United States v. Comprehensive Drug Testing, Inc. ( 2009 )

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, INC., MISC-04-234-SI
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne 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 C. Mahan, District Judge, Presiding
11859
11860 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
IN RE: SEARCH WARRANTS 
EXECUTED ON APRIL 8, 2004 AT
CDT, INC.,
In Re, No. 05-55354
SEAL 1,  D.C. No.
CV-04-02887-FMC
Plaintiff-Appellant, OPINION
v.
SEAL 2,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
December 18, 2008—Pasadena, California
Filed August 26, 2009
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
Susan P. Graber, Kim McLane Wardlaw, W. Fletcher,
Richard A. Paez, Marsha S. Berzon, Consuelo M. Callahan,
Carlos T. Bea, Milan D. Smith, Jr. and Sandra S. Ikuta,
Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Bea;
Dissent by Judge Ikuta
11866 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
COUNSEL
Argued by Joseph Douglas Wilson, Assistant United States
Attorney, San Francisco, California, who was joined on the
briefs by Andrew Duncan, Las Vegas, Nevada; Erika R.
Frick, San Francisco, California; Jeffrey David Nedrow, San
Jose, California, and Barbara Valliere, San Francisco, Califor-
nia, Assistant United States Attorneys, for the United States.
Ethan Atticus Balogh, Coleman & Balogh LLP, San Fran-
cisco, California; Jeffrey C. Hallam and David P. Bancroft,
Sideman & Bancroft LLP, San Francisco, California, and
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11867
David Silbert, Keker & Van Nest LLP, San Francisco, Cali-
fornia, for Comprehensive Drug Testing.
Argued by Elliot R. Peters, Keker & Van Nest LLP, San Fran-
cisco, California, who was joined on the briefs by Ethan
Atticus Balogh, Coleman & Balogh LLP, San Francisco, Cali-
fornia; G. W. Leigh, Gonzalez & Leigh, LLP, San Francisco,
California; Gary C. Moss, Las Vegas, Nevada, and Ronald G.
Russo, Herzfeld & Rubin, P.C., New York, New York, for
Major League Baseball Players Association.
Peter Buscemi, Morgan, Lewis & Bockius LLP, Washington,
DC, for amicus curiae Chamber of Commerce of the United
States.
OPINION
KOZINSKI, Chief Judge:
This case is about a federal investigation into steroid use by
professional baseball players. More generally, however, it’s
about the procedures and safeguards that federal courts must
observe in issuing and administering search warrants and sub-
poenas for electronically stored information.
Facts
The complex facts underlying this case are well summed up
in the panel’s opinion and dissent, and we refer the interested
reader there for additional information. United States v. Com-
prehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008).
We reiterate here only the key facts.
In 2002, the federal government commenced an investiga-
tion into the Bay Area Lab Cooperative (Balco), which it sus-
pected of providing steroids to professional baseball players.
11868 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
That year, the Major League Baseball Players Association
also entered into a collective bargaining agreement with
Major League Baseball providing for suspicionless drug test-
ing of all players. Urine samples were to be collected during
the first year of the agreement and each sample was to be
tested for banned substances. The players were assured that
the results would remain anonymous and confidential; the
purpose of the testing was solely to determine whether more
than five percent of players tested positive, in which case
there would be additional testing in future seasons.
Comprehensive Drug Testing, Inc. (CDT), an independent
business, administered the program and collected the speci-
mens from the players; the actual tests were performed by
Quest Diagnostics, Inc., a laboratory. CDT maintained the list
of players and their respective test results; Quest kept the
actual specimens on which the tests were conducted.
During the Balco investigation, federal authorities learned
of ten players who had tested positive in the CDT program.
The government secured a grand jury subpoena in the North-
ern District of California seeking all “drug testing records and
specimens” pertaining to Major League Baseball in CDT’s
possession. CDT and the Players tried to negotiate a compli-
ance agreement with the government but, when negotiations
failed, moved to quash the subpoena.
The day that the motion to quash was filed, the government
obtained a warrant in the Central District of California autho-
rizing the search of CDT’s facilities in Long Beach. Unlike
the subpoena, the warrant was limited to the records of the ten
players as to whom the government had probable cause.
When the warrant was executed, however, the government
seized and promptly reviewed the drug testing records for
hundreds of players in Major League Baseball (and a great
many other people).
The government also obtained a warrant from the District
of Nevada for the urine samples on which the drug tests had
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11869
been performed. These were kept at Quest’s facilities in Las
Vegas. Subsequently, the government obtained additional
warrants for records at CDT’s facilities in Long Beach and
Quest’s lab in Las Vegas. Finally, the government served
CDT and Quest with new subpoenas in the Northern District
of California, demanding production of the same records it
had just seized.
CDT and the Players moved in the Central District of Cali-
fornia, pursuant to Federal Rule of Criminal Procedure 41(g),
for return of the property seized there. Judge Cooper found
that the government had failed to comply with the procedures
specified in the warrant and, on that basis and others, ordered
the property returned. We will refer to this as the Cooper
Order.
CDT and the Players subsequently moved in the District of
Nevada, pursuant to Federal Rule of Criminal Procedure
41(g), for return of the property seized under the warrants
issued by that district court. The matter came before Judge
Mahan, who granted the motion and ordered the government
to return the property it had seized, with the exception of
materials pertaining to the ten identified baseball players. We
will refer to this as the Mahan Order.
CDT and the Players finally moved in the Northern District
of California, pursuant to Federal Rule of Criminal Procedure
17(c), to quash the latest round of subpoenas and the matter
was heard by Judge Illston. (The original subpoena, and the
motion to quash it that was filed in 2003, aren’t before us.) In
an oral ruling, Judge Illston quashed the subpoenas. We will
refer to this as the Illston Quashal. See Bryan A. Garner, A
Dictionary of Modern American Legal Usage 725 (2d ed.
1995).
All three judges below expressed grave dissatisfaction with
the government’s handling of the investigation, some going so
far as to accuse the government of manipulation and misrep-
11870 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
resentation. The government nevertheless appealed all three
orders and a divided panel of our court reversed the Mahan
Order and the Illston Quashal, but (unanimously) found that
the appeal from the Cooper Order was untimely. Upon a vote
of eligible judges, we took the case en banc. As luck would
have it, none of the three judges on the original panel was
drawn for this en banc court. Nevertheless, we rely heavily on
their work in resolving the case now before us.
Discussion
For reasons that will become apparent, we don’t consider
the three orders below chronologically. Rather, we consider
the Cooper Order first, the Mahan Order next and the Illston
Quashal last. Throughout, we take the opportunity to guide
our district and magistrate judges in the proper administration
of search warrants and grand jury subpoenas for electronically
stored information, so as to strike a proper balance between
the government’s legitimate interest in law enforcement and
the people’s right to privacy and property in their papers and
effects, as guaranteed by the Fourth Amendment.
1. The Cooper Order
[1] The three judge panel unanimously held that the gov-
ernment’s appeal from the Cooper Order was untimely. Com-
prehensive Drug Testing, 513 F.3d at 1096-1101, 1128. We
agree with the panel and adopt its analysis of the issue, seeing
no reason to burden the pages of the Federal Reporter by re-
doing the work the panel already performed so well. On that
basis, we dismiss the government’s appeal in No. 05-55354.
[2] This does not end our discussion of the Cooper Order,
however, because it has substantial consequences for the
remaining two cases before us. As Judge Thomas pointed out
in his panel dissent, once the Cooper Order became final, the
government became bound by the factual determinations and
issues resolved against it by that order. Comprehensive Drug
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11871
Testing, 513 F.3d at 1130. Specifically, Judge Cooper found
that the government failed to comply with the conditions of
the warrant designed to segregate information as to which the
government had probable cause from that which was swept up
only because the government didn’t have the time or facilities
to segregate it at the time and place of the seizure. Cooper
Order at 4. Relatedly, Judge Cooper determined that the gov-
ernment failed to comply with the procedures outlined in our
venerable precedent, United States v. Tamura, 694 F.2d 591(9th Cir. 1982), which are designed to serve much the same
purpose as the procedures outlined in the warrant. Finally,
Judge Cooper concluded that the government’s actions dis-
played a callous disregard for the rights of third parties, viz.,
those players as to whom the government did not already have
probable cause and who could suffer dire personal and profes-
sional consequences from a disclosure.
The affidavit supporting the first search warrant, the one
that sought the drug testing records of the ten suspected base-
ball players, contains an extensive introduction that precedes
any information specific to this case. The introduction seeks
to justify a broad seizure of computer records from CDT by
explaining the generic hazards of retrieving data that are
stored electronically. In essence, the government explains,
computer files can be disguised in any number of ingenious
ways, the simplest of which is to give files a misleading name
(pesto.recipe in lieu of blackmail.photos) or a false extension
(.doc in lieu of .jpg or .gz). In addition, the data might be
erased or hidden; there might be booby traps that “destroy or
alter data if certain procedures are not scrupulously fol-
lowed,” Warrant Affidavit at 3; certain files and programs
might not be accessible at all without the proper software,
which may not be available on the computer that is being
searched; there may simply be too much information to be
examined at the site; or data might be encrypted or com-
pressed, requiring passwords, keycards or other external
devices to retrieve. Id. at 4. The government also represented
that “[s]earching computer systems requires the use of pre-
11872 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
cise, scientific procedures which are designed to maintain the
integrity of the evidence.”
By reciting these hazards, the government made a strong
case for off-site examination and segregation of the evidence
seized. The government sought the authority to seize consid-
erably more data than that for which it had probable cause,
including various computers or computer hard drives and
related storage media, and to have the information examined
and segregated in a “controlled environment, such as a law
enforcement laboratory.” While the government did not point
to any specific dangers associated with CDT, which is after
all a legitimate business not suspected of any wrongdoing, it
nevertheless made a strong generic case that the data in ques-
tion could not be thoroughly examined or segregated on the
spot.
Not surprisingly, the magistrate judge was persuaded by
this showing and granted broad authority for seizure of data,
including the right to remove pretty much any computer
equipment found at CDT’s Long Beach facility, along with
any data storage devices, manuals, logs or related materials.
The warrant also authorized government agents to examine all
the data contained in the computer equipment and storage
devices, and to attempt to recover or restore hidden or erased
data. The magistrate, however, wisely made such broad sei-
zure subject to certain procedural safeguards, roughly based
on our Tamura opinion. Thus, the government was first
required to examine the computer equipment and storage
devices at CDT to determine whether information pertaining
to the ten identified players “c[ould] be searched on-site in a
reasonable amount of time and without jeopardizing the abil-
ity to preserve the data.”
The warrant also contained significant restrictions on how
the seized data were to be handled. These procedures were
designed to ensure that data beyond the scope of the warrant
would not fall into the hands of the investigating agents. Thus,
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11873
the initial review and segregation of the data was not to be
conducted by the investigating case agents but by “law
enforcement personnel trained in searching and seizing com-
puter data (‘computer personnel’),” whose job it would be to
determine whether the data could be segregated on-site. These
computer personnel—not the case agents—were specifically
authorized to examine all the data on location to determine
how much had to be seized to ensure the integrity of the
search. Moreover, if the computer personnel determined that
the data did not “fall within any of the items to be seized pur-
suant to this warrant or is not otherwise legally seized,” the
government was to return those items “within a reasonable
period of time not to exceed 60 days from the date of the sei-
zure unless further authorization [was] obtained from the
Court.” Subject to these representations and assurances, Mag-
istrate Judge Johnson authorized the seizure.
A word about Tamura is in order, and this seems as good
a place as any for it. Tamura, decided in 1982, just preceded
the dawn of the information age, and all of the records there
were on paper. The government was authorized to seize evi-
dence of certain payments received by Tamura from among
the records of Marubeni, his employer. To identify the materi-
als pertaining to the payments involved a three step proce-
dure: Examining computer printouts to identify a transaction;
locating the voucher that pertained to that payment; and find-
ing the check that corresponded to the voucher. 694 F.2d at
594-95. The government agents soon realized that this process
would take a long time unless they got help from the Maru-
beni employees who were present. The employees, however,
steadfastly refused, so the agents seized several boxes and
dozens of file drawers to be sorted out in their offices at their
leisure.
We disapproved the wholesale seizure of the documents
and particularly the government’s failure to return the materi-
als that were not the object of the search once they had been
segregated. Id. at 596-97. However, we saw no reason to sup-
11874 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
press the properly seized materials just because the govern-
ment had taken more than authorized by the warrant. For the
future, though, we suggested that “[i]n the comparatively rare
instances where documents are so intermingled that they can-
not feasibly be sorted on site, . . . the Government [should]
seal[ ] and hold[ ] the documents pending approval by a mag-
istrate of a further search, in accordance with the procedures
set forth in the American Law Institute’s Model Code of Pre-
Arraignment Procedure.” Id. at 595-96. “If the need for trans-
porting the documents is known to the officers prior to the
search,” we continued, “they may apply for specific authori-
zation 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 alterative
exists.” Id. at 596.
No doubt in response to this suggestion in Tamura, the
government here did seek advance authorization for sorting
and segregating the seized materials off-site. But, as Judge
Cooper found, “[o]nce the items were seized, the requirement
of the Warrant that any seized items not covered by the war-
rant be first screened and segregated by computer personnel
was completely ignored.” Brushing aside an offer by on-site
CDT personnel to provide all information pertaining to the ten
identified baseball players, the government copied from
CDT’s computer what the parties have called the “Tracey
Directory” which contained, in Judge Cooper’s words, “infor-
mation and test results involving hundreds of other baseball
players and athletes engaged in other professional sports.”
Counsel for CDT, contacted by phone, pleaded in vain that
“all material not pertaining to the specific items listed in the
warrant be reviewed and redacted by a Magistrate or Special
Master before it was seen by the Government.” Instead, the
case agent “himself reviewed the seized computer data and
used what he learned to obtain the subsequent search warrants
issued in Northern California, Southern California, and
Nevada.” Judge Cooper also found that, in conducting the sei-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11875
zure in the manner it did, “[t]he Government demonstrated a
callous disregard for the rights of those persons whose records
were seized and searched outside the warrant.”
[3] As previously noted, the government failed to timely
appeal the Cooper Order and is therefore bound by its factual
determinations and legal rulings. The government also failed
to appeal another ruling by Judge Illston that ordered return
of the Tracey directory and all copies thereof. We will call
this the Illston Order. It held unlawful the government’s fail-
ure to segregate data covered by the warrant from data not
covered by it simply because both types were intermingled in
the Tracey directory. In reaching this conclusion, Judge Ills-
ton necessarily rejected the argument about the scope of the
warrant the government made before Judge Mahan. The Ills-
ton Order therefore has preclusive effect on the core legal
questions resolved in the Mahan Order, viz., the government’s
failure to segregate intermingled data, as required by Tamura.
[4] Issue preclusion attaches when, as here, “the first and
second action involve application of the same principles of
law to an historic fact setting that was complete by the time
of the first adjudication.” Steen v. John Hancock Mut. Life
Ins. Co., 106 F.3d 904, 913 n.5 (9th Cir. 1997) (quoting 18
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 4425 (Supp. 1996)). The
determinations in the Cooper and Illston Orders are signifi-
cant because orders the government does appeal contain simi-
lar findings as to the government’s conduct. The government
cannot contest those rulings if it is bound by the identical rul-
ings in the Cooper and Illston Orders.
2. The Mahan Order
[5] Like Judges Cooper and Illston, Judge Mahan deter-
mined that “[t]he government callously disregarded the
affected players’ constitutional rights.” Judge Mahan also
concluded that the government “unreasonab[ly] . . . refuse[d]
11876 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
to follow the procedures set forth in United States v. Tamura
. . . upon learning that drug-testing records for the ten athletes
named in the original April 8 warrants executed at Quest and
at [CDT] were intermingled with records for other athletes not
named in those warrants.” We can and do uphold these find-
ings based on the preclusive effect of the Cooper and Illston
Orders. However, because the matter is important, and to
avoid any quibble about the proper scope of preclusion, we
also dispose of the government’s contrary arguments.
A. Compliance with Tamura
The government argues that it did comply with the proce-
dures articulated in Tamura, but was not required to return
any data it found showing steroid use by other baseball play-
ers because that evidence was in plain view once government
agents examined the Tracey Directory. Officers may lawfully
seize evidence of a crime that is in plain view, the government
argues, and thus it had no obligation under Tamura to return
that property. The warrant even contemplated this eventuality,
says the government, when it excluded from the obligation to
return property any that was “otherwise legally seized.”
[6] Putting aside the fact that Judges Cooper and Illston,
whose courts issued the warrants and whose orders are now
final, rejected this argument, it is at any rate too clever by
half. The point of the Tamura procedures is to maintain the
privacy of materials that are intermingled with seizable mate-
rials, and to avoid turning a limited search for particular infor-
mation into a general search of office file systems and
computer databases. If the government can’t be sure whether
data may be concealed, compressed, erased or booby-trapped
without carefully examining the contents of every file—and
we have no cavil with this general proposition—then every-
thing the government chooses to seize will, under this theory,
automatically come into plain view. Since the government
agents ultimately decide how much to actually take, this will
create a powerful incentive for them to seize more rather than
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11877
less: Why stop at the list of all baseball players when you can
seize the entire Tracey Directory? Why just that directory and
not the entire hard drive? Why just this computer and not the
one in the next room and the next room after that? Can’t find
the computer? Seize the Zip disks under the bed in the room
where the computer once might have been. See United States
v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take
everything back to the lab, have a good look around and see
what we might stumble upon.
[7] This would make a mockery of Tamura and render the
carefully crafted safeguards in the Central District warrant a
nullity. All three judges below rejected this construction, and
with good reason. One phrase in the warrant cannot be read
as eviscerating the other parts, which would be the result if
the “otherwise legally seized” language were read to permit
the government to keep anything one of its agents happened
to see while performing a forensic analysis of a hard drive.
The phrase is more plausibly construed as referring to any
evidence that the government is entitled to retain entirely
independent of this seizure.
[8] To avoid this illogical result, the government should, in
future warrant applications, forswear reliance on the plain
view doctrine or any similar doctrine that would allow it to
retain data to which it has gained access only because it was
required to segregate seizable from non-seizable data. If the
government doesn’t consent to such a waiver, the magistrate
judge should order that the seizable and non-seizable data be
separated by an independent third party under the supervision
of the court, or deny the warrant altogether.
[9] In addition, while it is perfectly appropriate for the war-
rant application to acquaint the issuing judicial officer with
the theoretical risks of concealment and destruction of evi-
dence, the government must also fairly disclose the actual
degree of such risks in the case presented to the judicial offi-
cer. In this case, for example, the warrant application pre-
11878 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
sented to Judge Johnson discussed the numerous theoretical
risks that the data might be destroyed, but failed to mention
that Comprehensive Drug Testing had agreed to keep the data
intact until its motion to quash the subpoena could be ruled
on by the Northern California district court, and that the
United States Attorney’s Office had accepted this representa-
tion. This omission created the false impression that, unless
the data was seized at once, it would be lost. Comprehensive
Drug Testing, 513 F.3d at 1132 (Thomas, J., dissenting). Such
pledges of data retention are obviously highly relevant in
determining whether a warrant is needed at all and, if so, what
its scope should be. If the government believes such pledges
to be unreliable, it may say so and explain why. But omitting
such highly relevant information altogether is inconsistent
with the government’s duty of candor in presenting a warrant
application. A lack of candor in this or any other aspect of the
warrant application shall bear heavily against the government
in the calculus of any subsequent motion to return or suppress
the seized data.
[10] Finally, the process of sorting, segregating, decoding
and otherwise separating seizable data (as defined by the war-
rant) from all other data must be designed to achieve that pur-
pose and that purpose only. Thus, if the government is
allowed to seize information pertaining to ten names, the
search protocol must be designed to discover data pertaining
to those names only, not to others, and not those pertaining to
other illegality. For example, the government has sophisti-
cated hashing tools at its disposal that allow the identification
of well-known illegal files (such as child pornography) with-
out actually opening the files themselves. These and similar
search tools may not be used without specific authorization in
the warrant, and such permission may only be given if there
is probable cause to believe that such files can be found on the
electronic medium to be seized.
B. Initial Review by Computer Personnel
[11] The government also failed to comply with another
important procedure specified in the warrant, namely that
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11879
“computer personnel” conduct the initial review of the seized
data and segregate materials not the object of the warrant for
return to their owner. As noted, Judge Cooper found that these
procedures were completely ignored; rather, the case agent
immediately rooted out information pertaining to all profes-
sional baseball players and used it to generate additional war-
rants and subpoenas to advance the investigation. Judge
Illston found the same. The record reflects no forensic lab
analysis, no defusing of booby traps, no decryption, no crack-
ing of passwords and certainly no effort by a dedicated com-
puter specialist to separate data for which the government had
probable cause from everything else in the Tracey Directory.
Instead, as soon as the Tracey Directory was extracted from
the CDT computers, the case agent assumed control over it,
examined the list of all professional baseball players and
extracted the names of those who had tested positive for ste-
roids. See Comprehensive Drug Testing, 513 F.3d at 1134-35(Thomas, J., dissenting). Indeed, the government admitted at
the hearing before Judge Mahan that “the idea behind taking
[the copy of the Tracey Directory] was to take it and later on
briefly peruse it to see if there was anything above and
beyond that which was authorized for seizure in the initial
warrant.” The government agents obviously were counting on
the search to bring constitutionally protected data into the
plain view of the investigating agents.
But it was wholly unnecessary for the case agent to view
any data for which the government did not already have prob-
able cause because there was an agent at the scene who was
specially trained in computer forensics. This agent did make
an initial determination that the CDT computer containing the
Tracey Directory could not be searched and segregated on-
site, and that it would be safe to copy the Tracey Directory,
rather than seizing the entire hard drive or computer. After
that copy was made, however, it was turned over to the case
agent, and the specialist did nothing further to segregate the
target data from that which was swept up simply because it
was nearby or commingled. The sequence of events supports
11880 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
the suspicion that representations in the warrant about the
necessity for broad authority to seize materials were designed
to give the government access to the full list of professional
baseball players and their confidential drug testing records.
The government argues that it didn’t violate the warrant
protocol because the warrant didn’t specify that only com-
puter personnel could examine the seized files, and the case
agent was therefore entitled to view them alongside the com-
puter specialist. This, once again, is sophistry. It would make
no sense to represent that computer personnel would be used
to segregate data if investigatory personnel were also going to
access all the data seized. What would be the point? The gov-
ernment doesn’t need instruction from the court as to what
kind of employees to use to serve its own purposes; the repre-
sentation in the warrant that computer personnel would be
used to examine and segregate the data was obviously
designed to reassure the issuing magistrate that the govern-
ment wouldn’t sweep up large quantities of data in the hope
of dredging up information it could not otherwise lawfully
seize. Judge Cooper found that the government utterly failed
to follow the warrant’s protocol. Judge Illston also found that
the government’s seizure, in callous disregard of the Fourth
Amendment, reached information clearly not covered by a
warrant. These findings are binding on the government, but
simple common sense leads to precisely the same conclusion:
This was an obvious case of deliberate overreaching by the
government in an effort to seize data as to which it lacked
probable cause.
[12] To guard against such unlawful conduct in the future,
the warrant application should normally include, or the issu-
ing judicial officer should insert, a protocol for preventing
agents involved in the investigation from examining or retain-
ing any data other than that for which probable cause is
shown. The procedure might involve, as in this case, a
requirement that the segregation be done by specially trained
computer personnel who are not involved in the investigation.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11881
It should be made clear that only those personnel may exam-
ine and segregate the data. The government must also agree
that such computer personnel will not communicate any infor-
mation they learn during the segregation process absent fur-
ther approval of the court.
At the discretion of the issuing judicial officer, and depend-
ing on the nature and sensitivity of the privacy interests
involved, the computer personnel in question may be govern-
ment employees or independent third parties not affiliated
with the government. The issuing judicial officer may appoint
an independent expert or special master to conduct or super-
vise the segregation and redaction of the data. In a case such
as this one, where the party subject to the warrant is not sus-
pected of any crime, and where the privacy interests of
numerous other parties who are not under suspicion of crimi-
nal wrongdoing are implicated by the search, the presumption
should be that the segregation of the data will be conducted
by, or under the close supervision of, an independent third
party selected by the court.
[13] Once the data has been segregated (and, if necessary,
redacted), the government agents involved in the investigation
may examine only the information covered by the terms of the
warrant. Absent further judicial authorization, any remaining
copies must be destroyed or, at least so long as they may be
lawfully possessed by the party from whom they were seized,
returned along with the actual physical medium that may have
been seized (such as a hard drive or computer). The govern-
ment may not retain copies of such returned data, unless it
obtains specific judicial authorization to do so. Also, within
a time specified in the warrant, which should be as soon as
practicable, the government must provide the issuing officer
with a return disclosing precisely what data it has obtained as
a consequence of the search, and what data it has returned to
the party from whom it was seized. The return must include
a sworn certificate that the government has destroyed or
returned all copies of data that it is not entitled to keep. If the
11882 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
government believes it is entitled to retain data as to which no
probable cause was shown in the original warrant, it may seek
a new warrant or justify the warrantless seizure by some
means other than plain view.
C. Federal Rule of Criminal Procedure 41(g)
[14] We have long held that Rule 41(g) is an appropriate
means of obtaining the return of property improperly seized
by the government. Ramsden v. United States, 2 F.3d 322 (9th
Cir. 1993). Though styled as a motion under a Federal Rule
of Criminal Procedure, when the motion is made by a party
against whom no criminal charges have been brought, such a
motion is in fact a petition that the district court invoke its
civil equitable jurisdiction. Id. at 324. We agree with the
panel that the district court in this case did not abuse its dis-
cretion in choosing to exercise that jurisdiction. Comprehen-
sive Drug Testing, 513 F.3d at 1104.
The government argues that Rule 41(g) is inapplicable
because it is not designed to be used as a suppression motion.
But CDT and the Players Association are not seeking to have
evidence suppressed, as they are not criminal defendants.
Rather, by forcing the government to return property that it
had not properly seized, CDT is preserving the integrity of its
business and the Players Association is protecting the privacy
and economic well-being of its clients, which could easily be
impaired if the government were to release the test results
swept up in the dragnet.
[15] Judge Ikuta’s dissent overlooks the crucial distinction
between a motion to suppress and a motion for return of prop-
erty: The former is limited by the exclusionary rule, the latter
is not. In United States v. Calandra, 414 U.S. 338, 348 n.6
(1974), and United States v. Payner, 447 U.S. 727, 728, 735-
36 & n.7 (1980), the Court addressed the suppression, not the
return, of seized materials—a detail perhaps obscured because
the version of Rule 41 then in existence addressed motions to
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11883
suppress and motions to return in the same subsection. Lest
there be any doubt that these are only suppression cases, note
that Calandra used the availability of a motion to return,
among other remedies, as a reason the exclusionary rule need
not apply to grand jury proceedings. See 414 U.S. at 354 n.10.
Payner, which never mentions Rule 41 or a motion to return,
simply held that “the supervisory power does not authorize a
federal court to suppress otherwise admissible evidence on the
ground that it was seized unlawfully from a third party not
before the court.” 447 U.S. at 735. This rule has no relevance
here because no motion to suppress, whether based on Rule
41(h) or the supervisory power, is before us.
That Rule 41(g) is broader than the exclusionary rule can
no longer be in doubt in light of the 1989 amendments which
explicitly authorize a motion to return property on behalf of
any “person aggrieved by an unlawful search and seizure of
property or by the deprivation of property.” Fed. R. Crim. P.
41(g) (emphasis added). This language was designed to
expand the rule’s coverage to include property lawfully
seized. See id. advisory committee notes. It goes without say-
ing that lawfully seized evidence may not be suppressed.
The return of seized property under Rule 41(g) and the
exclusionary rule serve fundamentally different purposes.
Suppression helps ensure that law enforcement personnel
adhere to constitutional norms by denying them, and the gov-
ernment they serve, the benefit of property that is unlawfully
seized. Rule 41(g) is concerned with those whose property or
privacy interests are impaired by the seizure. Suppression
applies only to criminal defendants whereas the class of those
aggrieved can be, as this case illustrates, much broader.
Most importantly, judicially-imposed restrictions on the
scope of the exclusionary rule—itself a judicially-created
remedy—are not applicable to orders for return of property
which derive their authority from the Federal Rules of Crimi-
nal Procedure and their enabling legislation. This is not, in
11884 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
any event, a question properly presented in the case now
before us: What uses the government may make of the Quest
evidence during a criminal proceeding must be decided in the
context of such a proceeding, when and if criminal charges
are brought against any of the players.
Under Ramsden, the district court is required to balance
four discretionary factors to determine whether to allow the
government to retain the property, order it returned or (as hap-
pened in Ramsden) craft a compromise solution that seeks to
accommodate the interests of all parties. The Players Associa-
tion is (1) plainly aggrieved by the deprivation, Fed. R. Crim.
P. Rule 41(g), and (2) likely to suffer irreparable injury if it’s
not returned. And as the three judge panel recognized, the
government has conceded (3) the lack of an adequate remedy
at law. Comprehensive Drug Testing, 513 F.3d at 1103.
Judge Ikuta is thus mistaken when she suggests that the
Players Association is not entitled to bring the 41(g) motion
because it lacks a property interest in the urine samples and
other bodily fluids. Ikuta dissent at 11924-25 n.2. The rule
nowhere speaks of an ownership interest; rather, by its plain
terms, it authorizes anyone aggrieved by a deprivation of
property to seek its return. Here, the Players Association is
aggrieved by the seizure as the removal of the specimens and
documents breaches its negotiated agreement for confidential-
ity, violates its members’ privacy interests and interferes with
the operation of its business. Cf. NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 458-60 (1958). In any event, we are
again bound by the preclusive effect of the Illston and Cooper
orders.
The only Ramsden factor fairly in dispute is (4) whether the
government showed a callous disregard for the rights of third
parties. Judge Mahan concluded that it did—as did every
other district judge who examined the question. There is
ample evidence to support this determination, even if the gov-
ernment were not bound by that same finding in the Cooper
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11885
and Illston Orders. As a factual finding, we review such a
determination only for clear error. SEC v. Coldicutt, 258 F.3d
939, 941 (9th Cir. 2001). We find none here.
[16] Contrary to our dissenting colleagues’ view of the
matter, Ikuta dissent at 11924-27, Rule 41(g) does indeed
contemplate that district judges may order the return of the
originals, as well as any copies, of seized evidence: “In some
circumstances, however, equitable considerations might jus-
tify an order requiring the government to return or destroy all
copies of records that it has seized.” Fed. R. Crim. P. 41 advi-
sory committee notes (1989 amendments). What circum-
stances merit this remedy is left to the discretion of the district
court in the first instance, and our review of this issue is lim-
ited by the Illston Order’s preclusive effect.
[17] Apart from preclusion, however, we cannot see how
Judge Mahan abused his discretion by concluding that “equi-
table considerations” required sequestration and the return of
copies. The risk to the players associated with disclosure, and
with that the ability of the Players Association to obtain vol-
untary compliance with drug testing from its members in the
future, is very high. Indeed, some players appear to have
already suffered this very harm as a result of the govern-
ment’s seizure. See, e.g., Michael S. Schmidt, Ortiz and
Ramirez Said to Be on 2003 Doping List, N.Y. Times, July
31, 2009, at A1; Michael S. Schmidt, Sosa Is Said to Have
Tested Positive in 2003, N.Y. Times, June 17, 2009, at B11;
Michael S. Schmidt, Rodriguez Said to Test Positive in 2003,
N.Y. Times, February 8, 2009, at A1. Judge Mahan certainly
did not abuse his broad discretion in balancing these equities.
[18] We affirm Judge Mahan on an alternative ground as
well: When, as here, the government comes into possession of
evidence by circumventing or willfully disregarding limita-
tions in a search warrant, it must not be allowed to benefit
from its own wrongdoing by retaining the wrongfully
obtained evidence or any fruits thereof. When the district
11886 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
court determines that the government has obtained the evi-
dence through intentional wrongdoing—rather than through a
technical or good faith mistake—it should order return of the
property without the need for balancing that is applicable in
the more ordinary case.
3. The Illston Quashal
Judge Illston quashed the government’s final subpoena
under Federal Rule of Criminal Procedure 17(c), which autho-
rizes quashal if compliance would be “unreasonable or
oppressive.” Determining whether this standard is met is com-
mitted to the district judge’s discretion, and we will reverse
only if that discretion has been abused. In re Grand Jury Pro-
ceedings, 13 F.3d 1293, 1295 (9th Cir. 1994) (per curiam).
Judge Illston quashed the subpoena after both the Cooper
and Mahan Orders. Judge Illston described the subpoena as
“served after the government had obtained evidence . . .
which has been determined now to have been illegally
seized.” Under the circumstances, Judge Illston regarded the
subpoena as an unreasonable “insurance policy”—having
seized materials unlawfully, the government then subpoenaed
the very same materials in an attempt to moot any future pro-
ceedings for a return of property. Cf. J.B. Manning Corp. v.
United States, 86 F.3d 926 (9th Cir. 1996).
[19] It isn’t per se unreasonable to conduct an investigation
using both search warrants and subpoenas. E.g., In re Grand
Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 851-55
(9th Cir. 1991). But the presence of substantial government
misconduct and unlawful seizure of evidence (which was
absent from In re Grand Jury Subpoenas) is quite properly
taken into account when determining whether a subpoena is
unreasonable. Moreover, Judge Illston found that the govern-
ment’s entire course of conduct had been intended to prevent
the Players Association and CDT from litigating the legality
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11887
of the original subpoenas. This, too, is a valid consideration
in evaluating quashal.
[20] For us to reverse a decision as an abuse of discretion,
we must have “a definite and firm conviction that the district
court committed a clear error of judgment in the conclusion
it reached.” Coldicutt, 258 F.3d at 941. That standard—
difficult to meet under any circumstances—cannot possibly
be satisfied here, in light of Judge Cooper’s preclusive find-
ings and Judge Mahan’s well-reasoned order. We therefore
affirm the Illston Quashal. In doing so, we emphasize that,
while the government is free to pursue warrants, subpoenas
and other investigatory tools, and may do so in whichever
judicial district is appropriate in light of the location of the
information sought, it must fully disclose to each judicial offi-
cer prior efforts in other judicial fora to obtain the same or
related information, and what those efforts have achieved.
This is no more than we require of, for example, a prisoner
seeking to file a second or successive habeas petition.
More than one of the judges involved in this case below
commented that they felt misled or manipulated by the gov-
ernment’s apparent strategy of moving from district to district
and judicial officer to judicial officer in pursuit of the same
information, and without fully disclosing its efforts elsewhere.
The cause of justice will best be served if such judicial reac-
tions to the government’s conduct can be avoided in the
future.
Concluding Thoughts
This case well illustrates both the challenges faced by mod-
ern law enforcement in retrieving information it needs to pur-
sue and prosecute wrongdoers, and the threat to the privacy
of innocent parties from a vigorous criminal investigation. At
the time of Tamura, most individuals and enterprises kept
records in their file cabinets or similar physical facilities.
Today, the same kind of data is usually stored electronically,
11888 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
often far from the premises. Electronic storage facilities inter-
mingle data, making them difficult to retrieve without a thor-
ough understanding of the filing and classification systems
used—something that can often only be determined by closely
analyzing the data in a controlled environment. Tamura
involved a few dozen boxes and was considered a broad sei-
zure; but even inexpensive electronic storage media today can
store the equivalent of millions of pages of information.
Wrongdoers and their collaborators have obvious incen-
tives to make data difficult to find, but parties involved in
lawful activities may also encrypt or compress data for
entirely legitimate reasons: protection of privacy, preservation
of privileged communications, warding off industrial espio-
nage or preventing general mischief such as identity theft.
Law enforcement today thus has a far more difficult, exacting
and sensitive task in pursuing evidence of criminal activities
than even in the relatively recent past. The legitimate need to
scoop up large quantities of data, and sift through it carefully
for concealed or disguised pieces of evidence, is one we’ve
often recognized. See, e.g., United States v. Hill, 459 F.3d 966(9th Cir. 2006).
This pressing need of law enforcement for broad authoriza-
tion to examine electronic records, so persuasively demon-
strated in the introduction to the original warrant in this case,
see pp. 11871-72 supra, creates a serious risk that every war-
rant for electronic information will become, in effect, a gen-
eral warrant, rendering the Fourth Amendment irrelevant. The
problem can be stated very simply: There is no way to be sure
exactly what an electronic file contains without somehow
examining its contents—either by opening it and looking,
using specialized forensic software, keyword searching or
some other such technique. But electronic files are generally
found on media that also contain thousands or millions of
other files among which the sought-after data may be stored
or concealed. By necessity, government efforts to locate par-
ticular files will require examining a great many other files to
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11889
exclude the possibility that the sought-after data are concealed
there.
Once a file is examined, however, the government may
claim (as it did in this case) that its contents are in plain view
and, if incriminating, the government can keep it. Authoriza-
tion to search some computer files therefore automatically
becomes authorization to search all files in the same sub-
directory, and all files in an enveloping directory, a neighbor-
ing hard drive, a nearby computer or nearby storage media.
Where computers are not near each other, but are connected
electronically, the original search might justify examining
files in computers many miles away, on a theory that incrimi-
nating electronic data could have been shuttled and concealed
there.
The advent of fast, cheap networking has made it possible
to store information at remote third-party locations, where it
is intermingled with that of other users. For example, many
people no longer keep their email primarily on their personal
computer, and instead use a web-based email provider, which
stores their messages along with billions of messages from
and to millions of other people. Similar services exist for pho-
tographs, slide shows, computer code, and many other types
of data. As a result, people now have personal data that are
stored with that of innumerable strangers. Seizure of, for
example, Google’s email servers to look for a few incriminat-
ing messages could jeopardize the privacy of millions.
It’s no answer to suggest, as did the majority of the three-
judge panel, that people can avoid these hazards by not stor-
ing their data electronically. To begin with, the choice about
how information is stored is often made by someone other
than the individuals whose privacy would be invaded by the
search. Most people have no idea whether their doctor, lawyer
or accountant maintains records in paper or electronic format,
whether they are stored on the premises or on a server farm
in Rancho Cucamonga, whether they are commingled with
11890 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
those of many other professionals or kept entirely separate.
Here, for example, the Tracey Directory contained a huge
number of drug testing records, not only of the ten players for
whom the government had probable cause but hundreds of
other professional baseball players, thirteen other sports orga-
nizations, three unrelated sporting competitions, and a non-
sports business entity—thousands of files in all, reflecting the
test results of an unknown number of people, most having no
relationship to professional baseball except that they had the
bad luck of having their test results stored on the same com-
puter as the baseball players.
Second, there are very important benefits to storing data
electronically. Being able to back up the data and avoid the
loss by fire, flood or earthquake is one of them. Ease of access
from remote locations while traveling is another. The ability
to swiftly share the data among professionals, such as sending
MRIs for examination by a cancer specialist half-way around
the world, can mean the difference between death and a full
recovery. Electronic storage and transmission of data is no
longer a peculiarity or a luxury of the very rich; it’s a way of
life. Government intrusions into large private databases thus
have the potential to expose exceedingly sensitive information
about countless individuals not implicated in any criminal
activity, who might not even know that the information about
them has been seized and thus can do nothing to protect their
privacy.
It is not surprising, then, that all three of the district judges
below were severely troubled by the government’s conduct in
this case. Judge Mahan, for example, asked “what ever hap-
pened to the Fourth Amendment? Was it . . . repealed some-
how?” Judge Cooper referred to “the image of quickly and
skillfully moving the cup so no one can find the pea.” And
Judge Illston regarded the government’s tactics as “unreason-
able” and found that they constituted “harassment.” Judge
Thomas, too, in his panel dissent, expressed frustration with
the government’s conduct and position, calling it a “breath-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11891
taking expansion of the ‘plain view’ doctrine, which clearly
has no application to intermingled private electronic data.”
Comprehensive Drug Testing, 513 F.3d at 1117.
Everyone’s interests are best served if there are clear rules
to follow that strike a fair balance between the legitimate
needs of law enforcement and the right of individuals and
enterprises to the privacy that is at the heart of the Fourth
Amendment. Tamura has provided a workable framework for
almost three decades, and might well have sufficed in this
case had its teachings been followed. We believe it is useful,
therefore, to update Tamura to apply to the daunting realities
of electronic searches which will nearly always present the
kind of situation that Tamura believed would be rare and
exceptional—the inability of government agents to segregate
seizable from non-seizable materials at the scene of the
search, and thus the necessity to seize far more than is actu-
ally authorized.
We accept the reality that such over-seizing is an inherent
part of the electronic search process and proceed on the
assumption that, when it comes to the seizure of electronic
records, this will be far more common than in the days of
paper records. This calls for greater vigilance on the part of
judicial officers in striking the right balance between the gov-
ernment’s interest in law enforcement and the right of individ-
uals to be free from unreasonable searches and seizures. The
process of segregating electronic data that is seizable from
that which is not must not become a vehicle for the govern-
ment to gain access to data which it has no probable cause to
collect. In general, we adopt Tamura’s solution to the prob-
lem of necessary over-seizing of evidence: When the govern-
ment wishes to obtain a warrant to examine a computer hard
drive or electronic storage medium in searching for certain
incriminating files, or when a search for evidence could result
in the seizure of a computer, see, e.g., United States v. Giber-
son, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be
11892 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
vigilant in observing the guidance we have set out throughout
our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reli-
ance upon the plain view doctrine in digital evidence cases.
See p. 11876 supra.
2. Segregation and redaction must be either done by spe-
cialized personnel or an independent third party. See pp.
11880-81 supra. If the segregation is to be done by govern-
ment computer personnel, it must agree in the warrant appli-
cation that the computer personnel will not disclose to the
investigators any information other than that which is the tar-
get of the warrant.
3. Warrants and subpoenas must disclose the actual risks of
destruction of information as well as prior efforts to seize that
information in other judicial fora. See pp. 11877-78, 11886-87
supra.
4. The government’s search protocol must be designed to
uncover only the information for which it has probable cause,
and only that information may be examined by the case
agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may
lawfully possess it, return non-responsive data, keeping the
issuing magistrate informed about when it has done so and
what it has kept. See p. 11881-82 supra.
Just as Tamura has served as a guidepost for decades, we
trust that the procedures we have outlined above will prove a
useful tool for the future. In the end, however, we must rely
on the good sense and vigilance of our magistrate judges, who
are in the front line of preserving the constitutional freedoms
of our citizens while assisting the government in its legitimate
efforts to prosecute criminal activity. Nothing we could say
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11893
would substitute for the sound judgment that judicial officers
must exercise in striking this delicate balance.
***
The appeal in No. 05-55354 (the Cooper Order) is dis-
missed as untimely.
The judgments in Nos. 05-15006 (the Mahan Order) and
05-10067 (the Illston Quashal) are affirmed.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11895
Volume 2 of 2
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11897
CALLAHAN, Circuit Judge, with whom IKUTA, Circuit
Judge, joins, concurring in part and dissenting in part:
I agree with the majority that the government’s appeal from
the Cooper Order1 was untimely and that the appeal in case
number 05-55354 should be dismissed. I disagree, however,
with the majority’s conclusion that the findings stated in the
Cooper Order or the Illston Order have dispositive preclusive
effect with respect to this court’s review of the Mahan Order.
Setting aside the Cooper Order and the Illston Order, I would
reverse the Mahan Order on the merits. In addition, I would
vacate and remand the Illston Quashal. Accordingly, I
respectfully dissent, in part, from the majority’s opinion.
I.
The majority holds that with respect to this court’s review
of the findings and conclusions stated in the Mahan Order, the
government is bound by the factual and legal determinations
contained in the Cooper Order and the Illston Order. Maj. Op.
at 11875-76. Based on the collateral estoppel or issue preclu-
sive effect of these orders, the majority upholds Judge
Mahan’s findings that “ ‘[t]he government callously disre-
garded the affected players’ constitutional rights,” and that it
“unreasonab[ly] . . . refuse[d] to follow the procedures set
forth in United States v. Tamura . . . upon learning that drug-
testing records for the ten athletes named in the original April
8 warrants executed at Quest and at [CDT] were intermingled
with records for other athletes not named in those warrants.’ ”
Id. at 11875-76 (internal quotation marks omitted, alterations
in original). Neither the Cooper Order nor the Illston Order
has preclusive effect over our review of the Mahan Order, and
I address each order in turn.
1
For ease of reference, I adopt the majority’s definition conventions as
to the orders referred to in the majority opinion: the Cooper Order, the
Mahan Order, the Illston Order, and the Illston Quashal.
11898 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
I disagree that the Cooper Order has preclusive effect with
respect to the Mahan Order. The problem is a temporal one—
the Cooper Order, entered October 1, 2004, does not have
preclusive effect over this court’s review of the Mahan Order
because it was entered after the Mahan Order, which was
entered September 7, 2004.
The single case that the majority relies on for its application
of the issue preclusion doctrine, Steen v. John Hancock
Mutual Life Insurance Co., addressed whether issues decided
in an earlier decision had a preclusive effect in a subsequent
decision. See 106 F.3d 904, 908-09 (9th Cir. 1997). Steen
does not support the proposition that a later-in-time order has
a retroactive preclusive effect on an earlier one.2 Although
this case presents a peculiar backdrop for the application of
the issue preclusion doctrine, our decision in Nationwide
Mutual Insurance Company v. Liberatore, 408 F.3d 1158 (9th
Cir. 2005), is instructive. Liberatore was a member of the
U.S. Navy who was traveling on orders and picked up his
friend, Ivey, for a social evening during his trip. Liberatore
drank and drove, causing a traffic accident in which Ivey suf-
fered serious injuries. The accident resulted in two lawsuits:
(1) Ivey’s negligence action against Liberatore, the rental car
company, and the United States; and (2) a declaratory relief
action by Nationwide, Liberatore’s insurance company,
against Liberatore, the United States, the rental car company,
and Ivey. In Ivey’s negligence lawsuit, the government moved
for summary judgment on the grounds that Liberatore was not
acting within the scope of his employment and thus there was
no waiver of sovereign immunity under the Federal Tort
Claims Act. In Nationwide’s lawsuit, Nationwide moved for
2
The language from Steen cited by the majority discusses the circum-
stances under which issue preclusion extends to principles of law. For
example, a legal principle applied in an earlier action may have a preclu-
sive effect in a later action if the factual scenario in the earlier and later
action are the same. Steen, 106 F.3d at 913 & n.5. Steen does not support
the proposition that a decision in a later action has a preclusive effect on
an earlier action.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11899
summary judgment on the grounds that insurance coverage
did not exist because Liberatore was acting within the scope
of his employment and thus the government had indemnifica-
tion responsibility; the government also filed a motion to dis-
miss for lack of subject matter jurisdiction. The central
question in both lawsuits was the scope of Liberatore’s
employment. See id. at 1160-61.
The district court granted the government’s motion for
summary judgment in Ivey’s negligence action, and that order
was not appealed. On the same day, and through a separate
order, the district court denied the government’s motion to
dismiss and denied Nationwide’s motion for summary judg-
ment. On appeal in the Nationwide action, the government
argued that Nationwide was bound by the decision in the Ivey
action that Liberatore was not acting within the scope of his
employment duties at the time of the accident, which was
contrary to the position taken by Nationwide in its lawsuit.
We rejected this attempted application of the issue preclusion
doctrine, stating that “[a]lthough a district court judgment car-
ries preclusive effect going forward, it cannot operate to bar
direct review of an extant judgment.” Liberatore, 408 F.3d at1162 (citing Orion Tire Corp. v. Goodyear Tire & Rubber
Co., 268 F.3d 1133, 1136 (9th Cir. 2001) (holding that appeal
could not be barred by claim preclusion based on a judgment
that post-dated the judgment on appeal)). We thus held that
Nationwide was not precluded from arguing on appeal in the
Nationwide case that Liberatore acted within the scope of
employment, and we decided that issue on the merits. Id.(stating that “a decision entered coincident with the judgment
on appeal, just as a judgment entered after the judgment on
appeal, ‘can scarcely constitute a bar to the instant action’ ”
(citation omitted)).
Here, the majority’s use of the later-decided Cooper Order
to preclude or limit review of the earlier-decided Mahan
Order is contrary to our well-reasoned opinions in Liberatore
11900 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
and Orion Tire.3 Therefore, I would review the Mahan Order
without giving issue preclusive effect to the Cooper Order.
Although the majority’s analysis of the Illston Order does
not suffer from the temporal flaw presented by the Cooper
Order, its reliance on the preclusive effect of the Illston Order
is also questionable. First, the Illston Order dealt with the
April 30, 2004 warrant that the government presented to
Judge Lloyd to search files in the government’s possession,
not the April 7, 2004 warrants sought to search CDT and
Quest. This raises a concern about the scope of preclusion in
terms of what was actually decided in the Illston Order. Sec-
ond, the majority relies on the Illston Order to uphold Judge
Mahan’s finding that the government refused to follow the
procedures set forth in United States v. Tamura, 694 F.2d 591,
596 (9th Cir. 1982). Maj. Op. at 11875-76. But Judge Illston
did not make a clear finding regarding the government’s
adherence to Tamura. Finally, the majority upholds Judge
Mahan’s finding that “the government callously disregarded
the affected players’ constitutional rights” based on the Illston
Order. Id. However, whereas Judge Illston’s “callous disre-
gard” finding was almost entirely premised on the govern-
ment’s issuing subpoenas and seeking search warrants in
different district courts, Judge Mahan’s finding appears to be
premised on the government’s adherence to the Tamura pro-
cedures. At a minimum, the use of a tool as powerful as issue
preclusion in the context of such disparities is unwise, espe-
cially where Judge Mahan did not rule on the preclusive effect
of the Illston Order. Accordingly, I would review the Mahan
Order without reliance on the Illston Order.
3
The Second Circuit has held that an issue decided in a later-in-time,
non-appealed action can have issue preclusive effect on the prior decision
that is on appeal. See Grieve v. Tamerin, 269 F.3d 149, 153-54 (2d Cir.
2001) (“The effect of the Southern District’s final judgment was no differ-
ent simply because the Eastern District action was the first to be ruled on
at the district court level.”). However, we have not adopted this variation
of the issue preclusion doctrine and should not do so sub silentio.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11901
II.
Regarding the Mahan Order, I agree with the three-judge
panel majority’s thorough analysis and conclusions that (1)
the district court properly exercised its equitable jurisdiction
under Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993);
(2) the government did not display a callous disregard for the
constitutional rights of others in conducting its seizure of the
materials from Comprehensive Drug Testing, Inc. (“CDT”),
which gave rise to Judge Mahan’s decision and order to return
the materials seized from Quest Diagnostics, Inc. (“Quest”);
and (3) that it was not reasonable under all the circumstances
for the district court to order the return of the subject property
under Federal Rule of Criminal Procedure 41(g). See United
States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085,
1103-13 (9th Cir. 2008). I do not restate those points here, but
write to highlight aspects of my disagreement with the en
banc panel majority’s resolution of the Mahan Order.
Judge Mahan’s decision with respect to the return of mate-
rials seized from Quest in Las Vegas, Nevada on April 8,
2004 was premised on his view that these materials were poi-
sonous fruit which acquired their taint as a result of the gov-
ernment’s seizure of intermingled materials from CDT in
Long Beach, California. The majority here does not appear to
take issue with the government’s physical seizure and
removal of the intermingled materials from CDT, including a
copy of the “Tracey directory.” Consistent with our recom-
mendation in United States v. Tamura, the government, antic-
ipating that it might encounter intermingled relevant and non-
relevant evidence in its search of CDT’s computers and that
an on-site search might not be feasible, crafted its April 7,
2004 warrant to provide for seizure and removal of such inter-
mingled evidence for offsite review. See 694 F.2d at 596 (“If
the need for transporting documents is known to the officers
prior to the search, they may apply for specific authorization
for large-scale removal of material . . . .”). Our subsequent
decisions in the computer context have approved of the seiz-
11902 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ing of units that contain information authorized for seizure
and information not described in the warrant where an on-site
search is infeasible. See United States v. Giberson, 527 F.3d
882, 889-90 (9th Cir. 2008) (holding that seizure of suspect’s
computer was justified, despite the potential for intermingling
of relevant and non-relevant material, based on officers’ rea-
sonable belief that items enumerated in the search warrant
could be found therein); United States v. Hill, 459 F.3d 966,
975-76 (9th Cir. 2006) (stating that wholesale seizure of mate-
rials is permissible where affidavit in support of warrant pro-
vides a reasonable explanation for why such a seizure is
necessary); United States v. Adjani, 452 F.3d 1140 (9th Cir.
2006) (finding permissible the removal for off-site search of
a suspect’s computer along with the computer of a woman liv-
ing with the suspect who was not identified in the warrant).
Apart from the government’s arguments related to the plain
view doctrine, I interpret the majority’s primary concern to be
Agent Novitsky’s search of the Tracey directory after it was
removed from CDT’s premises.4 See Maj. Op. 11878-81. The
majority focuses on statements made by Assistant United
States Attorney Nedrow at the hearing before Judge Mahan
that the idea behind taking the Tracey directory was to pro-
vide Agent Novitsky with an opportunity to “briefly peruse it
to see if there was anything above and beyond that which was
4
I do not address here the government’s argument that the plain view
doctrine independently justified its search of the materials seized from
CDT. I share some of the majority’s concerns regarding broad application
of the plain view doctrine to the search of computer data in this case.
However, there are other contexts where application of the plain view doc-
trine might be more appropriate. See, e.g., United States v. Wong, 334 F.3d
831, 838 (9th Cir. 2003) (applying plain view doctrine to discovery of
child pornography in the context of a valid search of a computer for evi-
dence related to a murder investigation). Accordingly, as discussed below,
I cannot subscribe to the majority’s generalized requirement that the gov-
ernment foreswear reliance on the plain view doctrine in digital evidence
cases or that magistrate judges insist on such a waiver by the government.
Maj. Op. at 11892.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11903
authorized for seizure in the initial warrant.”5 Although
Nedrow’s language is troubling on its face, Agent Novitsky
acted with the reasonable purpose of learning the location of
the relevant material in the Tracey directory. Upon encounter-
ing other potentially incriminating material in the Tracey
directory, he sought a subsequent warrant. We have previ-
ously found this approach acceptable. See Giberson, 527 F.3d
at 889-90 (holding that the district court properly denied
motion to suppress evidence of child pornography found on
a copied computer hard drive during a search for evidence of
the production of false identification cards pursuant to a valid
warrant); Adjani, 452 F.3d at 1151 (“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 contem-
5
Nedrow stated:
The agents, which [sic] some cooperation, limited cooperation
from CDT, had identified a set — a subdirectory on an employ-
ee’s computer named Tracy [sic], and this was the drug testing
subdirectory with thousands of files, thousands of files on it. And
the agents identified it, and they knew some of those files were
going to have information definitely authorized for seizure under
the Judge Johnson [April 7, 2004] warrant, but they also, frankly,
had no ability to say that with respect to every file. Of course not.
It’s ridiculous, it’s too large.
So the idea behind taking that was to take it and later briefly
peruse it to see if there was anything above and beyond that
which was authorized for seizure in the initial warrant. And that’s
what Agent Nivitsky [sic] did, and that’s why Agent Nivitsky
[sic] went to Judge Lloyd in San Francisco, because after perus-
ing it he found some documents that contained information for
the players in the case and some lists that contained that informa-
tion, the ten players, but he also saw other things on there. And
he said, okay, there are other things on here that show positive
drug tests and that’s of interest and as a plain view matter, based
on the experience in the case, I know that constitutes possible
criminal activity on its face but what I’m going to do is I’m going
to get Judge Lloyd’s authorization to seize all these other items.
11904 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
plated in the warrant.”). Therefore, the majority’s determina-
tion that the government’s actions in this case were
inconsistent with Tamura is inconsistent with our case law.
In addition, the majority reads the warrant to state that the
computer specialist, and only the computer specialist, was
permitted to conduct the initial review of the commingled evi-
dence seized from CDT. From this premise, the majority con-
cludes that Agent Novitsky’s involvement in that initial
review of the seized materials constituted “deliberate over-
reaching.” See Maj. Op. at 11880. But, as the majority of the
three-judge panel stated, the warrant did not expressly limit
the initial review to the computer specialist. Comprehensive
Drug Testing, 513 F.3d at 1111. It provided that the computer
specialist would be involved in the determination of whether
on-site review of the computer files was feasible and in the
segregation process. It did not, however, by its terms exclude
other case agents. The majority calls reliance on the lack of
any explicit exclusion in the warrant “sophistry,” arguing that
“the representation in the warrant that computer personnel
would be used to examine and segregate the data was obvi-
ously designed to reassure the issuing magistrate that the gov-
ernment wouldn’t sweep up large quantities of data in the
hope of dredging up information it could not otherwise law-
fully seize.” Maj. Op. at 11880. However, that is an inference
drawn by the majority and is but one of several reasonable infer-
ences.6 The record does not indicate precisely why that lan-
guage was included in the warrant. The computer specialist
may have been included to facilitate the search and segrega-
tion efforts, to ensure that data would not be destroyed, to
assist in the navigation through the computer files, or to
uncover any mislabeled or hidden files. These purposes do not
necessarily require exclusion of all other case agents.
6
Interestingly, the majority’s newly minted search protocols direct that
a warrant make clear that only persons not involved in the investigation
may examine and segregate the data.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11905
Even assuming some overreaching by the government, I
would conclude that the return of the property pursuant to
Rule 41(g) is not necessarily the appropriate relief in this
case. The Advisory Committee Notes to the 1989 Amend-
ments to Rule 41 state that “reasonableness under all of the
circumstances must be the test when a person seeks to obtain
the return of property.” See also United States v. Ramsden, 2
F.3d 322, 326 (9th Cir. 1993). These notes further state that
“[i]f the United States has a need for the property in an inves-
tigation or prosecution, its retention of the property generally
is reasonable.” Fed. R. Crim. P. 41, Advisory Committee
Notes to 1989 Amendments (referring to then-existing Rule
41(e)). In United States v. Ramsden, we stated that “[t]he
United States’ retention of the property generally is reason-
able if it has a need for the property in an investigation or
prosecution.” 2 F.3d at 326; see also United States v. Fitzen,
80 F.3d 387, 388 (9th Cir. 1996) (“Generally, a Rule 41(e)
motion is properly denied ‘if . . . the government’s need for
the property as evidence continues.’ ” (quoting United States
v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)). The government
stated in its briefs and at oral argument that it has a continuing
need for the seized property in connection with its ongoing
investigation into the distribution of illegal steroids in profes-
sional baseball. Judge Mahan’s order did not address this gov-
ernment need. At a minimum, a remand is warranted to
develop this issue in the district court in the first instance.
Furthermore, I would find that the government’s conduct in
this case is not sufficiently egregious, in light of our case law,
to warrant an order that the government return the seized
property without retaining copies for its investigatory purposes.7
7
The Advisory Committee Notes to Rule 41 state that the rule “avoids
an all or nothing approach whereby the government must either return
records and make no copies or keep originals notwithstanding the hardship
to the owner.” Fed. R. Crim. P. 41, Advisory Committee Notes to 1989
Amendments. Although these notes state that there may be some circum-
stance under which “equitable considerations might justify an order
requiring the government to return or destroy all copies of records that it
has seized,” they further state that the rule, as amended in 1989, “contem-
plates judicial action that will respect both possessory and law enforce-
ment interests.” Id.11906 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Our decision in Ramsden, 2 F.3d 322, is illustrative. There,
deputy U.S. marshals executed a provisional arrest warrant for
Ramsden at his hotel room. The marshals asked Ramsden to
enter the hallway and then arrested him. When the marshals
accompanied Ramsden back into the hotel room to retrieve
some clothes, the marshals seized documents contained in a
closed briefcase. They made this warrantless seizure despite
having the opportunity to obtain a search warrant and con-
ceded before the district court “that the search and seizure
violated Ramsden’s Fourth Amendment rights.” Id. at 325.
We held that the district court properly invoked its equitable
jurisdiction under then-numbered Rule 41(e) and upheld the
district court’s conclusion that the marshals had demonstrated
a callous disregard for Ramsden’s constitutional rights. Id. at
325-27. Although we affirmed the district court’s order that
the government return the original documents to prevent
Ramsden from suffering harm to his business, we allowed the
government, in what the majority here calls a “compromise
solution,” to retain a copy of the documents for ongoing
investigative purposes. See id. at 327; see also Maj. Op. at
11884.
Assuming that the government overreached in this case, its
conduct was not as egregious as the marshals’ conduct in
Ramsden, where the government was permitted to retain a
copy of the documents ordered to be returned. Unlike the war-
rantless search conducted in Ramsden, the government sought
and received valid search warrants in this case, but then argu-
ably erred in its execution of the warrants. Under these cir-
cumstances, Ramsden counsels a compromise solution as
contemplated by Rule 41(g).
I must express several concerns regarding the breadth of
the majority’s new guidelines that purport to govern future
digital evidence cases. See Maj. Op. at 11892. Although I can
appreciate the majority’s desire to set forth a new framework
with respect to searches of commingled electronic data, I am
wary of this prophylactic approach. The majority’s prescrip-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11907
tions go significantly beyond what is necessary for it to
resolve this case. Accordingly, its protocols are dicta and
might be best viewed as a “best practices” manual, rather than
binding law.
Furthermore, the majority’s new guidelines are troubling
because they are overbroad and restrict how law enforcement
personnel can carry out their work without citing to legal
authority that would support these new rules. For example,
the majority does not explain why it is now appropriate to
grant heightened Fourth Amendment protections in the con-
text of searches of computers based on the nature of the tech-
nology involved when we have previously cautioned just the
opposite. See Giberson, 527 F.3d at 887-88 (declining to
impose heightened Fourth Amendment protections in com-
puter search cases as a result of a computer’s ability to store
large amounts of potentially intermingled information, and
stating that such heightened protections must be “based on a
principle that is not technology-specific”). This is a departure
from our prior decisions that warrants explanation.
In addition, the majority essentially jettisons the plain view
doctrine in digital evidence cases, requiring that magistrate
judges “insist that the government waive reliance upon the
plain view doctrine in digital evidence cases.”8 Maj. Op. at
11892. It does so, however, without explaining why our case
law or the Supreme Court’s case law dictate or suggest that
the plain view doctrine should be entirely abandoned in digi-
tal evidence cases. Instead of tailoring its analysis of the plain
view doctrine to the facts of this case, the majority takes the
bold step of casting that doctrine aside. Rather than adopting
8
Although the majority’s guideline is framed in terms of what a magis-
trate “should insist,” the practical effect of this guideline is to prescribe a
mandatory procedure. The majority frames this first guideline in arguably
permissive terms, but requires magistrate judges to “be vigilant in observ-
ing the guidance” set forth in the majority opinion. Maj. Op. at 11891-92.
It can hardly be said that a magistrate judge will cast aside this guideline
in light of the majority’s warning.
11908 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
this efficient but overbroad approach, the prudent course
would be to allow the contours of the plain view doctrine to
develop incrementally through the normal course of fact-
based case adjudication. A measured approach based on the
facts of a particular case is especially warranted in the case of
computer-related technology, which is constantly and quickly
evolving. Accordingly, I cannot join in the majority’s
approach regarding application of the plain view doctrine to
digital evidence cases.
Moreover, the majority offers no support for its protocol
requiring the segregation of computer data by specialized per-
sonnel or an independent third party. See Maj. Op. at
11880-81, 11892. Setting aside the omission of supporting
legal authority, this new ex ante restriction on law enforce-
ment investigations also raises practical, cost-related con-
cerns. With respect to using an in-house computer specialist
to segregate data, the majority’s guideline essentially requires
that law enforcement agencies keep a “walled-off,” non-
investigatory computer specialist on staff for use in searches
of digital evidence. To comply, an agency would have to
expand its personnel, likely at a significant cost, to include
both computer specialists who could segregate data and foren-
sic computer specialists who could assist in the subsequent
investigation. The alternative would be to use an independent
third party consultant, which no doubt carries its own signifi-
cant expense. Both of these options would force law enforce-
ment agencies to incur great expense, perhaps a crushing
expense for smaller police departments that already face tre-
mendous budget pressures.
I disagree with the majority’s decision to affirm the Mahan
Order. I also disagree with the majority’s broad guidelines for
searches in future digital evidence cases, which are not
explained in reference to existing case law and go far beyond
what the majority needs to resolve this case.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11909
III.
Finally, I would vacate and remand the Illston Quashal.
Judge Illston quashed the two subpoenas served on Quest and
CDT on the grounds that their issuance constituted harass-
ment and abuse of the grand jury process and was unreason-
able under Federal Rule of Criminal Procedure 17(c). In
essence, she stated two reasons for quashing the subpoenas:
(1) the subpoenas “served as an unreasonable insurance poli-
cy” for materials that the government had already seized
through the use of search warrants; and (2) the government
impermissibly executed a series of search warrants in three
different districts once it learned that CDT would move to
quash the January and March subpoenas, which was a “tacti-
cal decision” designed to prevent Judge White from ruling on
the earlier-served subpoenas. Judge Illston stated that the gov-
ernment’s tactical decision was unreasonable and constituted
harassment.
Judge Illston’s decision was based, in part, on the legal
error that the government may not simultaneously seek the
same information through grand jury subpoenas and search
warrants. The majority agrees that this is legal error. See Maj.
Op. at 11886 (“It isn’t per se unreasonable to conduct an
investigation using both search warrants and subpoenas.”).
Our case law allows the simultaneous use of warrants and
subpoenas in light of the substantial differences between these
devices, e.g., the differing levels of intrusion on a person’s
privacy, the ability and manner of challenging each device.
See In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926
F.2d 847, 854-55 (9th Cir. 1991) (upholding the validity of
grand jury subpoenas served at the same time as “functionally
equivalent” search warrants, where officers allegedly sought
to enforce the subpoenas through immediate seizure of the
materials at issue). Accordingly, Judge Illston’s conclusion
that the subpoenas were unreasonable is infected by her mis-
apprehension that the law did not provide for the simulta-
neous use of warrants and subpoenas.
11910 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
This legal error also underlies Judge Illston’s determination
that the government made an unreasonable tactical decision to
pursue search warrants in different districts in an attempt to
“prevent” Judge White from ruling on earlier-issued subpoenas.9
But, as the preceding discussion indicates, the government
was entitled to seek parallel search warrants and subpoenas,
and the use of those devices is judged by different standards.
Therefore, as the three-judge panel majority concluded, the
government could have sought the search warrants notwith-
standing the motion to quash the subpoenas pending before
Judge White, and even if Judge White had quashed the sub-
poenas. See Comprehensive, 513 F.3d at 1114-15.
In addition, Judge Illston gleaned the government’s intent
behind the issuance of the subpoenas—in her view to harass
CDT and Quest—based on its contemporaneous seeking of a
series of search warrants. The hearing transcript indicates that
Judge Illston was focused on the government’s motivations
and placed the burden on the government to provide “a sub-
stantial explanation” for both executing search warrants and
issuing subpoenas, implying that doing so gave rise to a pre-
sumption of bad faith. From the existing record, it is difficult
to discern the government’s actual motive behind issuing the
May 6th subpoenas. In any event, as indicated, the govern-
ment was not obligated to provide an explanation for its deci-
sion to use two types of investigatory tools at its disposal.
Finally, the prejudice to the government from Judge Ills-
ton’s misconception of the law may be seen in her failure to
analyze the propriety of the subpoenas under the correct legal
standard. A district court may quash or modify a subpoena “if
compliance would be unreasonable or oppressive.” Fed. R.
Crim. P. 17(c)(2) (emphasis added); see also United States v.
Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005). For example,
9
As noted in the original panel majority’s opinion, Judge Illston made
no finding that the subpoenas were “oppressive.” Comprehensive Drug
Testing, 513 F.3d at 1114 n.52.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11911
a district court may quash a subpoena when compliance
would destroy a valid privilege, see Bergeson, 425 F.3d at
1225, when the subpoena seeks material that is outside of the
scope of a legitimate grand jury investigation, see In re Grand
Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 854, or
when the subpoena would compel a person to incriminate
himself or would violate a legitimate privacy interest of the
person served, see United States v. Calandra, 414 U.S. 338,
346 (1974).
Here, Judge Illston focused on the contemporaneous use of
subpoenas and search warrants, which is not improper, and
the government’s related conduct,10 but did not identify what
aspect of the subpoenas would render compliance “unreason-
able or oppressive.”11 She did not, for example, base her deci-
sion on a finding that the subpoenas exceeded the legitimate
scope of the grand jury’s investigation or that compliance
would violate some valid privilege. Judge Illston’s reasons for
quashing the subpoenas were infected by the erroneous view
that the government is not entitled to employ parallel warrants
and subpoenas. As a result, the Illston Quashal should be
vacated and remanded for an explanation that is not based on
that premise.
IV.
I disagree with the majority’s conclusion that the Cooper
10
In the context of a charge of harassment, the Third Circuit has held
that the repeated service of grand jury subpoenas on an individual does not
constitute harassment that justifies quashing a subpoena. See In re Grand
Jury Matter, 802 F.2d 96, 102 (3d Cir. 1986) (citing In re Grand Jury
Applicants, C. Schmidt & Sons, Inc., 619 F.2d 1022, 1028-29 (3d Cir.
1980)); cf. United States v. Bell, 902 F.2d 563, 566 (7th Cir. 1990) (hold-
ing that grand jury witness could not refuse to testify on the grounds that
the government allegedly already had the answers to the questions to be
asked of the witness).
11
Indeed, Quest complied with the subpoena served on it. See Compre-
hensive Drug Testing, 513 F.3d at 1094.
11912 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Order and the Illston Order are entitled to issue preclusive
effect in connection with our review of the Mahan Order. On
the merits of the Mahan Order, I would reverse Judge
Mahan’s decision because the government acted reasonably in
searching the Tracey directory. Even assuming that the gov-
ernment overreached, the district court’s order for the whole-
sale return of property failed to account for the government’s
ongoing need for the information, a valid consideration when
evaluating a motion under Rule 41(g). Finally, because Judge
Illston appears to have misapprehended the propriety of the
government using both warrants and subpoenas, I would
vacate the Illston Quashal and remand for further explanation
or proceedings. Accordingly, I respectfully dissent.
BEA, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s analysis of the issues presented
in this case, as applied to this case only.1 The government
failed to follow either the procedures of United States v.
Tamura, 694 F.2d 591 (9th Cir. 1982), or those outlined in the
approved warrant, which would have required the government
to conduct its search of the seized intermingled computer files
by using computer technicians, not case investigators.
Further, I would affirm the Cooper, Mahan, and Illston
orders because the seized names at issue were not in “plain
view” when seized. The plain view doctrine requires evidence
of illegality to be “immediately apparent” to the searching
investigator. Horton v. California, 496 U.S. 128, 139-140
(1990). Here, the portion of the spreadsheet (located within
the “Tracey” directory) which contained the drug testing
1
I agree, however, with Judge Callahan and Judge Ikuta that the later-
filed Cooper Order does not have preclusive effect on the earlier-filed
Mahan Order. That said, the majority reaches the correct result in this case
even if the Cooper order is not given preclusive effect.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11913
results, contained both the names of the ten ballplayers who
were the subjects of the warrant and the names of many other
ballplayers for whom the government did not have probable
cause to search and seize. The spreadsheet did not, however,
initially display on the agent’s computer screen the results of
steroid testing as to the ballplayers. To see the spreadsheet
column containing the results, the agent had to scroll right on
the spreadsheet, on to another screen. However, once he
scrolled to the right, the agent could see not only the testing
results for the targeted ten, but also the results for all of the
other ballplayers whose results were listed on the spreadsheet.
A valid “plain view” seizure of items that are truly “imme-
diately apparent” would have required the agent to display
only the testing results for the ballplayers for whom he had a
warrant, and seize only evidence of additional illegality if
such evidence is “immediately apparent” as part of the segre-
gated results for those ballplayers. For instance, the agent
could have selected the spreadsheet rows for the ten ballplay-
ers for which he had a warrant, then copied and pasted those
rows into a blank spreadsheet.2 If he had done so, he would
2
The record reveals the spreadsheet was in Microsoft Excel format.
Agent Novitsky viewed the spreadsheet on or about April 8, 2004. By that
time, Microsoft Excel was the most widely used spreadsheet application
available for Microsoft Windows and Mac OS X operating systems. See
http://en.wikipedia.org/wiki/Microsoft_Excel. Microsoft Excel became
commercially available in 1985, and currently sells for $229 retail. See
http://office.microsoft.com/en-us/excel/FX102464391033.aspx.
In Microsoft Excel, to avoid scrolling to the right and viewing the
results column for all of the ballplayers instead of just for the targeted ten,
all Agent Novitsky had to do was the following: While depressing and
holding the Control key, he would click on the numbers on the left side
of the spreadsheet that corresponded to the rows that contain the names of
the targeted ballplayers. The rows containing those ballplayers’ names
would become highlighted. Novitsky would then release the Control key.
He would next go to the top of the screen, click on the “Edit” menu, and
choose “Copy.” Then, he would click on the “File” menu at the top of the
screen, and choose “New Blank Workbook.” When the new blank spread-
11914 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
have seen only those drug testing results for which he had a
warrant.
However, as the government conceded at oral argument
before Judge Mahan, rather than limiting the scope of his
search in any way, or seizing only that evidence of illegality
“immediately apparent” on the first screen he called up, Agent
Novitsky intentionally and volitionally scrolled right on the
spreadsheet, without first having segregated only the respon-
sive files, “to see if there was anything above and beyond that
which was authorized for seizure in the initial warrant.” This
demonstrates the seized evidence of illegality was not “imme-
diately apparent” nor in “plain view.”
Thus, I agree with the majority and vote to affirm the dis-
trict courts’ orders. I write separately, however, because I can-
not concur in the proposed guidelines established by the
majority opinion, for three reasons.
I
First, the proposed guidelines would require police to for-
swear any use of evidence found in “plain view” if searching
computers with intermingled files. Such a rule departs from
existing Supreme Court precedent regarding the “plain view”
exception to the Fourth Amendment’s warrant requirement,
and do so without a single citation to the Supreme Court’s
extensive precedent on the subject or an explanation why that
precedent no longer applies. In its seminal discussion of the
“plain view” exception in Coolidge v. New Hampshire, 403
sheet appeared on the screen, he would click on the “Edit” menu in the
new blank spreadsheet and choose “Paste.” The rows of the ten targeted
ballplayers selected in the original spreadsheet and only those rows—
would appear in the new spreadsheet. Novitsky would then scroll to the
right in the new blank spreadsheet and would see only the testing results
for the targeted ballplayers for whom he had probable cause to search and
seize.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11915
U.S. 443, 464-466 (1971), overruled in part on other grounds,
Horton v. California, 496 U.S. 128 (1990), a plurality of the
Supreme Court explained that:
It is well established that under certain circum-
stances the police may seize evidence in plain view
without a warrant. . . .
An example of the applicability of the ‘plain view’
doctrine is the situation in which the police have a
warrant to search a given area for specified objects,
and in the course of the search come across some
other article of incriminating character. . . .
What the ‘plain view’ cases have in common is that
the police officer in each of them had a prior justifi-
cation for an intrusion . . . . The doctrine serves to
supplement the prior justification—whether it be a
warrant for another object, hot pursuit, search inci-
dent to lawful arrest, or some other legitimate reason
for being present unconnected with a search directed
against the accused—and permits the warrantless
seizure. Of course, the extension of the original justi-
fication is legitimate only where it is immediately
apparent to the police that they have evidence before
them; the ‘plain view’ doctrine may not be used to
extend a general exploratory search from one object
to another until something incriminating at last
emerges.
(emphasis added); see also Horton, 496 U.S. at 137, 139-140(affirming that Coolidge is binding precedent).
It may be, as the majority asserts, that it is more difficult—
perhaps significantly so—in the electronic search context to
ensure a warrant-based search of seized intermingled files is
“as limited as possible” before the police may employ the
“plain view” exception to seize materials not described in the
11916 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
warrant. Coolidge, 403 U.S. at 467. But that gives us no legal
ground to eliminate in its entirety a constitutional rule estab-
lished by the Supreme Court, when to be applied to computer
searches.
Rather, because the Court has not yet drawn a distinction
between “plain view” seizures in a motel room or automobile,
on the one hand, and a computer on the other, we must follow
the “plain view” exception, that is until the Supreme Court
decides otherwise; our task is to ensure the search is as lim-
ited as possible. Given the numerous risks to privacy the
majority identifies, we ought to require a magistrate to give
exacting scrutiny to the scope of the search, so to ensure the
search is as narrowly tailored as possible to the goal of seizing
evidence specifically described in a warrant. The magistrate
must ensure that a search for particularized evidence based on
probable cause and authorized in a warrant does not devolve
into the kind of general search the police conducted here. To
this end, the ideas behind some of the majority’s guidelines
are sensible: specialized personnel, and not investigators,
ought to conduct electronic searches, and the search protocol
should be designed to uncover only the information for which
the government has probable cause. In United States v.
Tamura, 694 F.2d 591 (9th Cir. 1982), we held the magistrate
should oversee the search process; perhaps the instant case
counsels that such oversight ought to be quite close. But iden-
tifying these important Fourth Amendment goals does not
permit us to disregard the Supreme Court’s jurisprudence on
“plain view” as to computer searches simply because we pre-
fer policies that conflict with the rules the Court has estab-
lished.
II
Second, the establishment of guidelines (which are little
more than dicta but are nonetheless binding precedent in this
circuit, see Brand X Internet Servs. v. FCC, 345 F.3d 1120,
1130 (9th Cir. 2003)) in the manner chosen by the majority
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11917
goes against the grain of the common law method of reasoned
decisionmaking, by which rules evolve from cases over time.
This is particularly troublesome in a rapidly developing area
of law such as this one, as computer search capabilities
improve exponentially by the month.
I recognize that although we lack the competitive advan-
tages of Congress to set out specific, bright-line rules through
deliberation and testimony from interested parties, it is our
obligation, and our obligation alone, to determine what consti-
tutes unreasonable searches and seizures. See Marbury v.
Madison, 5 U.S. 137, 177-78 (1803) (“It is emphatically the
province and duty of the judicial department to say what the
law is.”). That said, precisely because we lack those advan-
tages of Congress, we must treat our establishment of bright-
line rules with great care and deliberation; at the very least,
amici should have an opportunity to weigh in on the dramatic
doctrinal shift the majority’s guidelines contemplate. Here,
there has been no briefing whatsoever on whether the plain
view exception should no longer apply to computer searches.
By focusing on the “plain view” exception as applied to
this case, rather than issuing bright-line diktats, we would be
employing the traditional common law method of deciding
novel questions of law, which method recognizes the limita-
tions of human ingenuity and wisdom, by limiting our deci-
sions as precisely as possible to the case at hand. The
common law method permits us to evaluate different cases
over time to discern the most sensible rule given the technolo-
gies that develop; I’m afraid the majority opinion short-
circuits this process in an area where the capabilities of com-
puter software are still rapidly evolving.3
3
Further, if the majority’s guidelines are now the law of our circuit, they
conflict with the more cautious, common law-style approach of the Tenth
Circuit, which has implicitly recognized the “plain view” exception exists
in the context of electronic searches but has not delineated its precise
scope. See United States v. Carey, 172 F.3d 1268, 1274 (10th Cir. 1999)
11918 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
III
Third, one reason for adopting a more deliberative, com-
mon law approach is because the majority’s guidelines raise
substantial practical problems, which the opinion fails to
address, with respect to the consequences of the bright line
rules the majority establishes. For example, the Supreme
Court has held that if evidence seized by police is contraband,
it can never be returned:
The Fourth Amendment was designed to protect
both the innocent and the guilty from unreasonable
intrusions upon their right of privacy while leaving
adequate room for the necessary processes of law
enforcement. The people of the United States
insisted on writing the Fourth Amendment into the
Constitution because sad experience had taught them
that the right to search and seize should not be left
to the mere discretion of the police, but should, as a
matter of principle, be subjected to the requirement
of previous judicial sanction wherever possible. . . .
[Thus, i]t was error [in this case] to refuse petition-
ers’ motion to exclude and suppress the property
which was improperly seized. But since this property
was contraband, they have no right to have it
returned to them.
(“Although the question of what constitutes ‘plain view’ in the context of
computer files is intriguing and appears to be an issue of first impression
for this court, and many others, we do not need to reach it here. Judging
this case only by its own facts, we conclude the items seized were not
authorized by the warrant. Further, they were in closed files and thus not
in plain view.”). Here, in my view, the testing results of the ballplayers
other than the targeted ten were also in “closed files and thus not in plain
view.” The investigating officer “opened” the files through his volitional
act of scrolling to the right on the spreadsheet, an act he knew would pro-
duce testing results not only for the targeted ten, but also for the remaining
ballplayers listed on the spreadsheet. We do not really have to go beyond
Carey.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11919
Trupiano v. United States, 334 U.S. 699, 709-710 (1948)
(emphasis added), rev’d in part on other grounds, United
States v. Rabinowitz, 339 U.S. 56 (1950), overruled in part on
other grounds, Chimel v. California, 395 U.S. 752 (1969).
Child pornography is contraband,4 and there is no right for
a citizen ever to possess it. The opinion does not explain
whether a “third party” computer technician—as the majority
requires the police to hire if they will not voluntarily
foreswear use of the “plain view” exception—who comes
across child pornography yet refuses to report it immediately,
or returns it as part of data seized and searched, can himself
be held liable for the possession of child pornography. Indeed,
the opinion does not explain whether the police must destroy
illegally seized contraband that implicates a third party—a
participant in the contraband pornography still or video—who
does not have a property interest in the illegally seized evi-
dence and, therefore, would not have standing to suppress its
use in evidence. Such is the problem with issuing bright line
rules at the expense of developing the law through the com-
mon law method.
Perhaps the test should be whether, under the facts of the
particular case, the police have executed the search warrant in
a “narrowly tailored” manner. For example, in the electronic
search context, a dotcom start-up company may well create
software next week or next month that can accurately search
through electronic storage media to report only the handful of
files most likely responsive to a warrant.5 Then a computer
specialist conducting the search would be able to open a small
number of potentially responsive files, selected by the soft-
4
See United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999).
5
See, e.g., Verne Kopytoff, Google Reveals Tool That Seeks Similar
Images, S.F. CHRON., April 21, 2009, at C3 (noting that Google “intro-
duced an experimental tool Monday [April 20, 2009] that allows users to
narrow their search results to photographs that are alike in terms of their
content, perspective and color”).
11920 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ware, instead of thousands. In a perfect world, the specialist
would find the responsive file on the first click; then, the spe-
cialist must stop. But suppose the responsive file is the second
file opened, and the first file contains an image of child por-
nography. According to the majority, the specialist must
ignore the child pornography and cannot use it as probable
cause for a future search warrant. But why should that be,
given the limitations on the scope of the search the software
put in place? Are we certain that such a search automatically
and always fails to comport with the Constitution?
Rather, it is more sensible to permit the specialist to report
the child pornography image to a police investigator, who
may seize the file to use as evidence at a trial. The investiga-
tor may also opt to return to the magistrate and explain that,
although the government employed the narrowest search pro-
tocol possible, the specialist unavoidably “came across”6 con-
traband, the illegality of which was “immediately apparent.”7
The magistrate ought to have discretionary power to expand
the warrant to permit a search for additional child pornogra-
phy, after deciding whether the specialist’s search of the data
that uncovered the first child pornography file was truly based
on the most limited possible search parameter, or if the spe-
cialist took some volitional step to view the data beyond what
was necessary to procure the evidence in the warrant. If the
latter, the seized file would be subject to a motion to suppress,
or, if non-contraband, a motion for return of evidence under
Rule 41(g). In general, the magistrate is best suited, and is
perfectly capable, of deciding whether a “plain view” seizure
is based on a sufficiently narrow search of seized intermin-
gled files to comport with the Fourth Amendment, given the
specific facts of the case.
***
6
Coolidge, 403 U.S. at 465.
7
Id. at 466.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11921
For the reasons discussed above, I concur in the majority’s
analysis of the facts and law as applied to this case. I do not,
however, concur in the majority’s proposed guidelines. It
would be nice to give magistrates clear “guidance” when pos-
sible. But that is true in all cases, and yet we still approach
that goal by issuing rulings on the facts before us, and nothing
more.
IKUTA, Circuit Judge, with whom Circuit Judge
CALLAHAN joins, dissenting:
I agree with Judge Callahan’s dissenting opinion, and I join
it in full. I write separately to underline Judge Callahan’s con-
cern that “the return of property pursuant to Rule 41(g) is not
necessarily the appropriate relief in this case.” Dissent at
11905. Even if the government had violated the plaintiffs’
Fourth Amendment rights, the remedy for the alleged viola-
tion imposed by the Nevada district court (Judge Mahan), and
upheld by the majority, is both unprecedented and in conflict
with the past several decades of the Supreme Court’s Fourth
Amendment jurisprudence. Although a party can seek the
return of property under Rule 41(g), and the exclusionary rule
may prevent illegally seized evidence from being used for
particular purposes during criminal proceedings, ordering the
government to expunge all the information it obtained from a
search or seizure of property is inconsistent with the limited
scope of the modern exclusionary rule. But that is just what
the district court’s order did: it directed the government not
only to return the property seized during its search of Quest’s
facilities, but to destroy all traces of information derived from
that search. I therefore dissent from the majority’s affirmance
of this order.
Because there is no criminal proceeding pending against
the plaintiffs in this case, we analyze their motion for return
11922 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
of property as an equitable analog to a motion under Rule 41(g).1
See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993)
(recognizing that “district courts have the power to entertain
motions to return property seized by the government when
there are no criminal proceedings pending against the
movant”). Such pre-indictment Rule 41 motions “are treated
as civil equitable proceedings,” id., arising under the courts’
“supervisory jurisdiction.” Richey v. Smith, 515 F.2d 1239,
1245 (5th Cir. 1975). The Supreme Court has explained that
a court’s authority to suppress evidence, whether under the
court’s supervisory jurisdiction or under those provisions of
the federal rules of criminal procedure expressly providing for
suppression, is limited by the scope of the exclusionary rule.
See United States v. Payner, 447 U.S. 727, 735-36 (1980)
(holding that a federal court could not exercise its equitable
supervisory powers to suppress evidence in circumstances
where the exclusionary rule did not allow such suppression);
United States v. Calandra, 414 U.S. 338, 348 n.6 (1974)
(holding that a motion for the return of property “does not
constitute a statutory expansion of the exclusionary rule”); see
also Grimes v. Comm’r, 82 F.3d 286, 290 (9th Cir. 1996)
(holding that Rule 41 does not provide movants “any protec-
tion beyond that provided by the exclusionary rule”). Accord-
ingly, courts must follow the Supreme Court’s exclusionary
rule jurisprudence when fashioning suppression remedies
under Rule 41(g) or its equitable counterpart.
1
Federal Rule of Criminal Procedure 41(g), which was previously codi-
fied at Rule 41(e), states as follows:
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.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11923
Over the past few decades, the Supreme Court has refined
the rules governing suppression of evidence due to the gov-
ernment’s Fourth Amendment violations and made clear that
suppression is a circumstance-specific remedy. As the Court
has recently explained:
Suppression of evidence . . . has always been our last
resort, not our first impulse. The exclusionary rule
generates substantial social costs, which sometimes
include setting the guilty free and the dangerous at
large. We have therefore been cautious against
expanding it, and have repeatedly emphasized that
the rule’s costly toll upon truth-seeking and law
enforcement objectives presents a high obstacle for
those urging its application. We have rejected indis-
criminate application of the rule, and have held it to
be applicable only where its remedial objectives are
thought most efficaciously served—that is, where its
deterrence benefits outweigh its substantial social
costs.
Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal alter-
ations, quotation marks, and citations omitted) (citing United
States v. Leon, 468 U.S. 897, 907 (1984), and Calandra, 414
U.S. at 348, among others); see also Herring v. United States,
129 S. Ct. 695, 700 (2009) (“We have repeatedly rejected the
argument that exclusion is a necessary consequence of a
Fourth Amendment violation.” (citing cases)).
Since Mapp v. Ohio, 367 U.S. 643 (1961), the Court has
adopted numerous exceptions to the exclusionary rule, such as
the “good faith” exception first enunciated in Leon. Most sig-
nificant for this case, the Court has held that even illegally
seized evidence may be used for a variety of purposes. See
Calandra, 414 U.S. at 351-52 (holding that the exclusionary
rule does not apply to grand jury proceedings); see also
United States v. Havens, 446 U.S. 620, 627-28 (1980) (hold-
ing that evidence obtained in violation of the Fourth Amend-
11924 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ment can be used to impeach a defendant’s testimony at trial);
Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (holding that
evidence obtained in violation of one person’s Fourth Amend-
ment rights can be used against another person whose Fourth
Amendment rights were not violated by the search or seizure).
Accordingly, under the Supreme Court’s precedents, remedies
for Fourth Amendment violations must be carefully tailored
to fit both the underlying violation and the government’s
legitimate competing interests in using the illegally seized
evidence. See Grimes, 82 F.3d at 291 (“Because the govern-
ment may now use illegally obtained evidence in a variety of
situations, it should be permitted to retain copies of such evi-
dence absent extreme circumstances not apparent from this
record.”); see also In re Search of Law Office, 341 F.3d 404,
412 (5th Cir. 2003) (noting that changes in the Court’s exclu-
sionary rule jurisprudence cast doubt on earlier opinions hold-
ing that victims of an unlawful search had right to obtain
return of all copies of documents).
The majority acknowledges that a court’s suppression
power is “limited by the exclusionary rule,” but contends that
Payner and Calandra are inapt because they involved “the
suppression, not the return, of seized materials,” and in this
case “no motion to suppress . . . is before us.” Maj. op. at
11882-83. But the majority appears to misunderstand the
Nevada district court’s order. In conducting its search of the
Quest facility, the government seized urine specimens and
made copies of information maintained on Quest’s computers.
The first part of the district court’s order directs the govern-
ment to “return to moving party MLBPA . . . all materials
seized from Quest . . . other than materials relating to the ten
baseball players named in the original April 8 warrant.” This
part of the order applies only to the urine samples, the only
physical materials seized from Quest.2 The second part of the
2
It is uncertain whether even this part of the order constitutes an order
for return of property, rather than a suppression order, given that the
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11925
court’s order requires the government to “segregate, seal, and
make no further direct or indirect use of, all notes, summaries,
and other records of information seized from Quest on April
8 and May 6 relating to testing of persons other than the ten
baseball players named in the April 8 warrant.”3 This part of
the order applies to the copies the government made of
Quest’s computer files. Whether we use the label “sequestra-
tion,” as the majority does, maj. op. at 11885, or some other
term like “divestiture” or “expungement,” the substance of
this part of the order is the same: it required the government
to refrain from using information about the players, not to
return their property. A motion for return of property is a rem-
edy for a party “aggrieved by a deprivation of its property.”
In re Search of Kitty’s East, 905 F.2d 1367, 1375 (10th Cir.
MLBPA’s property interest in the urine samples is unclear. Unless “the
property in question is no longer needed for evidentiary purposes,” the
“movant bears the burden of proving . . . that he or she is entitled to lawful
possession of the property.” United States v. Martinson, 809 F.2d 1364,
1369 (9th Cir. 1987); accord Fed. R. Crim. P. 41, Notes of Advisory Com-
mittee on 1989 amendments (“The amended rule recognizes that reason-
able accommodations might protect both the law enforcement interests of
the United States and the property rights of property owners and hold-
ers.”). I am aware of no court which has held that bodily fluids voluntarily
given away, and held in possession by a third party, are owned by the
donee. Nor does the standard of lawful possession, as opposed to owner-
ship, resolve the matter. Quest had the urine samples, not the MLBPA, and
at oral argument the MLBPA’s attorney admitted that no contractual prop-
erty interest in the samples was granted by the laboratory. Finally, the
Nevada district court’s order instructed the government to surrender the
urine samples to a third-party laboratory, not return them to the MLBPA
or Quest. The majority’s reliance on the players’ “privacy interests” in the
urine samples, maj. op. at 11884, as opposed to their property interests,
simply highlights the fact that the majority is affirming a suppression
order.
3
The majority’s statement that the “uses the government may make of
the Quest evidence during a criminal proceeding must be decided in the
context of such a proceeding,” maj. op. at 11884, is inconsistent with the
language of the order, which by its terms precludes the government from
making any “further direct or indirect use” of the Quest information.
11926 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
1990) (emphasis added). Here, the Players Association is not
“aggrieved by the deprivation” of its property, maj. op. at
11884; it is aggrieved by the government’s possession of
inculpatory evidence.
Moreover, a successful motion for the return of property
does not prevent the government from continuing to use infor-
mation derived from the property or from later using the prop-
erty as evidence. See Fed. R. Crim. P. 41(g) (if a court grants
a motion for return of property, it may “impose reasonable
conditions to protect access to the property and its use in later
proceedings”). As we have explained:
If a district court determines that property has been
illegally seized, the proper question in deciding the
merits of a 41(e) motion is not whether the officers
acted in good faith, but whether returning the ille-
gally seized documents would be ‘reasonable under
all of the circumstances.’ If the government’s inves-
tigatory and prosecutorial interests can be served by
retaining copies of the documents, it is unreasonable
for the government to refuse to return original docu-
ments to the owner.
J.B. Manning Corp. v. United States, 86 F.3d 926, 928 (9th
Cir. 1996) (quoting Ramsden, 2 F.3d at 326-27) (internal cita-
tion and alteration omitted). Accordingly, even in ordering a
return of the urine samples, the district court should have
imposed “reasonable conditions,” such as allowing the gov-
ernment to keep part of the samples while returning the rest
to Quest or the players, in order to “protect access to the prop-
erty and its use in later proceedings.” Fed. R. Crim. P. 41(g).
Nothing else would have been necessary, since Quest retained
the original records (the government took copies) and Quest
never owned the government’s notes in the first place.
Instead, the district court’s order denies the government use
of evidence which, at least according to the majority and the
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11927
district court, was obtained in violation of the Fourth Amend-
ment. The district court’s “sequestration” remedy differs from
a typical suppression remedy only because it is broader; it cat-
egorically prohibited the government from using the seized
evidence for any purpose, despite the Supreme Court’s clear
instruction that suppression must be tailored to a specific pur-
pose. See Calandra, 414 U.S. at 348 (“[T]he exclusionary rule
has never been interpreted to proscribe the use of illegally
seized evidence in all proceedings or against all persons.”).
Thus the essence of the majority’s position is that the district
court’s “sequestration” remedy is not subject to the Supreme
Court’s rule against broad and categorical suppression reme-
dies so long as it is labeled an order for “return of property.”
Like the district court, the majority cites no precedent for
such a “sequestration” remedy. Ramsden, quoting the Advi-
sory Committee notes to the 1989 amendments to Rule 41,
merely left open the possibility that, “in some circumstances
. . . equitable considerations might justify an order requiring
the government to return or destroy all copies of records it has
seized.” 2 F.3d at 327 (alteration omitted). As Judge Calla-
han’s dissent points out, Ramsden did not decide this ques-
tion; although we determined the government acted with
“callous disregard for Ramsden’s constitutional rights,” we
concluded that the government was justified in “copying the
documents and turning them over to British authorities” while
returning the originals to Ramsden so that he could run his
business. Id. Ramsden’s dicta must bow to Supreme Court
precedent. Thus although I acknowledge that Ramsden did not
rule out the possibility of a “sequestration” remedy, I con-
clude that the Supreme Court’s recent exclusionary rule juris-
prudence prevents us from expanding the district courts’
suppression authority so broadly.
In this case, assuming the government’s seizure of evidence
of criminal wrongdoing violated the Fourth Amendment
rights of the parties, Supreme Court precedent may support an
order precluding the government from using such evidence in
11928 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
subsequent criminal proceedings against the players. But
ordering the government to forget that a large number of indi-
viduals have engaged in criminal behavior runs directly con-
trary to the Supreme Court’s modern Fourth Amendment
jurisprudence and fails to consider the “substantial social
cost” of the exclusionary rule. Leon, 468 U.S. at 907. At the
very least, preventing the government from using any evi-
dence derived from the search of Quest’s facilities cannot be
reconciled with Calandra, which would allow the use of ille-
gally seized evidence in future grand jury proceedings. See
414 U.S. at 351-52.
By affirming the Nevada district court’s order, whatever
the label, the majority ignores the Supreme Court’s direction
that there is no such thing as a categorical suppression rem-
edy. For this reason, as well as the reasons expressed in Judge
Callahan’s dissent, I respectfully dissent.