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Thursday, November 5, 2015


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Evidence Obtained by Military Surveillance Held Admissible

Panel Says Search Was ‘Troubling,’ but Declines to Apply Exclusionary Rule


From Staff and Wire Service Reports


“Troubling” search-and-seizure violations committed by Navy investigators are not grounds for suppressing evidence that resulted in a civilian’s child pornography conviction, the en banc Ninth U.S. Circuit Court of Appeals ruled yesterday.

The surveillance by a U.S. Navy investigator that led to Michael Dreyer’s conviction violated the Posse Comitatus Act’s prohibition on the use of the military in civilian law enforcement activities, the court said. But the military was taking steps to ensure the violation didn’t occur again, so suppressing the evidence was not needed, the panel held.

“The military is best suited to correct this systemic violation, and it has initiated steps to do so,” Judge Morgan Christen wrote. “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.”

The exclusionary rule generally applies only to constitutional, not statutory, violations, the judge noted.

Dreyer was sentenced by a U.S. district judge in Washington state to 18 years in prison, with lifetime supervised release, for distributing and possessing child pornography. The case began when Navy Criminal Investigative Service agent Steve Logan ran a 2010 criminal investigation of online child pornography distribution using a program called RoundUp, which could not isolate its search to military service members.

The search therefore encompassed all computers in Washington state.

Logan turned Dreyer’s information over to the police, who obtained a search warrant and seized the computer. The investigation turned up images and videos depicting child pornography shared from Dreyer’s computer, and a federal agent later obtained a warrant for the computer as well, leading to his conviction after the district judge denied his motion to suppress, based on the Posse Comitatus Act.

Decision Reversed

A divided three-judge panel of the Ninth Circuit reversed the court’s decision in September of last year, finding that Logan violated the act and the judge should have suppressed the evidence. But the full court decided to rehear the case en banc “to reconsider the important issues it presents,” Christen said in her opinion.

Christen said that the Posse Comitatus Act applies to the NCIS because the service reports directly to the Navy.

She also said that Logan’s conduct did not constitute “permissible indirect assistance,” as the government argued, because his active investigation was “expressly prohibited as direct assistance” by the statute.

“Here, Logan set RoundUp to cast a net across the entire state of Washington, knowing the sweep would include countless devices that had no ties to the military,” Christen wrote. “The investigation in this case was not reasonably tied to military bases, military facilities, military personnel, or military equipment.”

Since Logan’s investigation would “inevitably encompass mostly civilian-owned computers,” the investigation did not have an independent military purpose, Christen said.

‘Institutional Confusion’

However, the judge noted that Logan’s violations “likely resulted from institutional confusion about the scope and contours of the PCA and PCA-like restrictions,” since the investigation at issue was “not an isolated incident.”

The judge said that authorization of Roundup was likely based on an “incorrect understanding of the PCA-like restrictions that apply to NCIS.” She called the case’s facts “troubling and unprecedented.”

But despite these violations, a suppression of evidence against Dreyer is not appropriate because it is not needed to deter future PCA violations, the judge said.

“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,” she said.

There were several concurring opinions.

Judge Marsha Berzon, who wrote the panel opinion, said she was now convinced that suppression was unnecessary to deter future misconduct of a similar nature. Judge Stephen Reinhardt said he agreed with Berzon and Christen.

Congressional Decree

Judge John Owens, joined by Judges Barry Silverman and Consuelo Callahan, argued that suppression can never be the remedy for a PCA violation unless Congress so decrees.

Silverman, joined by Callahan, said he was “at a loss to understand what NCIS Agent Steve Logan did wrong here” because, when he “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.”

Defense lawyer Erik Levin of Berkeley did not respond to requests for comment.

Kent Scheidegger of the Criminal Justice Legal Foundation told the MetNews:

“Excluding evidence for reasons that have nothing to do with its reliability is an obnoxious practice, and I am very pleased to see that not a single member of the 11-judge panel voted to extend that practice in this case.  The military certainly needs to be reined in to avoid a repeat of what happened here, but suppressing evidence and blinding a criminal court to the truth is not the way to do it.”

The case is United States v. Dreyer, 13-30077.


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