United States v. Comprehensive Drug Testing, Inc. ( 2008 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
No. 05-10067
v.
 D.C. No.
COMPREHENSIVE DRUG TESTING, MISC-04-234-SI
INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
MAJOR LEAGUE BASEBALL PLAYERS 
ASSOCIATION,
Petitioner-Appellee, No. 05-15006
v.  D.C. No.
CV-04-00707-JCM
UNITED STATES OF AMERICA,
Respondent-Appellant.

Appeal from the United States District Court
for the District of Nevada
James Mahan, District Judge, Presiding
1077
1078 UNITED STATES v. COMPREHENSIVE DRUG TESTING
IN RE: SEARCH WARRANTS EXECUTED 
ON APRIL 8, 2004 AT CDT, INC., No. 05-55354
SEAL 1, D.C. No.
Plaintiff-Appellant,  CV-04-02887-FMC
v. ORDER AND
SUPERSEDING
SEAL 2, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
November 15, 2005—San Francisco, California
Filed January 24, 2008
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Thomas
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1083
COUNSEL
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, argued the cause for defendant-appellant,
United States of America; United States Attorney Kevin V.
Ryan, Appellate Chief Hannah Horsley, Assistant United
States Attorney Barbara J. Valliere, San Francisco, California;
and Assistant United States Attorneys Matthew A. Parrella,
Ross W. Nadel, Jeffrey D. Nedrow, Carter M. Stewart, San
Jose, California, were on the briefs.
Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, Cali-
fornia, argued the cause for defendants-appellees Comprehen-
sive Drug Testing, Inc. and Major League Baseball Players
Association; Ethan A. Balogh, Keker & Van Nest, LLP, San
Francisco, California, and David P. Bancroft and Jeffrey C.
Hallam, Sideman & Bancroft, LLP, San Francisco, California,
were on the brief.
ORDER
The petitions for panel rehearing are GRANTED. The
opinion and dissent filed on December 27, 2006, are with-
drawn. The superseding opinion and dissenting opinion of
Judge Thomas will be filed concurrently with this order.
The petition for rehearing en banc is DENIED as moot.
Further petitions for rehearing or rehearing en banc may be
filed.
1084 UNITED STATES v. COMPREHENSIVE DRUG TESTING
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the United States may retain evi-
dence it seized from Major League Baseball’s drug testing
administrator, and enforce an additional subpoena, as part of
an ongoing grand jury investigation into illegal steroid use by
professional athletes.
I
These three consolidated cases arise from the federal inves-
tigation of the Bay Area Lab Cooperative (“Balco”) and its
alleged distribution of illegal steroids to enhance the perfor-
mance of professional baseball athletes. The investigation
began in August 2002 and, over the following several years,
produced evidence—including grand jury testimony—
establishing probable cause to believe that at least 10 major
league baseball players received illegal steroids from Balco.
Today we decide the government’s appeals from the separate
adverse orders of three different district courts: (1) an order
by Judge Florence-Marie Cooper in the Central District of
California, denying reconsideration of her earlier order requir-
ing the government to return property seized from Compre-
hensive Drug Testing, Inc. in Long Beach, California (“CDT”),1
(2) an order by Judge James Mahan in the District of Nevada,
requiring the government to return property seized from Quest
Diagnostics, Inc. in Las Vegas, Nevada (“Quest”),2 and (3) an
order by Judge Susan Illston in the Northern District of Cali-
fornia, quashing the government’s May 6, 2004, subpoenas to
CDT and Quest that related to the grand jury sitting in San
Francisco, California.
1
The court also required the government to turn over all notes made by
agents who reviewed the challenged evidence.
2
Again, the court required the government to give up all notes made by
reviewing agents.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1085
A
As part of its investigation into Balco, the government in
November 2003 served a grand jury subpoena on Major
League Baseball (“MLB”),3 seeking drug testing information
for 11 players4 with connections to Balco. One month later,
MLB responded that it had no such information.
The government then reasoned that because CDT5 and Quest6
had tested urine samples from MLB players during 2003,
those entities—rather than MLB—had to possess the samples
and testing records in question. Therefore, the government
issued subpoenas both to CDT and to Quest, seeking drug
testing information for all MLB players. The subpoenas were
returnable on February 5, 2004, but the government extended
that date to March 4, 2004, after CDT and Quest promised not
to destroy or to alter any of the evidence requested.
Despite protracted negotiations, CDT and Quest resisted
producing any of the subpoenaed materials, explaining that
they would fight production of even a single drug test all the
3
“Major League Baseball,” an unincorporated association, consists of
two professional baseball leagues—the National League of Professional
Baseball Clubs and the American League of Professional Baseball Clubs.
4
The names of the players are under seal and are not disclosed in this
opinion.
5
CDT is a third-party administrator of “drug and alcohol testing pro-
grams” that was hired to oversee MLB’s drug use evaluation program. The
company includes “top experts in pharmacology, forensic toxicology,
laboratory management, medical review, legal, and administrative
compliance.” Comprehensive Drug Testing: About Us, http://
www.cdtsolutions.com/about_us.html (last visited June 13, 2007).
6
Quest offers laboratories that conduct “drugs of abuse testing and ther-
apeutic drug monitoring” with “the most advanced methodologies avail-
able.” Quest Diagnostics: Diagnostic Testing & Services, http://
www.questdiagnostics.com/brand/business/b_bus_lab_index.html (last
visited June 13, 2007). Quest’s laboratory in Las Vegas performed the
drug testing on the player specimens at issue in these consolidated appeals.
1086 UNITED STATES v. COMPREHENSIVE DRUG TESTING
way to the Supreme Court. Following further negotiations, the
government, believing that a narrower subpoena might be
effective, issued new subpoenas on March 3, 2004, seeking
documents related only to eleven7 players with Balco connec-
tions. These new subpoenas were returnable on April 8, 2004.
Two days before the new return date, the Major League
Baseball Players’ Association—the union representing ath-
letes who play for Major League Baseball8 —informed the
government that it intended to file a motion to quash the sub-
poenas. The following day, as promised, CDT and the Players
Association filed such a motion in the Northern District of
California before United States District Judge Jeffrey White.
B
After learning of the planned motion to quash, the govern-
ment applied on April 7, 2004, for warrants to search CDT’s
Long Beach office and Quest’s Las Vegas laboratory. The
government expected to find testing evidence at both loca-
tions and knew that the information at CDT would be needed
to obtain all relevant records from Quest, because Quest
stored each testing record by code, not name, and CDT pos-
sessed the information identifying the code(s) that corre-
sponded to each player in its testing program. Upon a
showing of probable cause,9 Magistrate Judge Jeffrey Johnson
in the Central District of California issued a search warrant
for the CDT office,10 and Magistrate Judge Lawrence Leavitt
7
The government later decided not to seek drug testing evidence related
to one of the eleven players, and on April 22, 2004, sent a letter to counsel
for CDT withdrawing requests for documents related to that player.
8
The testing records at issue in these cases were created pursuant to a
collective bargaining agreement between Major League Baseball and the
players of Major League Baseball (represented by the Major League Base-
ball Players’ Association).
9
No party disputes the existence of probable cause to support the April
7, 2004, warrants.
10
The warrant was not limited to the identifying numbers of the ten
players, although those numbers were integral to obtaining meaningful
information from Quest and thus played a special role in the investigation.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1087
in the District of Nevada issued a search warrant for the Quest
laboratory.11 Affidavits submitted to support the warrants
informed both magistrates that the information sought was
already the subject of grand jury subpoenas and that a motion
to quash was expected.12 Contrary to the arguments of the
Players Association and CDT, the government did not prem-
ise its April search warrant affidavits on a claim that the evi-
dence was in danger of being destroyed.13
The April 7 warrants authorized the seizure of drug testing
records and specimens for ten named Balco-connected play-
ers, as well as “[a]ll manuals, pamphlets, booklets, contracts,
agreements and any other materials detailing or explaining”
CDT’s or Quest’s “administration of Major League Baseball’s
drug testing program.”14 The warrants also authorized the
search of computer equipment, computer storage devices, and
11
Federal Rule of Criminal Procedure 41(b) authorizes the government
to pursue search warrants in different districts. The rule gives a magistrate
judge the authority “to issue a warrant to search for and seize a person or
property located within the district,” “to issue a warrant for a person or
property outside the district if the person or property is located within the
district when the warrant is issued but might move or be moved outside
the district before the warrant is executed,” or “in an investigation of
domestic terrorism or international terrorism . . . [to] issue a warrant for
a person or property within or outside that district.” Fed. R. Crim. P.
41(b).
12
See infra pp. 1109-1110.
13
Loss of electronic evidence during delays in litigation is a consider-
able risk. In its recent publication advising judges on how to manage elec-
tronic discovery in civil cases, the Federal Judicial Center explained that
judges should consider “preservation order[s]” to “minimize the risk that
relevant evidence will be deliberately or inadvertently destroyed” and to
“help ensure information is retrieved when it is most accessible (i.e.,
before it has been deleted or removed from active online data).” Federal
Judicial Center, Managing Discovery of Electronic Information: A Pocket
Guide for Judges 17 (eds. Barbara Rothstein, Ronald J. Hedges & Eliza-
beth C. Wiggins) (2007) [hereinafter “Managing Discovery”].
14
The warrant also expressly authorized the seizure of “correspondence”
and “e-mails” detailing or explaining Quest’s administration of the drug
testing program.
1088 UNITED STATES v. COMPREHENSIVE DRUG TESTING
—where an on site search would be impracticable—seizure of
either a copy of all data or the computer equipment itself.
“[L]aw enforcement personnel trained in searching and seiz-
ing computer data” (designated “computer personnel”) were
responsible for choosing the appropriate course of action to
capture the electronic data sought. If seizure of all data or
equipment was necessary, “appropriately trained personnel”
would review the data, retaining the evidence authorized by
the warrant and designating the remainder for return.
On the morning of April 8, 2004, Special Agent Jeff
Novitzky (the lead case agent) and eleven other federal agents
—including Computer Investigative Specialist Agent Joseph
Abboud—executed the search warrant for CDT’s Long Beach
office. Although CDT personnel were initially cooperative,
one of CDT’s directors—after speaking with counsel—
informed Agent Novitzky that CDT would not assist federal
officers in locating the evidence they were authorized to seize
and that the agents should “do what they needed to do.” When
informed that agents might be forced to seize all computer
equipment for up to sixty days, the director again contacted
counsel, exclaiming that such a seizure would “shut[ ] the
business down.”
Throughout the morning and early afternoon, Agent
Novitzky spoke several times with CDT’s attorney, David
Bancroft. Bancroft asked Agent Novitzky not to seize any-
thing while he attempted to work out a beneficial solution
with the United States Attorney’s Office in San Francisco.
Later, Bancroft told the agent that CDT had only one hard-
copy document eligible for seizure. Around noon, both Agent
Novitzky and Assistant United States Attorney Jeff Nedrow
spoke with Bancroft and CDT’s directors via conference call.
Bancroft emphasized that any help CDT provided should not
be construed to constitute consent and then informed Nedrow
and Agent Novitzky that CDT had two computers on which
agents would find information relevant to the search warrant.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1089
During this conference call, Agent Novitzky learned that
agents had discovered a hard-copy document with names and
identifying numbers for all MLB players, including some of
the ten named Balco players. Agent Novitzky faxed the docu-
ment, which was not the “only document eligible for seizure”
to which Bancroft had alluded, to Nedrow for preparation of
another search warrant to seize specimen samples from Quest
based on the identifying numbers. One of CDT’s directors
became visibly upset when she noticed the document being
faxed. She left the premises, but when she returned, she
opened a locked drawer and presented agents with a docu-
ment that contained drug test results for the ten named Balco
players—the document previously described as the only seiz-
able hard-copy document on site.15
At 2:35 p.m., a CDT director finally identified a computer
directory containing all of the computer files for CDT’s sports
drug testing programs. This directory, labeled “Tracey,” con-
tained numerous subdirectories and hundreds of files. Seeing
this, Agent Abboud recommended copying the entire direc-
tory for off-site analysis, because of the time and intrusive-
ness involved in searching the voluminous directory on site.
The warrant had anticipated that such removal might be nec-
essary, and provided:
If the computer equipment and storage devices
cannot be searched on-site in a reasonable amount of
time, then the computer personnel will determine
whether it is practical to copy the data during the
execution of the search in a reasonable amount of
time without jeopardizing the ability to preserve the
data.
15
Some time later, agents located a billing document for CDT’s off-site
Long Beach storage locker. Only after agents obtained a fourth warrant
from Magistrate Judge Johnson on April 8, 2004, allowing them to search
and seize evidence in the locker, did a CDT director agree to open the
locker for the agents.
1090 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The agents copied the directory and removed the copy for
later review at government offices.16
The search of the CDT facility concluded shortly after 5
p.m., but before he left the premises, Agent Novitzky
reviewed with CDT directors the evidence seized during the
search. The documents seized included a 25-page master list
of all MLB players tested during the 2003 season and a 34-
page list of positive drug test results for eight of the ten
named Balco players, intermingled with positive results for 26
other players.17 Upon returning to his office in San Jose, Cali-
fornia, Agent Novitzky briefly reviewed the contents of the
Tracey directory, identifying five subdirectories related to
MLB. Within these directories, Agent Novitzky identified
files authorized by magistrate judges for seizure, including the
master file of positive drug test results.
During the time in which Agent Novitzky and others were
searching CDT on April 8, 2004, another group of federal
agents had executed simultaneously a separate search warrant
at Quest’s laboratory in the District of Nevada. However,
these agents were unable to locate the specimens that the war-
rant authorized them to seize, because the search warrant in
the District of Nevada listed the players by name, and the
Quest specimens were identified only by number.
Quest employees informed the searching agents in the Dis-
trict of Nevada that the records associating the players with
their identifying numbers could be found in files stored by
16
The warrant also provided for the circumstances in which “computer
personnel determine it is not practical to perform an on-site search or
make an on-site copy of the data within a reasonable amount of time,” and
then allowed “the computer equipment and storage devices [to] be seized
and transported to an appropriate law enforcement laboratory for review.”
The agents did not make use of this procedure, however, because Agent
Abboud determined that copying the data was possible.
17
Copies of all seized documents were provided to CDT by the govern-
ment on April 16, 2004.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1091
CDT. Indeed, these records soon were discovered by agents
at CDT and faxed to the agents at Quest.18 With this informa-
tion, the agents in the District of Nevada applied for a third
search warrant to seize the relevant items identified by num-
ber as well as by name. Judge Leavitt authorized this third
warrant at 6 p.m. on April 8, 2004, and agents seized from
Quest the then-identifiable Balco players’ specimens later that
same night.
C
On April 26, 2004, the Players Association filed motions
under Fed. R. Crim. P. 41(g) (hereinafter “Rule 41(g)”)19
seeking return of the property seized.20
18
See supra pp. 1089.
19
Fed. R. Crim. P. 41(g) reads:
Motion To Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property’s return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.
20
On April 30, the government applied for a fifth search warrant in the
Northern District of California, asking for authorization to “seize” all elec-
tronic data “regarding drug specimens, drug testing, specimen identifica-
tion numbers, athlete identification numbers, and drug test results, retained
by [CDT] . . . pertaining to the drug testing of Major League Baseball
players, located within the copy of a CDT computer sub-directory cur-
rently in the possession of the [Internal Revenue Service (“IRS”)] in San
Jose, California, identified as the ‘Tracey’ sub-directory, bearing the fol-
lowing computer file group names: (1) ‘MAJOR LEAGUE GROUP’ (2)
‘MLB BILLING’ (3) ‘MLB Drug SubCommittee’ (4) ‘MLB Follow UP’
(5) ‘MLB IOC.’ ” Because this copy of the Tracey directory was in the
hands of the IRS in San Jose, in the Northern District of California, the
government sought the search warrant in that district. See Fed. R. Crim.
P. 41(g). Magistrate Judge Howard Lloyd approved the warrant. The gov-
ernment did not notify CDT, presumably because the IRS already had in
1092 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Meanwhile, the government continued to pursue its investi-
gation. On May 5, using information culled from the Tracey
directory, the government applied for new search warrants to
seize all specimens and records relating to more than 100 non-
Balco players who had tested positive for steroids. Magistrate
Judge Leavitt in the District of Nevada authorized seizure of
the specimens from Quest, and Magistrate Judge Rosalyn M.
Chapman in the Central District of California authorized the
seizure of records from CDT. Again, the government sought
and obtained each warrant from the district court whose juris-
diction encompassed the situs of the property to be searched,
as directed by Fed. R. Crim. P. 41(b).21 The government exe-
cuted the warrants on May 6, and the Players Association
immediately filed motions under Rule 41(g), seeking return of
the specimens and records seized.
its possession the copy of the entire directory containing the relevant
materials.
The Players Association subsequently filed a Rule 41(g) motion in the
Northern District of California seeking return of any property taken pursu-
ant to the April 30 search warrant, and on August 9, 2004, Judge Illston
granted this motion. The government did not appeal the order and does not
dispute it now. Instead, the government asserts that it retains the right to
review the Tracey directory based upon the April 7 search warrants, a con-
tention we address in this consolidated appeal.
Insofar as the dissent suggests that the pursuit of the April 30 search
warrant evidences bad faith harassment by the government and an attempt
to evade a possibly adverse order on the motion for return of property filed
in the Central District of California, we decline to speculate. We have no
reason to believe that the government sought the April 30 warrant for pur-
poses of harassment, rather than to avoid an additional search of CDT that
would have followed from authorization to seize the original copy in the
Central District. Since no district court has ever held an evidentiary hear-
ing, and the government complied with the commands of the criminal
rules to secure search warrants from the magistrate judges in whose dis-
tricts the property was located, based upon a showing of probable cause
that incriminating evidence would be found, we do not discern sufficient
indicia of bad faith to support a contrary conclusion.
21
See supra note 11.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1093
On August 19, 2004, Judge Mahan ruled from the bench.
He granted the Rule 41(g) motion brought by the Players
Association in the District of Nevada and ordered the govern-
ment to return all specimens seized from Quest and all notes
and memoranda compiled by agents who reviewed the evi-
dence, other than those pertaining to the ten Balco players
named in the original search warrant.22 He made findings—
without conducting an evidentiary hearing—that “[t]he gov-
ernment callously disregarded the affected players’ constitu-
tional rights” and that the government unreasonably refused
“to follow the procedures set forth in United States v. Tamura,
694 F.2d 591 (9th Cir. 1982),” with regard to the intermingled
records seized in the Central District of California. Almost six
weeks later, and again without conducting an evidentiary
hearing, Judge Cooper rejected the government’s suggestion
that the documents were seizable under the warrant exception
that applies to plain-view evidence of contraband,23 and
granted the Players Association’s Rule 41(g) motion in the
Central District of California. The order, which also cited the
government’s failure to follow Tamura’s procedures, man-
dated return to CDT of any evidence seized that was not con-
nected to the ten players named in the warrant. Judge Cooper
denied the government’s motion for reconsideration of this
order on February 9, 2005.
These orders are the subjects of two of the appeals consoli-
dated here.24
22
The government moved for a stay of this order because the evidence
was otherwise lawfully in its possession pursuant to the subpoena of May
6, 2004. Judge Mahan denied the motion on November 1, 2004, based on
the government’s failure to raise the subpoena argument at the original
hearing.
23
We discuss the inapplicability of this warrant exception in Section
III.A.4. See infra note 48.
24
The government returned to CDT and Quest all items mandated for
return under the two district court orders pending resolution of the appeals.
1094 UNITED STATES v. COMPREHENSIVE DRUG TESTING
D
The third appeal concerns grand jury subpoenas issued to
Quest and CDT on May 6, 2004, which were to be returned
by June 10, 2004. These subpoenas reached all specimens and
records of positive steroid drug tests for more than 100 MLB
players and were not confined to records pertaining to the ten
Balco players named in the earlier subpoenas.25 The govern-
ment also sought search warrants for this larger swath of evi-
dence on the ground that the April 8 seizures did not provide
all information needed for the investigation.26
Quest complied with the May 6 subpoena, providing the
government with hundreds of pages of documents, but the
government agreed to defer CDT’s compliance pending reso-
lution of the search warrant litigation. On August 31, 2004,
however, the government revoked the indefinite deferral and
instructed CDT to comply with the subpoena by September
14, 2004. The Players Association filed a motion to quash the
subpoenas on September 13, 2004.
25
These subpoenas were not the first ones issued in the investigation.
The first subpoenas, dated January 16, 2004, mandated the provision of all
MLB drug testing records. On March 3, 2004, the government obtained
narrower subpoenas for eleven Balco-connected players.
On April 22, 2004, the government sent a letter to CDT withdrawing the
January 2004 subpoenas. In the same letter, the government reduced the
March 3, 2004, subpoenas to ten, not eleven, Balco players. At the time
the government obtained the May 6 subpoenas, the only outstanding sub-
poenas were those of March 3, which sought the records of ten players
with Balco connections.
26
Recognizing that the documents they seized from CDT pursuant to the
April 7 search warrant might not have included all documents relevant to
the investigation (even with regard to Balco-related players, see infra note
46 and accompanying text), and deciding that the positive test results
uncovered for MLB players beyond the ten with Balco connections could
be valuable to the investigation, the government sought a broader warrant
on May 6 in the Central District of California.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1095
In December 2004, after hearing argument but without tak-
ing testimony, Judge Illston found that the government’s con-
duct was unreasonable and constituted harassment. She filed
an order quashing the subpoenas, which the government
timely appealed.
II
Before we review the orders granting the Rule 41(g)
motions in the Central District of California and the District
of Nevada, we must decide two jurisdictional issues: whether
the Players Association has standing to challenge the search
and seizure of evidence from Quest and whether the govern-
ment timely appealed Judge Cooper’s order to return the
materials seized from CDT in the Central District of California.27
A
The government contends that the Players Association
lacks standing to file the Rule 41(g) motion, because it lacked
access, control, and ownership over the records and speci-
mens seized from Quest. Furthermore, it argues that the Play-
ers Association may not base its interest in the property (the
urine specimens and test results) on the privacy interests of
the individual players.28
27
We need not decide whether the Players Association has standing to
challenge the CDT seizures because CDT is a party and has standing on
its own to seek return of the property seized from its office and storage
locker.
28
The Supreme Court has clearly rejected “vicarious” or “target” stand-
ing to assert Fourth Amendment rights. See Rakas v. Illinois, 439 U.S.
128, 133-34 (1978) (refusing to extend standing to a party who was not
a “victim” of the search); see also United States v. Taketa, 923 F.2d 665,
669-70 (9th Cir. 1991) (following Rakas, 439 U.S. at 134, and holding that
a defendant did not have standing to challenge a search of another defen-
dant’s office). “A person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by a search
of a third person’s premises or property has not had any of his Fourth
1096 UNITED STATES v. COMPREHENSIVE DRUG TESTING
[1] An association has standing to sue on behalf of its
members when they would otherwise have independent stand-
ing to sue, the interests sought to be protected are germane to
the organization’s purpose, and the claim asserted does not
require the participation of individual members in the lawsuit.
Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988); see also
Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343
(1977).
[2] We are satisfied that the Players Association satisfies
each prong of this test. First, the Players Association repre-
sents all MLB players, each one of whom could certainly sue
in his own right to seek return of his own drug testing records.
Second, the interests sought to be protected—the players’ pri-
vacy interests in their drug testing records—are related to the
organization’s sole purpose: to represent the interests of MLB
players. Third, the Players Association sought only the return
of the players’ drug testing information and specimens; for
this type of prospective relief, the individual players need not
be parties to the action. See Warth v. Seldin, 422 U.S. 490,
515 (1975) (holding that an association lacked standing where
it sought damages rather than “a declaration, injunction, or
some other form of prospective relief”).
[3] We therefore conclude that the Players Association has
standing to assert the Fourth Amendment rights of its mem-
bers sufficient to file Rule 41(g) motions seeking return of
seized property in which their members hold privacy interests.
B
[4] The Players Association and CDT contend that the gov-
ernment failed to appeal in a timely manner Judge Cooper’s
Amendment rights infringed.” Rakas, 439 U.S. at 134 (emphasis added).
Because we are satisfied that the Players Association has met the require-
ments of associational standing, we do not reach its argument that it has
an ownership interest in the seized items sufficient to establish standing
in its own right. We leave that question for another day.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1097
order for the return of property. In order to be timely when the
United States, its officer, or its agency is a party, a notice of
appeal must be filed “within 60 days after the judgment or
order appealed from [was] entered.” Fed. R. App. P.
4(a)(1)(B).
Judge Cooper’s order granting the motion for a return of
property was filed on October 1, 2004. On November 19,
2004, 17 days after receiving notice of the order, the govern-
ment filed a “Motion for Reconsideration and Modification of
Court’s October 1, 2004 Order Granting Return of Property,”
asking the district court to modify the factual descriptions of
the government’s conduct. Judge Cooper reviewed this
motion on the merits under Central District of California
Local Rule 7-18 (governing “Motion[s] for Reconsideration”).29
Concluding that “the Government identifie[d] no material
facts that the Court failed to consider,” she denied the motion
on February 9, 2005. On March 9, 2005, the government filed
a notice of appeal, challenging both the original Rule 41(g)
order and the denial of the motion for reconsideration.
[5] We have jurisdiction to review the denial of the motion
for reconsideration, because the notice of appeal was filed
within 60 days of that order. See Fed. R. App. P. 4(a)(1)(B).
However, because the notice of appeal was filed more than
five months after the order granting the Rule 41(g) motion,
29
Central District of California Local Rule 7-18 reads:
A motion for reconsideration of the decision on any motion
may be made only on the grounds of (a) a material difference in
fact or law from that presented to the Court before such decision
that in the exercise of reasonable diligence could not have been
known to the party moving for reconsideration at the time of such
decision, or (b) the emergence of new material facts or a change
of law occurring after the time of such decision, or (c) a manifest
showing of a failure to consider material facts presented to the
Court before such decision. No motion for reconsideration shall
in any manner repeat any oral or written argument made in sup-
port of or in opposition to the original motion.
1098 UNITED STATES v. COMPREHENSIVE DRUG TESTING
we can review that underlying order only if the motion for
reconsideration tolled the 60-day period to file an appeal.
[6] Federal Rule of Appellate Procedure 4(a) sets forth spe-
cific rules for calculating the time to file an appeal, and per-
mits tolling for certain motions for reconsideration made
under the Federal Rules. See Fed. R. App. P. 4(a)(4)(iv), (vi).
A motion for reconsideration may be eligible for tolling even
if it was not filed or considered under the Federal Rules, as
long as the motion could have been filed as a motion “to alter
or amend the judgment under Rule 59” or a motion “for relief
under Rule 60 if the motion is filed no later than 10 days after
the judgment is entered.” See Fed. R. App. P. 4(a)(4)(iv), (vi);
Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857,
863 (9th Cir. 2004) (holding that tolling was appropriate
under Fed. R. App. P. 4(a), because a motion for partial
reconsideration that “[did] not state under which rule the
motion was brought” could be construed under Rule 59(e));
see also United States v. Nutri-cology, Inc., 982 F.2d 394, 397
(9th Cir. 1992) (“A motion, however labelled [sic], served
within ten days of the entry of an order that could have been
brought under Rule 59(e) tolls the time for filing a notice of
appeal.”).30
The Players Association and CDT argue that the govern-
ment’s motion cannot be treated as a motion for reconsidera-
tion for tolling purposes, because it was merely “styled as one
for reconsideration,” and only “asked the court to water down
30
Nutri-cology stated that “motions made under Rule 60(b) do not toll
the time for filing a notice of appeal,” but that because the “government’s
motion for reconsideration . . . could have been brought under Fed. R. Civ.
P. 59(e) . . . [it] toll[ed] the time for filing a notice of appeal.” 982 F.2d
at 397. That decision predated a 1998 amendment to Fed. R. App. P. 4(a),
which inserted a provision allowing motions filed under Rule 60(b) to also
toll the time to file an appeal, if such motions were filed within 10 days
of the entry of judgment. See Fed. R. App. P. 4(a), advisory committee’s
note. The tolling analysis in Nutri-cology now applies to both Rule 59(e)
and 60(b) motions. See Shapiro, 374 F.3d at 863.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1099
its findings” without claiming that “the Court failed to evalu-
ate the merits.” We disagree. The government’s motion asked
Judge Cooper to “reconsider and modify several aspects of
[her] order which inaccurately characterize[d] the govern-
ment’s actions,” while expressly clarifying that it was “not
asking for a substantive reconsideration of the Court’s ulti-
mate return order.” The motion proposed several specific
deletions of language in the opinion. These requests constitute
a motion for reconsideration and may be treated under the
Federal Rules governing such motions. See Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99
(9th Cir. 2001) (“[A] ‘motion for reconsideration’ is treated
as a motion to alter or amend judgment under Federal Rule of
Civil Procedure Rule 59(e) if it is filed within ten days of
entry of judgment . . . . Otherwise, it is treated as a Rule 60(b)
motion for relief from a judgment or order.” (citing Nutri-
cology, 982 F.2d at 397)).
[7] In this case, whether the motion could have been filed
under Rule 59(e) or could have been filed under Rule 60(b)
makes no difference. Either way, the government’s motion
fails to satisfy the time requirements for tolling under Fed. R.
App. P. 4(a). To be eligible for tolling, the motion had to have
been filed by October 11, 2005—ten days after the order
granting the Rule 41(g) motion. See Fed. R. App. P. 4(a)(4).
The motion was filed forty-nine days after the order, exceed-
ing the time period by thirty-nine days.
The government seeks an alternative avenue to obtain toll-
ing by arguing that it did not receive notice of the order until
November 2, 2004, and therefore that the time limit should
not be calculated from the date of the entry of judgment. We
agree that delays in notice may offer a basis for filing after the
normal deadline, but the Federal Rules expressly state that
parties must request an extension of time to file an appeal in
such circumstances. See Fed. R. App. P. 4(a)(6) (permitting
a district court to reopen the time to file an appeal where a
1100 UNITED STATES v. COMPREHENSIVE DRUG TESTING
party did not receive notice);31 see also Fed. R. App. P.
4(a)(5) (allowing a district court to extend the time to file an
appeal upon a showing of excusable neglect or good cause).32
The government never sought an extension of its time to
file a notice of appeal. Instead, in a footnote to its motion for
reconsideration, the government made the strange request for
“leave to file this motion for reconsideration” at a point “out-
side of the normal time frame for the filing such motions.”
Yet the motion was timely under the local rule on motions for
reconsideration, see C. D. Cal. Local Rule 7-18, as well as
under the applicable federal rule, see Fed. R. Crim. P. 60(b).
Neither the Players Association nor the district court
responded to the government’s odd request; they simply
focused on the merits of the motion for reconsideration.
Although we are not certain why the government requested
special cognizance of the motion, we imagine that it may have
feared that the district court otherwise would dismiss the
motion as untimely under Rule 59(e). In any case, the govern-
ment’s request did not constitute a motion for an extension of
time to file an appeal, because the narrow and precise request
asked the court to review the motion for reconsideration with-
out any mention of a future filing, and never invoked any
local or federal rule allowing time to extend the time to file
an appeal.33
31
An extension under this rule may be granted upon a finding that the
party did not receive notice of the order sought to be appealed, that the
party filed “the motion” within 180 days after the judgment or order or
within 7 days after receiving notice, whichever is earlier, and that no party
would be prejudiced. Fed. R. App. P. 4(a)(6)(A)-(C).
32
A party invoking this rule must move “no later than 30 days after the
time prescribed by Rule 4(a) expires” and must show “excusable neglect
or good cause.” Fed. R. App. P. 4(a)(5)(A). An extension under this rule
may not exceed “30 days after the prescribed time or 10 days after the date
when the order granting the motion is entered.” Fed. R. App. P. 4(a)(5)(C).
33
Moreover, even if we were to calculate the time to file a motion for
reconsideration or a notice of appeal from the date of notice—November
2, 2004—rather than the date of entry of judgment—October 1, 2004—the
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1101
The government seeks to evade the conclusion that its
notice of appeal was too late by arguing that the Players Asso-
ciation waived the right to raise a timeliness objection by first
raising such claim in its petition for rehearing. Basing its
argument on the Supreme Court’s decision in Eberhart v.
United States, 546 U.S. 12 (2005), and on our decision in
United States v. Sadler, 480 F.3d 932 (9th Cir. 2007), the gov-
ernment argues that the relevant tolling provisions of Fed. R.
App. P. 4(a) are nonjurisdictional and that the Players Associ-
ation forfeited any argument that they were not satisfied.
In Eberhart, the Supreme Court addressed the question of
what time limitations are jurisdictional. Acknowledging that
its prior decision in United States v. Robinson, 361 U.S. 220
(1960), “ha[d] created some confusion because of its observa-
tion that ‘courts have uniformly held that the taking of an
appeal within the prescribed time is mandatory and jurisdic-
tional,’ ” the Court distinguished “nonjurisdictional claim-
processing rules” from rules that “deprive federal courts of
subject-matter jurisdiction.” 546 U.S. at 16. The Court
explained that only the former could be forfeited. See id. at 19
(holding that the “Court of Appeals should . . . have pro-
ceeded to the merits” of a Fed. R. Crim. P. 33 motion based
government’s motion for reconsideration was filed seven days too late to
toll the time to file a notice of appeal under Fed. R. App. P. 4(a). And if
we were to read the government’s request as a motion for an extension of
time to file an appeal under Fed. R. App. P. 4(a)(6), and the court’s Febru-
ary 9, 2005, order denying the motion for reconsideration as an implied
grant of such motion for an extension, the government’s notice of appeal
still would have been untimely. The government filed its notice of appeal
on March 9, 2005, but Fed. R. App. P. 4(a)(6) would have allowed an
extension only until February 23, 2005 (14 days after the order). See id.
Similarly, the notice of appeal would have been too late under Fed. R.
App. P. 4(a)(5), which would have allowed an extension only until Febru-
ary 19, 2005 (10 days after the order). See id. at 4(a)(5)(C). Thus, even if
the government had requested and received an extension of time under the
federal rules, its notice of appeal was filed too late to allow us to review
the underlying order granting the Rule 41(g) motion.
1102 UNITED STATES v. COMPREHENSIVE DRUG TESTING
on a court-imposed rule, because “where the Government
failed to raise a defense of untimeliness until after the District
Court had reached the merits, it forfeited that defense”).
[8] Whether a federal rule establishing a time limitation
imposes a jurisdictional rule depends on whether the rule
derives from a statute. See Kontrick v. Ryan, 540 U.S. 443,
452 (2004) (holding that “statutory provisions . . . contain[-
ing] built-in time constraints” create jurisdictional limits but
that jurisdiction is not affected by “Court prescribed ‘rules of
practice and procedure’ ” (citation omitted)); Sadler, 480 F.3d
at 937 (“Rules provisions governing timeliness that do not
implement congressionally mandated ‘built-in time con-
straints’ are therefore properly considered nonjurisdictional
limitations, subject to forfeiture.” (quoting Kontrick, 540 U.S.
at 453).
In Sadler, we applied this distinction to Fed. R. App. P. 4.
We concluded that “the timeliness dictates of Rule 4(b) are
forfeitable, because Rule 4(b) is a nonjurisdictional claim-
processing rule.” 480 F.3d at 940 (emphasis omitted). We
contrasted the mandates of Fed. R. App. P. 4(a): “Congress
has specifically limited our jurisdiction to hear civil appeals
at 28 U.S.C. § 2107(a), which codifies the same time con-
straints on the filing of civil appeals (but only civil appeals)
that exist in Rule 4(a).” Id. at 937 (footnote omitted).
[9] The government seeks to benefit from the distinction
between jurisdictional and forfeitable claims under Fed. R.
App. P. 4 by arguing that the Rule 41(g) motion should be
treated under the criminal rule, Fed. R. App. P. 4(b), because
the motion sought a return of property used in a criminal investi-
gation.34 But our governing caselaw makes clear that a Rule
34
Undoubtedly, the notice of appeal would have been untimely under
the criminal rule absent forfeiture of that claim, for that rule gives the gov-
ernment only 30 days to file an appeal and has no provision for tolling
during pendency of motions for reconsideration such as the one at bar. See
Fed. R. App. P. 4(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1103
41(g) motion is “treated as [a] civil equitable proceeding[ ].”
Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993).
The proper rule for considering civil appeals from the disposi-
tion of a Rule 41(g) motion is thus Fed. R. App. P. 4(a).
Our dicta in Sadler states that the timing requirements of
Fed. R. App. P. 4(a) are jurisdictional and that claims under
that rule are not forfeited. See 480 F.3d at 937. The Supreme
Court recently addressed this issue. In Bowles v. Russell, 127
S. Ct. 2360 (2007), the Court ruled that Fed. R. App. P.
4(a)(6), which allows a court to grant a 14-day extension to
file an appeal, established a jurisdictional requirement. Id. at
2366. Explaining that “Congress specifically limited the
amount of time by which district courts can extend the notice-
of-appeal period in § 2107(c), that limitation is more than a
simple ‘claim-processing rule’ ” and therefore the petitioner
could not rely on it “to excuse his lack of compliance with the
statute’s time limitations.” Id.
[10] Bowles does not specifically discuss Fed. R. App. P.
4(a)(4), the tolling provision relevant here. The government
argues that “Rule 4(a) does not incorporate a statutory time
limit in its provision of tolling for Rule 59(e) or Rule 60
motions” and therefore that any failure to comply with the
rule should be immunized against belated attack. However,
although Fed. R. App. P. 4(a)(4) does not contain language
from 28 U.S.C. § 2107, which lacks a tolling provision, the
Supreme Court’s decision in Bowles suggests that the same
characterization applies: “Today we make clear that the
timely filing of a notice of appeal in a civil case is a jurisdic-
tional requirement.” Id.
[11] And even if Bowles did not settle the matter with
respect to Fed. R. App. P. 4(a)(4),35 we could not consider the
35
An argument can be made on this score, as the advisory committee’s
note to Fed. R. App. P. 4(a)(4) reveals that this provision was created by
the Court and amended in light of developing caselaw. While the advisory
1104 UNITED STATES v. COMPREHENSIVE DRUG TESTING
underlying order granting the Rule 41(g) motion. In order to
accept the government’s argument, we would have to grant
the jurisdictional benefit of tolling while denying the tolling
rule’s jurisdictional significance. We cannot defeat logic or
text in this manner. If Fed. R. App. P. 4(a)(4) is jurisdictional,
the government’s motion does not qualify for tolling because
it was filed outside the time frame specified in that rule. See
Fed. R. App. P. 4(a)(4)(iv), (vi) (permitting tolling for such
motions only if they are filed within 10 days of entry of judg-
ment).36 If Fed. R. App. P. 4(a)(4) is nonjurisdictional, satis-
faction of that provision (or forfeiture of a claim that the
government failed to satisfy it) would not enable us to ignore
the jurisdictional 60-day rule of Fed. R. App. P. 4(a)(1).37 See
committee’s note links Fed. R. App. P. 4(a)(1) to 28 U.S.C. § 2107, the
note contains no statutory link for Fed. R. App. P. 4(a)(4). And although
the notes state that compliance with the rule “places jurisdiction in the
courts of appeals,” that use of the word “jurisdiction” is the kind of impre-
cise terminology clarified in Kontrick that distinguishes between statutory
and court-based rules. See 540 U.S. at 454 (“Courts, including this Court,
it is true, have been less than meticulous in this regard; they have more
than occasionally used the term ‘jurisdictional’ to describe emphatic time
prescriptions in rules of court. ‘Jurisdiction,’ the Court has aptly observed,
‘is a word of many, too many, meanings.’ ” (quoting Steel Co. v. Citizens
for Better Env’t, 523 U.S. 83, 90 (1998) ).
36
The district court’s order denying the motion for reconsideration on
the merits did not constitute an implicit grant of an extension of time to
file within the tolling period, and even if it did, such an extension would
carry no weight: even the Supreme Court has “no authority to create equi-
table exceptions to jurisdictional requirements.” Bowles, 127 S. Ct. at
2366.
37
Fed. R. App. P. 4(a)(4) does not provide exceptions to tolling. Instead,
the rule permits tolling based on a limited set of motions—including
motions for reconsideration filed within 10 days of entry of judgment. If
that provision were nonjurisdictional, the Players Association and CDT
could not raise its 10-day limitation as a bar to tolling under it. But neither
could the government invoke it as a reason to alter the 60-day time limit
provided by Fed. R. App. P. 4(a)(1). No other provision of the Federal
Rule would permit tolling for a motion for reconsideration, rendering the
government’s argument ineffective.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1105
Bowles, Slip Op. at 8. Under either interpretation of Fed. R.
App. P. 4(a)(4), the government’s notice of appeal was
untimely as to Judge Cooper’s underlying order granting the
Rule 41(g) motion and must be dismissed for lack of jurisdic-
tion.38
III
Having thus disposed of the two preliminary matters of
standing and jurisdiction, we turn to the merits of Judge Coo-
per’s order denying the motion for reconsideration in the Cen-
tral District of California. We review such orders for an abuse
of discretion. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d
1097, 1100 (9th Cir. 2004) (“We review the denial of a
motion for reconsideration for abuse of discretion.” (citation
omitted)); see also United States v. Washington, 98 F.3d
1159, 1163 (9th Cir. 1996) (“This court reviews a district
court’s denial of a Rule 60(b) motion for an abuse of discre-
tion.”). If a district court premises such denial upon a legal
determination, the legal issue must be reviewed de novo.
Smith, 358 F.3d at 1100 (citations omitted) (“Whether such a
denial rests on an inaccurate view of the law and is therefore
an abuse of discretion requires us to review the underlying
legal determination de novo.”); see also Sw. Voter Registra-
tion Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc) (per curiam) (“The district court’s interpreta-
tion of the underlying legal principles, however, is subject to
de novo review and a district court abuses its discretion when
it makes an error of law.”).
The government confined its motion for reconsideration in
this case to factual matters: “While the government respect-
fully disagrees with the Court’s conclusion that movants are
entitled to a return of property as a matter of law, the govern-
38
Because the notice of appeal was timely only as to her denial of the
government’s motion for reconsideration, we limit our review to that order
in Part III.
1106 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ment emphasizes that it does not herein request reconsidera-
tion of the Court’s core order requiring the return of the items
seized . . . .” Instead, the motion asked the court only to “re-
consider and modify several aspects of this order which inac-
curately characterize the government’s conduct in this case.”
The motion argued that the district court had failed to con-
sider aspects of the record that would have belied its finding
that the government’s behavior was “egregious,” that the
investigating agents failed to comply with the search warrant,
that the agents lacked a lawful right to seize the intermingled
documents, and that the government “ ‘blatant[ly] misrepre-
sent[ed]’ . . . the danger of destruction of records.” The gov-
ernment offered evidence for the district court to consider and
requested deletions of findings of misconduct from the order.
Judge Cooper rejected these proposed modifications. She
assured the government that she “did not fail to consider the
explicit language of the warrant.” She characterized her con-
clusion that “the agent[s] did not have a lawful right of access
to the computer records” as a legal determination based on
Tamura, 694 F.2d 591, not a factual one—thereby placing it
outside the scope of the government’s motion, which by its
terms was confined to matters of fact. Confirming that she
had taken into account the “lengthy history of stalling and
delay by [the Players Association and CDT] in connection
with the grand jury subpoenas served prior to the govern-
ment’s execution of the search warrant,” Judge Cooper never-
theless reiterated her view that the “simultaneous use of
warrants and subpoenas was inappropriate given all the cir-
cumstances.” Finding “no other material facts the Court alleg-
edly failed to consider,” she stated that “mere disagreement
with the Court’s interpretation of the evidence and its opin-
ions about what does and does not constitute acceptable con-
duct . . . does not justify reconsideration” and denied the
motion.
[12] The question then becomes: what issues fall within the
scope of our appellate review? We recognize that “[a] district
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1107
court may abuse its discretion if it does not apply the correct
law,” Washington, 98 F.3d at 1163, and that the district
court’s analysis and application of Tamura in its original
order may well have been in error. See infra Section IV.B.
However, Judge Cooper’s denial of the motion for reconsider-
ation did not “rest[ ] on an inaccurate view of the law.” Wash-
ington, 98 F.3d at 1163. Although Judge Cooper referenced
Tamura and the legal conclusions in her underlying order, she
did not premise her denial of the government’s motion for
reconsideration upon them. She stated clearly that her denial
was based upon her review of the record and the factual argu-
ments presented in the motion. While we might not have
reached the same findings of fact, “[o]ur review is limited and
deferential.” Sw. Voter Registration Educ. Project, 344 F.3d
at 918. We are satisfied that Judge Cooper duly assessed all
relevant facts cited in the motion. We cannot discern in her
refusal to change the language of the order an abuse of discre-
tion and thus must affirm the denial of the government’s
motion for reconsideration.39
IV
We turn next to Judge Mahan’s order granting the Players
Association’s Rule 41(g) motion to return property seized
from Quest in the District of Nevada.
39
It would be inappropriate for us to use the government’s fact-based
motion for reconsideration as a vehicle to reconsider interpretations of law
that were dispositive only to the underlying order granting the Rule 41(g)
motion, even if we believed that errors of law occurred. We have no juris-
diction over the order granting the return of property, and decline to dis-
cuss the treatment of Tamura therein.
It is possible that the legal analysis in the order granting Rule 41(g)
motion may conflict with our authoritative interpretation of Tamura, as
explained in Section IV of this opinion with regard to the appeal from the
District of Nevada. But we are powerless to reconcile any such discrepan-
cies, for the government’s notice of appeal grants us jurisdiction only to
review the denial of the motion for reconsideration.
1108 UNITED STATES v. COMPREHENSIVE DRUG TESTING
A
[13] Before considering the merits of that order, we must
first satisfy ourselves that the district court had the necessary
equitable jurisdiction to consider the motion.40 A district court
may exercise equitable jurisdiction to hear such a motion only
after analyzing the four factors set out in Ramsden, 2 F.3d
322. Specifically, the court must consider
1) whether the Government displayed a callous dis-
regard for the constitutional rights of the movant; 2)
whether the movant has an individual interest in and
need for the property he wants returned; 3) whether
the movant would be irreparably injured by denying
return of the property; and 4) whether the movant
has an adequate remedy at law for the redress of his
grievance.
Id. at 325. Without explication, Judge Mahan stated in his
order that each of the four factors weighed in favor of equita-
ble jurisdiction. Because the government now concedes that
the parties have no adequate remedy at law, we only need to
discuss the first three Ramsden factors.
1
In its memorandum supporting the Rule 41(g) motion in the
District of Nevada, the Players Association argued that the
seizure of urine specimens and test results constituted “callous
disregard” of the MLB players’ privacy interests:
40
We review a district court’s decision to exercise equitable jurisdiction
under Fed. R. Crim. P. 41(g) for abuse of discretion. Ramsden, 2 F.3d at
324. We review the district court’s interpretation of Fed. R. Crim. P. 41(g)
de novo. Id. The lawfulness of a search and seizure is also reviewed de
novo. United States v. Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001)
(per curiam).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1109
Given the highly sensitive and confidential nature of
drug testing samples and records and the information
contained therein, and given the exacting measures
undertaken by the parties to the [testing agreement]
to prevent any disclosure of the players’ test results
to anyone, including MLB, the MLBPA, and the
players themselves, any seizure of these materials,
absent extraordinary justification, constitutes a “cal-
lous disregard” for the players’ privacy interests.
Were we to accept this reasoning, any seizure of confidential
records would reveal callous disregard for privacy rights,
even if such seizure were expressly authorized by a lawful
search warrant.
The government’s conduct in the District of Nevada does
not support a finding of callous disregard. After showing
probable cause, the government obtained approval from Mag-
istrate Judge Leavitt to search and to seize the urine samples
and drug testing records held at Quest. Although the Players
Association contends that the government had no legal right
to use the intermingled files taken from CDT to support its
May search warrant affidavits, there is an insufficient show-
ing of callous disregard in the government’s use of that evi-
dence to obtain a warrant, in light of its view that the
information was authorized for seizure under Magistrate
Judge Johnson’s search warrant protocol.41
Furthermore, contrary to the assertion of the Players Asso-
ciation, the government agents did not offer “misleading rep-
resentations” to obtain the search warrant, and the
41
Because Ramsden requires an assessment of jurisdiction over a Rule
41(g) motion prior to determining the merits of the motion, we reserve our
discussion of the objective legality of the use of the intermingled evidence
seized from CDT for our review of the merits of the order granting the
motion. See infra Section IV.B. As that discussion reveals, our conclusion
with regard to the law accords with our view of jurisdiction.
1110 UNITED STATES v. COMPREHENSIVE DRUG TESTING
government did not hide the controversy surrounding the sub-
poena that had been issued for the same property. The affida-
vit for the search warrant in the District of Nevada advised
Magistrate Judge Leavitt that CDT and Quest “intend[ed] to
move to quash the subpoena.” Later, that language was
crossed out and replaced with a handwritten note: “A motion
to quash has been filed. 4.7.04,” followed by Magistrate
Judge Leavitt’s initials. The record makes clear that Magis-
trate Judge Leavitt was duly advised of the subpoenas and
their status in court. The government’s affidavits do not reveal
callous disregard for the players’ privacy interests in the urine
samples and other testing evidence held in the District of
Nevada. No doubt these samples and test results implicated
sensitive privacy interests, but the government was not there-
fore compelled to stymie its enforcement of the law by declin-
ing to pursue search warrants at all, especially since warrants
are designed to protect Fourth Amendment privacy interests.
Not only did the government establish probable cause, but
the agents executed the search warrant with due respect for
the interests of the MLB players and Quest, the third party
searched. The government seized items clearly delineated by
the warrant and accepted the assistance of Quest personnel to
avoid taking unrelated items, thus displaying attentiveness
both to the warrant’s scope and avoiding unnecessary interfer-
ence with Quest’s business operations. Quest cooperated in
the search and declined to join the Players Association’s sub-
sequent Rule 41(g) motion. We conclude that the first prong
of the Ramsden analysis weighs against invocation of the dis-
trict court’s equitable jurisdiction over the Rule 41(g)
motions.
2
As to the second of the four Ramsden factors (the movants’
individual interests in the evidence seized), the Players Asso-
ciation argues that its interests in the property mirror those of
its members. We agree that its members possess strong pri-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1111
vacy interests in both their drug test results and the actual
specimens. See Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.
1996) (recognizing an individual’s “strong interest in protect-
ing the confidentiality of [one’s] HIV status”). Because the
Players Association exists to represent such interests, Judge
Mahan properly found that this factor weighed in favor of
equitable jurisdiction.
3
Judge Mahan also found satisfied the third Ramsden factor
(likelihood of irreparable injury if the evidence were not
returned). As the Players Association notes, the public release
of positive drug testing evidence could irreparably damage the
careers of the affected players, even if the positive results
were not actually caused by illegal steroid use. Based on this
danger, we agree that the third factor also weighs in favor of
equitable jurisdiction.
4
[14] Although we conclude that the district court erred in
finding callous disregard of Fourth Amendment rights, the
three other equitable jurisdiction factors weigh in favor of
hearing the motions by the Players Association. See Ramsden,
2 F.3d at 326 (holding that where three of the four factors
favored an exercise of equitable jurisdiction, the court had
power to hear a Rule 41(g) motion). As such, we cannot say
that Judge Mahan’s initial choice to hear the motion consti-
tuted an abuse of discretion.
B
We turn now to the merits of Judge Mahan’s substantive
ruling requiring the return of property seized in the District of
Nevada that did not relate solely to the ten players named in
the April 7 search warrants.
1112 UNITED STATES v. COMPREHENSIVE DRUG TESTING
1
[15] With respect to property taken during the execution of
search warrants, Rule 41(g) provides that a person “aggrieved
by an unlawful search and seizure of property or by the depri-
vation of property may move for the property’s return.” When
such a motion is granted, the property in question must be
returned to the moving party, but a court “may impose reason-
able conditions to protect access to the property and its use in
later proceedings.” Id. Although the rule itself does not set a
standard for determining when property should be returned to
a moving party, an advisory committee’s note explains that
“reasonableness under all of the circumstances must be the
test.” Fed. R. Crim. P. 41(g), advisory committee’s note.42
The Players Association argues that the seizure of property
from Quest in the District of Nevada was unreasonable. The
Players Association offers no argument that the search of
Quest exceeded the terms of the search warrant or was exe-
cuted in an unconstitutional manner. Instead, the Players
Association argues that the search warrant lacked a legal
foundation because the government’s affidavits used inter-
mingled files seized at CDT to name individuals other than
the ten players previously identified. The Players Association
contends that these files were illegally seized and that “the
government . . . [is forbidden] from disseminating or using the
fruits of an illegal search.” Under the doctrine of the “fruit of
the poisonous tree,” evidence may not be used if “ ‘granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.’ ” Wong Sun v. United
States, 371 U.S. 471, 488 (1963) (citation omitted).
42
The Supreme Court previously has cited an advisory committee’s note
to illuminate the meaning of a federal rule. See Huddleson v. United
States, 485 U.S. 681, 688 (1988) (interpreting Fed. R. Evid. 404(b));
United States v. Owens, 484 U.S. 554, 555 (1988).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1113
The district court agreed with this fruit-of-the-poisonous-
tree reasoning, expressly premising its order to return prop-
erty seized in the District of Nevada on the illegality of the
seizures in the Central District of California:
Under the particular circumstances of this case, it
was unreasonable for the Government to refuse to
follow the procedures set forth in United States v.
Tamura, 694 F.2d 591 (9th Cir. 1982), upon learning
that drug-testing records for the ten athletes named
in the original April 8 warrants executed at Quest
and at Comprehensive Drug Testing, Inc. (“CDT”)
were intermingled with records for other athletes not
named in those warrants.
2
[16] We review the district court’s legal analysis de novo.
Mendoza-Ortiz, 262 F.3d at 885. Like Judge Mahan, we look
to the seizure of intermingled data in the Central District of
California in order to determine whether that information pro-
vided a valid foundation for the warrants in the District of
Nevada.43 See United States v. Bishop, 264 F.3d 919, 924 (9th
Cir. 2001) (“Once the district court determined that the search
warrant included illegally obtained information, it properly
purged the affidavit of the offending facts and examined
whether the remaining facts still afforded a substantial basis
43
Although the search and seizures at CDT occurred in a different dis-
trict, Judge Mahan properly considered them, because they played a neces-
sary and dispositive role in the authorization of the seizures at Quest.
Judge Mahan evaluated the legality of those seizures before Judge Cooper
ruled on them in the Central District of California, and did not premise his
decision on the view that he was bound by a previous decision. If any-
thing, the litigation in the Central District suggested the opposite: Magis-
trate Judge Johnson had recommended that the Rule 41(g) motion filed by
the Players Association and CDT should be denied. Only later did Judge
Cooper reject that recommendation and grant the Rule 41(g) motion,
ordering the property to be returned to CDT.
1114 UNITED STATES v. COMPREHENSIVE DRUG TESTING
for concluding that the search warrant was supported by prob-
able cause.”).
This court has addressed previously whether the govern-
ment may seize units containing information authorized for
seizure intermingled with information not described in the
search warrant. In United States v. Beusch, 596 F.2d 871 (9th
Cir. 1979), we dealt with a motion to suppress evidence con-
sisting of hard-copy ledgers containing items covered by the
search warrant intermingled with items not covered by the
search warrant. Id. at 876-77. We concluded that no Fourth
Amendment violation occurred when agents seized “single
files and single ledgers, i.e., single items which, though theo-
retically separable, in fact constitute one volume or file fold-
er.” Id. at 877. We constrained our ruling by stating that “the
reasons we have given for allowing [such] seizure may not
apply to sets of ledgers or files, but because that is not the
case here, we find it unnecessary to discuss it further.” Id.
(emphasis added).
[17] Three years later, in Tamura, 694 F.2d 591, we consid-
ered whether the government could seize a set of hard-copy
files including target data as well as information not specified
in the search warrant. In that case, officers executed a search
warrant for three specified categories of records stored at a
Los Angeles office. Id. at 594. Agents seized—without any
limiting effort—files that were not specified in the search
warrant. Id. at 595. We condemned such “wholesale seizure
for later detailed examination of records not described in a
warrant.” Id. (emphasis omitted). Holding that the Fourth
Amendment barred the conversion of a specific warrant into
a general one, we described two methods by which the gov-
ernment could avoid such constitutional violations.
First, if the government anticipated that on-site segregation
of target documents would not be feasible in a reasonable
amount of time, it can seek a preordained warrant protocol
allowing the seizure of such intermingled documents. This
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1115
approach would ensure proper judicial oversight of any sei-
zures.
If the need for transporting the documents is known
to the officers prior to the search, they may apply for
specific authorization for large-scale removal of
material, which should be granted by the magistrate
issuing the warrant only where on-site sorting is
infeasible and no other practical alternative exists.
See United States v. Hillyard, 677 F.2d 1336, 1340
(9th Cir. 1982). The essential safeguard required is
that wholesale removal must be monitored by the
judgment of a neutral, detached magistrate.
Tamura, 694 F.2d at 596. Specific authorization to make such
seizures depends on detailed information in the government’s
search warrant affidavits, which should describe “the relevant
technological issues,” Managing Discovery, supra note 13, at
21, and the feasibility of parsing the anticipated storage
media. With such information, a magistrate can set forth
guidelines that ensure the government does not seize inter-
mingled data without judicial oversight. If a warrant includes
such protocol, and the government abides by it, post-search
review is not necessary.44
Second, if the government obtained a search warrant with-
out a preordained protocol for removing intermingled target
and non-target data, but encountered an unanticipated need to
seize units containing intermingled data, agents could seize
that unit and seal it pending post-search review. Only if
authorized by the “judgment of a neutral, detached magis-
trate” could it keep the seized items. Like the use of a pre-
search protocol, this second method of post-search authoriza-
tion would ensure judicial oversight in cases where on-site
segregation of intermingled data cannot feasibly occur.
44
In other words, a Fourth Amendment violation could still occur if the
government did not comply with the warrant protocol, or if the warrant
was issued without probable cause.
1116 UNITED STATES v. COMPREHENSIVE DRUG TESTING
[18] In the comparatively rare instances where documents
are so intermingled that they cannot feasibly be sorted on site,
we suggest that the Government and law enforcement offi-
cials generally can avoid violating fourth amendment rights
by sealing and holding the documents pending approval by a
magistrate of a further search, in accordance with the proce-
dures set forth in the American Law Institute’s Model Code
of Pre-Arraignment Procedure.45
45
The Tamura court pointed to the American Law Institute’s Model
Code of Pre-Arraignment Procedure as a guide that would help agents
avoid constitutional violations in situations where intermingled documents
needed to be seized but where the search warrant lacked a protocol for
such seizures. 694 F.2d at 595-96. The Tamura court found that the agents
had violated Fourth Amendment rights by making a “wholesale seizure,”
rendering the post-search alternative approach to be advisory dicta. See id.
at 595; see also United States v. Hill, 322 F. Supp. 2d 1081, 1090 (C.D.
Cal. 2004) (noting that after the Tamura court “held that the government’s
wholesale seizure of company documents was illegal because the agents
intentionally seized materials they knew were not covered by the warrant
. . . the Tamura court suggested, albeit in dicta, that [for such seizure of
all records] a warrant would be appropriate” (emphasis added)).
It is true that Tamura’s two methods of a pre-search protocol or post-
search review were advised in dicta and represented pragmatic approaches
rather than constitutional rules. We recognize that some courts in other cir-
cuits have questioned the procedures advised in Tamura. One district court
in Michigan explained: “The Court declines to follow Tamura, at least in
this case, because Tamura did not involve computer files and therefore did
not consider the specific problems associated with conducting a search for
computerized records.” United States v. Scott-Emuakpor, 2000 WL
288443, at *8 (W.D. Mich.). Although declining to apply Tamura’s prag-
matic approach to computer searches, Judge Quist stated: “This is not to
suggest that seizure of all computer disks is permissible whenever the war-
rant authorizes the seizure of computer records.” Id. Another court, also
referencing Tamura, noted that in the modern computer context a “ ‘sug-
gestion’ by a panel of the Ninth Circuit in a 20-plus year old case is not
persuasive.” United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D.
Kan).
Like these district courts from other circuits, we recognize that the com-
puter era adds new complexity to the test of reasonableness under the
Fourth Amendment. Precisely for this reason, we view Tamura as espe-
cially significant in the computer context.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1117
Tamura, 694 F.2d at 595-96 (footnote omitted).
Recently, we applied Tamura to uphold seizures of inter-
mingled documents in the computer context. In United States
v. Adjani, 452 F.3d 1140 (9th Cir. 2006), investigating agents
obtained a search warrant to seize evidence of the defendant
Adjani’s extortion activities. Id. at 1142. The search warrant
contained a detailed protocol for the seizure of intermingled
evidence. Id. at 1149 (“The Adjani warrant ‘describe[d] in
great[ ] detail the items one commonly expects to find on
premises used for the criminal activities in question . . . .’ ”
(alterations in original)). In executing the warrant, agents
seized Adjani’s computer as well as the computer of a woman
living with him, who was not identified as a suspect in the
warrant. Id. The computers were subsequently searched at an
FBI computer lab, and evidence they contained was used to
charge both Adjani and his housemate. In a motion to sup-
press the evidence, the two defendants argued that the
woman’s computer was not seizable under the search warrant,
and if it were, that the search warrant was overbroad. We
rejected both claims, citing the difficulty of segregating elec-
tronic data:
We understand the heightened specificity concerns
in the computer context, given the vast amount of
data they can store. As the defendants urge, the war-
rant arguably might have provided for a “less inva-
sive search . . . .” Avoiding that kind of specificity
and limitation was not unreasonable under the cir-
cumstances here, however. To require such a pin-
pointed computer search, restricting the search to an
email program or to specific search terms, would
likely have failed to cast a sufficiently wide net to
capture the evidence sought. Cf. [United States v.]
Ross, 456 U.S. [798,] 821 [1982] (“When a legiti-
mate search is under way, and when its purpose and
its limits have been precisely defined, nice distinc-
tions between closets, drawers, and containers, in the
1118 UNITED STATES v. COMPREHENSIVE DRUG TESTING
case of a home, or between glove compartments,
upholstered seats, trunks, and wrapped packages, in
the case of a vehicle, must give way to the interest
in the prompt and efficient completion of the task at
hand.”).
Id. at 1149-50 (parallel citation omitted). Reiterating what we
set forth in Tamura, we approvingly noted that the warrant
incorporated a specific protocol:
The supporting affidavit attached to the warrant set
forth a detailed computer search protocol, including
instructions as to when the computers should be
searched on-site rather than taken off-site and proce-
dures for screening the data to determine what data
could be searched and seized under the terms of the
warrant. See also U.S. Dep’t of Justice, Searching
and Seizing Computers and Obtaining Electronic
Evidence in Criminal Investigations 43, 69 (July
2002) (detailing what FBI agents should include in
warrants when they contemplate the need to search
computers). Such specificity increases our confi-
dence that the magistrate judge was well aware of
what he was authorizing and that the agents knew
the bounds of their authority in executing the search.
Cf. [United States v.] Hay, 231 F.3d [630,] 636 [(9th
Cir. 2000)] (considering favorably an affidavit pro-
viding “that searches and seizures of evidence from
computers requires agents to seize all parts of a com-
puter system to be processed later by a qualified
computer expert.”).
Id. at 1149 n.7. “The contours of [the Fourth Amendment’s]
protections in the context of computer searches pose difficult
questions,” we explained. Id. at 1152. “Computers are simul-
taneously file cabinets (with millions of files) and locked desk
drawers; they can be repositories of innocent and deeply per-
sonal information, but also of evidence of crimes. . . . As soci-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1119
ety grows ever more reliant on computers . . . courts will be
called upon to analyze novel legal issues and develop new
rules within our well established Fourth Amendment jurispru-
dence.” Id. Attuned to the needs of law enforcement as well
as privacy, we upheld the validity of the search warrant and
rejected the argument that items of evidence fell “outside the
scope of the warrant because they implicated [a person not
named in the warrant] in the crime and supported a charge of
conspiracy to commit extortion [against her].” Id. at 1151.
In 2006, we confirmed the validity of this analysis in
United States v. Hill, 459 F.3d 966 (9th Cir.), where we
addressed a motion to suppress evidence. The defendant
argued that the warrant was overbroad because it allowed the
seizure of computer and storage media related to child por-
nography without requiring the government to conduct an on-
site search and without providing a protocol. Id. at 973-78.
Citing Tamura and Adjani, we explained that on-site review
was not always required. Id. at 975-76. We emphasized the
“serious risk that the police might damage the storage
medium or compromise the integrity of the evidence by
attempting to access the data at the scene” and the disruption
caused by attempts to segregate complex electronic data on-
site:
[T]he process of searching the files at the scene can
take a long time. To be certain that the medium in
question does not contain any seizable material, the
officers would have to examine every one of what
may be thousands of files on a disk—a process that
could take many hours and perhaps days. Taking that
much time to conduct the search would not only
impose a significant and unjustified burden on police
resources, it would also make the search more intru-
sive. . . . If the search took hours or days, the intru-
sion would continue for that entire period,
compromising the Fourth Amendment value of mak-
1120 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ing police searches as brief and non-intrusive as pos-
sible.
Id. at 974-75. In light of these concerns, we concluded that it
was “reasonable under the Fourth Amendment for the police
to take all of [the defendant’s] computer storage media from
his home (they did not find his computer) so they could con-
duct their search offsite in a police laboratory, rather than car-
rying out the search onsite and taking only whatever evidence
of [targeted material] they might find.” Id. at 968. “[T]he war-
rant was not fatally defective in failing to require an onsite
search and isolation of child pornography before removing
storage media wholesale.” Id. at 975.
[19] We then addressed whether the warrant was invalid
because it lacked a specific protocol for seizures of electronic
data. Although we made clear that a specific protocol was not
mandatory, we stated that a “warrant[ ] authorizing blanket
removal of all computer storage media for later examination,”
must be premised upon an “affidavit giving a reasonable
explanation . . . why a wholesale seizure is necessary.” Id. at
976 (citing Tamura, 694 F.2d at 595). “A warrant describing
a category of items is not invalid if a more specific descrip-
tion is impossible,” id. at 973, as long as the affidavit explains
why “the officers could not reasonably describe the objects of
their search with more specificity,” id. at 976.
The agents in Hill offered neither a detailed description of
the items to be seized nor any explanation of why a specific
description was impossible. “Accordingly, we h[e]ld that the
warrant here was overbroad in authorizing a blanket seizure
in the absence of an explanatory supporting affidavit, which
would have documented the informed endorsement of the
neutral magistrate.” Id. at 976-77 (citing Tamura, 694 F.2d
596). At the same time, we held that “the search here was sup-
ported by probable cause and, notwithstanding the shortcom-
ings of the search warrant affidavit, the manner of its
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1121
execution d[id] not mandate suppression of the fruits of that
search.” Id. at 979 (emphasis added).
3
[20] We now apply these precedents to determine whether
the seizures at CDT were unlawful. The problems of intru-
siveness that we recognized in Hill are all the more apparent
here because the search was conducted on the premises of a
third party business. In this case, the government obtained
advance authorization to seize intermingled documents based
upon a search warrant protocol that had been carefully out-
lined and supported. The government’s affidavits were prem-
ised on the advice of computer specialists, who anticipated
that certain intermingled evidence might be difficult to sepa-
rate on-site:
Upon searching the premises, law enforcement per-
sonnel trained in searching and seizing computer
data (the “computer personnel”) will make an initial
review of any computer equipment and storage
devices to determine whether these items can be
searched on-site in a reasonable amount of time and
without jeopardizing the ability to preserve the data.
...
If the computer personnel determine that it is not
practical to perform an on-site search or make an on-
site copy of the data within a reasonable amount of
time, then the computer equipment and storage
devices will be seized and transported to an appro-
priate law enforcement laboratory for review.
As we explained in Hill, the affidavits did not require pre-
science but they must contain a candid recitation of the avail-
able information.
Without such individualized justification being pres-
ented to the magistrate, we cannot be sure that the
1122 UNITED STATES v. COMPREHENSIVE DRUG TESTING
judge was aware of the officers’ intent and the tech-
nological limitations meriting the indiscriminate
seizure—and thus was intelligently able to exercise
the court’s oversight function. An explanatory state-
ment in the affidavit also assures us that the officers
could not reasonably describe the objects of their
search with more specificity.
459 F.3d at 976. In this case, unlike in Hill, the government
submitted detailed affidavits describing the anticipated diffi-
culties of sorting computer data on-site. The affidavits pro-
posed a protocol to guide and to limit the seizures of
intermingled evidence, which Magistrate Judge Johnson
approved.
Furthermore, the record reveals that the government com-
plied with the protocol in the warrant. Agent Abboud, a com-
puter analyst, determined that on-site review would not be
feasible in a reasonable amount of time. The agents then cop-
ied several intermingled documents, including the Tracey
directory. They did not seize the actual computer, although
the search warrant authorized full seizure of the hardware if
computer analysts determined that neither on-site searching
nor copying were feasible. The government thereby enabled
CDT to continue its business operations.
Although the Players Association contends that the govern-
ment behaved unreasonably by copying the entire Tracey
directory, an analysis of the difficulty of segregating intermin-
gled electronic data reveals the opposite. The Federal Judicial
Center recently explained:
[S]ome computer-based transactions do not result in
a conventional document, but instead are represented
in integrated databases. Even less-complex ESI
[electronically stored information] may be incompre-
hensible and unusable when separated from the sys-
tem that created it. For example, a spreadsheet
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1123
produced in portable document format (PDF) may be
useless because embedded information, such as com-
putational formulas, cannot be seen or discerned.
Finally, deleting an electronic document does not get
rid of it, as shredding a paper document would. An
electronic document may be recovered from the hard
drive, to the extent it has not been overwritten . . . .
These differences between ESI and conventional
information have implications for discovery. For
example, the dynamic nature of ESI makes it vital
that a data producer institute “litigation holds” to
preserve information that may be discoverable, often
even before the lawsuit is filed. Moreover, the vol-
ume and multiple sources of ESI may lead to dis-
putes about the scope of discovery and may make
review to identify and segregate privileged informa-
tion more difficult . . . .
Managing Discovery, supra note 13, at 3-4.46 At the risk of
losing data, the government ensured that CDT could continue
its business activities, thus evidencing the reasonableness and
restraint conspicuously absent in the “wholesale seizure” con-
ducted by the agents in Tamura.47
46
Agent Novitsky expressed the government’s awareness of these risks
in his May search warrant affidavits: “IRS Special Agent Jeff Jack, a
Computer Investigative Specialist with the IRS, . . . gave me specific
examples of deleted files or temporary files created when printing a file
that cannot be[ ] seen or retrieved from a simple copy of a computer sub-
directory, but may be retrievable using forensic tools, if allowed to exam-
ine the entire computer system.”
47
Increasingly, courts have recognized the danger of losing electronic
information or obtaining only incomplete data. See Adjani, 452 F.3d 1140;
Hill, 459 F.3d 966; see also Scott-Emuakpor, 2000 WL 288443, at *8
(“[T]he agents were not confined to searching the files on the hard drive
and disks but could also lawfully search for deleted material . . . [;] the sei-
zure of [items other than hard drives and disks] was reasonable because
it allowed the agents to preserve the computer system as it existed for the
computer analysts . . . without taking the risk of losing any files.”).
1124 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Although the seizure of intermingled evidence was permit-
ted under the warrant protocol, the Players Association argues
that the government violated the search warrant’s protocol by
allowing Agent Novitzky to open and to view the contents of
the Tracey directory, rather than leaving Agent Abboud to
search alone. Under this view, only Agent Abboud was per-
mitted to open and to view CDT computer data on-site. How-
ever, the plain language of the search warrant did not exclude
the assistance of other law enforcement officers—especially
for tasks involving non-digital work (such as seeking coopera-
tion from persons on site). The warrant only required that
computer personnel be the ones to determine whether on-site
segregation of target data is feasible. The sort of assistance
provided by Agent Novitzky, a non-specialized law enforce-
ment officer under the guidance of Agent Abboud, was per-
missible under the search warrant and reasonable under the
Fourth Amendment.
The dissent criticizes the government’s decision to “copy
the entire directory,” pursuant to Agent Abboud’s recommen-
dation, rather than to “copy[ ] only the subdirectories that per-
tained to Major League Baseball” and suggests that the
government should have trusted CDT to point out the relevant
files. Dissent at 1143. The dissent explains that this approach
would have allowed the government to select the relevant
files on-site: “Dr. Jean Joseph of CDT later stated in an affi-
davit that the directory was easily searched by key word and
would have provided the test information about the ten play-
ers in a short period of time.” Id.
[21] We disagree. “The government should not be required
to trust the suspect’s self-labeling when executing a warrant.”
Adjani, 452 F.3d at 1150. Agents had no duty to rely on CDT
personnel to point out the files seizable under the warrant.
Like most searched parties, CDT had an incentive to avoid
giving over documents of which the government might be
unaware and to read the search warrant as narrowly as possi-
ble. Moreover, the government had no reason to confine its
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1125
search to “key words” such as the names of the baseball play-
ers. “Computer files are easy to disguise or rename, and were
we to limit the warrant to such a specific search protocol,
much evidence could escape discovery simply because of [the
defendants’] labeling of the files.” Id. Such a limited search
could easily have overlooked documents crucial to the investi-
gation, such as the specimens at Quest, which were identified
only by number. See supra pp. 1086-90.
[22] We do not discern a violation of the Fourth Amend-
ment’s requirements simply because the agents determined,
upon the review and recommendation of a computer special-
ist, that certain intermingled files could not be feasibly sorted
on-site.48 As we explained in Tamura, and reiterated in Adjani
and Hill, the seizure of electronic evidence can entail complex
sifting efforts. By obtaining from a neutral magistrate permis-
sion to seize intermingled documents under a specific proto-
col, the government respected privacy interests while
pursuing the law enforcement. The agents’ ultimate decision
to remove relevant data for off-site review stemmed not from
disregard of privacy rights, but from sensitivity to the ongoing
disruption caused by the search to CDT—an innocent third
party in the underlying investigation.
4
[23] Our determination that the search and seizures at CDT
were valid provides a necessary component of our legal anal-
ysis of Judge Mahan’s order granting the Rule 41(g) motion
in the District of Nevada. Judge Mahan premised his order on
the legal conclusion that the government unlawfully seized
48
We do not reach the government’s argument that the “plain view”
exception to the warrant requirement justified seizure of the intermingled
evidence, because the evidence fell within the scope of the search warrant.
See Beusch, 596 F.2d 871 (“Because we hold that the items seized were
covered by the terms of the warrant, we find it unnecessary to deal with
the Government’s contentions that they were admissible under the ‘plain
view’ exception to the warrant requirement.”).
1126 UNITED STATES v. COMPREHENSIVE DRUG TESTING
intermingled data from CDT and could not use that data to
support an expanded search warrant in the District of Nevada.
Our de novo legal analysis shows that Judge Mahan misinter-
preted Tamura. A lawful search does not produce poisonous
fruit. Because the CDT search was lawful, the information
seized in that search provided a legitimate basis for expanded
warrants in the District of Nevada. As we explained in Adjani:
“There is no rule . . . that evidence turned up while officers
are rightfully searching a location under a properly issued
warrant must be excluded simply because the evidence found
may support charges for a related crime (or against a suspect)
not expressly contemplated in the warrant.” 452 F.3d 1151; cf.
Beusch, 596 F.2d at 877 (“[A]s long as an item appears, at the
time of the search, to contain evidence reasonably related to
the purposes of the search, there is no reason—absent some
other Fourth Amendment violation—to suppress it.” (empha-
sis added)); Tamura, 694 F.2d at 597 (noting that although the
agents unambiguously had flouted the limits of the search
warrant “we cannot say, although we find it a close case, that
the officers so abused the warrant’s authority that the other-
wise valid warrant was transformed into a general one,
thereby requiring all fruits to be suppressed”).
Furthermore, an order to return property under Rule 41(g)
is inappropriate where “the government’s need for the prop-
erty as evidence continues.” United States v. Fitzen, 80 F.3d
387, 388 (9th Cir. 1996) (internal quotation marks omitted);
United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)
(same). “If the United States has a need for the property in an
investigation or prosecution, its retention of the property gen-
erally is reasonable.” Fed. R. Crim. P. 41(g), advisory com-
mittee’s note. It is when the government no longer needs the
property as evidence in an investigation that a presumption in
favor of return arises. Fitzen, 80 F.3d at 388.
[24] A return of property should follow only a particularly
egregious violation: “The issue is whether the Government’s
conduct was sufficiently reprehensible in this case to warrant
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1127
this sanction.” Ramsden, 2 F.3d at 327. In Ramsden, we
refused to impose this extreme sanction on police who had
time to obtain a warrant but made no effort to do so and “sim-
ply chose not to comply with [their] obligations under the
Fourth Amendment.” Id. at 325, 327. The government’s
behavior in this case was reasonable and fell far short of the
egregious and unchecked intrusions that might justify a return
of property under Rule 41(g).49
[25] The government’s seizures were neither unreasonable
nor exceeded the four corners of the warrants. Our technologi-
cally advancing world combines in novel forms the kind of
data that in a previous age might have been segregated. Par-
ties are not immunized from law enforcement simply because
they choose to store data in complex or integrated formats.
We conclude that the district court abused its discretion by
granting the Rule 41(g) motion based upon its contrary, and
erroneous, view of the law.50
49
We do not belabor the government’s alleged failure to follow its own
internal guidelines. The dissent takes note that the U.S. Attorney’s manual
states “that a search warrant should normally not be used to obtain confi-
dential materials such as treatment records,” and that the Department of
Justice’s guidelines disfavor use of a search warrant where a subpoena
would suffice. See Dissent at 1165. The existence of those guidelines is
not disputed. Yet, quite simply, the government’s guidelines do not dictate
what is “reasonable” under the Fourth Amendment. If its guidelines did
so, the government would have every reason to enact permissive internal
rules. We have no reason or authority to give the government that perverse
incentive.
50
We do not hold that the government enjoys a right to “wholesale” sei-
zure of evidence without judicial authorization; indeed, our decision
stands for the opposite. See supra Section IV; see also Tamura, 694 F.2d
at 594-96.
We do not doubt that a different case might present facts under which
the seizure of intermingled documents would constitute an “unreasonable
search[ ] and seizure[ ].” U.S. Const. amend. IV. But that case is not pres-
ented here. The government obtained proper authorization in the form of
a search warrant protocol addressed specifically to the seizure of intermin-
gled computer documents. The search warrant was obtained “upon proba-
1128 UNITED STATES v. COMPREHENSIVE DRUG TESTING
V
We next consider the government’s appeal of Judge Ills-
ton’s order quashing the May 6 subpoenas, which sought from
CDT and Quest the drug testing records and specimens for all
MLB players who tested positive for steroids.51 Under Fed. R.
Crim. P. 17(c)(2), a “court may quash . . . [a] subpoena if
compliance would be unreasonable or oppressive.” The dis-
trict court found that the May 2004 subpoenas constituted
harassment and were unreasonable.52
To support its finding, the district court pointed to United
States v. American Honda Motor Co., 273 F. Supp. 810 (N.D.
Ill. 1967). In American Honda, the government issued sub-
poenas that were “substantially identical” to one another but
in different locations. Id. at 819. As a result, Honda was faced
with producing the same documents repeatedly, and the court
found this to be harassment. Id. at 819-20. American Honda,
however, does not preclude the government from pursuing the
same information through the contemporaneous issuance of
subpoenas and applications for search warrants.
We addressed the issuance of contemporaneous search war-
rants and subpoenas in In re Grand Jury Subpoenas Dated
December 10, 1987, 926 F.2d at 854. There we upheld the
validity of the subpoenas against the challenge that “the sub-
poenas were served at the same time as the search warrants
ble cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV. Because our holding reaffirms that searches of elec-
tronic databases must conform to the requirements of the Fourth Amend-
ment following the reasoning of Tamura, the dissent’s fear that all medical
databases and voluntary drug testing programs will be put at risk is utterly
unfounded. See Dissent at 1137-38, 1184-88.
51
We review a district court’s decision to quash a grand jury subpoena
for abuse of discretion. In re Grand Jury Subpoenas, 803 F.2d at 496.
52
The district court did not find that the subpoenas were oppressive.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1129
and the federal agents attempted to ‘enforce’ the subpoenas
through immediate seizure of the documents.” Id. at 854. Not-
ing that the challenge to the subpoenas received no support in
precedent, we clarified the differences between subpoenas and
search warrants:
Subpoenas are not search warrants. They involve dif-
ferent levels of intrusion on a person’s privacy. A
search warrant allows the officer to enter the per-
son’s premises, and to examine for himself the per-
son’s belongings. The officer, pursuant to the
warrant, determines what is seized.
Id. By comparison:
Service of a forthwith subpoena does not authorize
an entry into a private residence. Furthermore, the
person served determines whether he will surrender
the items identified in the subpoena or challenge the
validity of the subpoena prior to compliance.
Id. We concluded that “[t]hese differences are not eliminated
by the fact that the search warrants and subpoenas were deliv-
ered at the same time” and observed that the complaining
party had “failed to show that the papers that are described in
the subpoenas are outside the scope of a legitimate investiga-
tion by the grand jury.” Id. at 854-55. In addition, we specifi-
cally emphasized the fact that the defendant was given almost
a month to comply with the subpoenas. Id. at 854.
[26] Therefore, the district court erred in finding the issu-
ance of subpoenas and the contemporaneous execution of
search warrants to be unreasonable. The Players Association
has not argued that the evidence sought by the subpoenas is
“outside the scope of a legitimate investigation by the grand
jury.” Id. at 855. The subpoenas were not returnable on the
same day that the search warrants were executed. As in In re
Grand Jury Subpoenas, the return dates on the subpoenas
1130 UNITED STATES v. COMPREHENSIVE DRUG TESTING
were over a month from the date on which the warrants were
executed. The district court declared the May 6 subpoenas an
“unreasonable insurance” policy, but it failed to recognize the
different purposes and requirements of the warrant as com-
pared to the subpoena and the legitimate concern that produc-
tion of relevant evidence to the grand jury would be unduly
delayed. See id. at 854. It was error to conflate the two dis-
tinct tools. Insurance it may have been; but, under the Fourth
Amendment, unreasonable it was not.
The district court also deemed the government’s actions
unreasonable because it found that the agents sought search
warrants in three separate districts in an attempt to avoid a
ruling on the motion to quash the existing subpoenas of Janu-
ary and March 2004. We note that granting the motion to
quash would not have prevented the government from seeking
the search warrants, particularly given the existence of proba-
ble cause. Unlike a subpoena, a search warrant may be
obtained only upon a showing of probable cause—a burden
the government sometimes considers necessary to establish in
order to obtain certain production of evidence.53 In contrast,
a grand jury subpoena may issue simply because an Assistant
United States Attorney believes the evidence may assist the
grand jury in furthering the progress of an ongoing investiga-
tion which may never establish probable cause to charge any-
one. If a subpoena based on the lesser standard of evidence
does not withstand review, it does not follow that a search
warrant premised on a far higher evidentiary showing could
not be authorized. As the Fourth Circuit has noted, “the fact
that a grand jury subpoena existed . . . at the time of the
search obviously had no effect upon whether probable cause
53
Significantly, while a subpoena may be quashed, a “person to be
searched has no lawful way to prevent execution of the warrant.” In re
Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. His
remedy for an unlawful search and seizure or for the deprivation of prop-
erty is to seek return of anything seized under Fed. R. Crim. P. 41(g), or,
if charges are filed, to move to suppress use of the evidence against him
at trial, see Fed. R. Crim. P. 12(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1131
existed to search . . . for documents which were properly
included within the warrant’s scope.” United States v. Photo-
grammetric Data Servs., Inc., 259 F.3d 229, 238 (4th Cir.
2001), abrogated on other grounds by Crawford v. Washing-
ton, 541 U.S. 36 (2004).
As such, the district court rested its order on legally insuffi-
cient grounds, and abused its discretion in granting the motion
to quash. See United States v. Iverson, 162 F.3d 1015, 1026
(9th Cir. 1998).
VI
Finally, we address the Non-Party Journalist’s Motion To
Unseal, filed on November 23, 2005 by Joshua A. Gerstein.
Gerstein seeks access to “the dockets for these appeals and the
cases below, the district court opinions and/or orders that are
the subject of these appeals, and all briefs filed with this Court.”54
We have jurisdiction over these documents, because the dis-
trict courts’ records transferred to us upon appeal. See Fed. R.
App. P. 11.
Although not a party, Gerstein enjoys standing to file the
motion based upon his constitutional interest in the proceed-
ings:
Under the first amendment, the press and the public
have a presumed right of access to court proceedings
and documents. . . . This presumed right can be over-
come only by an overriding right or interest “based
on findings that closure is essential to preserve
54
Oral proceedings before this court on November 15, 2005, were open
to the public. On November 9, 2005, CDT and MLB filed an unopposed
Motion To Seal Courtroom During Oral Argument. We denied the motion
the next day. On November 14, 2005, CDT and MLB filed a Motion for
Reconsideration of Motion To Seal Courtroom During Oral Argument,
which the government joined. We denied the motion the same day.
1132 UNITED STATES v. COMPREHENSIVE DRUG TESTING
higher values and is narrowly tailored to serve that
interest.”
Oregonian Publ’g Co. v. District Court, 920 F.2d 1462, 1465
(9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior
Court, 464 U.S. 501, 510 (1985)).55 The Supreme Court has
noted the particular interest of media members in “publish[-
ing] information concerning the operation of government.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
To decide whether Gerstein’s interest justifies unsealing
portions of the records, the court also must consider the pri-
vacy interests of the litigants, for “the right to inspect and
copy judicial records is not absolute.” Id. In the appeals at bar,
the records contain extremely sensitive information, espe-
cially the drug testing records. If revealed, this information
could adversely affect the reputations of many competitive
baseball players. Therefore, the motion to unseal requires a
careful balancing of the interests at stake. See id. (noting that
access to judicial records may be limited to protect the pri-
vacy interests of the litigants, such as to avoid disclosure of
“sources of business information that might harm a litigant’s
competitive standing”).
[27] Although we have jurisdiction to conduct a merits
analysis of the motion to unseal, the district courts—having
greater familiarity with the records56—are in a better position
to balance the privacy interests and to determine which mate-
rials are protected grand jury materials. See Fed. R. Crim. P.
55
Gerstein premises his motion on 9th Cir. R. 27-13(c). That rule states:
“During the pendency of an appeal, any party may file a motion with this
court requesting that matters filed under seal either in the district court or
in this court be unsealed. Any motion shall be served on all parties.” Id.
(emphasis added). Although Joshua Gerstein is not a “party” under this
rule, his standing derives from his constitutional interest and does not
depend upon the applicability of 9th Cir. R. 27-13(c).
56
Sensitive portions of the records were neither revealed nor discussed
at oral argument before this court. See supra note 54.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1133
6(e). Therefore, we refer the Gerstein motion to the district
courts for consideration.
VII
To summarize the resolution of these consolidated appeals:
1) We have no jurisdiction to address the legal foundation
for the grant of the Rule 41(g) motion in the Central District
of California, although we recognize that our authoritative
interpretation of Tamura conflicts with the vision of Tamura
upon which that order was based. The government cannot
obtain redress for any alleged errors or impropriety in that
order, where it failed to object in a timely manner. The gov-
ernment’s appeal of the grant of the Rule 41(g) motion is
DISMISSED for lack of jurisdiction; the order of the Central
District of California denying the government’s motion for
reconsideration is AFFIRMED.
2) The government’s seizures at the Quest facility in Las
Vegas were reasonable under the Fourth Amendment. The
order of the District of Nevada granting the Rule 41(g) motion
is REVERSED.
3) The record, illuminated by caselaw, reveals that the sub-
poenas to CDT and Quest, which covered the same evidence
as the contemporaneous search warrants, were not unreason-
able and did not constitute harassment. The order of the
Northern District of California quashing the May 6 subpoenas
is REVERSED.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1135
Volume 2 of 2
1136 UNITED STATES v. COMPREHENSIVE DRUG TESTING
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
One of the three extremely able district court judges who
rejected the government’s argument summarized it best, stat-
ing: “What happened to the Fourth Amendment? Was it
repealed somehow?”
Although it only had a search warrant for data concerning
eleven Major League Baseball players, the government seized
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1137
thousands of medical records and test results involving every
single Major League Baseball player. The government did not
stop there, seizing thousands of other medical records for
individuals in thirteen other major sports organizations, three
unaffiliated business entities, and three sports competitions.
The government now seeks to retain all of the medical infor-
mation it obtained about persons who were not the subject of
any criminal inquiry.
The stakes in this case are high. The government claims the
right to seize and retain—without warrant or even a suspicion
of criminal activity—any patient’s confidential medical
record or other confidential personal information contained in
a computer directory so long as it has a legitimate warrant or
subpoena for any other individual patient’s record that may be
stored on the same computer. The government attempted to
justify this novel theory on a breathtaking expansion of the
“plain view” doctrine, which clearly has no application to
intermingled private electronic data.
The majority ignores the government’s plain view
argument—a theory rejected by every district judge involved
in this case. Instead, the majority invents a new justification
for approving the seizures. It holds that the boilerplate terms
of a computer search warrant justify both the seizure of mas-
sive amounts of confidential medical information about per-
sons not suspected of any criminal activity and the subsequent
warrantless search of the information. Under the majority’s
rationale, the government may now seize anyone’s private
medical records and other confidential personal information,
and remove the records for a later warrantless search, so long
as those records are intermingled with records that are respon-
sive to a warrant and the government can justify that on-site
sorting of those records would be impractical.
The consequences of this decision are profound. Today’s
decision will allow the government unprecedented easy
access to confidential medical and other private information
1138 UNITED STATES v. COMPREHENSIVE DRUG TESTING
about citizens who are under no suspicion of having been
involved in criminal activity. At a time when our medical
institutions are working diligently to provide physicians with
easy nationwide electronic access to patient records in order
to improve the care and treatment of our citizens, the opinion
poses a very serious threat to the confidentiality of patient
records and ultimately to the effective delivery of health care
itself.
The majority’s holding will also significantly and adversely
impact the viability of voluntary workplace drug testing. As
the National Chamber of Commerce has pointed out in its
amicus brief, today’s decision will make it very unlikely that
employees or unions will agree to any voluntary employer
drug testing in the future, as any promise of confidentiality
has now been rendered completely illusory. It will make
efforts to curb substance abuse in the workplace harder, not
easier.
The majority’s holding also conflicts with the procedures
detailed by our Circuit in United States v. Tamura, 694 F.2d
591 (9th Cir. 1982) for the appropriate and constitutional pro-
cessing of seized information not responsive to a warrant that
is intermingled with data that is responsive to a warrant.
The majority also improperly rejects the factual findings of
the district judges, to which we owe deference, and adopts
wholesale the government advocate’s view of events. The
careful findings and conclusions of the three distinguished
district judges who all rejected the government’s position are
completely supported by the voluminous record.
For these reasons, I respectfully dissent.
I
The investigation in this case ostensibly involved Bay Area
Lab Co-Operative, popularly referenced as “Balco.” The gov-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1139
ernment suspected Balco of distributing illegal steroids to cer-
tain athletes, including some Major League Baseball players.
The government knew that, pursuant to a collective bargain-
ing agreement between the Major League Baseball Players
Association (“Players Association” or “MLBPA”) and Major
League Baseball, confidential testing had been analyzed by
Comprehensive Drug Testing, Inc. (“CDT”), and other labora-
tories, for the sole purpose of determining whether Major
League Baseball should adopt an individualized steroid test-
ing program.
Through the collective bargaining agreement, the players
were assured that the testing would be anonymous and confi-
dential, and that the samples and individual data would be
destroyed upon tabulation of the results. The only object of
the exercise was to determine the approximate magnitude of
apparent steroid use with the goal of fashioning appropriate
policies to address it. The collective bargaining agreement
acknowledged and anticipated that the tests for some players
might well yield positive results due to the ingestion of legal
and proper over-the-counter supplements.
Although information developed by the government in its
criminal investigation pointed only to specific individuals
who might be involved with Balco, the government served a
grand jury subpoena on CDT on January 16, 2003, seeking
drug tests for all major league baseball players. After receiv-
ing the subpoena, the Players Association and CDT contacted
the United States Attorneys’ Office to discuss their concerns
with the breadth of the subpoena. At the government’s
request, the Players Association, CDT, and Major League
Baseball prepared and presented a “white paper” to the gov-
ernment detailing the provisions of the collective bargaining
agreement pertaining to testing, with emphasis on the many
confidentiality provisions, and raising concerns about the
invasion of the constitutionally-protected privacy interests of
the players who were not involved in the Balco investigation.
1140 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The Players Association and CDT assured the government
in writing that CDT would maintain all of the subpoenaed
records until the disputes were resolved by negotiation or liti-
gation. On February 4, 2003, the Chief of the Criminal Divi-
sion wrote the counsel for CDT indicating that the
government had accepted the assurances by CDT that none of
the materials sought by the subpoena would be destroyed or
altered pending the government’s reconsideration of the sub-
poena and a motion to quash the subpoena, if filed.
On February 12, 2004, the grand jury returned a 42-count
indictment against Victor Conte, Jr. (Balco’s founder), James
J. Valente (Balco’s Vice President), Greg F. Anderson (a
trainer), and Remi Korchemny (a track coach). The charges
against the defendants included conspiracy to possess with
intent to distribute anabolic steroids, possession with intent to
distribute anabolic steroids, introduction and delivery of mis-
branded drugs into interstate commerce with intent to defraud,
and misbranding of drugs held for sale with intent to defraud.
On March 3, the government served a second grand jury
subpoena on CDT, seeking information on only eleven named
baseball players. However, it did not withdraw the January 16
subpoena. On April 7, with no compromise reached and with
a return date passed, the Players Association filed a motion in
the Northern District of California in San Francisco to quash
the CDT subpoena. The motion was assigned to Judge Jeffrey
S. White.
After learning that a motion to quash would be filed but
before the motion could be heard, the government applied for
a search warrant to search the CDT offices for the same infor-
mation it was seeking in the grand jury subpoena. The search
warrant application was made some 240 miles away in
another federal judicial district, without notice to the Players
Association or to the district court in the Northern District of
California.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1141
In the search warrant proceedings in the Central District of
California, the government never brought to the magistrate
judge’s attention that there was a motion pending before
Judge White in the Northern District of California to quash
the grand jury subpoena. The affidavit did not disclose that
the Players Association had joined the motion. Rather, the
affidavit stated:
The referenced grand jury subpoena, for the items
listed in Attachment B, was issued; however, while
not denying that they have the requested materials,
CDT has declined to comply with the subpoena and
has stated its intent to attempt to quash the subpoena.1
The affidavit did not disclose that CDT had agreed in writ-
ing to keep the data and other materials secured until the
scope of the grand jury subpoena was settled, either through
negotiation or a ruling on a motion to quash. Rather, the affi-
davit justified removing computer data and equipment from
the searched premises on the basis that the computer data
could be concealed, altered, or destroyed by the user.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
1
Some months later, Judge Illston asked the government: “Did you
explain to Judge Johnson what was happening before Judge White, even
on the day that you got him to issue the warrant?” Government counsel
replied, “We did inform Judge Johnson of the existence of the grand jury
subpoena and it’s in the warrant application of Judge Johnson that defense
had indicated that it wanted to move to quash the subpoena. So we did
indicate to Judge Johnson there was a disputed grand jury issue. Yes, it
was disclosed to Judge Johnson.” Neither the warrant application nor the
affidavit filed in support of the application contain any reference to pend-
ing proceedings before Judge White.
1142 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The government did not have any evidence or reason to
believe that CDT had engaged in steganography, booby-
trapping computers, or any type of data destruction or alter-
ation. To the contrary, it had accepted in writing CDT’s assur-
ances “that CDT will maintain and preserve all materials
called for by the first subpoena as well as any materials called
for by the new subpoena” and that “CDT would not destroy
or alter any of the materials called for by either of the subpoe-
nas.” However, the plain import of the application was that
CDT was improperly resisting compliance with a valid grand
jury subpoena and data was in jeopardy of being destroyed.
Based on the government’s application, a search warrant
was issued by Magistrate Judge Jeffrey W. Johnson in the
Central District of California in Los Angeles. The warrant
authorized the seizure of records regarding drug specimens,
testing, and test results of only ten specifically named Major
League baseball players. The warrant also provided that if the
computer data seized did not fall within any of the items to
be seized or was not otherwise legally seized, the government
would return the data. The affidavit provided by Special
Agent Novitzky in support of the issuance of the warrants
stated that obtaining information to link the test results to
individual players was necessary “to ensure that samples of
individuals not associated with Balco are left undisturbed.”
The warrant was issued one day after the motion to quash
the grand jury subpoena had been filed in the Northern Dis-
trict of California—creating the clear implication that the gov-
ernment was attempting to prevent Judge White from
considering the motion to quash on the merits by seizing the
property after ex parte presentation to another judge. Upon
arrival at the premises of CDT on the morning of the search,
Special Agent Novitzky and other agents discussed with
CDT’s attorney the need to search CDT’s computers.
The information sought in the search warrant was contained
in three places: a segregated list only containing information
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1143
about the ten athletes that were the subjects of the search war-
rant; a master list of the drug test results for all Major League
Baseball players; and a computer directory (often referred to
as the “Tracey directory”) that contained information and
medical test results for hundreds of other baseball players and
athletes engaged in professional sports. Counsel for CDT
requested that all material pertaining to the specific items
listed in the warrant be reviewed and redacted by a magistrate
judge or special master before it was seen by the government,
pursuant to the proper procedure described in Tamura. The
government refused the request.2 The government also
rejected CDT’s offer to provide the records it had already seg-
regated concerning the small subset of players at issue.
In addition to the segregated materials, the government
seized the master list, all of the voluminous data in the Tracey
Directory, lists of teams and players and drug testing details,
and eleven diskettes, all of which contained drug-test results
on hundreds of Major League Baseball players and other ath-
letes. The agents searching the Tracey directory at the scene
concluded that certain of the subdirectories appeared to con-
tain information not called for by the warrant. In fact, the
directory contained 2,911 files that had nothing to do with
Major League Baseball drug testing, but rather contained test
results for numerous other sports entities and business organi-
zations. However, instead of copying only the subdirectories
that pertained to Major League Baseball, the agents copied the
entire directory. Dr. Jean Joseph of CDT later stated in an
affidavit that the directory was easily searched by key word
and would have provided the test information about the ten
players in a short period of time.
Judge Cooper later specifically found that “[o]nce the items
2
Department of Justice Guidelines provide that, in cases involving con-
fidential patient information, a search warrant “shall be executed in such
a manner as to minimize, to the greatest extent practicable, scrutiny of
confidential materials.” 28 C.F.R. § 59.4(b)(4).
1144 UNITED STATES v. COMPREHENSIVE DRUG TESTING
were seized the requirement of the search warrant that any
seized items not covered by the warrant be first screened and
segregated by computer personnel was completely ignored.”
She further found that Agent Novitzky himself reviewed the
seized computer data and used what he learned to obtain the
subsequent search warrants issued in the Northern District of
California, the Central District of California, and Nevada.
After the initial search, and based on the search results, the
government sought and obtained that day a second search
warrant from Magistrate Judge Johnson for a search of a stor-
age facility maintained by CDT.
On the same day, the government also applied for a search
warrant in the District of Nevada. The warrant sought infor-
mation in the business files of Quest Diagnostics, Inc., a labo-
ratory that had also been involved in the administration of
Major League Baseball’s drug testing program in 2003. The
warrant was limited to information concerning the ten base-
ball players identified in the Los Angles search warrant. The
affidavit filed in support of the warrant did not disclose the
history of the issuance of the grand jury subpoena or the filing
of a motion to quash the subpoena. Based on the information
provided by the government, Magistrate Judge Lawrence
Leavitt issued the warrant, and the warrant was executed.
On April 9, 2004, the Players Association arranged an
emergency hearing before Judge White, before whom the
motion to quash the grand jury subpoena was pending. The
Players Association sought an order restricting the govern-
ment from disseminating any information it had obtained until
the Players Association had an opportunity to litigate the
motion to quash or a Rule 41 motion to return the seized prop-
erty. The government argued that Judge White had no juris-
diction over the items seized pursuant to the search warrants,
even though the grand jury subpoena sought the same materi-
als.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1145
The government represented to the court that it would not
disseminate the information and would negotiate in good faith
about the seized items. Judge White accepted that representa-
tion. He noted that he did not have jurisdiction over the items
seized pursuant to the warrants, but that the motions to quash
the grand jury subpoenas remained pending before him. Judge
White acknowledged that the position of the Players Associa-
tion was “well taken with respect to the U.S. Attorney’s man-
ual and the government allegedly not following proper
procedure,” but that the Players Association had other avail-
able remedies to resolve that issue on the merits.
On April 22, 2004, the government wrote CDT indicating
that it was withdrawing the January 16, 2004, subpoena and
modifying the subpoena of March 3, 2004. The government
did not inform Judge White of these actions and the January
16 subpoena was never withdrawn.
On April 24, CDT and the Players Association filed a
motion in the Central District of California for return of the
seized property or, in the alternative, appointment of a special
master to redact those records so that the government retained
drug test results for only the ten players named in the warrant.
On April 30, 2004, the government filed its opposition to
the motion to return property in the Central District. In its
opposition, despite the existence of an agreement with CDT
that CDT would not destroy or alter documents, the govern-
ment argued that it “had good-faith reasons to believe that
CDT was detrimentally delaying the investigation, and that
there was some danger of the sought-after records being jeop-
ardized.” The government also argued that this jeopardy justi-
fied proceeding with a search warrant under DOJ guidelines.
On the same date, April 30, 2004, based on what it had
found in the first search, the government sought a new search
warrant in the Northern District of California in San Jose for
CDT electronic files it already had in its possession in the
1146 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Tracey Directory concerning all players whose test results
were positive.
In contrast to the affidavit supplied in the first warrant
application, which purported “to ensure that samples of indi-
viduals not associated with Balco are left undisturbed,” the
affidavit of Agent Novitzky in support of this warrant applica-
tion sought “authorization to conduct a thorough review of all
major league baseball-related computer data” and “to seize all
data pertaining to illegal drug use by any member of major
league baseball.”
The affidavit conceded that no specific information had
been uncovered linking Balco to any individual baseball play-
ers beyond the ten listed in the April 7, 2004, search warrant.
However, in contrast to the first warrant application, Agent
Novitzky averred that even though no evidence had been
developed to link the ballplayers who were not listed in the
first warrant to Balco, “it is logical to assume that a review
of the drug testing records for other players may provide addi-
tional evidence of the use of similar illegal performance-
enhancing drugs which establishes a link to the charged
defendants in the charged [Balco] case, given the relatively
small number of professional baseball players and the closely-
knit professional baseball community.”
The affidavit in support of issuance of the warrant did not
disclose that a grand jury subpoena had been issued for the
same material and that a motion to quash the subpoena was
pending in the very same district.
The affidavit also did not disclose that the parties were liti-
gating in the Central District of California a motion for return
of the seized property — the very property which was subject
of the new search warrant request. Based on the information
provided by the government, Magistrate Judge Howard W.
Lloyd issued a new search warrant for the same material that
the government had already searched and seized.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1147
On May 5, 2004, the government sought a search warrant
in the District of Nevada for information contained in the files
at Quest Diagnostics concerning all baseball players who,
according to the information collected in the CDT search, had
tested positive for steroids. The application conceded that
there was no specific evidence linking these players to Balco.
The warrant was issued by Magistrate Judge Leavitt. The gov-
ernment took a large number (later reported by the govern-
ment to be 250 to 300 because of multiple samples given by
the players) of physical samples of bodily fluids and trans-
ported them to a lab in Los Angeles.
On May 5, 2004, the government sought a search warrant
in the Central District of California in Los Angeles before a
different magistrate judge for all information contained in the
files at CDT concerning all baseball players who, according
to the information collected in the CDT search, had a positive
marker for steroids. The application conceded that there was
no specific evidence linking these players to Balco. Neither
the application nor the affidavit filed in support of the applica-
tion disclosed the pending proceedings concerning the grand
jury subpoenas. Based on the information provided by the
government, the warrant was issued by Magistrate Judge
Rosalyn Chapman.
On May 6, 2004, after it had executed the search warrants,
the government served grand jury subpoenas on CDT and
Quest for the same materials it had sought in the April 30 and
May 5 search warrants. The subpoena contained the names of
the baseball players that had allegedly tested positive, even
though the government knew that the information Quest pos-
sessed was only identifiable by number and even though the
government had assured the Players Association and Judge
White that it would not disclose the names. The government
sent a letter to Quest Diagnostics instructing the company not
to disclose to anyone the government’s request for documents
“indefinitely” because “[a]ny such disclosure could impede
1148 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the investigation being conducted and thereby interfere with
the enforcement of the law.”
On May 21, 2004, CDT and the Players Association filed
a motion in the District of Nevada for a return of the property
seized from Quest Diagnostics. On June 7, 2004, CDT and the
Players Association filed a motion in the Northern District of
California for return of the electronic documents seized from
CDT pursuant to the April 30 search warrant issued by Magis-
trate Judge Lloyd in the Northern District.
On July 9, 2004, Judge White held a hearing on the motion
to quash the grand jury subpoenas, but deferred action pend-
ing rulings on the motions for return of property seized pursu-
ant to the search warrants.
On August 9, 2004, Judge Susan Illston held a hearing on
the motion for return of the electronic data seized by the gov-
ernment pursuant to the April 30 warrant. When asked by
Judge Illston why the government hadn’t just waited to let
Judge White rule on the motions to quash the grand jury sub-
poena rather than seeking search warrants for the same mate-
rial, the government responded:
What the government really perceived ultimately as
a conscious decision on the part of the Major League
Baseball Players Association and the other parties
associated with it just refused to comply with what
the government felt was [sic] legitimate grand jury
subpoenas.
Later in the hearing the government argued that the search
warrant was necessary because a motion to quash had been
filed.
Counsel: The concern here was, to say, okay, we’re
going to face a brick wall from this legal
avenue . . . .
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1149
Judge: What brick wall?
Counsel: The brick wall was . . .
Judge: Judge White?
Counsel: No, no, not at all. It was the concern that
the requests or that discussions about
moving to quash the subpoena would be
something that would be dragged out.
At a later hearing, counsel for government confirmed that
it would not have sought to obtain the search warrants if the
affected parties had not filed a motion to quash the grand jury
subpoena.3 However, the Department of Justice Guidelines
provide that “The fact that the disinterested third party pos-
sessing the materials may have grounds to challenge a sub-
poena or other legal process is not in itself a legitimate basis
for the use of a search warrant.” 28 C.F.R. § 59.4.
The government primarily argued that, even though the
material seized may not have been authorized under the
search warrant, seizure was appropriate under the “plain
3
A hearing on December 10, 2004, discussed infra, contains this collo-
quy:
Counsel: And the government never would have done the
search warrants if the grand jury process could have
worked out. But it didn’t. I feel —
Court: Say that last thing one more time. What you —
Counsel: What I just said was we may not have ever done the
search warrants if the subpoena process worked out.
Court: But, I mean, there was a subpoena process pending in
this building before Judge White.
Counsel: Yes.
Court: At the time you went and got your search warrants,
and you didn’t allow that process to complete itself.
Counsel: That is true.
1150 UNITED STATES v. COMPREHENSIVE DRUG TESTING
view” doctrine. The court engaged in an extensive colloquy
about the search, ascertaining that the data was contained in
a file that could not be accessed readily without assistance,
and that the agent had to scroll through 1,200 results to obtain
the positive tests that formed the basis of the later search war-
rants. After noting that the government had not provided any
case to support its contention that the plain view doctrine
applied in the computer context, Judge Illston made the fol-
lowing findings:
I find absolutely staggering the implications about
what you say about the plain view doctrine in the
computer set up. In a way nothing is in plain view
because with the disk you look at it, you don’t see
anything until you stick it in the computer and it
does take quite a lot of work really to bring it up on
the screen.
So, it’s not in plain view in the sense of walking into
the room and seeing the scale on the desk. It takes
a whole lot of work to get there.
First off, none of it is cursory, there are whole indus-
tries that have developed in order to make it possible
for the disk to show up on the screen that way. So
it’s not cursory review. I don’t think it’s plain view.
I don’t think I have to go that far or make that kind
of choice with respect to issues that are certainly
going to arise. . . . Where it requires sorting through
information which really is on a data base, somehow
it’s being organized in different formats, you could
organize it in a format based on the ten names,
instead of taking it in other kinds of formats, then
scrolling across and taking names and information
off the screen, when it’s clearly information that
isn’t part of what was originally within the autho-
rized search warrant, I just think is impermissible.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1151
Judge Illston then granted the motion for return of seized
property, with the following findings from the bench:
So, having looked at the Ramsden factors set out,
[there are] apparently four factors. One, whether the
government displayed a callous disregard for the
constitutional rights, two, whether the [movant] has
an individual right and need for the property he
wants returned, three, whether the [movant] would
be irreparably injured by denying the motion for
return of property, and four, whether the [movant]
has an adequate remedy at law for a redress of his
grievance. I find all four factors have been met here.
I think the government has displayed, in the chro-
nology of things that we’ve seen, in the way that the
case was taken from one judge to another judge, in
the way that as soon as it was challenged in one
court, it was immediately litigated in another court
without full information being shared among the
courts, that to me makes it a callous disregard for
constitutional rights. I think, it’s a seizure beyond
what was authorized by the search warrant, therefore
it violates the Fourth Amendment.
Number two, I think [that both movants] here
have an interest and need for the property returned.
I think they need it returned and not so much
because they need it back, they got it, you got it, I
think what they need to get back from you what they
have, what you’ve taken from them because of the
privacy rights and the circumstances under which
this material was given.
Whether the [movant] would be irreparably
injured by denying the return of the property, I think
they would, and I think indeed there would be, that
the injury that will be suffered by volunteers not
1152 UNITED STATES v. COMPREHENSIVE DRUG TESTING
being able to confidently provide testing under
promise of privacy would irreparably injure not only
major league baseball, I can’t imagine that there’s
going to be any voluntary agreement to do this kind
of testing, that’s probably over with already, but also
just has implications that are very negative for these
[movants], and whether the [movant] has an ade-
quate remedy at law, I don’t think there is any rem-
edy at law for the redress of these grievances.
I’m going to grant the motion.
On August 13, in the Central District of California, Magis-
trate Judge Johnson issued a report and recommendation rec-
ommending denial of the motion for return of property seized
at CDT.
On August 19, in the District of Nevada, Judge James C.
Mahan held a hearing on the motion filed by the Players
Association for the return of the property seized at Quest
Diagnostics pursuant to the search warrants. The government
did not disclose to Judge Mahan or the Players Association
that it had served on Quest a grand jury subpoena for the same
materials, coupled with a letter instructing Quest to keep that
fact confidential indefinitely. At the conclusion of the hearing,
Judge Mahan orally granted the motion. On September 7,
Judge Mahan filed a written order granting the motion for
return of the property. Judge Mahan found, in relevant part,
that:
2. Under Ramsden v. United States, 2 F.3d 322
(9th Cir. 1993), this Court has equitable jurisdic-
tion to order return of that seized property. All
of the factors identified in Ramsden supporting
jurisdiction are present. The government cal-
lously disregarded the affected players’ constitu-
tional rights. The MLBPA, as representative for
the players, has an individual interest in and
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1153
need for the property that it wants returned. The
MLBPA would be irreparably injured if the
property were not returned. And the MLBPA
has no adequate remedy at law for redress of the
grievances.
3. Under the particular circumstances of this case,
it was unreasonable for the Government to
refuse to follow the procedures set forth in
United States v. Tamura, 694 F.2d 591 (9th Cir.
1982), upon learning that drug-testing records
for the ten athletes named in the original April
8 warrants executed at Quest and at Comprehen-
sive Drug Testing, Inc. were co-mingled with
records for other athletes not named in those
warrants.
After issuance of the order, the government declined to
return the material seized from Quest in Nevada, contending
it was entitled to retain it under the authority of the new May
6 grand jury subpoena. To that end, the government filed a
stay motion with Judge Mahan, arguing that it had a right to
retain the data and samples based on the May 6 grand jury
subpoena, which had issued after the seizures of the material
had occurred. The government argued that Judge White was
the only judge who had jurisdiction to decide that issue. Judge
Mahan denied the stay motion. The government maintained
that the May 6 grand jury subpoenas independently authorized
retention of the data and specimens; therefore, the Players
Association and CDT filed a motion to quash the May 6 sub-
poena in the Northern District of California.
On October 1, 2004, in the Central District of California,
Judge Cooper declined to adopt Magistrate Judge Johnson’s
recommendation, and granted the motion for return of the
seized CDT property. She noted that she joined “an appar-
ently ever-increasing number of district judges who have held
that the Government’s execution of the Search Warrant at
1154 UNITED STATES v. COMPREHENSIVE DRUG TESTING
issue in this case demonstrated a callous disregard for the con-
stitutional rights of the movants and their members.”
With respect to the Ramsden factors, Judge Cooper found:
All four considerations weigh in favor of the mov-
ing parties in this case. In assessing whether the gov-
ernment displayed a callous disregard for the rights
of the persons whose records were seized, it is
important to focus on the Ninth Circuit opinion in
United States v. Tamura, 694 F.2d 591 (1982). At
the time of the search, Tamura was certainly settled
law in the Circuit, and Tamura establishes a proce-
dure to be followed when documents to be seized are
intermingled with other documents. “. . . . [T]he
wholesale seizure for later detained examination of
records not described in a warrant is significantly
more intrusive, and has been characterized as ‘the
kind of investigatory dragnet that the fourth amend-
ment was designed to prevent.’[citation].” Id. at 595.
Therefore, law enforcement officials are to seal and
hold such intermingled documents “pending
approval by a magistrate of a further search . . . .
Wholesale removal must be monitored by the judg-
ment of a neutral, detached magistrate.” Id. at 596.
It is particularly telling in this case that just such a
procedure was proposed to the Government at the
time of the search, and rejected.
Nor is the viewing of the seized files legitimized
by the Plain View doctrine. Under the exception to
the warrant requirement, an officer may seize what
he plainly views, so long as he has a lawful right to
access the evidence itself and its incriminating char-
acter is immediately apparent. Horton v. California,
496 U.S. 128, 136 (1990). Here, the agent did not
have a lawful right to access the computer records
and diskettes, and, as evidence provided in connec-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1155
tion with the Motion reveals, the evidence observed
is not necessarily incriminating. The Declaration of
Dr. Joseph states that the ingestion of nutritional
supplements can produce a “positive” test for ste-
roids.
The Government demonstrated a callous disregard
for the rights of persons whose records were seized
and searched outside the warrants.
The second consideration, whether the moving
party has an interest and need for return of the prop-
erty, is easily answered. The athletes in question vol-
untarily submitted to urine testing for steroids, as
part of an agreement that all results would remain
confidential and be used only for statistical analysis.
Their interest in privacy is obvious.
The third consideration, whether the moving party
has an interest and need for return of the property is
easily answered. The careers of these athletes could
be profoundly, negatively affected by release of
these records, and their return is vitally important.
The harm they would suffer if the records were
released (even if the positive tests are shown to be
innocuous) would be irreparable.
Finally, it is evident that the movants have no
other legal remedy. No motion to suppress the evi-
dence is available to them; they are neither defen-
dants nor suspects, and no case exists in which this
issue could be litigated.
In addition to her findings and conclusions, Judge Cooper
added these comments in a section labeled “Serious Con-
cerns:”
The documents presented to the Court in connec-
tion with this Motion reveal extremely troubling
1156 UNITED STATES v. COMPREHENSIVE DRUG TESTING
conduct on the part of the Government. The picture
painted is one of almost desperate effort to acquire
evidence by whatever means could be utilized. The
Government negotiated with movants’ attorneys
over the breadth of the grand jury subpoenas;
received assurances in writing that the records of the
ten athletes would be secured while the Court
resolved the issue, and the day after the issue was
presented to a Court, went to another district and
sought a search warrant. That conduct would be sus-
pect in itself. But in seeking the warrant (not the cor-
rect procedure for obtaining documents for a third
party who is not a suspect), the Government
explained to the Magistrate that the records in ques-
tion were in danger of being destroyed. This is bla-
tant misrepresentation, as demonstrated by the
records in this case.
Four days after Movants filed a motion before
Magistrate Judge Johnson for return of the property,
the Government obtained a further warrant from a
Magistrate Judge in the Northern District of Califor-
nia. And while a motion for return of that property
was pending, the Government obtained two more
warrants in the Central District of California (not
from Magistrate Judge Johnson) and in Nevada. The
image of quickly and skillfully moving the cup so no
one can find the pea would be humorous if the mat-
ter were not so serious.
Noting that “the Government is held to a far higher stan-
dard than has been demonstrated in this case,” and that “this
is the third District Court Order compelling the Government
to return property illegally seized,” Judge Cooper ordered
return of the seized CDT property forthwith.
On December 10, 2004, Judge Illston held a hearing on the
Players Association motion to intervene and to quash the May
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1157
6, 2004 grand jury subpoenas served on CDT and Quest. At
the conclusion of the hearing, Judge Illston made the follow-
ing oral findings and conclusions:
I find that the MLBPA has the right to intervene
in this matter under Federal Rule of Civil Procedure
24(a), as it has an interest in the samples and test
results in the possession of CDT and Quest, which
were created with the promise of anonymity under
the mandatory testing of the 2002 collective bargain-
ing agreement.
The May 6th, 2004 subpoenas were the culmina-
tion of a series of actions taken by the government
in order to prevent MLBPA and CDT’s attempt to
move to quash the January and March subpoenas.
Instead of allowing the matter to be resolved in a sin-
gle proceeding before Judge White, the government
executed a series of search warrants in three different
districts once it learned that petitioners would move
to quash the January and March subpoenas.
The government has provided no substantial
explanation of why this course of action was neces-
sary. Given that the government had no other basis
for issuing the April search warrants and preempting
the subpoenas served on Quest and CDT, the deci-
sion appears to have been a tactical decision to pre-
vent the parties from raising objections before Judge
White, which is unreasonable and constitutes harass-
ment similar to the conduct in United States v. Amer-
ican Honda.
Furthermore, the May 6th subpoenas were served
after the government had obtained evidence pursuant
to the April 7 and April 30 search warrants, which
has now been determined to have been illegally
seized. Some of the information sought in the May
1158 UNITED STATES v. COMPREHENSIVE DRUG TESTING
6th subpoena was already in the government’s pos-
session at the time the subpoena was served on CDT
and Quest; therefore, the Court finds that the May
6th subpoena served as an unreasonable insurance
policy as recognized in the motion for the return of
seized property cited in the papers, 681 F.Supp. [sic]
For these reasons the court grants petitioner’s
motion to quash the May 6th subpoena served on
Quest and CDT as an abuse of the grand jury process
and unreasonable under Federal Rule of Criminal
Procedure 17(c).
On October 18, 2005, as a result of a plea agreement, Balco
founder Victor Conte received a sentence of eight months
imprisonment, with four months of the sentence to be served
in home confinement. James Valente, Balco’s vice president,
was sentenced to probation. Trainer Greg Anderson was sen-
tenced to six months imprisonment, with three of the six
months to be spent in home confinement. On February 25,
2006, track coach Remi Korchemny was sentenced to one
year of probation.
In reviewing both the order quashing the grand jury sub-
poena and the orders granting the motions for return of prop-
erty pursuant to Fed. R. Crim. P. 41(g), we review the factual
findings of the district courts for clear error. In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir.
1991) (orders to quash grand jury subpoenas); United States
v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999) (orders on
motions for return of property). We review orders quashing
subpoenas for abuse of discretion. United States v. Bergeson,
425 F.3d 1221, 1224 (9th Cir. 2005) (citing In re Grand Jury
Subpoena, 357 F.3d 900, 906 (9th Cir. 2004)). We review de
novo a district court’s denial of a motion for return of prop-
erty pursuant to Rule 41(g). Marolf, 173 F.3d at 1216.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1159
II
Regarding the two preliminary jurisdictional questions—
(1) whether the Players Association had standing to file the
Fed. R. Civ. P. 41(g) motions for return of property on behalf
of its members, and (2) whether the government timely
appealed Judge Cooper’s order granting the Rule 41(g)
motion—I agree with the conclusions reached by the majority.4
I also agree with the majority that Judge Cooper did not abuse
her discretion in denying the government’s motion to recon-
sider certain findings made in her order.
III
Application of the proper standard of review should have
settled this appeal without much ado. We review the findings
of fact underlying the district court’s determination of lawful-
ness of a search for clear error. United States v. Stafford, 416
F.3d 1068, 1073 (9th Cir. 2005) (citing United States v.
Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004)). Review under
the clearly erroneous standard is significantly deferential,
requiring a “definite and firm conviction that a mistake has
been committed,” before a finding can be overturned. Easley
v. Cromartie, 532 U.S. 234, 242 (2001). As long as the dis-
trict court’s account of the evidence is plausible in light of the
record viewed in its entirety, we may not reverse it even if we
are convinced that, had we been sitting as the trier of fact, we
would have weighed the evidence differently. SEC v. Rubera,
350 F.3d 1084, 1094 (9th Cir. 2003).
Here, the district courts made the factual finding that the
government did not comply with the terms of the CDT search
warrant in seizing the non-Balco data. The district courts
found, as a matter of fact, that the seizure of the non-Balco
4
I acknowledge and appreciate the majority’s willingness to revisit the
question of whether the government timely appealed Judge Cooper’s
order.
1160 UNITED STATES v. COMPREHENSIVE DRUG TESTING
data was not authorized by the warrant. The district courts
found, as a matter of fact, that the government had not com-
plied with the terms of the Tamura procedure. The district
courts collectively found that the action of the government in
seizing the property was so “egregious” that it rose to the
level of a callous disregard for the rights of the property own-
ers. Under our significantly deferential standard of review,
that should be the end of the matter.
We review a district court decision to exercise its equitable
jurisdiction under Rule 41(g) under the deferential abuse of
discretion standard. Ramsden, 2 F.3d at 324. Similarly, we
review district court decisions on motions to quash grand jury
subpoenas for abuse of discretion. In re Grand Jury Sub-
poena, Dated April 18, 2003, 383 F.3d 905, 909 (9th Cir.
2004). Under the abuse of discretion standard, we cannot
reverse unless we have a definite and firm conviction that the
district court committed a clear error of judgment in the con-
clusion it reached upon a weighing of the relevant factors.
Natural Resources Defense Council, Inc. v. Winter, 2007 WL
2481465, *4 (9th Cir. 2007). Here, there is no doubt the dis-
trict courts weighed the appropriate factors pertaining to the
Rule 41(g) motion and elected to exercise equitable power to
return property. There is also no doubt that Judge Illston
based her decision on the motion to quash on a correct view
of the law and appropriately considered all of the evidence. In
re Grand Jury Subpoena, 383 F.3d at 909. On appellate
review, we cannot say that these judges abused the discretion
reposed in them.
The majority chooses instead to substitute its own factual
findings concerning the government’s compliance with the
warrants and interpose its own de novo opinion as to the exer-
cise of discretion. That is not our function. In addition, our
appellate review ought to be significantly more deferential
when we confront the uniform factual findings and collective
exercise of judicial discretion of three experienced district
judges from three separate judicial districts. However,
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1161
because our deferential standards of review were discarded in
this case, I will proceed to a merits discussion.
IV
I agree with the majority that Judge Mahan properly exer-
cised equitable jurisdiction over the Rule 41(g) motions.5
Ramsden identified four factors that district courts must con-
sider before exercising equitable jurisdiction to order the
return of property, namely whether: (1) the government dis-
played a callous disregard for the constitutional rights of the
movant; (2) the movant has an individual interest in and the
need for the property he wants returned; (3) the movant would
be irreparably injured by denying return of the property; and
(4) the movant has an adequate remedy at law for the redress
of his grievance. 2 F.3d at 324.
Although I agree with the majority that the district courts
properly exercised equitable jurisdiction, I disagree with the
majority’s analysis in reaching that conclusion. Because the
equitable jurisdictional analysis in large part drives the analy-
sis of the merits of the Rule 41(g) decisions, it is important
to detail my differences with the majority on this issue.
5
Because Judge Cooper’s order is not reviewable, like the majority, I
review only Judge Mahan’s order in this section. However, the legal anal-
ysis applicable to both orders is largely the same. Further, Judge Cooper’s
conclusive determination that the materials seized from CDT must be
returned because they were taken in callous disregard of the non-Balco
players’ constitutional rights has an impact on the validity of Judge
Mahan’s order. Since the CDT materials were a necessary prerequisite for
the granting of the Quest search warrant, the fact that those materials were
improperly seized removes the foundation for the legality of the Quest
warrant. Although the Quest warrant is not directly challenged in this case,
I address below how the final order from Judge Cooper also serves to sup-
port the result reached by Judge Mahan.
1162 UNITED STATES v. COMPREHENSIVE DRUG TESTING
A
The first Ramsden factor is whether the government dis-
played a callous disregard for the constitutional rights of the
movant. The majority concludes the government did not. I
respectfully disagree with that conclusion. The record entirely
supports Judge Mahan’s conclusion that the government dis-
played a callous disregard for the constitutional rights of the
movants.
1
The doctrine of issue preclusion requires us to accept as
decided that the government callously disregarded the non-
Balco players’ rights when it seized those players’ records
from CDT. Clements v. Airport Authority of Washoe County,
69 F.3d 321, 329-30 (9th Cir. 1995). Judge Cooper ordered
the CDT-seized property returned, holding that the govern-
ment demonstrated a callous disregard for the constitutional
rights of the movants and their members. That holding, now
final, is entitled to res judicata effect. Because the affidavit
submitted to Magistrate Judge Leavitt that formed the basis
for the May 5, 2004, Quest search warrant relied on the mate-
rials Judge Cooper has now conclusively determined were
seized in callous violation of the players’ rights, the materials
seized pursuant to the May 5 warrant are fruit of that poison-
ous tree. Wong Sun v. United States, 371 U.S. 471, 488
(1963); Silverthorne Lumber Co. v. United States, 251 U.S.
385, 391 (1920).
Indeed, the government’s approach—using the results of
one tainted search after another to justify the next search—
was rejected decades ago by the Supreme Court. In Silver-
thorne Lumber, the Court considered a situation akin to the
one at bar. In describing the government’s argument in that
case, the Court wrote:
The proposition could not be presented more
nakedly. It is that although of course its seizure was
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1163
an outrage which the Government now regrets, it
may study the papers before it returns them, copy
them, and then may use the knowledge it has gained
to call upon the owners in a more regular form to
produce them; that the protection of the Constitution
covers the physical possession but not any advan-
tages that the Government can gain over the object
of its pursuit by doing the forbidden act.
251 U.S. at 391.
The Supreme Court forcefully rejected this idea, stating
that adoption of such a theory would “reduce[ ] the Fourth
Amendment to a form of words.” Id. at 392.
The Court concluded:
The essence of a provision forbidding the acquisition
of evidence in a certain way is that not merely the
evidence so acquired shall not be used before the
Court but that it shall not be used at all.
Id.
Judge Cooper declared the seizures illegal and ordered the
material returned. That binding decision means that the gov-
ernment could not use the fruits of the search to justify its
subsequent search in Nevada. The majority fails to explain
how the government can disregard the players rights in seiz-
ing the spreadsheet from CDT, but not disregard their rights
in using that spreadsheet to seize the urine samples them-
selves from Quest.
2
Even notwithstanding any preclusive effect stemming from
Judge Cooper’s order, the record more than amply supports
Judge Mahan’s ruling on its own merits.
1164 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The record supports the conclusion that the government
sought and executed the search warrants and took subsequent
legal action as a tactical measure to prevent the Players Asso-
ciation and CDT from litigating their motion to quash and
other objections to the wholesale production of CDT data and
thus the Quest data that the CDT materials begot.6 The gov-
ernment applied for, and executed, the initial search warrants
after CDT and the Players Association informed the govern-
ment they would be filing a motion to quash the grand jury
subpoenas. Government counsel conceded on the record that
the motivation for seeking the search warrants was the “brick
wall” presented by the filing of the motions to quash, even
though DOJ guidelines state that “[t]he fact that the disinter-
ested third party possessing the materials may have grounds
to challenge a subpoena or other legal process is not in itself
a legitimate basis for the use of a search warrant.” 28 C.F.R.
§ 59.4.
The majority points out that the DOJ guidelines do not give
rise to substantive rights. That may be so, but it is beside the
point. The guidelines form a baseline from which to judge the
reasonableness of unjustified deviations from the standard
practices they outline. The guidelines are certainly relevant to
the question before the district court, namely whether the gov-
ernment exhibited callous disregard for the rights of third par-
ties. The guidelines plainly state that it is not legitimate to use
a search warrant because a party may be challenging a sub-
poena; the government admitted that this was precisely the
reason it issued the warrants in this case.
Further, as Judge Cooper found, the use of a search warrant
to obtain documents from a third party is inappropriate. The
6
Although we only have jurisdiction to review Judge Mahan’s order,
because the Quest search warrant was based, in part, on materials seized
from CDT, an analysis of the propriety of the CDT warrants is necessary
to a full analysis of whether Judge Mahan properly exercised his discre-
tion in ordering the non-Balco samples seized from Quest returned.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1165
Department of Justice Guidelines address this point specifi-
cally:
A search warrant should not be used to obtain docu-
mentary materials believed to be in the private pos-
session of a disinterested third party unless it appears
that the use of a subpoena, summons, request, or
other less intrusive alternative means of obtaining
the materials would substantially jeopardize the
availability or usefulness of the materials sought, and
the application for the warrant has been authorized
as provided in paragraph (a)(2) of this section.
28 C.F.R. § 59.4(a)(1); see also U.S. Attorney’s Manual § 9-
19.210.
The U.S. Attorney’s Manual also provides that a search
warrant should normally not be used to obtain confidential
materials such as treatment records. §§ 9-19.220, 9-19.230.
The simple and undisputed fact is that the government
deviated from its usual and appropriate protocol. Documents
held in the possession of third parties are appropriately
obtained through use of grand jury subpoena, not search war-
rant. The record is quite clear that the government used the
vehicle of a search warrant only because it thought its grand
jury subpoenas might be contested. As the DOJ Guidelines
recognize, that is an inappropriate use of a search warrant.
Judge Mahan was entitled on the basis of the record to find
that the government undertook this action in an attempt to
prevent the Players Association and CDT from litigating the
merits of their objections to the grand jury subpoenas and thus
that the Quest search warrant was procured via tainted means.
Further, the entire record of the case shows a repeated pat-
tern of the government attempting to prevent a full hearing on
the merits of the Players Association legal challenges. In vir-
tually each hearing in which CDT and the Players Association
1166 UNITED STATES v. COMPREHENSIVE DRUG TESTING
articulated their objections, the government argued that
another court had primary jurisdiction or that the action of
another court dictated the result.7 The record supports the dis-
trict courts’ collective conclusion that, as Judge Cooper put it,
the government’s actions constituted a “desperate effort to
acquire evidence by whatever means could be utilized,” by
means of “quickly and skillfully moving the cup so no one
can find the pea.”
3
The record also supports the conclusion that the govern-
ment made misleading statements in its application for search
warrants and that the actions of the government in executing
the search warrants were a mere pretext for inappropriately
seizing confidential medical data about Major League Base-
ball players who were not under any particularized suspicion
of criminal activity.
The application contained lengthy representations about
how computer data could be destroyed and stated that “while
not denying that they have the requested materials, CDT has
declined to comply with the subpoena and has stated its intent
to quash the subpoena.” The affidavit did not disclose that
CDT had agreed in writing to keep the data and other materi-
als secured until the scope of the grand jury subpoena was set-
7
To provide but a few examples: Before Judge White, who was consid-
ering the initial motion to quash, the government argued that he should
defer ruling because he had no jurisdiction over the materials seized by the
warrant. The government urged Judge Illston to wait to decide the Rule
41(g) motion until Magistrate Judge Johnson had ruled on the separate
Rule 41(g) motion. The government urged Judge Johnson to consider that
probable cause had already been established by the issuance of a search
warrant by Magistrate Judge Lloyd. The government contended Judge
Mahan lacked jurisdiction to order the property seized under the warrant
returned because it had separately obtained a grand jury subpoena for the
same item, urging him to wait until Judge White had ruled on the motion
to quash (not disclosing that it had asked Judge White to defer until the
Rule 41(g) motions had been decided).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1167
tled, either through negotiation or a ruling on a motion to
quash. The affidavit did not disclose that the Chief of the
Criminal Division of the United States Attorney’s Office had
accepted the assurances in writing.
Rather, the affidavit justified removing computer data and
equipment from the searched premises on the basis that:
Computer users can attempt to conceal data within
computer equipment and storage devices through a
number of methods, including the use of innocuous
or misleading filenames and extensions. . . . Com-
puter users can also attempt to conceal data by using
encryption, which means that a password or device,
such as a “dongle” or “keycard,” is necessary to
decrypt the data into readable form. In addition,
computer users can conceal data within another
seemingly unrelated and innocuous file in a process
called “steganography.” For example, by using ste-
ganography, a computer user can conceal text in an
image file which cannot be viewed when the image
file is opened. Therefore, a substantial amount of
time is necessary to extract and sort through data that
is concealed or encrypted to determine whether it is
evidence, contraband or instrumentalities of a crime.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
As previously stated, the government did not have any evi-
dence or reason to believe that CDT had engaged in any of
this sort of conduct that might have jeopardized the evidence
being sought. To the contrary, it had accepted in writing
CDT’s assurances “that CDT will maintain and preserve all
1168 UNITED STATES v. COMPREHENSIVE DRUG TESTING
materials called for by the first subpoena as well as any mate-
rials called for by the new subpoena” and that “CDT would
not destroy or alter any of the materials called for by either
of the subpoenas.” The plain import of the application was
that CDT was improperly resisting compliance with a valid
grand jury subpoena and data was in jeopardy of being
destroyed. It implied that CDT was not being forthright about
the information it possessed, when in fact there was no sug-
gestion that CDT was attempting to mislead the government
in any respect.
The search warrant application did not disclose that the
Players Association, on behalf of the individuals whose medi-
cal files were at issue, had intervened and had joined CDT’s
motion to quash the grand jury subpoena. The application did
not disclose the history of negotiations between the parties,
and that the concern was about the breadth of the subpoena.
The application did not disclose that the written assurances
made by CDT and accepted by the government contemplated
resolving the disputed issues through a motion to quash if
necessary. Rather, the application implied that CDT was tak-
ing unjustified unilateral action.
The majority implies that the government constructed a
careful search protocol carefully tailored to the CDT opera-
tion that it presented to the magistrate judges. However, the
affidavits and protocol incorporate merely boilerplate lan-
guage. Had the government disclosed to the magistrate judge
that it intended, in the course of its search for material on a
handful of players, to seize thousands of records pertaining to
thirteen other major sports organizations, three unaffiliated
business entities, and three sports competitions, and that the
entity to be subject to the search had already segregated the
responsive information for production, there is no doubt in my
mind that the reaction of the judge would have been com-
pletely different.
Given these undisputed facts, the district courts were enti-
tled to conclude that the government made misleading state-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1169
ments in its applications for search warrants and that the
actions of the government in executing the search warrants
were a mere pretext for inappropriately seizing confidential
medical data about Major League Baseball players who were
not under any particularized suspicion of criminal activity.
4
Notwithstanding the government’s bold and apparently
deceptive tactics, the majority claims the government none-
theless complied with the terms of the warrants and therefore
that Judge Mahan’s ruling must be reversed.
First, this contention flies in the face of Judge Cooper’s
specific factual finding that the government did not comply
with the terms of the warrant. She found that “the requirement
of the Warrant that the seized items not covered by the war-
rant be first screened and segregated by computer personnel
was completely ignored.” As she elaborated:
[T]he warrant did not require mere “consultation”
and “participation” with computer personnel, but
required computer personnel to actually make an ini-
tial review of computer equipment and storage
devices to determine if they could be searched on-
site, to determine whether it was practical to copy
the data, and to seize and transport the equipment
devices if necessary. The warrant required “appro-
priately trained personnel” to review the seized items
to determine what data fell within the warrant. This
clearly not the role [agent] Abboud played. The
Court therefore considered this evidence and found
it unconvincing in showing that the Government
complied with the warrant.
Judge Cooper’s factual finding, which we review for clear
error, is amply supported by the record.
1170 UNITED STATES v. COMPREHENSIVE DRUG TESTING
It is undisputed that, in anticipation of responding to the
grand jury subpoena, CDT had already segregated the mate-
rial about the specific individuals that was sought by the gov-
ernment. When agents arrived the President of CDT, Kim
Jasper, informed the government that there was an envelope
that contained the drug testing results, executed chain of cus-
tody forms, and laboratory reports for all ten of the players
specified in the search warrant. When Jasper opened the box
for the agents, they seized not only the envelope, but also
computer disks and other material. They seized the material
without examining it. One of the disks was completely blank.
Similarly, another CDT employee had created hard copy
information responsive to the grand jury subpoena, which
CDT provided to the government. The government wished to
view the hard drive from which the information derived. CDT
allowed them access and directed them to the subdirectory in
the Tracey Directory were the Major League Baseball drug
testing results were kept. The agents not only copied the sub-
directory, but the entire Tracey directory which included
thousands of obviously irrelevant material. The affidavit sup-
porting the CDT search warrant explained that, if necessary,
the agents could conduct an off-site search. Rather than seize
on any of the opportunities presented to avoid the more-
intrusive search, the agents proceeded to do everything possi-
ble to assure that result. In addition to rejecting CDT’s offer
to produce the responsive documents, the agents also declined
to attempt any keyword searches to isolate responsive docu-
ments on site. The agents also ignored the fact that sub-
directories containing files relevant to Major League Baseball
were clearly labeled—as were the many subdirectories con-
taining confidential information about other sports
organizations—and instead seized the entire Tracey Direc-
tory.
The majority argues that “[t]he government should not be
required to trust the suspect’s self-labeling when executing a
warrant.” But CDT was not a suspect; it was a third party. The
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1171
majority, without any support in the record, goes on to place
the independent laboratory in the category of criminal sus-
pects, stating that “[l]ike most searched parties, CDT had an
incentive to avoid giving over documents of which the gov-
ernment might be unaware and to read the search warrant as
narrowly as possible.”8 What the undisputed record indicates
is that CDT had already segregated the material in anticipa-
tion of cooperating with the government’s grand jury sub-
poena; that CDT had assured the government in writing of its
cooperation; and that the government had accepted those
assurances. In the end, the proof is in the pudding. After
examining all of the massive amount of seized data, after fil-
ing numerous declarations in support of the legitimacy of the
government’s search, and after much protesting about its sus-
picions about CDT, the government does not identify a single
piece of information responsive to the warrant that CDT did
not have already segregated and ready for production.
In short, the so called warrant protocol, relied on by the
majority, was completely discarded, as Judge Cooper found.
The government did not have a meaningful consultation with
CDT officials about production of responsive material. It
engaged in a wholesale dragnet operation indiscriminately
gathering as much data as it could lay its hands on. The pre-
textual nature of the search was highlighted in later govern-
8
The majority’s unwarranted speculation as to the motivation of profes-
sional, independent laboratories to conceal information is belied by the
DOJ Guidelines. Indeed, the DOJ computer search manual contemplates
that “[s]ometimes, . . . [a] friendly employee or system administrator may
agree to pinpoint a file or record or may have a recent backup, permitting
the agents to obtain a hard copy of the files they seek while on-site.” See
Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep’t
of Justice, Searching and Seizing Computers and Obtaining Electronic
Evidence in Criminal Investigations, pts. 1-2 at II.B.1.b. (2002), available
at http://www.cybercrime.gov/s&smanual2002.htm (citing, e.g., United
States v. Longo, 70 F. Supp. 2d 225 (W.D.N.Y. 1999) (upholding pinpoint
search aided by suspect’s secretary for two particular computer files)).
Nonetheless, the searching agents rejected precisely that kind of assistance
here.
1172 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ment affidavits, in which agent Novitsky argues that he
believes he was entitled to seize data at the scene on athletes
other than those identified in warrant under the plain view
doctrine. Of course, he had previously averred to the magis-
trate judge that obtaining a list of the ballplayers’ names cor-
related to the laboratory test numbers was justified “to ensure
that samples of individuals not associated with Balco are left
undisturbed.”
Judge Cooper’s factual finding that the government did not
comply with the terms of the warrant is completely supported
by the record.
Second, following the seizure, the government did not fol-
low the Tamura procedure and did not follow the warrant pro-
tocol of segregating the non-responsive information. Rather,
once off-site, instead of allowing only technical experts to
segregate the responsive from the unresponsive data, the gov-
ernment allowed the lead investigator to peruse all of the
material in the Tracey Directory, contrary to the specific
instructions in the warrant. After examining the confidential
information it had no right to see, the government then sought
to sanitize its actions by asking another magistrate judge for
a search warrant to examine the data it had already searched.
For decades, we have condemned the indiscriminate seizure
of materials that are not responsive to a valid search warrant.
In Tamura, we stated that “the wholesale seizure for later
detailed examination of records not described in a warrant . . .
has been characterized as ‘the kind of investigatory dragnet
that the fourth amendment was designed to prevent.’ ” 694
F.2d at 595 (quoting United States v. Abrams, 615 F.2d 541,
543 (1st Cir. 1980)). Tamura held that “the government’s
wholesale seizure of company documents [is] illegal [when]
the agents intentionally seize[ ] materials they [know] were
not covered by the warrant.” United States v. Hill, 322 F.
Supp. 2d 1081, 1088 (C.D. Cal. 2004) (Kozinski, J., sitting by
designation).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1173
Under Tamura, where “documents are so intermingled that
they cannot be feasibly sorted on site,” we directed that law
enforcement officers should “seal[ ] and hold[ ] the docu-
ments pending approval by a magistrate . . . .” Id. at 595-96.
As we noted:
The essential safeguard required is that wholesale
removal must be monitored by the judgment of a
neutral, detached magistrate. In the absence of an
exercise of such judgment prior to the seizure in the
present case, it appears to us that the seizure, even
though convenient under the circumstances, was
unreasonable.
Id. at 596 (footnote omitted).9
The Tamura protocol provides a sensible and practical
approach to the problem posed by intermingled electronic
records. It allows the government to seize the intermingled
files, but not to view them until a neutral and detached magis-
trate has first reviewed the records. Indeed, had the Tamura
protocol been followed, it is likely that the government would
have obtained the information it sought with the warrants:
complete drug testing and related information on the ten spec-
ified players.
If the government is going to be allowed to sift through
reams of potentially unresponsive data in the digital context
in order to identify responsive files, it cannot be allowed to
9
The Tenth Circuit adopted the Tamura approach specifically in the
computer context in Carey, holding that:
Where officers come across relevant documents so intermingled
with irrelevant documents that they cannot feasibly be sorted at
the site, the officers may seal or hold the documents pending
approval by a magistrate of the conditions and limitations on a
further search through the documents.
172 F.3d at 1275.
1174 UNITED STATES v. COMPREHENSIVE DRUG TESTING
use anything it finds to seek further warrants to retain that
data when there is no independent probable cause to other-
wise view it or retain it. To do so completely subverts the
Fourth Amendment warrant requirement and allows the gov-
ernment to obtain post hoc justification for a search for which
they had no probable cause to conduct before conducting it.
Such a procedure invites an abuse of the off-site process that
threatens both the privacy of computer data as well as the
government’s ability to reasonably search it.
The majority relies on United States v. Adjani, 452 F.3d
1140 (9th Cir. 2006), and United States v. Hill, but those deci-
sions supply no support for a deviation from the Tamura pro-
cedure. In Adjani, in execution of a lawful warrant,
investigators seized a computer owned by the defendant and
a computer owned by his girlfriend, who was also a suspect.
In sustaining the search of her computer, we reasoned that the
government acts within the scope of the warrant when it
seizes material that is “both related to the purposes of [the]
search and [is] implicated . . . in the crime.” Id. (emphasis
added). Here, the government seized hundreds of records that
were clearly outside the scope of the Balco-limited warrant,
that were unrelated to the purposes of the Balco-limited
search, and were indicative of no crime whatsoever. The
materials seized at CDT were not related to the purpose of the
search or implicated in the alleged crimes involving Balco.
Hill did not involve a seizure, but a challenge to an alleg-
edly overbroad warrant. In contrast, this case is not about the
overbreadth of the warrant but rather about whether the mate-
rials seized and kept and used by the government were within
the scope of the warrant. Id. at 977 (“the officers’ wholesale
seizure was flawed here because they failed to justify it to the
magistrate, not because they acted unreasonably or improp-
erly in executing the warrant”). To the extent Hill is relevant,
it declined to suppress material that was “described in and
therefore taken pursuant to the valid search warrant.” Id.
(quoting Tamura, 694 F.2d at 597). In contrast, the records
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1175
sought by the MLBPA here that do not pertain to the ten
named Balco-connected players were not described anywhere
in the search warrant. Importantly, Hill specifically declined
to address the question of intermingled files. 459 F.3d at 978
n.14.
Neither Adjani nor Hill address the question of intermin-
gled files. Tamura did, however, and there is no dispute that
the government did not follow the post-seizure Tamura proto-
col, as the district courts appropriately found. The majority’s
attempt to paper over this failure by suggesting the search was
conducted in accordance with the warrant or justified by the
issuance of subsequent search warrants based on the tainted
seized information is unavailing.
In sum, the search did not comply with the warrant terms
and the post-seizure conduct did not comply with Tamura.
Thus, I must respectfully disagree with the majority’s conclu-
sion that the CDT search and seizure was conducted in accor-
dance with the Fourth Amendment and our precedent
governing electronic searches and seizures.
5
For all of these reasons, the district court’s conclusion that
the government acted in callous disregard of the rights of the
players is completely supported by the record. The district
courts made no error in finding that the first Ramsden factor
was satisfied.
B
The second Ramsden factor is whether the movant has an
individual interest in and the need for the property he wants
returned. I agree with the majority and the district courts that
the Players Association satisfied this requirement. At issue are
the Fourth Amendment rights of the players. As we know, the
Fourth Amendment protects people from unreasonable
1176 UNITED STATES v. COMPREHENSIVE DRUG TESTING
searches and seizures into areas in which they have a legiti-
mate expectation of privacy. Katz v. United States, 389 U.S.
347, 360-61 (1967) (Harlan, J., concurring). There is no doubt
that the affected baseball players had a justified,
constitutionally-protected privacy interest in the seized prop-
erty, including the computer data and the physical urine sam-
ples. However, I believe that the majority significantly
discounts and underestimates the importance of the privacy
interests at stake.
The legitimate expectation of privacy in medical informa-
tion is as old as the Hippocratic Oath.10 Indeed, “[o]ver the
last thirty years, the federal courts have uniformly accepted
the principle that medical records are private and entitled to
protection.” Joel Glover and Erin Toll, The Right to Privacy
of Medical Records, 79 Denv. U. L. Rev. 540, 541 (2002). In
this context, the Supreme Court has recognized at least two
distinct kinds of constitutionally-protected privacy interests:
“One is the individual interest in avoiding disclosure of per-
sonal matters, and another is the interest in independence in
making certain kinds of important decisions.” Doe v. Attorney
General, 941 F.2d 780, 795 (9th Cir. 1991) (quoting Whalen
v. Roe, 429 U.S. 589, 599-600 (1977)).
We have long applied Whalen and its progeny in holding
that “[i]ndividuals have a constitutionally protected interest in
avoiding ‘disclosure of personal matters,’ including medical
information.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531,
551 (9th Cir. 2004); see also Norman-Bloodsaw v. Lawrence
Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998)
(“The constitutionally protected privacy interest in avoiding
disclosure of personal matters clearly encompasses medical
information and its confidentiality.”); Yin v. California, 95
10
STEDMAN’S MEDICAL DICTIONARY, 799 (26th ed. 1995) (“All that may
come to my knowledge in the exercise of my profession or outside of my
profession, or in daily commerce with men, which ought not to be spread
abroad, I will keep secret and will never reveal.”)
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1177
F.3d 864, 870 (9th Cir. 1996) (noting that “individuals have
a right protected under the Due Process Clause of the Fifth or
Fourteenth Amendments in the privacy of personal medical
information and records.”); Doe, 941 F.2d at 795-96 (holding
that an individual has privacy interest in medical information,
including diagnosis); Caesar v. Mountanos, 542 F.2d 1064,
1067 n.9 (9th Cir. 1976) (noting that the right to privacy
encompasses the doctor-patient relationship). As we have
observed, “[o]ne can think of few subject areas more personal
and more likely to implicate privacy interests . . . .” Norman-
Bloodsaw, 135 F.3d at 1269.
If there were any doubt, the Supreme Court held in Fergu-
son v. City of Charleston, 532 U.S. 67, 78 (2001), that indi-
viduals enjoyed a reasonable expectation of privacy in
medical test results and that “the results of those tests will not
be shared with nonmedical personnel without [the patient’s]
consent.”
Congress has also recognized the importance of privacy in
medical records in a variety of contexts, most prominently in
the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996).11
11
HIPAA was far from Congress’s first foray into privacy protection. As
the United States Department of Heath and Human Services noted:
In the 1970s, individual privacy was paramount in the passage of
the Fair Credit Reporting Act (1970), the Privacy Act (1974), the
Family Educational Rights and Privacy Act (1974), and the Right
to Financial Privacy Act (1978). These key laws were followed
in the next decade by another series of statutes, including the Pri-
vacy Protection Act (1980), the Electronic Communications Pri-
vacy Act (1986), the Video Privacy Protection Act (1988), and
the Employee Polygraph Protection Act (1988). In the last ten
years, Congress and the President have passed additional legal
privacy protection through, among others, the Telephone Con-
sumer Protection Act (1991), the Driver’s Privacy Protection Act
(1994), the Telecommunications Act (1996), the Children’s
Online Privacy Protection Act (1998), the Identity Theft and
1178 UNITED STATES v. COMPREHENSIVE DRUG TESTING
In the regulations promulgated pursuant to HIPAA, the
United States Department of Health and Human Services
emphasized the importance of maintaining the privacy of
medical information, concluding that “[p]rivacy is a funda-
mental right” and that “[a] right to privacy in personal infor-
mation has historically found expression in American law.”12
65 Fed.Reg. at 82,464.
In sum, given controlling legal authority, there is no ques-
tion that the baseball players who participated in the random
testing had a justified expectation of privacy in the test results
and, in particular, that the test results would not be disclosed.13
Assumption Deterrence Act (1998), and Title V of the Gramm-
Leach-Bliley Act (1999) governing financial privacy.
In 1997, a Presidential advisory commission, the Advisory
Commission on Consumer Protection and Quality in the Health
Care Industry, recognized the need for patient privacy protection
in its recommendations for a Consumer Bill of Rights and
Responsibilities (November 1997). In 1997, Congress enacted the
Balanced Budget Act (Public Law 105-34), which added lan-
guage to the Social Security Act (18 U.S.C. 1852) to require
Medicare+Choice organizations to establish safeguards for the
privacy of individually identifiable patient information. Similarly,
the Veterans Benefits section of the U.S. Code provides for confi-
dentiality of medical records in cases involving drug abuse, alco-
holism or alcohol abuse, HIV infection, or sickle cell anemia (38
U.S.C. § 7332).
Standards for Privacy of Individually Identifiable Health Information, 65
Fed.Reg. 82,462, 82,469 (Dec. 28, 2000) (codified at former 45 C.F.R. pts.
160, 164 (2002)).
12
The Department also emphasized that “While privacy is one of the
key values on which our society is built, it is more than an end in itself.
It is also necessary for the effective delivery of health care, both to indi-
viduals and to populations. . . . The need for privacy of health information,
in particular, has long been recognized as critical to the delivery of needed
medical care.” 65 Fed.Reg. at 82,467.
13
That the athletes had a justified, reasonable expectation of privacy in
the urine samples themselves that were seized by the government is
beyond question. See Skinner v. Railway Labor Executives’ Ass’n, 489
U.S. 602, 615-617 (1989) (“it is clear that the collection and testing of
urine intrudes upon expectations of privacy that society has long recog-
nized as reasonable . . . .”).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1179
Of course, under appropriate circumstances, justified pri-
vacy expectations may be altered by contract. Yin, 95 F.3d at
872. In this instance, the ballplayers’ privacy expectations
were heightened, not diminished, by the collective bargaining
agreement between the Major League Baseball Players Asso-
ciation and Major League Baseball. The agreement was
forged after years of impasse concerning steroid testing and,
as I have discussed, called for anonymous testing to determine
the scope of the steroid abuse problem. To that end, the agree-
ment provided, in relevant part that:
1. During the 2003 season (which shall include
spring training but not include the post-season), all
Players will be subject to two tests (one initial test
and one follow-up test conducted not less than five
and not more than seven days following the initial
test) at unannounced times for the presence of
Schedule III steroids (“Survey Testing”). In addition
the Office of Commissioner shall have the right to
conduct additional Survey Testing in 2003 in which
up to 240 players, selected at random, may be tested.
2. If the results of the Survey Testing conducted in
2003 show that more than 5% of Players tested test
positive for Steroids, all Players will be subject to
two unannounced tests (an initial test and a followup
test five to seven days later) for Steroids during the
2004 season (“Program Testing”). If a Player tests
positive in the Program Testing, he shall immedi-
ately be placed on the Clinical Track and shall be
subject to discipline for further violations. The Pro-
gram Testing shall continue each season until less
than 2.5% of the Players tested test positive for Ste-
roids for two consecutive seasons combined.
In short, the only objective of the 2003 testing was to ascer-
tain whether the threshold had been exceeded; it was not
intended to test and monitor individual baseball players.
1180 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Indeed, the testing protocol was designed to prevent the iden-
tification of individual players and the matching of players
with test results. The record does not reflect whether any indi-
vidual player was even informed of his testing results for the
2003 sample year.
The collective bargaining agreement contains numerous
provisions assuring confidentiality. For example, the section
concerning the testing protocol provides:
The confidentiality of the Player’s participation in
the Program is essential to the Program’s success.
Except as provided in Section 8, the Office of the
Commissioner, the Association, HPAC, Club per-
sonnel, and all of their members, affiliates, agents,
consultants and employees are prohibited from pub-
licly disclosing information about the Player’s test
results, Initial Evaluation, diagnosis, Treatment Pro-
gram (including whether a Player is on either the
Clinical or Administrative Track), prognosis or com-
pliance with the Program.
The collective bargaining agreement specified in great
detail the manner of collection of data and, in particular pro-
vided that:
At the conclusion of any Survey Test, and after the
results of all tests have been calculated, all test
results, including any identifying characteristics, will
be destroyed in a process jointly supervised by the
Office of the Commissioner and the Association.
The record contains many more references to the assurance
given Major League Baseball players that the 2003 tests
would be anonymous and kept confidential, which are unnec-
essary to detail. There simply is no doubt whatsoever that the
players had a justified, constitutionally protected privacy
interest in the test results — an interest that was further
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1181
enhanced by the many protections and contractual obligations
contained in the collective bargaining agreement under which
the tests were conducted.
In sum, the players had a significant privacy interest in the
medical records and physical specimens. There is no doubt
that the players have an individual interest in and a need for
the property to be returned. Thus, the second Ramsden factor
is satisfied.
C
I agree with the majority and the district courts that the
players would be irreparably injured by denying the return of
property. As the majority notes, the government has already
conceded that the players have no adequate remedy at law for
the redress of their grievances. Therefore, the third and fourth
Ramsden factors are satisfied.
For these reasons, I agree with the majority that the district
courts properly exercised equitable jurisdiction. However, I
would hold that the district courts correctly found that all four
Ramsden factors were satisfied. I disagree with the majority
that the government’s actions properly respected the privacy
rights of the players.
V
We review a district court’s decision to exercise its equita-
ble jurisdiction under Rule 41(g) under the deferential abuse
of discretion standard. Ramsden, 2 F.3d at 324. I not only fail
to see any abuse of discretion in the decision by the district
courts to exercise equitable jurisdiction, I agree entirely with
their conclusions that the seized property should be returned.
The Advisory Committee Notes to the 1989 amendments to
Rule 41(g) tell us that “reasonableness under all of the cir-
cumstances” should be the governing standard for determin-
1182 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ing whether property should be returned. (emphasis added).
Those same notes state that “[i]f the United States has a need
for the property in an investigation or prosecution, its reten-
tion of the property generally is reasonable,” but that “in cer-
tain circumstances . . . equitable considerations might justify
requiring the government to return or destroy all copies.” Id.14
Deciding between the two hinges on “whether the Govern-
ment’s conduct was sufficiently reprehensible in this case to
warrant this sanction.” Ramsden, 2 F.3d at 327. As the actions
I have discussed make clear, the government’s behavior was
sufficiently reprehensible and the privacy interests of the
players who were neither named in the warrant nor implicated
in any criminal activity are sufficiently important to affirm the
granting of the 41(g) motions. Simply put, there is no reason
for the government to retain confidential medical information
and bodily fluids of citizens who are not under any particular-
ized suspicion of criminal activity.
VI
For similar reasons, I would also affirm Judge Illston’s
decision to quash the May 6, 2004, subpoenas. The majority
contends that Judge Illston abused her discretion by resting
her decision to quash the subpoenas on legally insufficient
grounds, citing In re Grand Jury Subpoenas Dated Dec. 10,
1987, 926 F.2d 847 (9th Cir. 1991), for the proposition that
subpoenas and search warrants serve different purposes and
therefore arguing that it cannot be considered an abuse to use
both methods of obtaining information. However, in this case,
14
The cases the majority cites for the proposition that return of property
is inappropriate when the government still needs it as evidence are hardly
analogous to the present case. In both United States v. Mills, 991 F.2d 609,
612-13 (9th Cir. 1993), and United States v. Fitzen, 80 F.3d 387, 388-89
(9th Cir. 1996), the person seeking return of the property was the criminal
defendant himself, not an innocent third party, and the court found in both
cases that the defendants didn’t even have a legitimate claim of ownership
to the property.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1183
the government’s conduct went beyond seeking warrants and
subpoenas for the same information at the same time. As dis-
cussed previously, the government alternately sought subpoe-
nas and warrants to obtain highly sensitive information from
every Major League Baseball player and to continue to keep
that information after being ordered to return it. Further, as
previously noted, there were no substantiated risks justifying
the use of a warrant to obtain the documentary evidence from
a third party under 28 C.F.R. § 59.1(b).
In addition, it is worth noting that the May 6 subpoenas
requested much of the same information sought in the April
30 and prior search warrants. The affidavit to obtain the April
30 search warrant from Judge Lloyd averred that the material
was necessary in part because the records may “establish a
link to the charged defendants in this case.” It is an abuse of
the grand jury process to use grand jury subpoenas to develop
post-indictment trial material. See, e.g., In Re Grand Jury
Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767
F.2d 26, 29 (2d Cir. 1985) (timing of subpoena, first issued
after indictment, suggested that its purpose was to obtain trial
material). The Balco indictments were returned in February.
Therefore, the issuance of the May 6 grand jury subpoena,
following on the heels of the search warrant application for
the same information indicating that its partial purpose was to
develop links to Balco, suggests an abuse of grand jury pro-
cess.
Given the history of this case, the district court’s conclu-
sion that the filing of these subpoenas was “the culmination
of a series of actions taken by the government in order to pre-
vent the MLBPA and CDT’s attempt to move to quash the
January and March subpoenas” is fully supported by the
record and certainly cannot be said to be an abuse of discre-
tion.
VII
Although I have detailed why I believe the findings and
conclusions of the district court should be sustained on
1184 UNITED STATES v. COMPREHENSIVE DRUG TESTING
appeal, I cannot leave the matter at hand without discussing
the larger implications of this case.
A
The principle at stake in this case is relevant in countless
modern scenarios in which data responsive to a warrant is
intermingled with private, unresponsive data. The result of the
majority’s holding is that the government has been permitted
to seize confidential medical information pertaining to indi-
viduals not under any criminal suspicion. The majority’s
holding that the government was entitled to seize all records
in computerized files and subsequently search the records
without probable cause puts Americans’ most basic privacy
interests in jeopardy. Approving of the tactics employed here
would entitle the government to seize the medical records of
anyone who had the misfortune of visiting a hospital or
belonging to a health care provider that kept patient records
in any sort of master file which also contained the data of a
person whose information was subject to a search warrant. I
agree entirely with Judge Illston’s observation that the impli-
cations of approving such behavior are staggering. Under the
majority’s holding, no laboratory or hospital or health care
facility could guarantee the confidentiality of records.15
15
This is why, even when large sets of data need to be sorted to find
material responsive to a warrant, that task is assigned to a computer spe-
cialist and not the agents tasked with conducting the investigation. The
majority fails to see the relevance of this role division, but it is evident
here. Had a computer specialist sorted the data as prescribed by the war-
rant, it is unlikely he or she would have extracted non-responsive records
and then used them to apply for further warrants seeking access to test
results beyond the scope of the initial investigation. Instead, Agent
Novitzsky, who was tasked with leading the investigation, viewed material
he was not supposed to see and used it for purposes for which the warrant
was never initially intended. If the warrant had intended to authorize any
agent to examine the intermingled data, it would not have gone out of its
way to specify that only certain agents were permitted to engage in that
task.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1185
The majority attempts to discount this possibility, but offers
no principled reason why it does not apply in hundreds of
other contexts. Indeed, under questioning from the district
judges, the government itself did not discount the possibility
of other widespread searches.16
16
For example, a hearing before Magistrate Judge Johnson contained the
following colloquy between government counsel and the Court:
Court: * * * If there is some other drug testing lab apart
from CDT, would you ever use — but the test for the
ten were at CDT. Would you ever use this informa-
tion to go and say — just demand that you can get the
drug testing results from other labs that test profes-
sional athletes. . . . Based on the theory that it’s sys-
temic. And so there’s a problem, there’s a problem.
And we know that these other labs test athletes, too.
So can you just go search?
Counsel: Yes, your honor.
Similarly, in another hearing Judge Illston asked government counsel
whether he thought it was possible to take the information from the Tracey
directory concerning other sports organizations and use individual test
results of athletes to launch another investigation. Strikingly, Judge Illston
posed it as a hypothetical, but the government did not appear to deny that
officers may have viewed individual records in other sports:
Court: What if hockey had a subdirectory that had positive
results and he clicked on it to make sure it was what
it said it was, by George, that’s what it was, what
about that?
Counsel: I don’t know in checking to make sure it was hockey
that didn’t happen. If it did happen, I would think that
theoretically Agent Novitsky would have the right to
either request a search warrant or, I suppose, if you
looked at it enough, it’s possible that it was obvious,
it was plain view, it was other drug use by hockey
players. So there might be a legal entitlement for
Agent Novitzsky to use that and do something with
it. It hasn’t happened in this case. I suppose that’s
theoretically possible, again, you would have, I
believe, probable cause to believe that evidence in
there would lead to other persons potentially involved
in disputable criminal drugs, which is the crime that’s
under investigation.
1186 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The importance of this threat to our nation’s medical com-
munity cannot be overstated. In order to provide better and
more efficient heath care, doctors and hospitals have rapidly
embraced a variety of methods for sharing confidential patient
information electronically. Computerized physician order
entry, for example, allows doctors to transmit treatment
instructions widely throughout a health care computer net-
work so that nurses, therapists, pharmacists, radiologists and
pathologists have instant and accurate access to the instruc-
tions. Computerized electronic record transmission decreases
delay, reduces costs, and minimizes errors. But it does involve
extensive electronic co-mingling of patient data throughout
computer networks.
Likewise, mass electronic transmission and storage of con-
fidential medical records is now ingrained in the health insur-
ance industry. Electronic access allows more efficient and
timely determination and payment of medical insurance bene-
fits.
The federal government has taken an affirmative role in
promoting national patient data access. In 2004, for example,
the President created the Office of National Coordinator for
Health Information Technology in order to develop and
implement a nationwide infrastructure to allow the communi-
cation and exchange of health care data between different
information technology systems. Executive Order 13335,
2004 WL 911114 (Pres.Exec.Order), 69 FR 24059 (2004).
The simple fact is that the majority of confidential medical
information in the United States consists, in one fashion or
another, of co-mingled electronic data. To endorse the gov-
ernment’s position that probable cause as to one patient’s
records justifies the seizure of all co-mingled records would
mean that the Fourth Amendment does not afford any mean-
ingful protection at all for our citizens’ most private informa-
tion.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1187
B
As the Players Association and Amicus Chamber of Com-
merce have effectively argued, today’s decision will also sig-
nificantly impair the ability of employers to promote
voluntary drug testing in the workplace. Employers are not
permitted unilaterally to impose workplace drug testing on
employees subject to a collective bargaining agreement.
United Foods & Commercial Workers v. Foster Poultry
Farms, 74 F.3d 169, 174 (9th Cir. 1995) (“there is no indica-
tion in the relevant statutes, the legislative history, or the reg-
ulations themselves that the drug testing requirements were
intended to preempt already existing collective bargaining
agreements or to eliminate an employer’s duty to bargain
under federal labor laws.”). If the government may violate the
confidentiality promised employees in collective bargaining
agreements without any suspicion of criminal activity and
simply seize confidential test records in the hope of finding
incriminating information, no sensible union will agree to
allow its employees to be tested. Therefore, although the gov-
ernment proceeds here under an apparent mission to root out
all steroid use in baseball, and perhaps other sports, the result
of its tactics will be quite the opposite. Without mandatory
testing, any steroid policy will be but an empty aspirational
goal. If today’s decision stands, it is difficult to imagine any
sports union agreeing to drug testing in collective bargaining
negotiations. The implications for employee testing in all
industries are obvious.
C
Finally, today’s decision marks the return of the prohibited
general warrant through an endorsement of a disguised imper-
missible general search warrant—a tactic we rejected in
United States v. Rettig, 589 F.2d 418 (9th Cir. 1978). Indeed,
as the Supreme Court has observed, “[i]t is familiar history
that indiscriminate searches and seizures conducted under the
authority of ‘general warrants’ were the immediate evils that
1188 UNITED STATES v. COMPREHENSIVE DRUG TESTING
motivated the framing and adoption of the Fourth Amend-
ment.” Payton v. New York, 445 U.S. 573, 583 (1980). It was
for this reason that the particularity requirement in warrants
was adopted. As the Court noted in Maryland v. Garrison,
480 U.S. 79, 84 (1987):
The Warrant Clause of the Fourth Amendment cate-
gorically prohibits the issuance of any warrant
except one “particularly describing the place to be
searched and the persons or things to be seized.” The
manifest purpose of this particularity requirement
was to prevent general searches. By limiting the
authorization to search to the specific areas and
things for which there is probable cause to search,
the requirement ensures that the search will be care-
fully tailored to its justifications, and will not take on
the character of the wide-ranging exploratory
searches the Framers intended to prohibit.
The majority allows the government to circumvent these
important Fourth Amendment principles by allowing the gov-
ernment to use boilerplate computer search language in a war-
rant to justify the seizure and subsequent warrantless search
of massive amounts of data not responsive to the warrant. In
doing so, the majority has allowed the government with the
wave of a computer curser to transform a limited search war-
rant into an impermissible general warrant.
VIII
I also cannot leave our consideration of this case without
addressing the actual argument made by the government in
justifying its actions. The government did not advocate the
position adopted by the majority. The government’s sole justi-
fication for the warrantless seizure of the data of the unlisted
players is that it was in “plain view,” which is one of the lim-
ited exceptions to the Fourth Amendment’s warrant require-
ment. Although the majority did not reach this question, the
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1189
theory formed the entire basis for the government’s legal jus-
tification for its actions and was the primary focus of the pro-
ceedings before the district courts. Therefore, it is important
to address it to demonstrate the soundness of the various deci-
sions by the district courts.
The plain view doctrine is based on the assumption that if
there is probable cause for the search, and the officer is
legally entitled to be at the premises under the Fourth Amend-
ment, seizure of an object in plain view that is contraband or
evidence of a crime does not involve an invasion of privacy.
Payton, 445 U.S. at 586-87. The Supreme Court has identified
several conditions that must be satisfied before a plain view
seizure of an object is upheld: (1) the officer conducting the
seizure must lawfully arrive at the position from which the
object is plainly seen; (2) the object must be in plain view; (3)
the object’s incriminating character must be “immediately
apparent,” that is, the officer must have probable cause to
believe the object is contraband or evidence of a crime; and
(4) the officer must have a lawful right of access to the object
itself. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);
Horton, 496 U.S. at 136-37; Texas v. Brown, 460 U.S. 730,
737 (1983).
Under the circumstances presented by this case, not only is
it clear that the government had not met its burden of estab-
lishing that the seizure of the data was justified under the
plain view doctrine, but it is also clear why the plain view
doctrine would be inappropriate to apply in the computer con-
text.
A
The fundamental requirement of the plain view doctrine is
that the object seized be in “plain view,” that is, “obvious to
the senses.” United States v. Sifuentes, 504 F.2d 845, 848 (4th
Cir. 1974). After an extensive colloquy, Judge Illston con-
cluded that the computer data seized was not in “plain view.”
1190 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Not only is this factual conclusion not clearly erroneous, the
undisputed record completely supports her conclusion under
any standard of review.
As Judge Illston pointed out, this was not a case in which
an incriminating photo or similar evidence could be viewed
on a computer screen; rather, at best, it involved scrolling
through thousands of records none of which were immedi-
ately visible. In its application for a search warrant, the gov-
ernment justified removal of data and computer equipment on
the basis that:
The volume of data stored on many computer sys-
tems and storage devices will typically be so large
that it will be highly impractical to search for data
during the execution of the physical search of the
premises. A single megabyte of storage space is the
equivalent of 500 double-spaced pages of text. A
single gigabyte of storage space, or 1,000
megabytes, is the equivalent of 500,000 double-
spaced pages of text. Storage devices capable of
storing fifteen gigabytes of data are now common-
place in desktop computers. Consequently, each non-
networked desktop computer found during a search
can easily contain the equivalent of 7.5 million pages
of data, which, if printed out, would completely fill
a 10’ x 12’ x 10’ room to the ceiling.
The government also indicated in its affidavit that it would
be using consulting computer specialists to analyze the data.
The affidavit explained:
Searching computer systems is highly technical pro-
cess which requires specific expertise and special-
ized equipment. There are so many types of
computer hardware and software in use today that it
is impractical to bring to the search site all of the
necessary technical manuals and specialized equip-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1191
ment to conduct a thorough search. In addition, it
may also be necessary to consult with computer per-
sonnel who have specific expertise in the type of
computer software application or operating system
that is being searched.
According to the government, the search of the computers
at CDT could not be completed at the scene. There were, in
fact, 16 computers. However, one computer was eventually
isolated and data retrieved. As Special Agent Novitsky’s
memorandum of activity stated:
At approximately 2:35 p.m., S/A Abboud began
working on a computer with [a CDT employee].
[She] directed us to a computer in the office labeled
“E” for purposes of the search warrant and sketch.
At this computer, [she] identified a sub-directory
entitled “Tracey”, which she said contained all of the
computer documents for CDT’s sports drug testing
division. A cursory review of the subdirectory indi-
cated multiple further subdirectories and several
hundred computer files. As authorized by the war-
rant, because of the length of time it would take to
search each file and the intrusiveness it would cause
on CDT, it was decided to make a complete copy of
the “Tracey” subdirectory in order to perform a
search of it in the IRS-CID offices at a later time.
Agent Novitsky later explained in a subsequent affidavit
that:
This subdirectory contained hundreds of files and a
significant amount of computer data. After consult-
ing with agents at the scene specifically trained in
the search of computers, we determined that we
could not realistically search the entire directory on-
site in a reasonable amount of time. We therefore
1192 UNITED STATES v. COMPREHENSIVE DRUG TESTING
made the determination to copy the entire sub-
directory.
After it was examined, the Tracey directory itself was
determined to contain 2,911 files, with an unknown amount
of data in each file, that were not connected with Major
League Baseball player drug testing at all. In the files that
concerned Major League Baseball players, there was informa-
tion on approximately 1,200 players, with multiple test
results.
Given these circumstances, the data seized cannot be con-
sidered to be in “plain view.” As the Supreme Court has
noted, “If, however, the police lack probable cause to believe
that an object in plain view is contraband without conducting
some further search of the object — i.e., if its incriminating
character is not immediately apparent, the plain view doctrine
cannot justify its seizure.” Dickerson, 508 U.S. at 375 (alter-
ations and quotations omitted). The data now sought by the
government was not “obvious to the senses” at the scene, nor
were the positive tests in “plain view” from a glance at a com-
puter screen. The data required analysis and thorough exami-
nation off-site before the data at issue was discovered.
The “plain view” doctrine is inapplicable in the general
electronic context because it is at complete odds with the
underlying theory of the doctrine. As the Supreme Court has
explained:
The theory of that doctrine consists of extending to
nonpublic places such as the home, where searches
and seizures without a warrant are presumptively
unreasonable, the police’s longstanding authority to
make warrantless seizures in public places of such
objects as weapons and contraband. And the practi-
cal justification for that extension is the desirability
of sparing police, whose viewing of the object in the
course of a lawful search is as legitimate as it would
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1193
have been in a public place, the inconvenience and
risk—to themselves or to preservation of the
evidence—of going to obtain a warrant.
Horton, 480 U.S. at 326-27 (internal citations omitted).
Neither of those considerations is present when we consider
the off-site examination of electronic data. As the government
essentially acknowledged in its search warrant applications,
examination of computer data is a forensic exercise. It neces-
sarily involves the application of software to interpret the
data; without external software aid, the data would appear
only as binary numbers. In addition, as in this case, the gov-
ernment often requires computer specialists to decipher the
data. Electronic data is simply not the kind of evidence that
forms a natural extension of an officer’s discovery of obvious
contraband in a public place. The fact that further careful
electronic assistance is required outside the searched premises
to interpret the data belies the “practical” justification that
there is insufficient time to obtain a warrant. Indeed, electron-
ically assisted searches of binary numbers bear a closer
resemblance to the thermal imaging searches of homes that
the Supreme Court rejected as violative of the Fourth Amend-
ment in Kyllo v. United States, 533 U.S. 27 (2001).
The ultimate fact that, after the assistance of electronic soft-
ware programs, the data may be observed “in plain view”
does not alter this conclusion. As the Supreme Court has
warned:
[I]n the vast majority of cases, any evidence seized
by the police will be in plain view, at least at the
moment of seizure. The problem with the “plain
view” doctrine has been to identify the circum-
stances in which plain view has legal significance
rather than being simply the normal concomitant of
any search, legal or illegal.
1194 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Coolidge, 403 U.S. at 465.
The off-site forensic examination of computer data is sim-
ply not one of those circumstances that fits the “plain view”
paradigm. Indeed, to hold otherwise would be to write out the
Fourth Amendment’s particularity requirement with respect to
electronic data and to transform particularized search warrants
into general search warrants, with the government authorized
to conduct indiscriminate, dragnet searches.
B
The government also failed to sustain its burden to estab-
lish the plain view exception because, as the district courts
found, the incriminating character of the information was not
“immediately apparent.” It was clear under the testing proto-
col that positive tests did not necessarily reflect steroid use;
the use of nutritional supplements—which is common in pro-
fessional sports—could yield a false positive. In addition,
there are a whole host of legitimate reasons for individuals to
be prescribed steroid products. The CDT testing was not
undertaken to test individual players; but rather to provide a
survey for the possible establishment of an individual drug
testing protocol.
The government relied on sheer speculation that the pres-
ence of positive steroid markers would mean that the athlete
had received steroids without prescription from some
unknown person. The crime that the government was inter-
ested in pursuing was the illegal distribution of steroids. The
evidence of a positive test was not affirmative evidence of any
distribution. The government’s theory was that, armed with
the test results, the government could then summon the athlete
before a grand jury to see if it could obtain evidence from
whom and under what circumstances the athlete may have
obtained steroids.
However, the mere suspicion of criminal activity or the sus-
picion of knowledge of a criminal activity is not sufficient to
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1195
sustain a seizure of evidence under the plain view doctrine.
As the Supreme Court has made abundantly clear, the “imme-
diately apparent” requirement means that the law enforcement
officer must have probable cause to seize the property that the
officer observed in plain view. As the Court explained:
We now hold that probable cause is required. To say
otherwise would be to cut the “plain view” doctrine
loose from its theoretical and practical moorings. . . .
Dispensing with the need for a warrant is worlds
apart from permitting a lesser standard of cause for
the seizure than a warrant would require, i.e., the
standard of probable cause. No reason is apparent
why an object should routinely be seizable on lesser
grounds, during an unrelated search and seizure, than
would have been needed to obtain a warrant for that
same object if it had been known to be on the prem-
ises.
Arizona v. Hicks, 480 U.S. 321, 326-27 (1987).
The government conceded that it did not have probable
cause to search or seize any data or specimens beyond what
was relevant to the ten players listed in the warrant. For those
players, the government provided extensive information
showing their alleged connection to Balco. However, the gov-
ernment conceded that it had no information connecting any
of the other players to Balco. Indeed, it made that clear in
both its affidavits and subsequent hearings. The affidavit pro-
vided to Judge Lloyd speculated that evidence might be
developed linking the players who tested positive to Balco
“because of the closely-knit professional baseball communi-
ty,” but also speculated that the positive test results could sug-
gest “another significant source of illegal performance-
enhancing drugs.” In fact, the government tendered no evi-
dence whatsoever in support of either theory. The government
did not have any information concerning who might be
1196 UNITED STATES v. COMPREHENSIVE DRUG TESTING
involved in any distribution scheme; in fact, it had no idea at
all.17
The government did not submit any evidence contradicting
the affidavits indicating the possibility of false positives and
that a positive result did not necessarily indicate illegal steroid
use. There was no specific target of the investigation against
whom the government sought incriminating evidence.
Mere speculation is not sufficient to establish probable
cause. United States v. Howard, 828 F.2d 552, 555 (9th Cir.
1987). Perhaps the government had reasonable suspicion, but
that is not sufficient to justify a seizure under the plain view
doctrine. See Hicks, 480 U.S. at 326 (holding that “probable
cause is required”); Payton, 445 U.S. at 587 (explaining the
plain view requirement that there be “probable cause to asso-
ciate the property with criminal activity.”).
The government’s plain view theory cannot justify its
actions in this case.
IX
I concur in the majority’s conclusion that the media has
standing on appeal to file a motion to unseal records. I also
agree that, under the circumstances presented by this case, the
motion should be referred to the district courts on remand.
I write separately to comment on what I view as a regretta-
ble effort by both parties in the district courts to circumvent
17
For example, the government engaged in the following colloquy at
one hearing:
Counsel: Your honor, it’s evidence because it’s evidence of an
illegal distribution of steroids to other people.
Court: From where?
Counsel: From where? That’s an excellent question, and that is
why we need the evidence.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 1197
the procedures we have established to balance the First
Amendment rights of the press with the confidentiality that is
required for some criminal proceedings.18 Specifically, I note
that all of the district court proceedings were closed by insis-
tence of the parties, without notice to the press or public.
In some instances, courtroom closures were obtained with-
out prior notice to the district court itself. For example, the
transcript of one of the hearings before one of the district
court judges reflects the following colloquy:
Court: Why is that, that you are locking the door?
Clerk: Since the case was filed under seal.
Court: Is this all under seal? * * * You want the
hearings under seal. There was no motion
made to seal the hearing. I wasn’t aware
you wanted it that way.
Counsel: Your honor, we filed the pleadings under
seal. We think this proceeding should be
under seal. The information at issue is
highly confidential.
After some colloquy, the court allowed the courtroom to be
sealed, but admonished counsel to file an appropriate motion
if they wished any further courtroom proceedings to be closed
in the future. However, neither the public nor the press were
notified that the doors were to be locked and the public
barred.
“Under the first amendment, the press and the public have
a presumed right of access to court proceedings and docu-
18
The government and the Players Association also sought to have oral
argument in the court of appeals closed to the public. We denied that
motion, and a subsequent motion for reconsideration.
1198 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ments.” Oregonian Pub. Co. v. District Court, 920 F.2d 1462,
1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior
Court, 464 U.S. 501, 510 (1985)(“Press-Enterprise I”)). “This
presumed right can be overcome only by an overriding right
or interest ‘based on findings that closure is essential to pre-
serve higher values and is narrowly tailored to serve that
interest.’ ” Id. (quoting Press-Enterprise I, 464 U.S. at 510)
In determining questions of public and press access to the
courts, courts are to examine whether a right attaches to a par-
ticular proceeding, using the Supreme Court’s “logic and
experience” test articulated in Press-Enterprise v. Superior
Court of California for the County of Riverside, 478 U.S. 1,
8-9 (1986) (“Press-Enterprise II”). “If a proceeding fulfills
both parts of the test, a qualified First Amendment right of
access arises, to be overcome ‘only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.’ ” Phoe-
nix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th
Cir. 1998) (quoting Press-Enterprise II, 478 U.S. at 9-10).
Provisions for narrow tailoring may include later release of
transcripts, or redacted transcripts. Id. at 947.19 In making its
decision to close proceedings, “[t]he trial court must articulate
this interest ‘along with findings specific enough that a
reviewing court can determine whether the closure order was
properly entered.’ ” Id. at 946-47. None of these procedural
steps were undertaken in the district courts.
To be sure, the right of access to court proceedings is not
absolute. Id. at 946. Both parties have legitimate privacy
interests to protect. The Federal Rules of Criminal Procedure
require “matters affecting a grand jury proceeding to be
closed to the extent necessary to prevent disclosure of matters
occurring before a grand jury.” Fed. R. Crim. P. 6(e)(5). In
addition, as I have discussed, the athletes represented by the
19
Indeed, transcripts of court proceedings “must be released when the
factors militating in favor of closure no longer exist.” Id. at 947-48.
 UNITED STATES v. COMPREHENSIVE DRUG TESTING 1199
Players Association have a very strong privacy interest in
their medical records. However, there are non-grand jury
materials involved in this case, and there are some proceed-
ings that do not appear to have involved confidential material.20
In any case, these are matters best considered in the first
instance by the district court, with public notice so that the
First Amendment right of access may be balanced with the
privacy interests of the parties. Unfortunately, the parties
presented hearing closure and record sealing as a fait accom-
pli to the district courts, without notice to the press or public.
Now that we have remanded the motion to unseal, this issue
may be addressed.
X
In discussions of the use of alleged use of steroids by base-
ball players, much is made about “the integrity of the game.”
Even more important is the integrity of our legal system. Per-
haps baseball has become consumed by a “Game of Shadows,”21
but that is no reason for the government to engage in a “Pros-
ecution of Shadows.” The district judges were entirely right
to order the government to return the thousands of private
medical records it wrongfully seized by use of pretext and
artifice.
I would affirm the orders of the district court and must
20
The government, in at least one proceeding, seemed to indicate that
it might not oppose unsealing some material, with government counsel
stating before Judge Mahan: “As a matter of DOJ regulation and policy,
we actually have taken the position and we do take the position that there
isn’t a need to have these proceedings actually sealed, and that is because
of the paramount interest in having actual public proceedings in court-
rooms held in public.” However, the government did not object formally
to sealing the transcript of that hearing, and the transcript has, to date,
been sealed.
21
Mark Fainaru-Wada and Lance Williams, Game of Shadows (2006).
1200 UNITED STATES v. COMPREHENSIVE DRUG TESTING
respectfully dissent from the majority’s contrary conclusion.
I concur in the remand of the motion to unseal records.