Argued and Submitted En Banc, San Francisco,
California: June 17, 2015.
Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:12-cr-00119-MJP-1. Marsha J. Pechman, Chief District Judge, Presiding.
On issues arising from the Posse Comitatus Act (PCA), the en banc court affirmed the district court's denial of a suppression motion, and remanded to the three-judge panel for consideration of remaining issues, in a case in which the defendant was convicted of one count of distributing child pornography and one count of possessing child pornography.
A special agent of the Naval Criminal Investigative Service (NCIS) conducted an investigation into computers in Washington state sharing child pornography by utilizing a software query that encompassed the entire state but did not isolate or look for military service members. The investigation revealed that the defendant, a civilian, had shared child pornography files, and the NCIS passed that information along to the local police department.
The en banc court reaffirmed the holding in United States v. Chon, 210 F.3d 990 (9th Cir. 2000), that the NCIS and its civilian agents are subject to PCA-like restrictions proscribing direct assistance to civilian law enforcement. The en banc court held that the NCIS agent's investigation violated PCA-like restrictions, where the agent set up the software to cast a net across the entire state of Washington, knowing the sweep would include countless devices that had no ties to the military and thus did not fall within the jurisdiction of the Uniform Code of Military Justice. The en banc court could not conclude that the investigation had a legitimate independent military purpose because the methodology employed so clearly violated Department of Defense and naval policy, as well as the boundary Congress imposed through the PCA and 10 U.S.C. § 375. The en banc court observed that the agent's testimony illustrates that the violations likely resulted from institutional confusion about the scope and contours of the PCA and PCA-like restrictions.
The en banc court exercised its discretion to reach the issue of suppression, and concluded that on this record and at this juncture, the facts of the case do not demonstrate a need to deter future violations by suppressing the results of the investigation.
Concurring, Judge Berzon, joined by Judge Reinhardt, wrote separately to explain why she is comfortable with the holding that suppression is not warranted, although the panel opinion she authored held otherwise.
Concurring, Judge Reinhardt wrote that he is in complete agreement with both Judge Christen's and Judge Berzon's views.
Concurring in the judgment, Judge Owens, joined by Judges Silverman and Callahan, wrote that he believes that absent express congressional authorization, suppression is not a remedy for PCA violations.
Concurring in the judgment, Judge Silverman, joined by Judge Callahan, wrote that the agent did not violate the PCA-like regulations, both because his assistance of civilian law enforcement was indirect and because his limited involvement had an independent military purpose.
Erik B. Levin (argued), Law Office of Erik B. Levin, Berkeley, California, 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, Washington, for Plaintiff-Appellee.
Hanni Fakhoury and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, California; Nancy L. Talner, T. Jared Friend, American Civil Liberties Union of Washington, Seattle, Washington; Venkat Balasubramani, Focal PLLC, Seattle, Washington; and David M. Porter, Co-Chair, National Association of Criminal Defense Lawyers Amici Curiae Committee, for amici curiae.
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.
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 have no trouble concluding that the facts giving rise to the criminal charges in this case present clear violations of a congressional directive prohibiting the use of the military in civilian law enforcement. We decline to compel suppression because the facts of this case do not demonstrate that suppression is needed to deter future violations. We affirm the district court's denial of Dreyer's motion to suppress.
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 18.104.22.168 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 Algona, Washington, as the person associated with the subject IP address.
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. 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 Revised Code of Washington 9.68A.070.
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 18 U.S.C. § 2252(a) and (b)(1), and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
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 18 U.S.C. § 1385. The district court ruled it was not " unusual or inappropriate for NCIS to make a referral to [its] counterparts" and denied Dreyer's motion.
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 28 U.S.C. § 1291.
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 18 U.S.C. § 1385). The current version of the Act provides:
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 ...