investigation, search, interrogation, or arrest.
In these circumstances, Logan did not violate the Posse Comitatus-like regulations, both because his assistance of civilian law enforcement was “indirect” and because his limited involvement had an
This is really no different than Shore Patrol going into a downtown bar that‘s open to the general public and looking for misbehaving sailors. The Shore Patrol is not there to enforce local laws, but rather “to maintain order and suppress any unseemly conduct on the part of any” sailor on shore leave.
Dreyer argues that Logan violated Navy regulations, but tellingly, that‘s not the Navy‘s interpretations of its regulations. Logan has not been disciplined for carrying out the investigation or told that he may not continue such investigations. Rather, the United States has argued on the Navy‘s behalf that although Logan was conducting an investigation when he discovered Dreyer‘s sharing of child pornography, that investigation was permissible both under NCIS‘s charter (giving agents authority to “conduct[], supervis[e], or coordinat[e] investigations of criminal activity in programs and operations of the Department of the Navy,”
Contrary to the majority‘s view, the record does not “demonstrate[ ] a poor understanding of the restrictions imposed on NCIS‘s involvement in civilian law enforcement.” The Navy‘s position that Logan‘s investigation did not violate its regulations is consistent with its longstanding administrative practice, reasonable, and deserving of the court‘s deference. See, e.g., Lawrence v. McCarthy, 344 F.3d 467, 473 (5th Cir.2003) (deferring to military court interpretations on the basis that they require “interpretation of military forms and standard operating procedures with which we are comparatively less well-versed“). Branches of the military promulgate and administer their own regulations, which the Navy has done here; a reasonable interpretation by the Navy of its own regulation must stand even if there are competing interpretations. See Champagne v. United States, 35 Fed. Cl. 198, 210 (1996), aff‘d, 136 F.3d 1300 (Fed.Cir.1998)
But even if zero deference were owed to the Navy‘s interpretation of its own regulations, I would hold that there was no violation. As sketched out above, when Logan started his investigation, it was solely with the aim of identifying Navy or other military personnel who were sharing child pornography online, in violation of the Uniform Code of Military Justice. Such an investigation is clearly in service of a legitimate Navy interest. Although Logan came upon a civilian, defendant Dreyer, distributing child pornography on a peer-to-peer file sharing service as part of this process, that discovery was not Logan‘s aim. Rather, as demonstrated by Logan‘s prompt action in turning over the investigation of Dreyer to local civilian law enforcement, his sole purpose was to “further[] a military or foreign affairs function of the United States,” DODD 5525.5, E.4.1.2.1; SECNAVINST 5820.7C at 8(c)(1): identifying military service members who are illegally sharing child pornography. Logan had no interest in or jurisdiction over Dreyer‘s transgressions, and he did nothing more than bring them to the attention of the relevant civilian authorities, and then wash his hands of the matter. Since Logan‘s investigation had this independent military purpose, it did not violate the regulations.
I concur in the judgment affirming the denial of the motion to suppress.
MORGAN CHRISTEN
UNITED STATES CIRCUIT JUDGE