United States v. Comprehensive Drug Testing, Inc.

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
No. 05-10067
v.
 D.C. No.
COMPREHENSIVE DRUG TESTING, MISC-04-234-SI
INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
MAJOR LEAGUE BASEBALL PLAYERS 
ASSOCIATION,
Petitioner-Appellee, No. 05-15006
v.  D.C. No.
CV-04-00707-JCM
UNITED STATES OF AMERICA,
Respondent-Appellant.

Appeal from the United States District Court
for the Southern District of Nevada
James Mahan, District Judge, Presiding
19783
19784 UNITED STATES v. COMPREHENSIVE DRUG TESTING
IN RE: SEARCH WARRANTS EXECUTED 
ON APRIL 8, 2004 AT CDT, INC.,
No. 05-55354
SEAL 1,
Plaintiff-Appellant,  D.C. No.
CV-04-02887-FMC
v.
OPINION
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
November 15, 2005—San Francisco, California
Filed December 27, 2006
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Thomas
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19789
COUNSEL
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, argued the cause for defendant-appellant
United States of America; United States Attorney Kevin V.
Ryan, Appellate Chief Hannah Horsley, Assistant United
States Attorney Barbara J. Valliere, San Francisco, California;
and Assistant United States Attorneys Matthew A. Parrella,
Ross W. Nadel, Jeffrey D. Nedrow, Carter M. Stewart, San
Jose, California, were on the briefs.
Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, Cali-
fornia, argued the cause for movants-appellees Comprehen-
sive Drug Testing, Inc., and Major League Baseball Players
Association; Ethan A. Balogh, Keker & Van Nest, LLP, San
Francisco, California, and David P. Bancroft and Jeffrey C.
Hallam, Sideman & Bancroft, LLP, San Francisco, California,
were on the brief.
19790 UNITED STATES v. COMPREHENSIVE DRUG TESTING
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the United States may retain evi-
dence it seized from Major League Baseball’s drug testing
administrator (and enforce an additional subpoena) as part of
an ongoing grand jury investigation into illegal steroid use by
professional athletes.
I
These three consolidated cases arise from the federal inves-
tigation of the Bay Area Lab Cooperative (“Balco”) and its
alleged distribution of illegal steroids to professional baseball
athletes. The investigation began in August 2002 and, over
the following several years, produced evidence—including
grand jury testimony—establishing probable cause to believe
that at least ten major league baseball players received illegal
steroids from Balco. Today we decide the government’s
appeals from the separate adverse orders of three different
district courts: (1) an order by Judge Florence-Marie Cooper
in the Central District of California, requiring the government
to return property seized from Comprehensive Drug Testing,
Inc. in Long Beach, California (“CDT”),1 (2) an order by
Judge James Mahan in the District of Nevada, requiring the
government to return property seized from Quest Diagnostics,
Inc. in Las Vegas, Nevada (“Quest”),2 and (3) an order by
Judge Susan Illston in the Northern District of California,
quashing the government’s May 6, 2004, subpoenas to CDT
and Quest that related to the grand jury sitting in San Fran-
cisco, California.
1
The courts also required the government to turn over all notes made by
agents who reviewed the challenged evidence.
2
Again, the government was also required to give up all notes made by
reviewing agents.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19791
A
As part of its investigation into Balco, the government in
November 2003 served a grand jury subpoena on Major
League Baseball (“MLB”),3 seeking drug testing information
for eleven players4 with connections to Balco. One month
later, MLB responded that it had no such information.
The government then reasoned that because CDT5 and Quest6
had tested urine samples from MLB players during 2003,
those entities—rather than MLB—had to possess the samples
and testing records in question. Therefore, the government
issued subpoenas both to CDT and to Quest, seeking drug
testing information for all MLB players. The subpoenas were
returnable on February 5, 2004, but the government extended
that date to March 4, 2004, after CDT and Quest promised not
to destroy or to alter any of the evidence requested.
Despite protracted negotiations, CDT and Quest resisted
producing any of the subpoenaed materials, explaining that
they would fight production of even a single drug test all the
3
“Major League Baseball,” an unincorporated association, consists of
two professional baseball leagues—the National League of Professional
Baseball Clubs and the American League of Professional Baseball Clubs.
4
The names of the players are under seal and are not disclosed in this
opinion.
5
CDT is a third-party administrator of “drug and alcohol testing pro-
grams” that was hired to oversee MLB’s drug use evaluation program. The
company includes “top experts in pharmacology, forensic toxicology, lab-
oratory management, medical review, legal, and administrative compli-
ance.” See Comprehensive Drug Testing: About Us, http://
www.cdtsolutions.com/about_us.html (last visited Nov. 10, 2006).
6
Quest offers laboratories that conduct “drugs of abuse testing and ther-
apeutic drug monitoring” with “the most advanced methodologies avail-
able.” See Quest Diagnostics: Diagnostic Testing & Services, http://
www.questdiagnostics.com/brand/business/b_bus_lab_index.html (last
visited Nov. 10, 2006). Quest’s laboratory in Las Vegas performed the
drug testing on the player specimens at issue in these consolidated appeals.
19792 UNITED STATES v. COMPREHENSIVE DRUG TESTING
way to the Supreme Court. Following further negotiations, the
government, believing that a narrower subpoena might be
effective, issued new subpoenas on March 3, 2004, seeking
documents related only to eleven7 players with Balco connec-
tions. These new subpoenas were returnable on April 8, 2004.
Two days before the new return date, the Major League
Baseball Players’ Association—the union representing ath-
letes who play for Major League Baseball8 —informed the
government that it intended to file a motion to quash the sub-
poenas. The following day, as promised, CDT and the Play-
ers’ Association filed such a motion in the Northern District
of California before United States District Judge Jeffrey
White.
B
After learning of the planned motion to quash, the govern-
ment applied on April 7 and April 8, 2004, for warrants to
search CDT’s Long Beach office and Quest’s Las Vegas labo-
ratory. Magistrate Judge Jeffrey Johnson issued a search war-
rant for the office in his jurisdiction, the Central District of
California, and Magistrate Judge Lawrence Leavitt issued a
search warrant for the laboratory in his jurisdiction, the Dis-
trict of Nevada.9 Affidavits submitted to support the warrants
noted that the information sought was already the subject of
7
The government later decided not to seek drug testing evidence related
to one of the eleven players, and on April 22, 2004, sent a letter to the
counsel for CDT withdrawing requests for documents related to that
player.
8
The testing records at issue in these cases were created pursuant to a
collective bargaining agreement between Major League Baseball and the
players of Major League Baseball (represented by the Major League Base-
ball Players’ Association).
9
The pursuit of search warrants in different districts was proper under
the applicable federal rule, which gives a magistrate judge the authority
“to issue a warrant to search for and seize a person or property located
within the district,” “to issue a warrant for a person or property outside the
district if the person or property is located within the district when the
warrant is issued but might move or be moved outside the district before
the warrant is executed,” or “in an investigation of domestic terrorism or
international terrorism . . . [to] issue a warrant for a person or property
within or outside that district.” Fed. R. Crim. P. 41(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19793
grand jury subpoenas and that a motion to quash was expected.10
Contrary to appellee’s arguments, the government never
claimed in its affidavits that any evidence was in danger of
being destroyed.11
The April 7 and April 8 warrants authorized the seizure of
drug test records and specimens for ten named Balco-
connected players, as well as “[a]ll manuals, pamphlets, book-
lets, contracts, agreements and any other materials detailing or
explaining” CDT’s or Quest’s “administration of Major
League Baseball’s drug testing program.”12 The warrants also
authorized the search of computer equipment, computer stor-
age devices, and—where an on-site search would be
impracticable—seizure of either a copy of all data or the com-
puter equipment itself. “[L]aw enforcement personnel trained
in searching and seizing computer data” (designated “com-
puter personnel”) were responsible for choosing the appropri-
ate course of action to capture the electronic data sought. If
seizure of all data or equipment was necessary, “appropriately
trained personnel” would review the data, retaining the evi-
dence authorized by the warrant and designating the remain-
der for return.
On the morning of April 8, 2004, Special Agent Jeff
Novitzky (the lead case agent) and eleven other federal agents
—including Computer Investigative Specialist Agent Joseph
Abboud—executed the search warrant for CDT’s Long Beach
office. Although CDT personnel were initially cooperative,
10
The affidavit for the search warrant in the District of Nevada advised
the court that Quest “intend[ed] to move to quash the subpoena.” Later,
that language was crossed out and replaced with a handwritten note: “A
motion to quash has been filed. 4.7.04,” followed by Judge Leavitt’s ini-
tials.
11
See infra Section III.A.2.
12
The April 8 warrant also expressly authorized the seizure of “corre-
spondence” and “e-mails” detailing or explaining Quest’s administration
of the drug testing program.
19794 UNITED STATES v. COMPREHENSIVE DRUG TESTING
one of CDT’s directors—after speaking with counsel—
informed Agent Novitzky that CDT would not assist federal
officers in locating the evidence they were authorized to seize
and that the agents should “do what they needed to do.” When
informed that agents might be forced to seize all computer
equipment for up to sixty days, the director again contacted
counsel, exclaiming that such a seizure would “shut[ ] the
business down.”
Throughout the morning and early afternoon, Agent
Novitzky spoke several times with CDT’s attorney, David
Bancroft. Bancroft asked Agent Novitzky not to seize any-
thing while he attempted to work out a beneficial solution
with the United States Attorney’s Office in San Francisco.
Later, Bancroft told the agent that CDT had only one hard-
copy document eligible for seizure. Around noon, both Agent
Novitzky and Assistant United States Attorney Jeff Nedrow
spoke with Bancroft and CDT’s directors via conference call.
Bancroft emphasized that any help CDT provided should not
be construed to constitute consent and then informed Nedrow
and Agent Novitzky that CDT had two computers on which
agents would find information relevant to the search warrant.
During this conference call, Agent Novitzky learned that
agents had discovered a hard-copy document with names and
identifying numbers for all MLB players, including some of
the ten named Balco players. Agent Novitzky faxed the docu-
ment, which was not the “only document eligible for seizure”
to which Bancroft had alluded, to Nedrow for preparation of
another search warrant to seize specimen samples from Quest
based on the identifying numbers.13 One of CDT’s directors
13
A separate group of federal agents had simultaneously executed a sep-
arate search warrant at Quest’s Las Vegas laboratory, but they were unable
to locate the specimens to be seized, because the specimens were identi-
fied by number only. Agents used the master list from CDT to apply for
a third search warrant. The new warrant for Quest was authorized by
Judge Leavitt in the District of Nevada at 6 p.m. that evening, and agents
seized the then-identifiable Balco players’ specimens later that same night.
This opinion focuses on the search of CDT, because the motions for return
of property were premised on the government’s conduct during that
search.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19795
became visibly upset when she noticed the document being
faxed. She left the premises, but when she returned, she
opened a locked drawer and presented agents with a docu-
ment that contained drug testing results for the ten named
Balco players—the document previously described as the
only seizable hard-copy document on site.14
At 2:35 p.m., a CDT director finally identified a computer
directory containing all of the computer files for CDT’s sports
drug testing programs. This directory, labeled by its original
compiler as the “Tracey” directory, contained numerous sub-
directories and hundreds of files. Seeing this, Agent Abboud
recommended copying the entire directory for off-site analy-
sis, because of the time and intrusiveness involved in search-
ing the voluminous directory on site. Knowing that the
warrant required them to rely upon the advice of a computer
analyst—here the advice of Computer Investigative Specialist
Agent Joseph Abboud—agents copied the directory and
removed the copy for later review at government offices.
The search of the CDT facility concluded shortly after 5
p.m., but before he left the premises, Agent Novitzky
reviewed with CDT directors the evidence seized during the
search. The documents seized included a twenty-five-page
master list of all MLB players tested during the 2003 season
and a thirty-four-page list of positive drug testing results for
eight of the ten named Balco players, intermingled with posi-
tive results for twenty-six other players.15
14
Some time later, agents located a billing document for CDT’s off-site
Long Beach storage locker. After agents obtained a fourth warrant, which
allowed them to search and seize evidence in the locker, a CDT director
agreed to open the compartment for the agents.
15
Copies of all seized documents were provided to CDT by the govern-
ment on April 16, 2004.
19796 UNITED STATES v. COMPREHENSIVE DRUG TESTING
C
Upon returning to his office in San Jose, California, Agent
Novitzky briefly reviewed the contents of the Tracey direc-
tory, identifying five subdirectories related to MLB. Within
these directories, Agent Novitzky identified files authorized
by magistrate judges for seizure, including the master file of
positive drug test results.16 On April 26, 2004, the Players’
16
On April 30, the government applied for a fifth search warrant in the
Northern District of California, asking for authorization to “seize” all elec-
tronic data “regarding drug specimens, drug testing, specimen identifica-
tion numbers, athlete identification numbers, and drug test results, retained
by [CDT] . . . pertaining to the drug testing of Major League Baseball
players, located within the copy of a CDT computer sub-directory cur-
rently in the possession of the [Internal Revenue Service (“IRS”)] in San
Jose, California, identified as the ‘Tracey’ sub-directory, bearing the fol-
lowing computer file group names: (1) ‘MAJOR LEAGUE GROUP’ (2)
‘MLB BILLING’ (3) ‘MLB Drug SubCommittee’ (4) ‘MLB Follow UP’
(5) ‘MLB IOC.’ ” Because this copy of the Tracey directory was in the
hands of the IRS in San Jose, in the Northern District of California, the
government sought the search warrant in that district. Magistrate Judge
Howard Lloyd approved the warrant. The government did not notify CDT,
presumably because the IRS already had in its possession the copy of the
entire directory containing the relevant materials.
The Players’ Association subsequently filed a Fed. R. Crim. P. 41(g)
motion in the Northern District of California seeking return of any prop-
erty taken pursuant to the April 30 search warrant, and on August 9, 2004,
Judge Illston granted this motion. The government did not appeal the order
and does not dispute it now. Instead, the government asserts that it retains
the right to review the Tracey directory based upon the April 7 search war-
rants, a contention we address in this consolidated appeal.
Insofar as the dissent suggests that the pursuit of the April 30 search
warrant evidences bad faith harassment by the government and an attempt
to evade a possibly adverse order on the motion for return of property filed
in the Central District of California, we decline to speculate. We have no
reason to believe that the government sought the April 30 warrant for pur-
poses of harassment, rather than to avoid an additional search of CDT that
would have followed from authorization to seize the original copy in the
Central District. Since no district court has ever held an evidentiary hear-
ing, and the government complied with the commands of the criminal
rules to secure search warrants from the magistrate judges in whose dis-
tricts the property was located, based upon a showing of probable cause
that incriminating evidence would be found, we see no signs of bad faith
to support the district courts’ contrary conclusion.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19797
Association filed motions under Federal Rule of Criminal
Procedure 41(g)17 seeking return of the property seized.
On May 5, using information culled from the Tracey direc-
tory, the government applied for new search warrants to seize
all specimens and records relating to the over-one hundred
non-Balco players who had tested positive for steroids. Mag-
istrate Judge Leavitt in the District of Nevada authorized sei-
zure of the specimens from Quest, and Magistrate Judge
Rosalyn M. Chapman in the Central District of California
authorized the seizure of records from CDT. Again, the gov-
ernment sought and obtained each warrant from the district
court whose jurisdiction encompassed the situs of the property
to be searched, as directed by Fed. R. Crim. P. 41(b).18 The
government executed the warrants on May 6, and the Players’
Association immediately filed Fed. R. Crim. P. 41(g) motions
seeking return of the specimens and records seized.
On August 19, 2004, Judge Mahan granted the Fed. R.
Crim. P. 41(g) motion brought by the Players’ Association in
the District of Nevada and ordered the government to return
all specimens seized from Quest and all notes and memoranda
compiled by agents who reviewed the evidence, other than
those pertaining to the ten Balco players named in the original
search warrant.19 He made findings—without conducting an
17
Fed. R. Crim. P. 41(g) reads:
Motion To Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property’s return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.
18
See supra note 9.
19
The government moved for a stay of this order because the evidence
was otherwise lawfully in its possession pursuant to the subpoena of May
6, 2004. Judge Mahan denied the motion on November 1, 2004, based on
the government’s failure to raise the subpoena argument at the original
hearing.
19798 UNITED STATES v. COMPREHENSIVE DRUG TESTING
evidentiary hearing—that “[t]he government callously disre-
garded the affected players’ constitutional rights” and that the
government unreasonably refused “to follow the procedures
set forth in United States v. Tamura, 694 F.2d 591 (9th Cir.
1982),” with regard to the intermingled records. Almost six
weeks later, and again without conducting an evidentiary
hearing, Judge Cooper rejected the government’s suggestion
that the documents were seizable under the warrant exception
that applies to plain-view evidence of contraband,20 and
granted the Players’ Association’s Fed. R. Crim. P. 41(g)
motion in the Central District of California. The order, which
also cited the government’s failure to follow Tamura’s proce-
dures, mandated return to CDT of any evidence seized that
was not connected to the ten players named in the warrant.
Judge Cooper denied the government’s motion for reconsider-
ation of this order on February 9, 2005.
These orders are the subjects of two of the appeals consoli-
dated here.
D
The third appeal concerns grand jury subpoenas issued to
Quest and CDT on May 6, 2004, which were to be returned
by June 10, 2004. These subpoenas reached all specimens and
records of positive steroid drug tests for more than one hun-
dred MLB players, not simply the results for the ten Balco
players named in the earlier subpoenas.21 This evidence was
20
We discuss the inapplicability of this warrant exception in Section
III.A.4. See infra note 39.
21
These subpoenas were not the earliest ones issued in the investigation.
The first subpoenas dated to January 16, 2004, and mandated the provision
of all MLB drug testing records. On March 3, 2004, the government
obtained narrower subpoenas for eleven Balco-connected players.
On April 22, 2004, the government sent a letter to CDT withdrawing the
January 2004 subpoenas. In the same letter, the government reduced the
March 3, 2004, subpoenas to ten, not eleven, Balco players. At the time
the government obtained the May 6 subpoenas, the only outstanding sub-
poenas were those of March 3, which sought the records of ten players
with Balco connections.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19799
also pursued in the government’s May 5 search warrants. The
government sought these later search warrants and subpoenas
on the ground that the April 8 seizures did not provide all
information needed for the investigation.22
Quest complied with the May 6 subpoena, providing the
government with hundreds of pages of documents, but the
government agreed to defer CDT’s compliance pending reso-
lution of the search warrant litigation. On August 31, 2004,
however, the government revoked the indefinite deferral and
instructed CDT to comply with the subpoena by September
14, 2004. The Players’ Association filed a motion to quash the
subpoenas on September 13, 2004.
In December 2004, after Judge Illston heard argument on
the motion but took no testimony, she found that the govern-
ment’s conduct was unreasonable and constituted harassment.
She then filed an order quashing the subpoenas, which the
government timely appealed.
II
Before we review the orders granting the Fed. R. Crim. P.
41(g) motions in the Central District of California and the
District of Nevada, we must decide two jurisdictional issues:
whether the Players’ Association has standing to challenge the
search and seizure of evidence from Quest and whether the
government timely appealed Judge Cooper’s order to return
22
Recognizing that the documents they seized from CDT pursuant to the
April 7 search warrant might not have included all documents relevant to
the investigation (even with regard to Balco-related players, see infra note
37), and deciding that the positive test results uncovered for MLB players
beyond the ten with Balco connections could be valuable to the investiga-
tion, the government asked for a broader warrant on May 6 in the Central
District of California.
19800 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the materials seized from CDT in the Central District of Califor-
nia.23
A
The government contends that the Players’ Association
lacks standing to file the Fed. R. Crim. P. 41(g) motion,
because it lacked access, control, and ownership over the
records and specimens seized from Quest. Furthermore, it
argues that the Players’ Association may not base its interest
in the property (the urine specimens and test results) on the
privacy interests of the individual players.24
[1] An association has standing to sue on behalf of its
members when they would otherwise have independent stand-
ing to sue, the interests sought to be protected are germane to
the organization’s purpose, and the claim asserted does not
require the participation of individual members in the lawsuit.
Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988) (citations
omitted); see also Hunt v. Wash. Apple Adver. Comm’n, 432
U.S. 333, 343 (1977).
23
We need not decide whether the Players’ Association has standing to
challenge the CDT seizures because CDT is a party and has standing on
its own to seek return of the property seized from its office and storage
locker.
24
The Supreme Court has clearly rejected “vicarious” or “target” stand-
ing to assert Fourth Amendment rights. See Rakas v. Illinois, 439 U.S.
128, 133-34 (1978) (refusing to extend standing to a party who was not
a “victim” of the search); see also United States v. Taketa, 923 F.2d 665,
669-70 (9th Cir. 1991) (following Rakas, 439 U.S. at 134, and holding that
a defendant did not have standing to challenge a search of another defen-
dant’s office). “A person who is aggrieved by an illegal search and seizure
only through the introduction of damaging evidence secured by a search
of a third person’s premises or property has not had any of his Fourth
Amendment rights infringed.” Rakas, 439 U.S. at 134 (emphasis added).
Because we are satisfied that the Players’ Association has met the require-
ments of associational standing, we do not reach its argument that it has
an ownership interest in the seized items sufficient to establish standing
in its own right. We leave that question for another day.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19801
[2] We are satisfied that the Players’ Association satisfies
each prong of this test. First, the Players’ Association repre-
sents all MLB players, each one of whom could certainly sue
in his own right to seek return of his own drug test records.
Second, the interests sought to be protected—the players’ pri-
vacy interests in their drug testing records—are related to the
organization’s sole purpose: to represent the best interests of
MLB players. Third, the Players’ Association sought only the
return of the players’ drug testing information and specimens;
for this type of prospective relief, the individual players need
not be a party to the action. See Warth v. Seldin, 422 U.S.
490, 515 (1975) (holding that an association lacked standing
where it sought damages rather than “a declaration, injunc-
tion, or some other form of prospective relief”).
[3] We therefore conclude that the Players’ Association has
standing to assert the Fourth Amendment rights of its mem-
bers and to file Fed. R. Crim. P. 41(g) motions seeking return
of seized property in which their members hold privacy inter-
ests.
B
[4] The Players’ Association, for its part, contends that the
government failed to appeal in a timely manner Judge Coo-
per’s order for the return of property. In order to be timely
when the United States, its officer, or its agency is a party, a
notice of appeal must be filed “within 60 days after the judg-
ment or order appealed from [was] entered.” Fed. R. App. P.
4(a)(1)(B). Where a district court entertains a motion for
reconsideration, the 60-day period is tolled until the motion is
decided. See Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.
1984) (noting that a timely filed motion “tolls the running of
the time limitations for filing the notice of appeal until the
district court rules on the motion”).
The “United States’ Motion for Reconsideration and Modi-
fication of Court’s October 1, 2004 Order Granting Return of
19802 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Property” was filed on November 19, 2004. In its opposition
to that motion, the Players’ Association stated that the “gov-
ernment neither invoke[d] nor satisfie[d] any of the require-
ments of Local Rule 7-18 [“Motion for Reconsideration”] to
support its request for reconsideration.” The appellees’ reply
brief suggests that the motion was merely “styled as one for
reconsideration,” and does not actually qualify as such
because the motion only “asked the court to water down its
findings” without claiming that “the Court failed to evaluate
the merits.”
We disagree. Like the dissent, we believe the motion was
properly construed as one for reconsideration. Unlike the dis-
sent, however, we apply the local rule governing motions for
reconsideration, and do not recharacterize the motion as a
request for “Relief from Judgment or Order” under Fed. R.
Civ. P. 60(b) (“Rule 60(b)”).
[5] The motion falls squarely within the definition of a
“Motion for Reconsideration” under C.D. Cal. Local R. 7-18
(“Local Rule 7-18”). Judge Cooper recognized this when she
chose to analyze the motion under Local Rule 7-18. This anal-
ysis was proper, for Local Rule 7-18 permits a party to bring
a “Motion for Reconsideration” on the basis of a “manifest
showing of a failure to consider material facts presented to the
Court before such decision.” C.D. Cal. Local R. 7-18(c). The
government made its motion on precisely these grounds.
The dissent agrees that Local Rule 7-18 applies to such
motions, and correctly notes that the “Federal Rules of Civil
Procedure do not provide for ‘Motions for Reconsideration.’ ”
Dissent at 19858. Instead, “such motions are creatures of local
rule or practice.” Id. The dissent then points out a caveat:
“Where a conflict arises between the two, federal rules must
prevail.” Id. (citations omitted). From this point, the dissent
draws a far more sweeping conclusion: “For the purposes of
appeal, when a local rule based post-judgment motion for
reconsideration is made, we construe it either as (1) a motion
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19803
to alter or amend a judgment under Rule 59(e) or (2) a motion
filed under 60(b) for relief from judgment.” Dissent at 19859
(citing Am. Ironworks & Erectors v. N. Am. Constr. Corp.,
248 F.3d 892, 898 99 (9th Cir. 2001)). So broad a conclusion
is not justified. Am. Ironworks does not even mention a local
rule in its discussion of Rule 59(e) or Rule 60(b). The case
simply addresses which federal rule to apply to a motion not
already treated as a motion for reconsideration under a local
rule.
Even more problematically, the dissent places the cart
before the horse by assuming an inconsistency between the
federal and local rules before stating which federal rule even
applies.25 We decline so hastily to dispose of a local rule.
“Local rules are ‘laws of the United States,’ ” Marshall v.
Gates, 44 F.3d 722 (9th Cir. 1995) (quoting United States v.
Hvass, 355 U.S. 570, 575 (1958)), and “valid if . . . ‘not
inconsistent’ with the Federal Rules of Civil Procedure,’ ” id.
(citing Fed. R. Civ. P. 83). Unlike the dissent, we look to the
text of the rules in order to discern whether such an inconsis-
tency exists. Rule 60(b) reads:
On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, sur-
prise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have
been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresenta-
25
An initial analysis of the specific local and federal rules is necessary
in order to decide whether the rules conflict. Rule 59(e) and Rule 60(b)
differ greatly, and a local rule that appears inconsistent with one may well
be consistent with the other. See Fed. R. Civ. P. 59(e) (“Motion to Alter
or Amend Judgment. Any motion to alter or amend a judgment shall be
filed no later than 10 days after entry of the judgment.”); see infra at
19803-04 (citing Fed. R. Civ. P. 60(b)).
19804 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tion, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satis-
fied, released, or discharged, or a prior judgment
upon which it is based has been reversed or other-
wise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6)
any other reason justifying relief from the operation
of the judgment.
Fed. R. Civ. P. 60(b). In contrast, Local Rule 7-18 provides:
A motion for reconsideration of the decision on any
motion may be made only on the grounds of (a) a
material difference in fact or law from that presented
to the Court before such decision that in the exercise
of reasonable diligence could not have been known
to the party moving for reconsideration at the time of
such decision, or (b) the emergence of new material
facts or a change of law occurring after the time of
such decision, or (c) a manifest showing of a failure
to consider material facts presented to the Court
before such decision.
C.D. Cal. Local R. 7-18 (emphasis added). The government’s
motion clearly falls under Local Rule 7-18(c), because, as the
dissent points out, the government “assert[ed] that the court
had ignored evidence and arguments.” Dissent at 19863. In
contrast, the motion does not fall within Rule 60(b), for the
government did not request relief “from the operation of the
judgment” but simply and expressly asked the court to “re-
consider and modify several aspects of this order which inac-
curately characterize the government’s actions.”26
The government neither requested Rule 60(b) relief nor
cited the grounds for such relief, which include “mistake,
26
For the same reason, the motion is not one to “alter or amend the judg-
ment” under Fed. R. Civ. P. 59(e).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19805
inadvertence, surprise, or excusable neglect,” “newly discov-
ered evidence,” “fraud . . . misrepresentation, or other miscon-
duct of an adverse party, a change in the binding nature of the
judgment, or “any other reason justifying relief from the oper-
ation of the judgment.” Fed. R. Civ. P. 60(b)(1)-(6). In the
absence of a clear inconsistency between the local and federal
rules, we will not apply a general federal rule where a specific
local rule is directly on point. As the dissent aptly points out,
“[w]e are . . . under an obligation to construe local rules so
that they do not conflict with the federal rules, and we have
exercised our ingenuity in doing so.” Marshall, 44 F.3d at 725.27
[6] Satisfied that the district court correctly analyzed the
motion under Local Rule 7-18, we turn to its timeliness, in
order to decide whether it tolled the period to file an appeal.
Local Rule 7-18 does not expressly set a time frame in which
to file a motion for reconsideration. However, the rule has
been read to “provid[e] for a reasonable time within which to
seek reconsideration.” Meredeth v. Erath, 2001 WL 1729626,
*1 (C.D. Cal.) (Cooper, J.) (defining the relevant period for
filing a “Motion for Reconsideration” under then-C.D. Cal.
Local R. 7-16, the same rule now codified as C.D. Local R.
7-18). In Meredeth, the district judge—the same Judge Coo-
per whose order is appealed here—found that an eleven-
month delay in filing a motion for reconsideration was unrea-
27
Marshall does not hold that the possibility of conflict between local
and federal rules should be avoided by ignoring the local rule. Indeed, in
Marshall the court found the local rule applicable, although “the local rule
appear[ed] to be inconsistent with the federal rule governing summary
judgment to the extent that it bars a party from submitting affidavits in
opposition to summary judgment prior to the day of the hearing.” 44 F.3d
at 724. The court “engage[d] in an interpretation in order to produce con-
sistency,” id. at 725, and concluded that the federal rule “d[id] not uncon-
ditionally require a district court to accept affidavits up to the date set for
hearing on the motion for summary judgment.” Id. Marshall avoided con-
flict by refusing to interpret the federal rule in a way that would render
invalid the local rule. Harmonizing federal and local rules may often leave
both intact.
19806 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sonable, making the motion untimely under Local Rule 7-18.
Id. In contrast, Judge Cooper did not conclude that the two-
month delay in the motion here was unreasonable and did not
view the government’s motion in this case as untimely
(although the government advised her that it had filed “out-
side of the normal time frame”). We agree with her determi-
nation that the shorter delay here was reasonable. One factor
supporting its “reasonableness” is that neither the government
nor the movants received the order until November 2, 2004.
Given these circumstances, we do not believe Judge Cooper’s
decision to hear the motion was impermissible under the “rea-
sonable time” period permitted under Local Rule 7-18. See
Meredeth, 2001 WL 1729626, at *1.
[7] Thus, we are satisfied that the motion for reconsidera-
tion was timely filed. Judge Cooper denied the motion on
February 9, 2005, tolling the deadline for any appeal until
April 9, 2005. The government filed its appeal on March 9,
2005, with thirty days remaining before the filing deadline.
The timely nature of that appeal, and of the motion for recon-
sideration before it, gives us jurisdiction to consider the origi-
nal order.28
III
The government contends that Judge Cooper and Judge
28
The dissent takes a curious position, at once arguing that “the district
court did not have jurisdiction to consider the original motion” and at the
same time stating that the district court’s denial of the motion for
reconsideration—following a three-page discussion of the merits of the
motion—was “proper.” In the absence of jurisdiction, a discussion of the
merits is inappropriate. See Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 379 (1981) (noting the familiar rule that a “court lacks discretion
to consider the merits of a case over which it is without jurisdiction”). In
the absence of jurisdiction, dismissal—not denial on the merits—is appro-
priate.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19807
Mahan improperly exercised equitable discretion to hear and
to grant the respective Fed. R. Crim. P. 41(g) motions.29
A district court may exercise equitable jurisdiction to hear
such motions only after analyzing the four factors set out in
Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993). Specifi-
cally, the court must consider
1) whether the Government displayed a callous dis-
regard for the constitutional rights of the movant; 2)
whether the movant has an individual interest in and
need for the property he wants returned; 3) whether
the movant would be irreparably injured by denying
return of the property; and 4) whether the movant
has an adequate remedy at law for the redress of his
grievance.
Id. at 325. Both district courts here found that all four factors
weighed in favor of equitable jurisdiction.
Because the government now concedes that the parties have
no adequate remedy at law, we only need to discuss the first
three Ramsden factors.
A
Interestingly, the Players’ Association does not challenge
the validity of the warrants authorizing the April 8 searches.
Thus, we assume that probable cause existed to support issu-
ance of the search warrants for the property to be seized from
the places named in each warrant. Nevertheless, the Players’
Association defends the grant of its motions for return of
29
We review a district court’s decision to exercise equitable jurisdiction
under Fed. R. Crim. P. 41(g) for abuse of discretion. Ramsden, 2 F.3d 322,
324 (9th Cir. 1993). We review the district court’s interpretation of Fed.
R. Crim. P. 41(g) de novo. Id. The lawfulness of a search and seizure is
also reviewed de novo. United States v. Mendoza-Ortiz, 262 F.3d 882, 885
(9th Cir. 2001) (per curiam).
19808 UNITED STATES v. COMPREHENSIVE DRUG TESTING
property, arguing that the government acted in callous disre-
gard of the Fourth Amendment rights of the Players’ Associa-
tion, the MLB players, and CDT, offering a farrago of
arguments to that end. We consider each in turn.
1
[8] The Players’ Association first argues that the govern-
ment sought search warrants in an attempt to avoid judicial
review of the overboard January 2004 subpoenas. We are
aware of no authority that the simultaneous pursuit of search
warrants and subpoenas in aid of an ongoing grand jury inves-
tigation constitutes a violation of the Fourth Amendment.
Neither can we accept that the government could not have
obtained and executed a search warrant had the January sub-
poenas been quashed. The government argues—and we have
previously recognized—that subpoenas and search warrants
are not the same. See In re Grand Jury Subpoenas Dated
December 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991); see
also infra Section V. Unlike a subpoena, a search warrant
may be obtained only upon a showing of probable cause—a
burden the government sometimes considers necessary to
establish in order to obtain certain production of evidence.30
In contrast, a grand jury subpoena may issue simply because
an Assistant United States Attorney believes the evidence
may assist the grand jury in furthering the progress of an
ongoing investigation which may never establish probable
cause to charge anyone. The “[grand jury] . . . has the right
to every man’s evidence,” United States v. Calandra, 414
U.S. 338, 345 (1974) (internal quotation marks omitted; sec-
ond alteration in original), and an indictment may be obtained
30
Significantly, while a subpoena may be quashed, a “person to be
searched has no lawful way to prevent execution of the warrant.” In re
Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. His
remedy for an unlawful search and seizure or for the deprivation of prop-
erty is to seek return of anything seized under Fed. R. Crim. P. 41(g), or,
if charges are filed, to move to suppress use of the evidence against him
at trial, see Fed. R. Crim. P. 12(b).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19809
even on the basis of illegally seized evidence. Id. at 351-52.
In any event, persons aggrieved later may litigate the seizure
and subsequent use of the evidence, as provided in the Federal
Rules of Criminal Procedure. We fail to see how the govern-
ment’s compliance with the procedural and evidentiary bur-
dens necessary to obtain a search warrant from a neutral and
detached magistrate can be interpreted as callous disregard of
the Fourth Amendment.
2
Next, the Players’ Association accuses the government of
making “misleading representations” in applying for the
search warrants. In her October 1 order, Judge Cooper
accepted this argument, finding that:
[I]n seeking the warrant (not the correct procedure
for obtaining documents from a third party who is
not a suspect), the Government explained to the
Magistrate that the records in question were in dan-
ger of being destroyed. This is a blatant misrepresen-
tation, as demonstrated by the records in this case.
Unfortunately, Judge Cooper’s conclusion misstates estab-
lished Fourth Amendment jurisprudence,31 under which “valid
warrants may be issued to search any property, whether or not
31
To the extent that Judge Cooper relied on any failure by the govern-
ment to comply with the United States Attorney’s Manual, such reliance
is unwarranted. The Manual “does not create any substantive or proce-
dural rights,” United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.
2000), and thus any violation of procedures established therein cannot
independently establish a Fourth Amendment violation. We do not suggest
that deviations from United States Attorney’s Manual have no signifi-
cance. Rather, we conclude that such deviations in the case at bar do not
rise to the level of a constitutional or statutory violation that would render
granting a motion for return of property appropriate. It certainly does not
support an order depriving the grand jury of the use of such evidence in
aid of its expanded criminal investigation.
19810 UNITED STATES v. COMPREHENSIVE DRUG TESTING
occupied by a third party, at which there is probable cause to
believe that fruits, instrumentalities, or evidence of a crime
will be found.” Zurcher v. Stanford Daily, 436 U.S. 547, 554
(1978).
[9] More importantly, Judge Cooper’s finding derives no
support from the record. Magistrate Judge Johnson expressly
found to the contrary, and neither judge heard any evidence
from witnesses as the Player’s Association had urged. In
applying for the search warrants in this case, the government
never informed any judge that evidence was in danger of
being destroyed. Remarkably, despite its submission of four-
teen volumes of supplemental excerpts of record, the Players’
Association provides only a solitary citation to show such
“blatant misrepresentation.” Tellingly, the only arguable allu-
sion to destruction of evidence is found in the government’s
opposition to the Players’ Association’s Fed. R. Crim. P.
41(g) motion—made after execution of the search warrants,
not to obtain them. There, the government retrospectively
explained that it “had good-faith reasons to believe that CDT
was detrimentally delaying the investigation, and that there
was some danger of the availability of the sought-after
records being jeopardized.” The government never suggested
this concern as a reason for any court to grant a search war-
rant in the first place. The district court’s finding to the con-
trary was clearly erroneous.
The Players’ Association also accuses the government of
repeatedly failing to inform judges from whom search war-
rants were obtained that CDT was seeking to quash the sub-
poena. The dissent accepts this argument and paints a picture
of deliberate concealment. Unfortunately, this picture is not
supported by the record. The dissent contends that “[t]he gov-
ernment never brought to the magistrate judge’s attention that
there was a motion pending in the Northern District of Cali-
fornia to quash the grand jury subpoena.” Dissent at 19836.
However, in his search warrant affidavit filed on April 7,
2004, Agent Novitsky expressly advised the court that “CDT
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19811
has declined to comply with the [March 3 grand jury] sub-
poena and has stated its intent to attempt to quash the subpoe-
na.”
The government had no reason to refer to a pending motion
to quash the grand jury subpoena, as no such motion was filed
prior to April 7, 2004. Indeed, Agent Novitsky filed for the
search warrant in the Central District on the same day that
CDT moved to quash the grand jury subpoena in the Northern
District.32 Parties must reveal relevant facts, but they are not
required to be prophetic.
[10] The record reflects similar candor on the part of gov-
ernment agents in the District of Nevada, where the govern-
ment submitted affidavits for a search warrant also on April
7. There, too, the government advised the court of the existing
subpoena as well as Quest’s intention “to move to quash the
subpoena.” Alerted to the impending motion to quash, Judge
Leavitt noted the date when the motion ultimately was filed.33
As in the Central District of California, the record contradicts
any suggestion that the government failed to reveal a pending
motion to quash.
3
The Players’ Association next argues that the government
used the search warrants for the records of the ten named
Balco players as a pretext to seize the records of other MLB
players. In support, they cite United States v. Rettig, 589 F.2d
418 (9th Cir. 1978), where the police obtained a warrant for
marijuana paraphernalia after failing a day earlier to obtain a
warrant to search for evidence of a cocaine smuggling con-
spiracy. Id. at 422-23. During the ensuing search, officers told
32
The record does not contain evidence that the motion to quash was
filed in the Northern District early enough in the day for the government
to know of it before filing its affidavit in the Central District.
33
See supra note 10.
19812 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the suspect’s wife to “tell us where [the cocaine] is so we
don’t have to mess up your house.” Id. at 422 n.1.
Such egregious police misconduct did not occur here.
Agents executing the warrant at CDT were authorized to seize
the drug testing records of the ten named Balco players. In
their lawful search for those records, they found paper and
electronic data related to those players, intermingled with data
pertaining to additional MLB players not mentioned in the
search warrant. One document, at issue here, was a spread-
sheet of positive drug test results, where results for eight of
the ten named Balco players were intermingled with results
for other MLB players. Because the agents saw that the
spreadsheet clearly contained information within the scope of
the warrant, they seized the spreadsheet for off-site review.
[11] The record contains no support for the assertion that
agents specifically targeted and seized records unrelated to the
players mentioned in the search warrant. To the contrary, the
agents narrowed their seizures to files containing information
on the named Balco players, and during the May 6 search at
Quest, they seized specimens belonging only to the ten Balco
players. Finally, the agents copied relevant files in order to
avoid an excessively long and intrusive on-site search,
although duplication risked the loss of deleted documents that
would only be visible on the original drives.
[12] We see no evidence of bad faith or pretext here.
4
Nor does the seizure of intermingled documents demon-
strate “a callous disregard for the constitutional rights of the
movant.” Ramsden, 2 F.3d at 325 (stating the first factor
weighing in favor of equitable jurisdiction over a motion for
return of property). In this analysis, we focus on the Fourth
Amendment and note that “[a]s always under the Fourth
Amendment, the standard is reasonableness.” United States v.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19813
Hill, 322 F. Supp. 2d 1081, 1088 (C.D. Cal. 2004) (Kozinski,
Circuit J., sitting by designation). Reasonableness can be
especially difficult to define in the computer context, given
the well-known “difficulties of examining and separating
electronic media at the scene.” Hill, 322 F. Supp. 2d at 1090.
Fortunately, our prior precedent reveals that agents can avoid
the opposing errors of leaving behind essential information
and sweeping up excessive evidence.
[13] In United States v. Beusch, 596 F.2d 871 (9th Cir.
1979), this court addressed a motion to suppress seized evi-
dence consisting of ledgers containing items covered by the
search warrant intermingled with items not covered by the
search warrant. Id. at 876-77. The Beusch court concluded
that no Fourth Amendment violation occurred when agents
seized “single files and single ledgers, i.e., single items which,
though theoretically separable, in fact constitute one volume
or file folder.” Id. at 877.
The Beusch court expressly limited its reach, however:
“[T]he reasons we have given for allowing [such] seizure may
not apply to sets of ledgers or files, but because that is not the
case here, we find it unnecessary to discuss it further.” Id.
Three years later, the court addressed the seizure of sets of
files. See Tamura, 694 F.2d 591. In Tamura, the court
reviewed the conduct of officers executing a search warrant,
which authorized seizure of three specific categories of
records from a Los Angeles office. Id. at 594. In that case,
agents seized—without any limiting effort—files unrelated to
the items mentioned in the search warrant. Id. at 595. The
Tamura court condemned such “wholesale seizure for later
detailed examination of records not described in a warrant.”
Id.
Unfortunately, the Tamura court did not answer a more dif-
ficult question: “Because seizable materials are seldom found
neatly separated from their non-seizable counterparts, how
much separating must police do at the scene to avoid taking
19814 UNITED STATES v. COMPREHENSIVE DRUG TESTING
items that are neither contraband nor evidence of criminal
activity?” Hill, 322 F. Supp. 2d at 1088. As the Hill court
noted, the answer turns upon “reasonableness,” id., a standard
that offers little guidance to government agents. Understand-
ably, the Tamura court sought to give more concrete advice
to help agents remain within the bounds of the Fourth Amend-
ment. The court suggested:
In the comparatively rare instances where documents
are so intermingled that they cannot feasibly be
sorted on site, we suggest that the Government and
law enforcement officials generally can avoid violat-
ing fourth amendment rights by sealing and holding
the documents pending approval by a magistrate of
a further search, in accordance with the procedures
set forth in the American Law Institute’s Model
Code of Pre-Arraignment Procedure.
Tamura, 694 F.2d at 595-96 (emphasis added). Given that the
Tamura court found that the agents had violated Fourth
Amendment rights by making a “wholesale seizure,” id. at
595, this alternative, protective approach was advisory dicta
in that case. See Hill, 322 F. Supp. 2d at 1090 (noting that
after the Tamura court “held that the government’s wholesale
seizure of company documents was illegal because the agents
intentionally seized materials they knew were not covered by
the warrant . . . the Tamura court suggested, albeit in dicta,
that [for such seizure of all computer storage media] a warrant
would be appropriate.” (emphasis added)).34
[14] The Tamura court also stated that substitute protective
procedures could be specified in a search warrant, pursuant to
which “all items in a set of files may be inspected during a
search.” Id. at 595 (emphasis added). In the cases at bar, the
34
The Tamura court suggested that the American Law Institute’s Model
Code of Pre-Arraignment Procedure could guide agents to avoid constitu-
tional violations. 694 F.3d at 595-96.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19815
search warrants spelled out such specific procedures that the
agents were to follow. We believe that the agents in the cases
at bar complied with the procedures specified in the warrant:
Upon searching the premises, law enforcement per-
sonnel trained in searching and seizing computer
data (the “computer personnel”) . . . [to] make an ini-
tial review of any computer equipment and storage
devices to determine whether these items can be
searched on-site in a reasonable amount of time and
without jeopardizing the ability to preserve the data.
...
If the computer personnel determine that it is not
practical to perform an on-site search or make an on-
site copy of the data within a reasonable amount of
time, then the computer equipment and storage
devices will be seized and transported to an appro-
priate law enforcement laboratory for review.
The government executed the warrant under the guidance of
Agent Abboud—a Computer Investigative Specialist,35 and
took care to avoid unreasonable seizures.
Even so, the Players’ Association contends that the govern-
ment breached the warrant’s protocol, because Agent
Novitzky opened and viewed the contents of the Tracey direc-
tory, rather than leaving Agent Abboud to search alone.
Under this view, only Agent Abboud qualified as the “appro-
priately trained personnel” and no other agent had authority
to open and to view CDT computer data. However, the plain
35
We note that these requirements are not the mandates of the Fourth
Amendment. If the warrant had not specified the need for computer ana-
lysts, police would have been “free to hire such experts to help them con-
duct a search . . . and it may well be praiseworthy for them to do so. . . .
But the Fourth Amendment does not require it.” Hill, 322 F. Supp. 2d at
1088 (citing Tamura and other cases that suggest the involvement of spe-
cialized personnel) (citations omitted).
19816 UNITED STATES v. COMPREHENSIVE DRUG TESTING
language of the search warrant does not exclude the assistance
of other law enforcement officers—especially for tasks
involving non-digital work (such as seeking cooperation from
persons on site). The warrant only required that computer per-
sonnel assess the possibility of on site search completion. It
did not preclude others from assisting the computer personnel.36
The sort of assistance provided by Agent Novitzky, a non-
specialized law enforcement officer, was permissible under
the search warrant and was reasonable under the Fourth
Amendment.
[15] Moreover, the agents did not remove files without a
relation to the Balco investigation and did not seize entire cat-
egories of documents to coerce employees into cooperation,
as did the agents in Tamura. See 694 F.2d at 595. Their ulti-
mate decision to remove a relevant number of files for off-site
review stemmed not from disregard of privacy rights, but
from sensitivity to the ongoing disruption caused by the
search to CDT—an innocent third party in the underlying
36
We do not believe that the warrant can be fairly read to require com-
puter personnel to execute all aspects of the search. For example, the more
basic computer recoveries could easily be completed by nonspecialized
law enforcement officers, considering that the type of files at issue were
simple spreadsheets. In today’s world anyone with the most rudimentary
computer skills qualifies as “appropriately trained” when it comes to open-
ing and viewing basic spreadsheets on a modern computer: presumably
any computer user can double-click a selected document or press the
“Enter” key after selecting the desired file.
We recognize that, had CDT stored test results in a Relational Database
Management System requiring specialized expertise to extract data, only
an agent specifically trained in using such a system might be considered
“appropriately trained.” However, we do not interpret the warrant to
require only Computer Investigative Specialists to perform elementary
tasks such as scan a spreadsheet for the persons named in a search warrant,
particularly when, in the end, the spreadsheets would still have been
seized. The search warrant form employed in these cases authorized a
search by “Any Special Agent[s] with the United States Internal Revenue
Service or any other authorized officer,” and was not restricted to searches
only by computer investigative specialists.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19817
investigation. The agents permitted CDT to retain the original
Tracey directory, even though they later explained that this
decision may have prevented them from accessing deleted or
temporary files that could not be transferred by duplication.37
The agents took only a limited set of clearly relevant disks
and a copy of the Tracey directory, which included informa-
tion on players specifically named in the search warrant. Fur-
thermore, just eight days after the search warrant, the agents
provided copies of all seized documents to CDT. Here again,
the agents demonstrated the careful regard absent in Tamura.38
We reject the dissent’s view that government officials
should limit their computer searches to key words suggested
by a searched party. Criticizing the government for “cop[y-
ing] the entire directory” rather than “copying only the subdi-
rectories that pertained to Major League Baseball,” the dissent
suggests that the government should have trusted CDT to
37
Recognizing that the documents they seized on April 8 may not have
included all documents relevant to the investigation, Agent Novitzky
asked for a broader warrant on May 5 in the Central District of California.
He explained that “IRS Special Agent Jeff Jack, a Computer Investigative
Specialist . . . gave me specific examples of deleted files or temporary files
created when printing a file that cannot be[ ] seen or retrieved from a sim-
ple copy of a computer sub-directory, but may be retrievable using foren-
sic tools, if allowed to examine the entire computer system.” Had the
government engaged in a “wholesale seizure” of all possibly relevant
material, as in Tamura, they surely would have seized the entire comput-
ers, rather than made duplicates so as to allow CDT to continue its use of
the originals. See also United States v. Scott-Emuakpor, 2000 WL 288443,
*8 (W.D. Mich.) (“[T]he agents were not confined to searching the files
on the hard drive and disks but could also lawfully search for deleted
material . . . the seizure of [items other than hard drives and disks] was
reasonable because it allowed the agents to preserve the computer system
as it existed for the computer analysts . . . without taking the risk of losing
any files.”).
38
In Tamura, the agents retained master volumes they knew held infor-
mation not covered by the search warrant “for at least six months after
locating the relevant documents.” Tamura, 694 F.2d at 597. In contrast,
the agents in the cases at bar never seized the master hardware with the
Tracey directory.
19818 UNITED STATES v. COMPREHENSIVE DRUG TESTING
point out the relevant files. Dissent at 19839. The dissent
explains that this approach would have allowed the govern-
ment to select the relevant files on-site: “Dr. Jean Joseph of
CDT later stated in an affidavit that the directory was easily
searched by key word and would have provided the test infor-
mation about the ten players in a short period of time.” Id.
[16] The government had no duty to rely on CDT to illumi-
nate the files seizable under the warrant. Like most searched
parties, CDT had an incentive to avoid giving over documents
the government might not know to miss. The government had
no reason to confine its search to “key words” such as the
names of the baseball players. Such a limited search could
easily have overlooked relevant documents, as it would have
in the case of the seizures at Quest. There, testing results were
not saved by key word at all. They were labeled with identifi-
cation numbers, whose connection to specific players could
not be found within the document or at the facility, but were
linked in a document kept in a storage locker located at a dif-
ferent address. See supra Section I.B, notes 13-14 and accom-
panying text.
[17] The government was not required to believe, and had
no reason to assume, that all relevant documents in the Tracey
Directory would be listed under the names of the baseball
players in the warrant. The government’s decision to copy the
entire directory represented a conscientious effort to seek out
all the evidence covered by the search warrant. We do not dis-
cern bad faith or “callous disregard” simply because the
agents determined, after an initial review, that certain inter-
mingled files needed to be reviewed off site, as permitted
under our applicable precedents and the warrant itself.39
39
We do not reach the government’s argument that the “plain view”
exception to the warrant requirement justified seizure of the intermingled
evidence, because the evidence fell within the scope of the search warrant.
See Beusch, 596 F.2d 871 (“Because we hold that the items seized were
covered by the terms of the warrant, we find it unnecessary to deal with
the Government’s contentions that they were admissible under the ‘plain
view’ exception to the warrant requirement.”).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19819
5
[18] In light of these considerations, we conclude that the
government properly considered and respected the privacy
interests, intrusiveness, and law enforcement needs posed by
the searches in question by removing a copy of the Tracey
directory (not the original) and taking only limited diskettes
and documents containing relevant information. In seizing
these files, the government did not show “callous disregard
for the constitutional rights of the movant,” Ramsden, 2 F.3d
at 325, but instead displayed attentiveness both to the war-
rant’s precautionary procedures and to the importance of
avoiding unnecessary disruption of CDT’s business opera-
tions. For these reasons, we conclude that the first prong of
the Ramsden analysis (the existence of “callous disregard”)
weighs against invocation of the district court’s equitable
jurisdiction over the Fed. R. Crim. P. 41(g) motions. The dis-
trict courts’ conclusions to the contrary were based on faulty
conclusions of law and unsupported assertions of fact. They
cannot survive appellate review.
B
As to the second of the four Ramsden factors (the movants’
individual interests in the evidence seized), the Players’ Asso-
ciation argues that its interests in the property mirror those of
its members. We agree that the members possess strong pri-
vacy interests in both their drug test results and the actual
specimens. See Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.
1996) (recognizing an individual’s “strong interest in protect-
ing the confidentiality of [one’s] HIV status”). Because the
Players’ Association exists to represent such interests, the dis-
trict courts properly found that this factor weighed in favor of
equitable jurisdiction.
C
The district courts also found satisfied the third Ramsden
factor (likelihood of irreparable injury if the evidence were
19820 UNITED STATES v. COMPREHENSIVE DRUG TESTING
not returned). As the Players’ Association notes, the public
release of positive drug testing evidence could irreparably
damage the careers of the affected players, even if the positive
results were not actually caused by illegal steroid use. Based
on this danger, we agree that the third factor also weighs in
favor of equitable jurisdiction.
D
[19] Although we conclude that the district courts erred in
finding callous disregard of Fourth Amendment rights, the
three other equitable jurisdiction factors weigh in favor of
hearing the motions by the Players’ Association and CDT. See
Ramsden, 2 F.3d at 326 (holding that three factors justified
exercise of equitable jurisdiction to hear Fed. R. Crim. P.
41(g) motion). As such, we cannot say that either district
court’s initial choice to hear the motion constituted an abuse
of discretion.
IV
We turn now to the merits of the substantive rulings issued
by Judge Cooper and Judge Mahan that ordered return of all
property other than evidence directly related to the ten players
named in the search warrants.
A
With respect to property taken during search warrants, Fed.
R. Crim. P. 41(g) provides that a person who is deprived of
property may move for its return. When such a motion is
granted, the property in question must be returned to the mov-
ing party, but a court “may impose reasonable conditions to
protect access to the property and its use in later proceed-
ings.” Id. Although the rule itself does not set a standard for
determining when property should be returned to a moving
party, an advisory committee note explains that “reasonable-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19821
ness under all of the circumstances must be the test.” Fed. R.
Crim. P. 41 advisory committee’s note.
[20] We have repeatedly held that a Fed. R. Crim. P. 41(g)
motion is properly denied if “the government’s need for the
property as evidence continues.” United States v. Fitzen, 80
F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omit-
ted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)
(same). The advisory committee note explains: “If the United
States has a need for the property in an investigation or prose-
cution, its retention of the property generally is reasonable.”
Fed. R. Crim. P. 41 advisory committee’s note.
[21] It is when the government no longer needs the prop-
erty as evidence that a presumption arises, giving the owner
a right to have the property returned. Fitzen, 80 F.3d at 388.
Here, the government already has provided copies of all docu-
ments seized, and it states that the remaining evidence is
essential to its investigation and prosecution of the distribu-
tion of illegal steroids. This legitimate law enforcement pur-
pose makes return of the intermingled evidence improper, as
the files were seized legally under the search warrant and our
precedent.
Moreover, even in cases where agents seized too much evi-
dence, we have noted that return of property should follow
only a particularly egregious violation: “The issue is whether
the Government’s conduct was sufficiently reprehensible in
this case to warrant this sanction.” Ramsden, 2 F.3d at 327.
In Ramsden, we refused to impose this extreme sanction on
police who had time to obtain a warrant but made no effort
to do so and “simply chose not to comply with [their] obliga-
tions under the Fourth Amendment.” Id. at 325, 327.
[22] Our governing precedent offers no support for a full
return of the intermingled evidence. Indeed, both the Beusch
and Tamura courts underscored the need for effective crimi-
nal law enforcement. Thus, the Beusch court resolved: “As
19822 UNITED STATES v. COMPREHENSIVE DRUG TESTING
long as an item appears, at the time of the search, to contain
evidence reasonably related to the purposes of the search,
there is no reason—absent some other Fourth Amendment
violation—to suppress it.” 596 F.2d at 877. Even the Tamura
court—which determined that the agents unambiguously
flouted the limits of the search warrant—concluded: “[W]e
cannot say, although we find it a close case, that the officers
so abused the warrant’s authority that the otherwise valid war-
rant was transformed into a general one, thereby requiring all
fruits to be suppressed.” Tamura, 694 F.2d at 597.
In Tamura, the government did not seek to use evidence at
trial that fell outside the scope of the warrant. Therefore, the
court found return of the seized property inappropriate, even
though some evidence had been unlawfully taken. In the cases
before us today, the government has made clear that it desires
to use only information related to the ten named Balco players
and to other players who tested positive—and who therefore
may have become targets of an expanded grand jury
investigation—as a result of intermingled information we
have determined was seized lawfully under the warrant.
While we agree that some information still retained by the
government, at least in duplicate, may fall outside the scope
of the warrant, we do not believe a return of the lawfully
seized intermingled evidence properly remedies that wrong.40
[23] Thus, the district courts erred in granting the Fed. R.
Crim. P. 41(g) motions and ordering the government to return
all evidence seized from CDT and Quest—and all related
notes by agents who reviewed the evidence—that did not
relate to the ten Balco players expressly named in the search
warrants.
40
The orders of the two district courts would require the return of all
evidence other than that related to the ten named players. We have
described in detail why this view misinterprets Tamura in a way that
would invalidate lawful and reasonable searches and seizures. It would
also hamper the public interest in full and comprehensive investigations as
leads unfold in the course of the grand jury’s inquiries.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19823
B
[24] We are persuaded that the government’s seizure of
intermingled evidence for off-site review was lawful and rea-
sonable, and we view the two orders requiring return of all
property related to players not specifically named as both
unjustified and improper. However, the government has yet to
comply with its duty of adequate off-site review. Tamura
offered a suggested procedure for review by a neutral magis-
trate, and we conclude that such review is necessary to ensure
that the seizure of intermingled computer records remains rea-
sonable.
The Tamura court urged that off-site review be conducted
by a magistrate, in order to avoid giving the task to a party
with an interest in retaining too much.41 We cannot accept the
government’s argument that it may retain all evidence simply
because it assured the Players’ Association and CDT (without
signs of bad faith) that it did not intend to use all the files. In
the case of a lawful and reasonable seizure of intermingled
computer records for off-site review, as at bar, our precedents
and the general reasonableness mandate of the Fourth Amend-
ment require the supervision of a magistrate. It is not reason-
able to allow the government to seize an indeterminately
bounded array of computer data only later to set its own stan-
dards for review and retention thereof.42
41
It is not necessary that a magistrate always give advance authorization
for seizures of intermingled evidence. Here, as in United States v. Hay,
231 F.3d 630 (9th Cir. 2000), we do not read Tamura to require prior
authorization for off-site review. See id. at 637 (finding Tamura “inappo-
site . . . for its suggestion that magistrate judges should approve seizure
of materials beyond those described in the warrant before wholesale
removal occurs” (emphasis added)). However, we still read Tamura to
apply in a significant way in the context of lawful seizures of intermingled
computer data.
42
We do not belabor the government’s alleged failure to follow its own
internal guidelines. The dissent takes note that the U.S. Attorney’s manual
states “that a search warrant should normally not be used to obtain confi-
19824 UNITED STATES v. COMPREHENSIVE DRUG TESTING
It is true that Tamura proposed a pragmatic approach, and
not a constitutional rule. We recognize that some courts in
other circuits have questioned the procedures advised in
Tamura. One district court in Michigan explained: “The Court
declines to follow Tamura, at least in this case, because
Tamura did not involve computer files and therefore did not
consider the specific problems associated with conducting a
search for computerized records.” Scott-Emuakpor, 2000 WL
288443, at *8. Although declining to apply Tamura’s prag-
matic approach to computer searches, Judge Quist stated:
“This is not to suggest that seizure of all computer disks is
permissible whenever the warrant authorizes the seizure of
computer records.” Id. Another court, also referencing
Tamura, noted that in the modern computer context a “ ‘sug-
gestion’ by a panel of the Ninth Circuit in a 20-plus year old
case is not persuasive.” United States v. Kaufman, 2005 WL
2304345, at *4 n.3 (D. Kan).
Like these district courts from other circuits, we recognize
that the computer era adds new complexity to the test of rea-
sonableness under the Fourth Amendment. Precisely for this
reason, we view Tamura as especially important in the com-
puter context. Although indeed writing over two decades ago,
the Tamura court appreciated the same dual—and sometimes
conflicting—interests of minimizing the intrusiveness of
searches and containing the breadth of seizures. The Tamura
court stated that “large-scale removal of material” can be jus-
tified “where on-site sorting is infeasible and no other practi-
cal alternative exists,” Tamura, 694 F.2d at 596, but also
dential materials such as treatment records,” and that the Department of
Justice’s guidelines disfavor use of a search warrant where a subpoena
would suffice. See Dissent at 19866. The existence of those guidelines is
not disputed. Yet, quite simply, the government’s guidelines do not dictate
what is “reasonable” under the Fourth Amendment. If its guidelines did
so, the government would have every reason to enact permissive internal
rules. We have no reason or authority to give the government that perverse
incentive.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19825
advised that a magistrate should oversee the off-site review of
documents. We conclude that upon a proper post-seizure
motion by the aggrieved parties, the record should be sealed
and reviewed by a magistrate—such as the one who originally
issued the warrant.43 This procedure affords the necessary pro-
tection against unreasonable retention of property after a sei-
zure of intermingled computer data.
Insofar as the dissent emphasizes the crucial need to set
parameters on government seizures and retention of intermin-
gled computer evidence, we agree. On the other hand, the dis-
sent attempts to limit computer searches and seizures to an
unreasonable degree—one neither warranted by the Constitu-
tion nor by our precedent. The dissent would affirm the dis-
trict courts’ Fed. R. Crim. P. 41(g) orders in toto, relying upon
Tamura yet failing to recognize the continued relevance of
Beusch. This extreme approach, which would forbid the sei-
zure of intermingled data, would compel law enforcement
agents, when unexpectedly confronted with intermingled
computer data, to give up the search and leave. They could
only return to the scene if equipped with a new warrant autho-
rizing removal of the specific intermingled evidence, repeat-
ing this procedure until all relevant intermingled evidence
were obtained. After many such warrants and intrusions, the
intermingled evidence might well no longer be intact. More-
over, rather than limit the intrusiveness of a search and sei-
43
The dissent mistakenly concludes that this procedure allows the gov-
ernment to establish “what the Fourth Amendment required it to do in the
first : instance: [that] probable cause exists to seize and search the proper-
ty.” Dissent at 19894. The point of the Tamura procedure is to ensure that
intermingled documents, legitimately seized for off-site review under a
warrant supported by probable cause, do not contain documents that turn
out, upon scrutiny, to be easily separable. In a seizure of a plethora of doc-
uments containing relevant material interspersed with irrelevant docu-
ments, it is predictable that some documents, although legitimately seized
for off-site review, turn out to be separable without changing the nature
of the relevant documents. The purpose of the Tamura procedure is to
monitor the off-site separation process, not to establish probable cause.
19826 UNITED STATES v. COMPREHENSIVE DRUG TESTING
zure of intermingled computer data by allowing the
government to remove the whole for off-site review, the dis-
sent’s approach would magnify unnecessarily the burdens
imposed by computer search warrants, both on the govern-
ment and on the parties searched, with no corresponding ben-
efit in light of the constitutional linchpin of reasonableness in
Fourth Amendment jurisprudence.
[25] We conclude that, while the government may seize
intermingled data for off-site review to minimize intrusive-
ness of a computer search, it may not retain or use the evi-
dence after proper objections are raised, unless a magistrate
subsequently reviews and filters the evidence off-site.44 The
magistrate must adhere to our precedent in a balanced man-
ner. In her review, the magistrate should apply our precedent,
including Beusch, which permits the seizure of single ledgers
or files with intermingled data. In the context of computer
files, we believe that most seized materials can be pared down
considerably, but that certain files—spreadsheets of only a
few pages, for example—may be retained in whole.45
After the magistrate determines which sealed items fall
within the search warrant, the government may retain and use
44
We note that the government has little to lose by following this pre-
caution. A magistrate will allocate to the government whatever property
it may legitimately retain under the warrant. Yet if agents rely on their
own judgment, they may err on the side of retaining items outside the
search warrant or err on the side of returning evidence our precedents
would permit them to retain.
45
In this analysis, the magistrate may consider relevant, among other
factors: 1) whether evidence mentioned in the search warrant can be sepa-
rated from unrelated evidence by copying or moving files, but without cre-
ating new documents, 2) whether the file, if printed, would fill more than
a typical paper ledger (of the sort in Beusch), 3) whether excision of the
unrelated portions of the document would distort the character of the origi-
nal document. This list is neither exhaustive nor mandatory, but offers rel-
evant considerations for a magistrate to determine what evidence the
government can reasonably retain after a lawful seizure of intermingled
digital data.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19827
such items; all others must be returned to the person or entity
searched.46 The government is always free to seek judicial
authorization, either through subsequent search warrants or
district court authorization on review of the magistrate’s rul-
ings, to justify expansion of the investigation upon proper
showing of any item’s relevancy to suspected criminal behav-
ior uncovered during review of the evidence initially seized.
[26] In this case, we conclude that the proper remedy is to
remand these Fed. R. Crim. P. 41(g) matters to the appropriate
district courts, for the purpose of sealing the materials seized
under the search warrants and transferring them to a magis-
trate for expeditious review and isolation of the files that the
government may legally retain.
V
Finally, we consider the government’s appeal of Judge Ills-
ton’s order quashing the May 6 subpoenas, which sought drug
testing records and specimens for all MLB players who tested
positive for steroids.47
[27] Under Fed. R. Crim. P. 17(c)(2), a “court may quash
. . . [a] subpoena if compliance would be unreasonable or
oppressive.” The district court found that the May 2004 sub-
poenas constituted harassment and were unreasonable.48
46
This approach does not permit the government to seize computer files
“wholesale,” without any effort to limit the documents seized. Nothing we
suggest lifts the Fourth Amendment’s bar on “unreasonable searches and
seizures.” U.S. Const. amend. IV. Like the Beusch and Tamura courts, we
point out the parameters of a reasonable search and seizure in the complex
context of intermingled files. Case-by-case evaluation remains essential,
because our Founding Fathers chose a general prohibition on unreasonable
searches; they did not create a rigid rule that could at times prove too per-
missive and at times prove too strict.
47
We review a district court’s decision to quash a grand jury subpoena
for abuse of discretion. In re Grand Jury Subpoenas, 803 F.2d at 496.
48
The district court did not find that the subpoenas were oppressive.
19828 UNITED STATES v. COMPREHENSIVE DRUG TESTING
To support its finding, the district court pointed to United
States v. American Honda Motor Co., 273 F. Supp. 810 (N.D.
Ill. 1967). In American Honda, the government issued sub-
poenas that were “substantially identical” to one another but
in different locations. Id. at 819. As a result, Honda was faced
with producing the same documents repeatedly, and the court
found this to be harassment. Id. at 819-20. American Honda,
however, does not preclude the government from pursuing the
same information through the contemporaneous issuance of
subpoenas and applications for search warrants.
We addressed the issuance of contemporaneous search war-
rants and subpoenas in In re Grand Jury Subpoenas Dated
December 10, 1987, 926 F.2d at 854. There we upheld the
validity of the subpoenas against the challenge that “the sub-
poenas were served at the same time as the search warrants
and the federal agents attempted to ‘enforce’ the subpoenas
through immediate seizure of the documents.” Id. at 854. Not-
ing that the challenge to the subpoenas received no support in
precedent, we clarified the differences between subpoenas and
search warrants:
Subpoenas are not search warrants. They involve dif-
ferent levels of intrusion on a person’s privacy. A
search warrant allows the officer to enter the per-
son’s premises, and to examine for himself the per-
son’s belongings. The officer, pursuant to the
warrant, determines what is seized.
Id. By comparison:
Service of a forthwith subpoena does not authorize
an entry into a private residence. Furthermore, the
person served determines whether he will surrender
the items identified in the subpoena or challenge the
validity of the subpoena prior to compliance.
Id. We concluded that “[t]hese differences are not eliminated
by the fact that the search warrants and subpoenas were deliv-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19829
ered at the same time” and observed that the complaining
party had “failed to show that the papers that are described in
the subpoenas are outside the scope of a legitimate investiga-
tion by the grand jury.” Id. at 854-55. In addition, we specifi-
cally emphasized the fact that the defendant was given almost
a month to comply with the subpoenas. Id. at 854.
[28] Therefore, the district court erred in finding the issu-
ance of subpoenas and the contemporaneous execution of
search warrants to be unreasonable. The Players’ Association
has not argued that the evidence sought by the subpoenas is
“outside the scope of a legitimate investigation by the grand
jury.” Id. at 855. The subpoenas were not returnable on the
same day that the search warrants were executed. As in In re
Grand Jury Subpoenas, the return dates on the subpoenas
were over a month from the date on which the warrants were
executed. The district court declared the May 6 subpoenas an
“unreasonable insurance” policy, but it failed to recognize the
different purposes and requirements of the warrant as com-
pared to the subpoena and the legitimate concern that produc-
tion of relevant evidence to the grand jury would be unduly
delayed. See id. at 854. It was error to conflate the two dis-
tinct tools. Insurance it may have been; but, under the Fourth
Amendment, unreasonable it was not.
The district court also deemed the government’s actions
unreasonable because it found that the agents sought search
warrants in three separate districts in an attempt to avoid a
ruling on the motion to quash the existing subpoenas of Janu-
ary and March 2004. We note that granting the motion to
quash would not have prevented the government from seeking
the search warrants, particularly given the existence of proba-
ble cause. As the Fourth Circuit has noted, “the fact that a
grand jury subpoena existed . . . at the time of the search obvi-
ously had no effect upon whether probable cause existed to
search . . . for documents which were properly included
within the warrant’s scope.” United States v. Photogrammet-
ric Data Servs., Inc., 259 F.3d 229, 238 (4th Cir. 2001), over-
19830 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ruled on other grounds by Crawford v. Washington, 541 U.S.
36 (2004).
[29] As such, the district court rested its order on legally
insufficient grounds, and abused its discretion in granting the
motion to quash. See United States v. Iverson, 162 F.3d 1015,
1026 (9th Cir. 1998).
VI
Finally, we address the Non-Party Journalist’s Motion To
Unseal, filed on November 23, 2005 by Joshua A. Gerstein.
Gerstein seeks access to “the dockets for these appeals and the
cases below, the district court opinions and/or orders that are
the subject of these appeals, and all briefs filed with this Court.”49
We have jurisdiction over these documents, because the dis-
trict courts’ records transferred to us upon appeal. See Fed. R.
App. P. 11.
Although not a party, Gerstein enjoys standing to file the
motion based upon his constitutional interest in the proceed-
ings:
Under the first amendment, the press and the public
have a presumed right of access to court proceedings
and documents. . . . This presumed right can be over-
come only by an overriding right or interest “based
on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that
interest.”
49
Oral proceedings before this court on November 15, 2005, were open
to the public. On November 9, 2005, CDT and MLB filed an unopposed
Motion To Seal Courtroom During Oral Argument. We denied the motion
the next day. On November 14, 2005, CDT and MLB filed a Motion for
Reconsideration of Motion To Seal Courtroom During Oral Argument,
which the government joined. We denied the motion the same day.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19831
Oregonian Publ’g Co. v. District Court, 920 F.2d 1462, 1465
(9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior
Court, 464 U.S. 501, 510 (1985)).50 The Supreme Court has
noted the particular interest of media members in “publish[-
ing] information concerning the operation of government.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
To decide whether Gerstein’s interest justifies unsealing
portions of the records, the court also must consider the pri-
vacy interests of the litigants, for “the right to inspect and
copy judicial records is not absolute.” Id. In the appeals at bar,
the records contain extremely sensitive information, espe-
cially the drug-testing records. If revealed, this information
could adversely affect the reputations of many competitive
baseball players. Therefore, the motion to unseal requires a
careful balancing of the interests at stake. See id. (noting that
access to judicial records may be limited to protect the pri-
vacy interests of the litigants, such as to avoid disclosure of
“sources of business information that might harm a litigant’s
competitive standing”).
Although we have jurisdiction to conduct a merits analysis
of the motion to unseal, the district courts—having greater
familiarity with the records51 —are in a better position to bal-
ance the privacy interests and to determine which materials
are protected grand jury materials. See Fed. R. Crim. P. 6(e).
50
Gerstein premises his motion on Ninth Circuit Rule 27-13(c). That
rule states: “During the pendency of an appeal, any party may file a
motion with this court requesting that matters filed under seal either in the
district court or in this court be unsealed. Any motion shall be served on
all parties.” Id. (emphasis added). Although Joshua Gerstein is not a
“party” under this rule, his standing derives from his constitutional interest
and does not depend upon the applicability of Ninth Circuit Rule 27-13(c).
51
Sensitive portions of the records were neither revealed nor discussed
at oral argument before this court. See supra note 49.
19832 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Therefore, we refer the Gerstein motion to the district courts
for consideration upon remand.52
VII
We now summarize the resolution of these consolidated
appeals. We conclude that the government’s seizures were
reasonable under the Fourth Amendment, and that the district
courts erred in ruling that Fed. R. Crim. P. 41(g) required
return of all property and agent review notes unrelated to the
ten expressly named Balco players.
At the same time, we recognize limits to the government’s
right to retain evidence seized, even where a broad seizure is
reasonable in order to avoid lengthy and intrusive on-site
inspection. Our Fourth Amendment precedents explain that
the government may retain single “ledgers” of intermingled
evidence, but may not keep separate, unrelated evidence. A
magistrate is in the best position to sort through the actual evi-
dence and to determine those files that may be kept when
aggrieved parties seek relief. Readily separable evidence
unrelated to persons named in the search warrants must be
returned. The Fed. R. Crim. P. 41(g) cases must be remanded
to the District of Nevada and Central District of California to
permit such review of the sealed documents by magistrates.
With regard to the May 6 subpoenas, which covered the
same evidence as the contemporaneous search warrants, we
conclude the order of the Northern District of California
quashing the subpoenas was an abuse of discretion. The
record, illuminated by caselaw, reveals that the subpoenas
were not unreasonable and did not constitute harassment.
52
In the Central District of California and District of Nevada, the motion
can be addressed during the remand pursuant to this opinion. See infra
Section VII. The motion will need to be separately decided in the Northern
District of California.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19833
[30] Therefore, the orders of the Central District of Califor-
nia, the District of Nevada, and the Northern District of Cali-
fornia cannot stand. The three cases consolidated in this
appeal are hereby
REVERSED in part and REMANDED in part.
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
One of the three extremely able district court judges who
rejected the government’s argument summarized it best, stat-
ing: “What happened to the Fourth Amendment? Was it
repealed somehow?”
Although it only had a search warrant for data concerning
eleven Major League Baseball players, the government seized
thousands of medical records and test results involving every
single Major League Baseball player. The government did not
stop there, seizing thousands of other medical records for
individuals in thirteen other major sports organizations, three
unaffiliated business entities, and three sports competitions.
The government now seeks to retain all of the medical infor-
mation it obtained about persons who were not the subject of
any criminal inquiry.
The stakes in this case are high. The government claims the
right to search—without warrant or even a suspicion of crimi-
nal activity—any patient’s confidential medical record con-
tained in a computer directory so long as it has a legitimate
warrant or subpoena for any other individual patient’s record
that may be contained as part of data stored on the same com-
puter. The government attempts to justify this novel theory on
a breathtaking expansion of the “plain view” doctrine, which
clearly has no application to intermingled private electronic
data.
19834 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As radical as the government’s position is, the majority
goes even further. It holds that the government—without war-
rant or even a suspicion of criminal activity—may seize,
retain, and view all confidential records in any electronic
database on which private data responsive to a warrant
resides. Under the majority’s holding, a magistrate would be
required to review the seized data for probable cause after sei-
zure only if an aggrieved party made a motion. Even then, if
the magistrate concluded that the irrelevant data was “co-
mingled,” the government would be entitled to retain the con-
fidential medical records. This new theory was not argued by
any party, nor presented to any district judge at any time dur-
ing the course of these protracted and hotly contested pro-
ceedings.
The scope of the majority’s new holding in the digital age
could not be greater; it removes confidential electronic
records from the protections of the Fourth Amendment. The
holding also squarely conflicts with the sound and sensible
procedural protections detailed in United States v. Tamura,
694 F.2d 591 (1982), which direct the government to seal and
hold documents containing intermingled data pending
approval of a magistrate of a further search.
I agree with the careful findings and conclusions of the
three district judges who rejected the government’s position.
For that reason, and because of the profound consequences of
the majority’s opinion on the privacy of medical records
throughout the United States, I respectfully dissent.
I
The investigation in this case ostensibly involved Bay Area
Lab Co-Operative, popularly referenced as “Balco.” The gov-
ernment suspected Balco of distributing illegal steroids to cer-
tain athletes, including some Major League Baseball players.
The government knew that, pursuant to a collective bargain-
ing agreement between the Major League Players Association
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19835
(“Players Association” or “MLBPA”) and Major League
Baseball, confidential testing had been analyzed by Compre-
hensive Drug Testing, Inc. (“CDT”), and other laboratories,
for the sole purpose of determining whether Major League
Baseball should adopt an individualized steroid testing pro-
gram.
Through the collective bargaining agreement, the players
were assured that the testing would be anonymous and confi-
dential, and that the samples and individual data would be
destroyed upon tabulation of the results. The only object of
the exercise was to determine the approximate magnitude of
apparent steroid use with the goal of fashioning appropriate
policies to address it. The collective bargaining agreement
acknowledged and anticipated that the tests for some players
might well yield positive results due to the ingestion of legal
and proper over-the-counter supplements.
Although information developed by the government in its
criminal investigation pointed only to specific individuals
who might be involved with Balco, the government served a
grand jury subpoena on CDT on January 16, 2004, seeking
drug tests for all major league baseball players. After receiv-
ing the subpoena, the Players Association and CDT contacted
the United States Attorneys’ Office to discuss their concerns
with the breadth of the subpoena. At the government’s
request, the Players Association, CDT, and Major League
Baseball prepared and presented a “white paper” to the gov-
ernment detailing the provisions of the collective bargaining
agreement pertaining to testing, with emphasis on the many
confidentiality provisions, and raising concerns about the
invasion of the constitutionally-protected privacy interests of
the players who were not involved in the Balco investigation.
The Players Association and CDT assured the government
in writing that CDT would maintain all of the subpoenaed
records until the disputes were resolved by negotiation or liti-
gation. On February 4, 2003, the Chief of the Criminal Divi-
19836 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sion wrote the counsel for CDT indicating that the
government had accepted the assurances by CDT that none of
the materials sought by the subpoena would be destroyed or
altered pending the government’s reconsideration of the sub-
poena and a motion to quash the subpoena, if filed.
On February 12, 2004, the grand jury returned a 42-count
indictment against Victor Conte, Jr. (Balco’s founder), James
J. Valente (Balco’s Vice President), Greg F. Anderson (a
trainer), and Remi Korchemny (a track coach). The charges
against the defendants included conspiracy to possess with
intent to distribute anabolic steroids, possession with intent to
distribute anabolic steroids, introduction and delivery of mis-
branded drugs into interstate commerce with intent to defraud,
and misbranding of drugs held for sale with intent to defraud.
On March 3, the government served a second grand jury
subpoena on CDT, seeking information on only eleven named
baseball players. However, it did not withdraw the January 16
subpoena. On April 7, with no compromise reached and with
a return date passed, the Players Association filed a motion in
the Northern District of California in San Francisco to quash
the CDT subpoena. The motion was assigned to Judge Jeffery
S. White.
After learning that a motion to quash would be filed but
before the motion could be heard, the government applied for
a search warrant to search the CDT offices for the same infor-
mation it was seeking in the grand jury subpoena. The search
warrant application was made some 240 miles away in
another federal judicial district, without notice to the Players
Association or to the district court in the Northern District of
California.
In the search warrant proceedings in the Central District of
California, the government never brought to the magistrate
judge’s attention that there was a motion pending before
Judge White in the Northern District of California to quash
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19837
the grand jury subpoena. The affidavit did not disclose that
the Players Association had joined the motion. Rather, the
affidavit stated:
The referenced grand jury subpoena, for the items
listed in Attachment B, was issued; however, while
not denying that they have the requested materials,
CDT has declined to comply with the subpoena and
has stated its intent to attempt to quash the subpoena.1
The affidavit did not disclose that CDT had agreed in writ-
ing to keep the data and other materials secured until the
scope of the grand jury subpoena was settled, either through
negotiation or a ruling on a motion to quash. Rather, the affi-
davit justified removing computer data and equipment from
the searched premises on the basis that the computer data
could be concealed, altered, or destroyed by the user.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
The government did not have any evidence or reason to
believe that CDT had engaged in steganography, booby-
trapping computers, or any type of data destruction or alter-
1
Some months later, Judge Illston asked the government: “Did you
explain to Judge Johnson what was happening before Judge White, even
on the day that you got him to issue the warrant?” Government counsel
replied, “We did inform Judge Johnson of the existence of the grand jury
subpoena and it’s in the warrant application of Judge Johnson that defense
had indicated that it wanted to move to quash the subpoena. So we did
indicate to Judge Johnson there was a disputed grand jury issue. Yes, it
was disclosed to Judge Johnson.” Neither the warrant application nor the
affidavit filed in support of the application contain any reference to pend-
ing proceedings before Judge White.
19838 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ation. To the contrary, it had accepted in writing CDT’s assur-
ances “that CDT will maintain and preserve all materials
called for by the first subpoena as well as any materials called
for by the new subpoena” and that “CDT would not destroy
or alter any of the materials called for by either of the subpoe-
nas.” However, the plain import of the application was that
CDT was improperly resisting compliance with a valid grand
jury subpoena and data was in jeopardy of being destroyed.
Based on the government’s application, a search warrant
was issued by Magistrate Judge Jeffery W. Johnson in the
Central District of California in Los Angeles. The warrant
authorized the seizure of records regarding drug specimens,
testing, and test results of only ten specifically named Major
League baseball players. The warrant also provided that if the
computer data seized did not fall within any of the items to
be seized or is not otherwise legally seized, the government
would return the data. The affidavit provided by Special
Agent Novitzky in support of the issuance of the warrants
stated that obtaining information to link the test results to
individual players was necessary “to ensure that samples of
individuals not associated with Balco are left undisturbed.”
The warrant was issued one day after the motion to quash
the grand jury subpoena had been filed in the Northern Dis-
trict of California. Upon arrival at the premises of CDT on the
morning of the search, Special Agent Novitzky and other
agents discussed with CDT’s attorney the need to search
CDT’s computers.
The information sought in the search warrant was contained
in three places: a segregated list only containing information
about the ten athletes that were subject of the search warrant;
a master list of the drug test results for all Major League
Baseball players; and a computer directory (often referred to
as the “Tracey directory”) that contained information and
medical test results for hundreds of other baseball players and
athletes engaged in professional sports. Counsel for CDT
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19839
requested that all material pertaining to the specific items
listed in the warrant be reviewed and redacted by a magistrate
judge or special master before it was seen by the government.
The government refused the request.2 The government also
rejected CDT’s offer to provide the records it had already seg-
regated concerning the small subset of players at issue.
In addition to the segregated materials, the government
seized the master list, the entire Tracey Directory (which con-
sisted of more than 2,900 files), lists of teams and players and
drug testing details, and eleven diskettes, all of which con-
tained drug-test results on hundreds of Major League Baseball
players and other athletes. The agents searching the Tracey
directory at the scene concluded that certain of the subdirecto-
ries appeared to contain information not called for by the war-
rant. Rather than copying only the subdirectories that
pertained to Major League Baseball, the agents copied the
entire directory. In fact, the directory contained 2,911 files
that had nothing to do with Major League Baseball drug test-
ing, but rather contained test results for numerous other sports
entities and business organizations. Dr. Jean Joseph of CDT
later stated in an affidavit that the directory was easily
searched by key word and would have provided the test infor-
mation about the ten players in a short period of time.
Judge Cooper later specifically found that “[o]nce the items
were seized the requirement of the search warrant that any
seized items not covered by the warrant be first screened and
segregated by computer personnel was completely ignored.”
She further found that Agent Novitzky himself reviewed the
seized computer data and used what he learned to obtain the
subsequent search warrants issued in the Northern District of
California, the Central District of California, and Nevada.
2
Department of Justice Guidelines provide that, in cases involving con-
fidential patient information, a search warrant “shall be executed in such
a manner as to minimize, to the greatest extent practicable, scrutiny of
confidential materials.” 28 C.F.R. § 59.4(b)(4).
19840 UNITED STATES v. COMPREHENSIVE DRUG TESTING
After the initial search, and based on the search results, the
government sought and obtained that day a second search
warrant from Magistrate Judge Johnson for a search of a stor-
age facility maintained by CDT.
On the same day, the government also applied for a search
warrant in the District of Nevada. The warrant sought infor-
mation in the business files of Quest Diagnostics, Inc., a labo-
ratory that had also been involved in the administration of
Major League Baseball’s drug testing program in 2003. The
warrant was limited to information concerning the ten base-
ball players identified in the Los Angles search warrant. The
affidavit filed in support of the warrant did not disclose the
history of the issuance of the grand jury subpoena or the filing
of a motion to quash the subpoena. Based on the information
provided by the government, Magistrate Judge Lawrence
Leavitt issued the warrant, and the warrant was executed.
On April 9, 2004, the Players Association arranged an
emergency hearing before Judge White, before whom the
motion to quash the grand jury subpoena was pending. The
Players Association sought an order restricting the govern-
ment from disseminating any information it had obtained until
the Players Association had an opportunity to litigate the
motion to quash or a Rule 41 motion to return the seized prop-
erty. The government argued that Judge White had no juris-
diction over the items seized pursuant to the search warrants,
even though the grand jury subpoena sought the same materi-
als.
The government represented to the court that it would not
disseminate the information and would negotiate in good faith
about the seized items. Judge White accepted that representa-
tion. He noted that he did not have jurisdiction over the items
seized pursuant to the warrants, but that the motions to quash
the grand jury subpoenas remained pending before him. Judge
White acknowledged that the position of the Players Associa-
tion was “well taken with respect to the U.S. Attorney’s man-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19841
ual and the government allegedly not following proper
procedure,” but that the Players Association had other avail-
able remedies to resolve that issue on the merits.
On April 22, 2004, the government wrote CDT indicating
that it was withdrawing the January 16, 2004, subpoena and
modifying the subpoena of March 3, 2004. The government
did not inform Judge White of these actions and the January
16 subpoena was never withdrawn.
On April 24, CDT and the Players Association filed a
motion in the Central District of California for return of the
seized property or, in the alternative, appointment of a special
master to redact those records so that the government retained
drug test results for only the ten players named in the warrant.
On April 30, 2004, the government filed its opposition to
the motion to return property in the Central District. In its
opposition, despite the existence of an agreement with CDT
that CDT would not destroy or alter documents, the govern-
ment argued that it “had good-faith reasons to believe that
CDT was detrimentally delaying the investigation, and that
there was some danger of the sought-after records being jeop-
ardized.” The government also argued that this jeopardy justi-
fied proceeding with a search warrant under DOJ guidelines.
On the same date, April 30, 2004, based on what it had
found in the first search, the government sought a new search
warrant in the Northern District of California in San Jose for
CDT electronic files it already had in its possession in the
Tracey Directory concerning all players whose test results
were positive.
In contrast to the affidavit supplied in the first warrant
application, which purported to “to ensure that samples of
individuals not associated with Balco are left undisturbed,”
the affidavit of Agent Novitzky in support of this warrant
application sought “authorization to conduct a thorough
19842 UNITED STATES v. COMPREHENSIVE DRUG TESTING
review of all major league baseball-related computer data”
and “to seize all data pertaining to illegal drug use by any
member of major league baseball.”
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19843
Volume 2 of 2
19844 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The affidavit conceded that no specific information had
been uncovered linking Balco to any individual baseball play-
ers beyond the ten listed in the April 7, 2004, search warrant.
However, in contrast to the first warrant application, Agent
Novitzky averred that even though there was no evidence that
had been developed to link the ballplayers who were not listed
in the first warrant to Balco, “it is logical to assume that a
review of the drug testing records for other players may pro-
vide additional evidence of the use of similar illegal
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19845
performance-enhancing drugs which establishes a link to the
charged defendants in the charged [Balco] case, given the rel-
atively small number of professional baseball players and the
closely-knit professional baseball community.”
The affidavit in support of issuance of the warrant did not
disclose that a grand jury subpoena had been issued for the
same material and that a motion to quash the subpoena was
pending in the very same district.
The affidavit also did not disclose that the parties were liti-
gating in the Central District of California a motion for return
of the seized property — the very property which was subject
of the new search warrant request. Based on the information
provided by the government, Magistrate Judge Howard W.
Lloyd issued a new search warrant for the same material that
the government had already searched and seized.
On May 5, 2004, the government sought a search warrant
in the District of Nevada for information contained in the files
at Quest Diagnostics concerning all baseball players who,
according to the information collected in the CDT search, had
tested positive for steroids. The application conceded that
there was no specific evidence linking these players to Balco.
The warrant was issued by Magistrate Judge Leavitt. A large
number of physical samples of bodily fluids were taken (later
reported by the government to be 250 to 300 because of mul-
tiple samples given by the players), which the government
transported to a lab in Los Angeles.
On May 5, 2004, the government sought a search warrant
in the Central District of California in Los Angeles before a
different magistrate judge for all information contained in the
files at CDT concerning all baseball players who, according
to the information collected in the CDT search, had a positive
marker for steroids. The application conceded that there was
no specific evidence linking these players to Balco. Neither
the application nor the affidavit filed in support of the applica-
19846 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tion disclosed the pending proceedings concerning the grand
jury subpoenas. Based on the information provided by the
government, the warrant was issued by Magistrate Judge
Rosalyn Chapman.
On May 6, 2004, after it had executed the search warrants,
the government served grand jury subpoenas on CDT and
Quest for the same materials it had sought in the April 30 and
May 5 search warrants. The subpoena contained the names of
the baseball players that had allegedly tested positive, even
though the government knew that the information Quest pos-
sessed was only identifiable by number and even though the
government had assured the Players Association and Judge
White that it would not disclose the names. The government
sent a letter to Quest Diagnostics instructing the company not
to disclose to anyone the government’s request for documents
“indefinitely” because “[a]ny such disclosure could impede
the investigation being conducted and thereby interfere with
the enforcement of the law.”
On May 21, 2004, CDT and the Players Association filed
a motion in the District of Nevada for a return of the property
seized from Quest Diagnostics. On June 7, 2004, CDT and the
Players Association filed a motion in the Northern District of
California for return of the electronic documents seized from
CDT pursuant to the April 30 search warrant issued by Magis-
trate Judge Lloyd in the Northern District.
On July 9, 2004, Judge White held a hearing on the motion
to quash the grand jury subpoenas, but deferred action pend-
ing rulings on the motions for return of property seized pursu-
ant to the search warrants.
On August 9, 2004, Judge Susan Illston held a hearing on
the motion for return of the electronic data seized by the gov-
ernment pursuant to the April 30 warrant. When asked by
Judge Illston why the government hadn’t just waited to let
Judge White rule on the motions to quash the grand jury sub-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19847
poena rather than seeking search warrants for the same mate-
rial, the government responded:
What the government really perceived ultimately as
a conscious decision on the part of the Major League
Baseball Players Association and the other parties
associated with it just refused to comply with what
the government felt was [sic] legitimate grand jury
subpoenas.
Later in the hearing the government argued that the search
warrant was necessary because a motion to quash had been
filed.
Counsel: The concern here was, to say, okay, we’re
going to face a brick wall from this legal
avenue . . . .
Judge: What brick wall?
Counsel: The brick wall was . . .
Judge: Judge White?
Counsel: No, no, not at all. It was the concern that
the requests or that discussions about
moving to quash the subpoena would be
something that would be dragged out.
At a later hearing, counsel for government confirmed that
it would not have sought to obtain the search warrants if the
affected parties had not filed a motion to quash the grand jury
subpoena.3 However, the Department of Justice Guidelines
3
A hearing on December 10, 2004, discussed infra, contains this collo-
quy:
Counsel: And the government never would have done the
search warrants if the grand jury process could have
19848 UNITED STATES v. COMPREHENSIVE DRUG TESTING
provide that “The fact that the disinterested third party pos-
sessing the materials may have grounds to challenge a sub-
poena or other legal process is not in itself a legitimate basis
for the use of a search warrant.” 28 C.F.R. § 59.4.
The government primarily argued that, even though the
material seized may not have been authorized under the
search warrant, seizure was appropriate under the “plain
view” doctrine. The court engaged in an extensive colloquy
about the search, ascertaining that the data was contained in
a file that could not be accessed readily without assistance,
and that the agent had to scroll through 1,200 results to obtain
the positive tests that formed the basis of the later search war-
rants. After noting that the government had not provided any
case to support its contention that the plain view doctrine
applied in the computer context, Judge Illston made the fol-
lowing findings:
I find absolutely staggering the implications about
what you say about the plain view doctrine in the
computer set up. In a way nothing is in plain view
because with the disk you look at it, you don’t see
anything until you stick it in the computer and it
does take quite a lot of work really to bring it up on
the screen.
worked out. But it didn’t. I feel —
Court: Say that last thing one more time. What you —
Counsel: What I just said was we may not have ever done the
search warrants if the subpoena process worked out.
Court: But, I mean, there was a subpoena process pending in
this building before Judge White.
Counsel: Yes.
Court: At the time you went and got your search warrants,
and you didn’t allow that process to complete itself.
Counsel: That is true.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19849
So, it’s not in plain view in the sense of walking into
the room and seeing the scale on the desk. It takes
a whole lot of work to get there.
First off, none of it is cursory, there are whole indus-
tries that have developed in order to make it possible
for the disk to show up on the screen that way. So
it’s not cursory review. I don’t think it’s plain view.
I don’t think I have to go that far or make that kind
of choice with respect to issues that are certainly
going to arise. . . . Where it requires sorting through
information which really is on a data base, somehow
it’s being organized in different formats, you could
organize it in a format based on the ten names,
instead of taking it in other kinds of formats, then
scrolling across and taking names and information
off the screen, when it’s clearly information that
isn’t part of what was originally within the autho-
rized search warrant, I just think is impermissible.
Judge Illston then granted the motion for return of seized
property, with the following findings from the bench:
So, having looked at the Ramsden factors set out,
[there are] apparently four factors. One, whether the
government displayed a callous disregard for the
constitutional rights, two, whether the [movant] has
an individual right and need for the property he
wants returned, three, whether the [movant] would
be irreparably injured by denying the motion for
return of property, and four, whether the [movant]
has an adequate remedy at law for a redress of his
grievance. I find all four factors have been met here.
I think the government has displayed, in the chro-
nology of things that we’ve seen, in the way that the
case was taken from one judge to another judge, in
the way that as soon as it was challenged in one
19850 UNITED STATES v. COMPREHENSIVE DRUG TESTING
court, it was immediately litigated in another court
without full information being shared among the
courts, that to me makes it a callous disregard for
constitutional rights. I think, it’s a seizure beyond
what was authorized by the search warrant, therefore
it violates the Fourth Amendment.
Number two, I think [that both movants] here
have an interest and need for the property returned.
I think they need it returned and not so much
because they need it back, they got it, you got it, I
think what they need to get back from you what they
have, what you’ve taken from them because of the
privacy rights and the circumstances under which
this material was given.
Whether the [movant] would be irreparably
injured by denying the return of the property, I think
they would, and I think indeed there would be, that
the injury that will be suffered by volunteers not
being able to confidently provide testing under
promise of privacy would irreparably injure not only
major league baseball, I can’t imagine that there’s
going to be any voluntary agreement to do this kind
of testing, that’s probably over with already, but also
just has implications that are very negative for these
[movants], and whether the [movant] has an ade-
quate remedy at law, I don’t think there is any rem-
edy at law for the redress of these grievances.
I’m going to grant the motion.
On August 13, in the Central District of California, Magis-
trate Judge Johnson issued a report and recommendation rec-
ommending denial of the motion for return of property seized
at CDT.
On August 19, in the District of Nevada, Judge James C.
Mahan held a hearing on the motion filed by the Players
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19851
Association for the return of the property seized at Quest
Diagnostics pursuant to the search warrants. The government
did not disclose to Judge Mahan or the Players Association
that it had served on Quest a grand jury subpoena for the same
materials, coupled with a letter instructing Quest to keep that
fact confidential indefinitely. At the conclusion of the hearing,
Judge Mahan orally granted the motion. On September 7,
Judge Mahan filed a written order granting the motion for
return of the property. Judge Mahan found, in relevant part,
that:
2. Under Ramsden v. United States, 2 F.3d 322
(9th Cir. 1993), this Court has equitable jurisdic-
tion to order return of that seized property. All
of the factors identified in Ramsden supporting
jurisdiction are present. The government cal-
lously disregarded the affected players’ constitu-
tional rights. The MLBPA, as representative for
the players, has an individual interest in and
need for the property that it wants returned. The
MLBPA would be irreparably injured if the
property were not returned. And the MLBPA
has no adequate remedy at law for redress of the
grievances.
3. Under the particular circumstances of this case,
it was unreasonable for the Government to
refuse to follow the procedures set forth in
United States v. Tamura, 694 F.2d 591 (9th Cir.
1982), upon learning that drug-testing records
for the ten athletes named in the original April
8 warrants executed at Quest and at Comprehen-
sive Drug Testing, Inc. were co-mingled with
records for other athletes not named in those
warrants.
After issuance of the order, the government declined to
return the material seized from Quest in Nevada, contending
19852 UNITED STATES v. COMPREHENSIVE DRUG TESTING
it was entitled to retain it under the authority of the new May
6 grand jury subpoena. To that end, the government filed a
stay motion with Judge Mahan, arguing that it had a right to
retain the data and samples based on the May 6 grand jury
subpoena, which had issued after the seizures of the material
had occurred. The government argued that Judge White was
the only judge who had jurisdiction to decide that issue. Judge
Mahan denied the stay motion. The government maintained
that the May 6 grand jury subpoenas independently authorized
retention of the data and specimens; therefore, the Players
Association and CDT filed a motion to quash the May 6 sub-
poena in the Northern District of California.
On October 1, 2004, in the Central District of California,
Judge Cooper declined to adopt Magistrate Judge Johnson’s
recommendation, and granted the motion for return of the
seized CDT property. She noted that she joined “an appar-
ently ever increasing number of district judges who have held
that the Government’s execution of the Search Warrant at
issue in this case demonstrated a callous disregard for the con-
stitutional rights of the movants and their members.”
With respect to the Ramsden factors, Judge Cooper found:
All four considerations weigh in favor of the mov-
ing parties in this case. In assessing whether the gov-
ernment displayed a callous disregard for the rights
of the persons whose records were seized, it is
important to focus on the Ninth Circuit opinion in
United States v. Tamura, 694 F.2d 591 (1982). At
the time of the search, Tamura was certainly settled
law in the Circuit, and Tamura establishes a proce-
dure to be followed when documents to be seized are
intermingled with other documents. “. . . . [T]he
wholesale seizure for later detained examination of
records not described in a warrant is significantly
more intrusive, and has been characterized as ‘the
kind of investigatory dragnet that the fourth amend-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19853
ment was designed to prevent.’[citation].” Id. at 595.
Therefore, law enforcement officials are to seal and
hold such intermingled documents “pending
approval by a magistrate of a further search . . . .
Wholesale removal must be monitored by the judg-
ment of a neutral, detached magistrate.” Id. at 596.
It is particularly telling in this case that just such a
procedure was proposed to the Government at the
time of the search, and rejected.
Nor is the viewing of the seized files legitimized
by the Plain View doctrine. Under the exception to
the warrant requirement, an officer may seize what
he plainly views, so long as he has a lawful right to
access the evidence itself and its incriminating char-
acter is immediately apparent. Horton v. California,
496 U.S. 128, 136 (1990). Here, the agent did not
have a lawful right to access the computer records
and diskettes, and, as evidence provided in connec-
tion with the Motion reveals, the evidence observed
is not necessarily incriminating. The Declaration of
Dr. Joseph states that the ingestion of nutritional
supplements can produce a “positive” test for ste-
roids.
The Government demonstrated a callous disregard
for the rights of persons whose records were seized
and searched outside the warrants.
The second consideration, whether the moving
party has an interest and need for return of the prop-
erty, is easily answered. The athletes in question vol-
untarily submitted to urine testing for steroids, as
part of an agreement that all results would remain
confidential and be used only for statistical analysis.
Their interest in privacy is obvious.
The third consideration, whether the moving party
has an interest and need for return of the property is
19854 UNITED STATES v. COMPREHENSIVE DRUG TESTING
easily answered. The careers of these athletes could
be profoundly, negatively affected by release of
these records, and their return is vitally important.
The harm they would suffer if the records were
released (even if the positive tests are shown to be
innocuous) would be irreparable.
Finally, it is evident that the movants have no
other legal remedy. No motion to suppress the evi-
dence is available to them; they are neither defen-
dants nor suspects, and no case exists in which this
issue could be litigated.
In addition to her findings and conclusions, Judge Cooper
added these comments in a section labeled “Serious Con-
cerns:”
The documents presented to the Court in connec-
tion with this Motion reveal extremely troubling
conduct on the part of the Government. The picture
painted is one of almost desperate effort to acquire
evidence by whatever means could be utilized. The
Government negotiated with movants’ attorneys
over the breadth of the grand jury subpoenas;
received assurances in writing that the records of the
ten athletes would be secured while the Court
resolved the issue, and the day after the issue was
presented to a Court, went to another district and
sought a search warrant. That conduct would be sus-
pect in itself. But in seeking the warrant (not the cor-
rect procedure for obtaining documents for a third
party who is not a suspect), the Government
explained to the Magistrate that the records in ques-
tion were in danger of being destroyed. This is bla-
tant misrepresentation, as demonstrated by the
records in this case.
Four days after Movants filed a motion before
Magistrate Judge Johnson for return of the property,
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19855
the Government obtained a further warrant from a
Magistrate Judge in the Northern District of Califor-
nia. And while a motion for return of that property
was pending, the Government obtained two more
warrants in the Central District of California (not
from Magistrate Judge Johnson) and in Nevada. The
image of quickly and skillfully moving the cup so no
one can find the pea would be humorous if the mat-
ter were not so serious.
Noting that “the Government is held to a far higher stan-
dard than has been demonstrated in this case,” and that “this
is the third District Court Order compelling the Government
to return property illegally seized,” Judge Cooper ordered
return of the seized CDT property forthwith.
On December 10, 2004, Judge Illston held a hearing on the
Players Association motion to intervene and to quash the May
6, 2004 grand jury subpoenas served on CDT and Quest. At
the conclusion of the hearing, Judge Illston made the follow-
ing oral findings and conclusions:
I find that the MLBPA has the right to intervene
in this matter under Federal Rule of Civil Procedure
24(a), as it has an interest in the samples and test
results in the possession of CDT and Quest, which
were created with the promise of anonymity under
the mandatory testing of the 2002 collective bargain-
ing agreement.
The May 6th, 2004 subpoenas were the culmina-
tion of a series of actions taken by the government
in order to prevent MLBPA and CDT’s attempt to
move to quash the January and March subpoenas.
Instead of allowing the matter to be resolved in a sin-
gle proceeding before Judge White, the government
executed a series of search warrants in three different
19856 UNITED STATES v. COMPREHENSIVE DRUG TESTING
districts once it learned that petitioners would move
to quash the January and March subpoenas.
The government has provided no substantial
explanation of why this course of action was neces-
sary. Given that the government had no other basis
for issuing the April search warrants and preempting
the subpoenas served of Quest and CDT, the deci-
sion appears to have been a tactical decision to pre-
vent the parties from raising objections before Judge
White, which is unreasonable and constitutes harass-
ment similar to the conduct in United States v. Amer-
ican Honda.
Furthermore, the May 6th subpoenas were served
after the government had obtained evidence pursuant
to the April 7 and April 30 search warrants, which
has now been determined to have been illegally
seized. Some of the information sought in the May
6th subpoena was already in the government’s pos-
session at the time the subpoena was served on CDT
and Quest; therefore, the Court finds that the May
6th subpoena served as an unreasonable insurance
policy as recognized in the motion for the return of
seized property cited in the papers, 681 F.Supp. [sic]
For these reasons the court grants petitioner’s
motion to quash the May 6th subpoena served on
Quest and CDT as an abuse of the grand jury process
and unreasonable under Federal Rule of Criminal
Procedure 17(c).
On October 18, 2005, as a result of a plea agreement, Balco
founder Victor Conte received a sentence of eight months
imprisonment, with four months of the sentence to be served
in home confinement. James Valente, Balco’s vice president,
was sentenced to probation. Trainer Greg Anderson was sen-
tenced to six months imprisonment, with three of the six
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19857
months to be spent in home confinement. On February 25,
2006, track coach Remi Korchemny was sentenced to one
year of probation.
In reviewing both the order quashing the grand jury sub-
poena and the orders granting the motions for return of prop-
erty pursuant to Fed. R. Crim. P. 41(g), we review the factual
findings of the district courts for clear error. In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir.
1991) (orders to quash grand jury subpoenas); United States
v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999) (orders on
motions for return of property). We review orders quashing
subpoenas for abuse of discretion. United States v. Bergeson,
425 F.3d 1221, 1224 (9th Cir. 2005) (citing In re Grand Jury
Subpoena, 357 F.3d 900, 906 (9th Cir. 2004)). We review de
novo a district court’s denial of a motion for return of prop-
erty pursuant to Rule 41(g). Marolf, 173 F.3d at 1216.
II
There are two preliminary jurisdictional questions: (1)
whether the Players Association had standing to file the Fed.
R. Civ. P. 41(g) motions for return of property on behalf of
its members, and (2) whether the government timely appealed
Judge Cooper’s order granting the Rule 41(g) motion.
I agree with the majority that the Players Association had
organizational standing to file the Rule 41(g) motion for
return of the records and specimens seized from Quest. For
the same reasons—although the majority does not reach this
issue—I would also hold that the Players Association had
organizational standing to file the Rule 41(g) motion for
return of the property seized from CDT.
However, I respectfully disagree that the government
timely appealed Judge Cooper’s order granting the motion for
return of property.
19858 UNITED STATES v. COMPREHENSIVE DRUG TESTING
A
It is undisputed that the government’s notice of appeal was
filed more than sixty days after judgment was entered which,
in the ordinary course, would make the appeal untimely. Fed.
R. App. P. 4(a)(1)(B).4 “A timely appeal is required to vest
this court with jurisdiction.” Fiester v. Turner, 783 F.2d 1474,
1475 (9th Cir. 1986). The Players Association contends that
we lack jurisdiction due to the government’s untimely filing.
The government contends that the time for filing an appeal
was tolled by its filing of a “Motion for Reconsideration” with
the district court.
The Federal Rules of Civil Procedure do not provide for
“Motions for Reconsideration.” Rather, such motions are
creatures of local rule or practice. In this case, the govern-
ment’s motion was filed pursuant to Local Rule 7-18 of the
Central District of California. Federal Rule of Civil Procedure
83 authorizes district courts to make rules governing their
own practices so long as they are “not inconsistent with [the
Federal Rules].” Where a conflict arises between the two, fed-
eral rules must prevail. Colgrove v. Battin, 413 U.S. 149, 161
n.18 (1973); see also Loya v. Desert Sands Unified Sch. Dist.,
721 F.2d 279, 280 (9th Cir. 1983); 28 U.S.C.A. § 2071(a)
(providing that rules adopted by district courts must be con-
sistent with the federal rules of procedure).
Thus, when faced with a motion for reconsideration under
local rules, we must either harmonize the rule, or reject it as
in conflict with the national uniform rules. See Marshall v.
Gates, 44 F.3d 722, 725 (9th Cir. 1995) (“We are, however,
under an obligation to construe local rules so that they do not
conflict with the federal rules, and we have exercised our
ingenuity in doing so.”)
4
The judgment was filed October 10, 2004. The Notice of Appeal was
filed March 9, 2005.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19859
For the purposes of appeal, when a local rule based post-
judgment motion for reconsideration is made premised on an
argument that there was a “manifest showing . . . of a failure
to consider material facts,” we construe it either as (1) a
motion to alter or amend a judgment under Rule 59(e) or (2)
a motion filed under 60(b) for relief from judgment under
Rule 59(e). Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42
(9th Cir. 1991).5 Whether we construe the motion as filed
under Rule 59(e) or Rule 60(b) depends on the timing. Am.
Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d
892, 898-99 (9th Cir. 2001). If the motion for reconsideration
is filed within ten days of the entry of judgment, we construe
it as filed under Rule 59(e). Shapiro ex rel. Shapiro v. Para-
dise Valley Unified School Dist. No. 69, 374 F.3d 857, 863
(9th Cir. 2004); Am. Ironworks, 248 F.3d at 898-99; United
States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992).
This construction is in accord with Rule 59(e), which provides
that a motion to alter or amend the judgment “shall be filed
no later than 10 days after entry of the judgment.” Fed. R.
Civ. Pro. 59(e).
If the motion is filed more than ten days after entry of judg-
ment, we construe it as being filed under Rule 60(b). Am.
Ironworks, 248 F.3d at 899; Mt. Graham Red Squirrel v.
Madigan, 954 F.2d 1441, 1463 n.35 (9th Cir. 1992); Straw v.
5
The majority admits that the government’s motion was made “pre-
cisely on these grounds,” but contends that a motion on these grounds
does not conflict with either Federal Rule 59(e) or 60(b). That conclusion
is squarely precluded by a long line of precedent, as I have cited, in which
we have held that a local-rule based motion on those grounds is to be con-
strued under one of the two Federal Rules. Fuller, 950 F.2d at 1442;
Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995). Fuller itself
involved the local rule of the Central District of California governing
motions for reconsideration—the precise rule at issue here. A contrary rule
would not make any sense and would leave the critical question of appel-
late jurisdiction to the whim of local rule. We have to determine as a mat-
ter of appellate jurisdiction whether the appeal is timely under the Federal
Rules of Appellate Procedure.
19860 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Bowen, 866 F.2d 1167, 1171-72 (9th Cir. 1989); Gould v.
Mutual Life Ins. Co. of New York, 790 F.2d 769, 772 (9th Cir.
1986),
The difference between the rules is important. A timely
filed motion pursuant to Rule 59(e) will toll the time for filing
a notice of appeal from the underlying judgment until the dis-
trict court denies the Rule 59(e) motion. Shapiro, 374 F.3d at
863. However, the filing of an untimely Rule 59(e) motion
does not toll the running of the appeal period. Scott v. Youn-
ger, 739 F.2d 1464, 1467 (9th Cir. 1984) (citing Cel-A-Pak v.
California Agric. Labor Relations Bd., 680 F.2d 664, 666 (9th
Cir. 1982)). The ten day time limit in Rule 59(e) “is jurisdic-
tional and cannot be extended by the court.” Id. Indeed, Fed-
eral Rule of Civil Procedure 6(b), which allows for
enlargement of time to file, states that a court “may not extend
the time for taking any action under . . . [59(e)] . . . , except
to the extent and under the conditions stated [in the section
itself].” Fed. R. Civ. Pro. 6(b).
The filing of a Rule 60(b) does not toll the time for appeal-
ing from the underlying judgment. Nutri-Cology, 982 F.2d at
397. Therefore, unlike an appeal from a denial of a Rule 59(e)
motion, “ ‘[a]n appeal from a denial of a Rule 60(b) motion
brings up only the denial of the motion for review, not the
merits of the underlying judgment.’ ” Briones v. Riviera Hotel
& Casino, 116 F.3d 379, 380 (9th Cir. 1997) (quoting Floyd
v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991)); see also Mol-
loy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Straw v.
Bowen, 866 F.2d at 1171; Schanen v. United States Dept. of
Justice, 762 F.2d 805, 807 (9th Cir. 1985), as modified, 798
F.2d 348 (1986).
Here, it is undisputed that the government’s post-judgment
motion for reconsideration of the order was not timely filed.
Judge Cooper filed the order on October 1, 2004; the govern-
ment did not file its motion to reconsider until November 23,
2004. Because the government’s motion to reconsider was
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19861
filed outside the ten day time limit specified in Rule 59(e), we
must construe the motion as filed under Rule 60(b). Am. Iron-
works, 248 F.3d at 899; Mt. Graham Red Squirrel, 954 F.2d
at 1463 n.35.
For these reasons, I disagree with the analysis offered by
the parties and by the majority. The government’s argument
that “courts liberally construe post-judgment motions as ade-
quate to toll the time for filing a notice of appeal” is squarely
foreclosed by circuit law under these circumstances. The
cases cited by the government pertain only to motions timely
filed within the ten day period described in Rule 59(e), not to
motions filed outside the ten day window. See, e.g., Taylor v.
Knapp, 871 F.2d 803, 805 (9th Cir. 1988) (construing a vari-
ety of post judgment motions as filed under Rule 50(e) so
long as the motions were filed within ten days after the order
or judgment).
Although I agree with the Players Association that we lack
jurisdiction over the merits of Judge Cooper’s original Rule
41(g) order, I disagree that we lack jurisdiction over Judge
Cooper’s denial of the motion for reconsideration. The gov-
ernment’s notice of appeal was filed within sixty days after
the denial, so the appeal is timely as to the motion for recon-
sideration.
I respectfully, but strongly, disagree with the majority that
the Central District’s local rule served to override the Federal
Rules of Civil Procedure or our prior controlling precedent,
which requires post-judgment motions to be filed within ten
days of the order or judgment in order to toll the time for fil-
ing a notice of appeal. Nutri-Cology, 982 F.2d at 397. The
time limits established for filing an appeal are “mandatory
and jurisdictional.” Browder v. Director, Dept. of Corrections
of Illinois, 434 U.S. 257, 264 (1978). The majority’s contrary
view, as I have explained, is contrary to the plain language of
Rule 83, 28 U.S.C. § 2071(a), and controlling precedent.
19862 UNITED STATES v. COMPREHENSIVE DRUG TESTING
To summarize: Consistent with our precedent and the rules,
I would hold that the government’s untimely motion for
reconsideration should be construed as a Rule 60(b) motion.
Because the government did not file a notice of appeal of the
original order within the period required by Rule 4(a)(1)(B),
we lack jurisdiction to consider the merits of the original
order. I would hold that we have jurisdiction to consider the
district court’s denial of the motion for reconsideration, but
our review is confined to it.
B
We review the denial of a motion for reconsideration con-
strued as a Rule 60(b) motion for an abuse of discretion, Sch.
Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d
1255, 1262 (9th Cir. 1993), and we will reverse a district
court’s ruling on a Rule 60(b) motion “ ‘only upon a clear
showing of abuse of discretion.’ ” Pena v. Seguros La Comer-
cial, S.A., 770 F.2d 811, 814 (9th Cir. 1985) (quoting Ellis v.
Brotherhood of Railway, Airline & Steamship Clerks, 685
F.2d 1065, 1071 (9th Cir. 1982)). Therefore, our review is
confined to whether Judge Cooper abused her discretion in
denying the government’s motion for reconsideration and
does not extend to the merits of the underlying order.
When we review a motion for reconsideration under Rule
60(b), we analyze the district court’s decision under the usual
Rule 60(b) factors, “which provide[ ] for reconsideration only
upon a showing of (1) mistake, surprise, or excusable neglect;
(2) newly discovered evidence; (3) fraud; (4) avoid judgment;
(5) a satisfied or discharged judgment; or (6) ‘extraordinary
circumstances’ which would justify relief.” Fuller, 950 F.2d
at 1442. In its reconsideration motion, the government did not
contend there was any mistake, surprise, excusable neglect,
newly discovered evidence, fraud, void judgment, satisfied or
discharged judgment, or extraordinary circumstances. Rather,
the government simply asked the district court to modify its
finding, suggesting that the court had failed to consider evi-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19863
dence already in the record. A district court does not abuse its
discretion in denying a Rule 60(b) motion when it simply
repeats its earlier arguments. Backlund v. Barnhart, 778 F.2d
1386, 1388 (9th Cir. 1985).
In response to the government’s motion, the district court
examined each of the government’s assertions that the court
had ignored evidence and arguments. In its order denying
reconsideration, the district court carefully explained how it
had considered the evidence and arguments in the first
instance, but found them unconvincing. As the district court
properly concluded, the motion for reconsideration amounted
only to “[t]he Government’s mere disagreement with the
Court’s interpretation of the evidence and its opinions . . . .”
Under these circumstances, the district court certainly did not
abuse its discretion in denying the government’s motion.6 I
would affirm the order of the district court denying the gov-
ernment’s motion for reconsideration.
III
I agree with the majority that the district courts properly
exercised equitable jurisdiction over the Rule 41(g) motions.7
6
The local rule under which the motion was filed contains similar
restrictions to those contained in Rule 60(b). It provides that “[a] motion
for reconsideration on any motion may be made only on the grounds of
(a) a material difference in law or fact from that presented to the Court
before such decision that in the exercise of reasonable diligence could not
have been known to the party moving for reconsideration at the time of
such decision, or (b) the emergence of new material factors or a change
of law occurring after the time of such decision, or (c) a manifest showing
of a failure to consider material facts presented to the Court before such
decision.” Local Rule 7-18. Clearly, the government offered no new evi-
dence that was not available to it at the time the motion was made and no
suggestion of a change in law. Its only argument was that the district court
failed to consider material facts already presented, a contention that the
district court squarely addressed in its order.
7
For the purposes of this section, I will analyze Judge Cooper’s order
granting Rule 41(g) relief on the merits along with Judge Mahan’s similar
order, even though I believe that we lack jurisdiction to consider the mer-
its of Judge Cooper’s original order as I explained in Section II.
19864 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Ramsden identified four factors that district courts must con-
sider before exercising equitable jurisdiction to order the
return of property, namely whether: (1) the government dis-
played a callous disregard for the constitutional rights of the
movant; (2) the movant has an individual interest in and the
need for the property he wants returned; (3) the movant would
be irreparably injured by denying return of the property; and
(4) the movant has an adequate remedy at law for the redress
of his grievance. 2 F.3d at 324.
Although I agree with the majority that the district courts
properly exercised equitable jurisdiction, I disagree with the
majority’s analysis in reaching that conclusion. Because the
equitable jurisdictional analysis in large part drives the analy-
sis of the merits of the Rule 41(g) decisions, it is important
to detail my differences with the majority on the issue.
A
The first Ramsden factor is whether the government dis-
played a callous disregard for the constitutional rights of the
movant. The majority concludes the government did not. I
respectfully disagree with that conclusion. The record amply
supports the conclusion of the district courts that the govern-
ment displayed callous disregard for the constitutional rights
of the movants.
1
The district judges concluded, among other things, that the
government sought and executed the search warrants and took
subsequent legal action as a tactical measure to prevent the
Players Association and CDT from litigating their motion to
quash and other objections to the wholesale production of
CDT data. The record supports this conclusion. The govern-
ment applied for, and executed, the initial search warrants
after CDT and the Players Association informed the govern-
ment it would be filing a motion to quash the grand jury sub-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19865
poenas. Government counsel conceded on the record that the
motivation for seeking the search warrants was the “brick
wall” presented by the filing of the motions to quash, even
though DOJ guidelines state that “[t]he fact that the disinter-
ested third party possessing the materials may have grounds
to challenge a subpoena or other legal process is not in itself
a legitimate basis for the use of a search warrant.” 28 C.F.R.
§ 59.4.
The majority repeatedly points out that the DOJ guidelines
do not give rise to substantive rights. That may be so, but it
is beside the point. The guidelines form a baseline from which
to judge the reasonableness of unjustified deviations from the
standard practices they outline. The guidelines plainly state
that it is not legitimate to use a search warrant because a party
may be challenging a subpoena; the government admitted that
this was precisely the reason it issued the warrants in this
case.
Further, as Judge Cooper found, the use of a search warrant
to obtain documents from a third party is inappropriate. The
Department of Justice Guidelines address this point specifi-
cally:
A search warrant should not be used to obtain docu-
mentary materials believed to be in the private pos-
session of a disinterested third party unless it appears
that the use of a subpoena, summons, request, or
other less intrusive alternative means of obtaining
the materials would substantially jeopardize the
availability or usefulness of the materials sought, and
the application for the warrant has been authorized
as provided in paragraph (a)(2) of this section.
28 C.F.R. § 59.4(a)(1); see also U.S. Attorney’s Manual § 9-
19.210.
19866 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The U.S. Attorney’s Manual also provides that a search
warrant should normally not be used to obtain confidential
materials such as treatment records. §§ 9-19.220, 9-19.230.
The simple and undisputed fact is that the government
deviated from its usual and appropriate protocol. Documents
held in the possession of third parties are appropriately
obtained through use of grand jury subpoena, not search war-
rant. The record is quite clear that the government used the
vehicle of a search warrant only because it thought its grand
jury subpoenas might be contested. As the DOJ Guidelines
recognize, that is an inappropriate use of a search warrant.
The district judges were entitled on the basis of the record to
find that the government undertook this action in an attempt
to prevent the Players Association and CDT from litigating
the merits of their objections to the grand jury subpoenas.
Further, the entire record of the case shows a repeated pat-
tern of the government attempting to prevent a full hearing on
the merits of the Players Association legal challenges. In vir-
tually each hearing in which CDT and the Players Association
articulated their objections, the government argued that
another court had primary jurisdiction or that the action of
another court dictated the result.8 The record supports the dis-
trict courts’ collective conclusion that, as Judge Cooper put it,
the government’s actions constituted a “desperate effort to
8
To provide but a few examples: Before Judge White, who was consid-
ering the initial motion to quash, the government argued that he should
defer ruling because he had no jurisdiction over the materials seized by the
warrant. The government urged Judge Illston to wait to decide the Rule
41(g) motion until Magistrate Judge Johnson had ruled on the separate
Rule 41(g) motion. The government urged Judge Johnson to consider that
probable cause had already been established by the issuance of a search
warrant by Magistrate Judge Lloyd. The government contended Judge
Mahan lacked jurisdiction to order the property seized under the warrant
returned because it had separately obtained a grand jury subpoena for the
same item, urging him to wait until Judge White had ruled on the motion
to quash (not disclosing that it had asked Judge White to defer until the
Rule 41(g) motions had been decided).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19867
acquire evidence by whatever means could be utilized,” by
means of “quickly and skillfully moving the cup so no one
can find the pea.”
2
The record also amply supports the conclusion of the dis-
trict courts that the government made misleading statements
in its application for search warrants.
The application contained lengthy representations about
how computer data could be destroyed and stated that “while
not denying that they have the requested materials, CDT has
declined to comply with the subpoena and has stated its intent
to quash the subpoena.” The affidavit did not disclose that
CDT had agreed in writing to keep the data and other materi-
als secured until the scope of the grand jury subpoena was set-
tled, either through negotiation or a ruling on a motion to
quash. The affidavit did not disclose that the Chief of the
Criminal Division of the United States Attorney’s Office had
accepted the assurances in writing.
Rather, the affidavit justified removing computer data and
equipment from the searched premises on the basis that:
Computer users can attempt to conceal data within
computer equipment and storage devices through a
number of methods, including the use of innocuous
or misleading filenames and extensions. . . . Com-
puter users can also attempt to conceal data by using
encryption, which means that a password or device,
such as a “dongle” or “keycard,” is necessary to
decrypt the data into readable form. In addition,
computer users can conceal data within another
seemingly unrelated and innocuous file in a process
called “steganography.” For example, by using ste-
ganography, a computer user can conceal text in an
image file which cannot be viewed when the image
19868 UNITED STATES v. COMPREHENSIVE DRUG TESTING
file is opened. Therefore, a substantial amount of
time is necessary to extract and sort through data that
is concealed or encrypted to determine whether it is
evidence, contraband or instrumentalities of a crime.
The affidavit also informed the magistrate judge that
“[c]omputer hardware and storage devices may contain
‘booby traps’ that destroy or alter data if certain procedures
are not scrupulously followed.” It noted that computer data
was “particularly vulnerable to inadvertent or intentional
modification or destruction.”
The government did not have any evidence or reason to
believe that CDT had engaged in steganography, booby-
trapping computers, or any type of data destruction or alter-
ation. To the contrary, it had accepted in writing CDT’s assur-
ances “that CDT will maintain and preserve all materials
called for by the first subpoena as well as any materials called
for by the new subpoena” and that “CDT would not destroy
or alter any of the materials called for by either of the subpoe-
nas.” The plain import of the application was that CDT was
improperly resisting compliance with a valid grand jury sub-
poena and data was in jeopardy of being destroyed. It implied
that CDT was not being forthright about the information it
possessed, when in fact there was no suggestion that CDT
was attempting to mislead the government in any respect.
The search warrant application did not disclose that the
Players Association, on behalf of the individuals whose medi-
cal files were at issue, had intervened and had joined CDT’s
motion to quash the grand jury subpoena. The application did
not disclose the history of negotiations between the parties,
and that the concern was about the breadth of the subpoena.
The application did not disclose that the written assurances
made by CDT and accepted by the government contemplated
resolving the disputed issues through a motion to quash if
necessary. Rather, the application implied that CDT was tak-
ing unjustified unilateral action.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19869
Given these undisputed facts, the district judges were enti-
tled to find that the government had made misleading state-
ments in the search warrant applications.
3
The record amply supports that finding that the actions of
the government in executing the search warrants were a mere
pretext for inappropriately obtaining confidential medical data
about Major League Baseball players who were not under any
particularized suspicion of criminal activity. The government
first sought the information about all Major League Baseball
players in its initial grand jury subpoena. After objection from
the Players Association and CDT, the government (without
withdrawing its initial subpoena) issued a new subpoena lim-
ited to information about players about whom the government
had a reasonable suspicion were connected to Balco.
The initial search warrant purported to be limited to the
players associated with Balco. Indeed, the affidavit purported
to justify obtaining information to link test results to individ-
ual players “to ensure that samples of individuals not associ-
ated with Balco are left undisturbed.” However, once it had
taken all of the data off site, it proceeded with new warrants
to search the data it already possessed for evidence of positive
steroid markers. There was no evidence in the exhaustive
Balco investigation that any of these players had any connec-
tion to Balco, as the government concedes.
When the entire record is examined, it appears that the gov-
ernment was attempting to obtain all medical data about all
Major League Baseball players, and using the search warrant
for the limited number of players as a pretext for doing so.
The procedure employed by the government at the search but-
tresses this conclusion. CDT had segregated the information
about the ballplayers who were the subject of the search war-
rant. However, the agents insisted on taking the entire direc-
tory of information about all players. To the extent the data
19870 UNITED STATES v. COMPREHENSIVE DRUG TESTING
responsive to the warrant had not been provided in the segre-
gated material, the information could have easily been iso-
lated on site. Yet the government insisted on removing the
entire directory.
CDT suggested using the Tamura procedure, under which
a magistrate judge would first examine the data and segregate
the non-confidential material. However, the government
rejected that approach. Instead, the government seized every-
thing, then examined it, then sought additional search war-
rants as protection against its unauthorized search.
These facts, among many others from the record, more than
adequately support the conclusion that the government used
the limited warrants as a pretext for conducting an unautho-
rized general search—a tactic we rejected in United States v.
Rettig, 589 F.2d 418 (9th Cir. 1978).
4
The majority finally justifies the government’s actions by
concluding that the government had the right to seize all of
the medical data because the data was “intermingled” with
data responsive to the warrant. This conclusion is the one with
which I have the most profound disagreement with the major-
ity.
There is no doubt that the agents did not comply with the
warrant. They seized an enormous amount of personal prop-
erty belonging to individuals not under any suspicion of crim-
inal activity. A warrantless search is, of course, presumptively
unreasonable. United States v. Karo, 468 U.S. 705, 714-15
(1984). As the Supreme Court explained in Coolidge v. New
Hampshire, 403 U.S. 443, 454-55 (1971):
Thus the most basic constitutional rule in this area is
that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19871
per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and
well delineated exceptions. The exceptions are jeal-
ously and carefully drawn, and there must be a
showing by those who seek exemption [ ] that the
exigencies of the situation made that course impera-
tive. The burden is on those seeking the exemption
to show the need for it. (quotation marks and cita-
tions omitted).
The government concedes that it had no probable cause or
even particularized reasonable suspicion that could have
formed the basis for the issuance of a search warrant to obtain
the physical samples, and the data obtained from testing the
samples, concerning the players who were not involved in the
Balco investigation. The government’s particularized warrants
were limited to ten identified players whom the government
alleged it had reason to believe were involved with Balco.
The majority endorses the warrantless seizure and search of
confidential medical information pertaining to individuals not
under any criminal suspicion, reasoning that the existence of
a handful of relevant records justifies the seizure and subse-
quent search of thousands of irrelevant records. I respectfully
disagree.
The majority’s holding squarely conflicts with our prior
precedent. For decades, we have eschewed the indiscriminate
search and seizure of materials that are not responsive to a
valid search warrant. In Tamura, we stated that “the whole-
sale seizure for later detailed examination of records not
described in a warrant . . . has been characterized as ‘the kind
of investigatory dragnet that the fourth amendment was
designed to prevent.’ ” 694 F.2d at 595 (quoting United States
v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)). Tamura held
that “the government’s wholesale seizure of company docu-
ments [is] illegal [when] the agents intentionally seize[ ]
materials they [know] were not covered by the warrant.”
19872 UNITED STATES v. COMPREHENSIVE DRUG TESTING
United States v. Hill, 322 F. Supp. 2d 1081, 1088 (C.D. Cal.
2004) (Kozinski, J., sitting by designation).
Here, it was clear to the investigating officers that they
were seizing a sizable amount of data that was not responsive
to the warrant. Indeed, the Tracey directory itself was deter-
mined to contain 2,911 files, with an unknown amount of data
in each file, that were not connected with Major League Base-
ball player drug testing at all. The directory contained test
results for thirteen other sports organizations, two business
entities, and three sports competitions. The sub-directories
were quite clearly named, so that it was obvious to the casual
observer that if the files in the directories correlated to the
name—and there was no reason to think otherwise—the mate-
rial had nothing to do with the ten players listed in the war-
rant. In the files that concerned Major League Baseball
players, there was information on approximately 1,200 play-
ers, with multiple test results.9
The majority relies on United States v. Beusch, 596 F.2d
871 (9th Cir. 1979), to establish that the government’s seizure
of the entire Tracey directory was reasonable. However, as
the majority acknowledges, this court “limited the reach of
Beusch’s holding to ‘single files and single ledgers, i.e., single
items which, though theoretically separable, in fact constitute
one volume or file folder.’ ”
9
The majority tries to distinguish what the agents did here from what
transpired in Tamura by stating that, here, the agents took only a copy of
the Tracey Directory and not the master files as was the case in Tamura.
Yet when the countervailing interest is privacy and not merely the disrup-
tion of business, that interest suffers whether it is copies or originals that
are seized. The majority also points out that the agents here did not take
the whole computer or all of the computers in CDT’s office. This distinc-
tion fails to recognize the difference between the computer age and the
paper age. All of the files in one directory on one computer in today’s
world could very well constitute the equivalent of all the files in an entire
office in yesterday’s paper era.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19873
Here, the government seized the entire Tracey directory,
not only the individual spreadsheet containing the Major
League Baseball players’ test results. In Beusch, we specifi-
cally stated that “[t]he reasons we have given for allowing
their seizure may not apply to sets of ledgers or files . . . .”
596 F.2d at 877. On many computers, all of a user’s docu-
ments are found in a single directory. To apply Beusch to the
computer context in the way the majority suggests would per-
mit the government to seize all the documents on a given
computer if only one document therein was responsive to the
warrant. This is precisely what Beusch explicitly said it did
not intend to permit in the paper documents context.
The majority’s holding that the government was entitled to
seize all records in the file because the non-Balco drug test
results were “intermingled” in the same file puts Americans’
most basic privacy interests in jeopardy. Such a rule would
entitle the government to seize the medical records of anyone
who had the misfortune of visiting a hospital or belonging to
a health care provider that kept patient records in any sort of
master file which also contained the data of a person whose
information was subject to a search warrant. I agree entirely
with Judge Illston’s observation that the implications of
approving such behavior are staggering. Under the majority’s
holding, no laboratory or hospital or health care facility could
guarantee the confidentiality of records.
The majority attempts to discount this possibility, but offers
no principled reason why it does not apply in hundreds of
other contexts. Indeed, under questioning from the district
judges, the government did not discount the possibility of
other widespread searches.10
10
For example, a hearing before Magistrate Judge Johnson contained the
following colloquy between government counsel and the Court:
Court: * * * If there is some other drug testing lab apart
from CDT, would you ever use — but the test for the
ten were at CDT. Would you ever use this informa-
19874 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As the Supreme Court has observed, “[i]t is familiar history
that indiscriminate searches and seizures conducted under the
authority of ‘general warrants’ were the immediate evils that
motivated the framing and adoption of the Fourth Amend-
ment.” Payton v. New York, 445 U.S. 573, 583 (1980). It was
for this reason that the particularity requirement in warrants
was adopted. As the Court noted in Maryland v. Garrison,
480 U.S. 79, 84 (1987):
tion to go and say — just demand that you can get the
drug testing results from other labs that test profes-
sional athletes . . . . Based on the theory that it’s sys-
temic. And so there’s a problem, there’s a problem.
And we know that these other labs test athletes, too.
So can you just go search?
Counsel: Yes, your honor.
Similarly, in another hearing Judge Illston asked government counsel
whether he thought it was possible to take the information from the Tracey
directory concerning other sports organizations and use individual test
results of athletes to launch another investigation. Strikingly, Judge Illston
posed it as a hypothetical, but the government did not appear to deny that
officers may have viewed individual records in other sports:
Court: What if hockey had a subdirectory that had positive
results and he clicked on it to make sure it was what
it said it was, by George, that’s what it was, what
about that?
Counsel: I don’t know in checking to make sure it was hockey
that didn’t happen. If it did happen, I would think that
theoretically Agent Novitsky would have the right to
either request a search warrant or, I suppose, if you
looked at it enough, it’s possible that it was obvious,
it was plain view, it was other drug use by hockey
players. So there might be a legal entitlement for
Agent Novitzsky to use that and do something with
it. It hasn’t happened in this case. I suppose that’s
theoretically possible, again, you would have, I
believe, probable cause to believe that evidence in
there would lead to other persons potentially involved
in disputable criminal drugs, which is the crime that’s
under investigation.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19875
The Warrant Clause of the Fourth Amendment cate-
gorically prohibits the issuance of any warrant
except one “particularly describing the place to be
searched and the persons or things to be seized.” The
manifest purpose of this particularity requirement
was to prevent general searches. By limiting the
authorization to search to the specific areas and
things for which there is probable cause to search,
the requirement ensures that the search will be care-
fully tailored to its justifications, and will not take on
the character of the wide-ranging exploratory
searches the Framers intended to prohibit.
Unfortunately, the majority’s theory—as well as the
government’s—causes just this type of result. The more sensi-
ble theory with respect to electronic data is to enforce the pro-
cedure outlined in Tamura and require that a neutral
magistrate examine the co-mingled data that the government
proposes to seize to make sure that private information that
the government is not authorized to see remains private.
Agents who expect to encounter intermingled data or who
unexpectedly encounter it may not review the data unabated,
but must seek a magistrate’s guidance on how to proceed.
This procedure need not impose impossible burdens on law
enforcement. After seizure, the data is secure and may be
reviewed in an “informed and deliberate” manner by a “neu-
tral and detached” magistrate, rather than being secreted for
indiscriminate examination by government officials.
Tamura described a procedure that would impose a check
on the government’s ability to engage in such behavior. We
advised that where “documents are so intermingled that they
cannot be feasibly sorted on site,” that law enforcement offi-
cers should “seal[ ] and hold[ ] the documents pending
approval by a magistrate . . . .” Id. at 595-96. As we noted:
The essential safeguard required is that wholesale
removal must be monitored by the judgment of a
19876 UNITED STATES v. COMPREHENSIVE DRUG TESTING
neutral, detached magistrate. In the absence of an
exercise of such judgment prior to the seizure in the
present case, it appears to us that the seizure, even
though convenient under the circumstances, was
unreasonable.
Id. at 596 (footnote omitted).11
The majority overrules the Tamura procedure, allowing the
government to search and seize documents without prior mag-
istrate approval. This holding conflicts with Tamura.
Therefore, I respectfully disagree with the majority’s asser-
tion that the government’s action in this case complied with
the Fourth Amendment, and that the procedures outlined in
Tamura should be rejected. There is no doubt that the agents
violated the terms of the search warrant.
5
The government did not advocate the position adopted by
the majority. The government’s sole justification for the war-
rantless seizure of the data of the unlisted players is that it was
in “plain view,” which is one of the limited exceptions to the
Fourth Amendment’s warrant requirement. Although the
majority did not reach this question, the theory formed the
entire basis for the government’s legal justification for its
actions and was the primary focus of the proceedings before
the district courts. Therefore, it is important to address it to
11
The Tenth Circuit adopted the Tamura approach specifically in the
computer context in Carey, holding that:
Where officers come across relevant documents so intermingled
with irrelevant documents that they cannot feasibly be sorted at
the site, the officers may seal or hold the documents pending
approval by a magistrate of the conditions and limitations on a
further search through the documents.
172 F.3d at 1275.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19877
demonstrate the soundness of the various decisions by the dis-
trict courts.
The plain view doctrine is based on the assumption that if
there is probable cause for the search, and the officer is
legally entitled to be at the premises under the Fourth Amend-
ment, seizure of an object in plain view that is contraband or
evidence of a crime does not involve an invasion of privacy.
Payton, 445 U.S. at 586-87. The Supreme Court has identified
several conditions that must be satisfied before a plain view
seizure of an object is upheld: (1) the officer conducting the
seizure must lawfully arrive at the position from which the
object is plainly seen; (2) the object must be in plain view; (3)
the object’s incriminating character must be “immediately
apparent,” that is, the officer must have probable cause to
believe the object is contraband or evidence of a crime; and
(4) the officer must have a lawful right of access to the object
itself. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);
Horton, 496 U.S. at 136-37; Texas v. Brown, 460 U.S. 730,
737 (1983).
Under the circumstances presented by this case, not only is
it clear that the government had not met its burden of estab-
lishing that the seizure of the data was justified under the
plain view doctrine, but it is also clear why the plain view
doctrine would be inappropriate to apply in the computer con-
text.
a
The fundamental requirement of the plain view doctrine is
that the object seized be in “plain view,” that is, “obvious to
the senses.” United States v. Sifuentes, 504 F.2d 845, 848 (4th
Cir. 1974). After an extensive colloquy, Judge Illston con-
cluded that the computer data seized was not in “plain view.”
Not only is this factual conclusion not clearly erroneous, the
undisputed record completely supports her conclusion under
any standard of review.
19878 UNITED STATES v. COMPREHENSIVE DRUG TESTING
As Judge Illston pointed out, this was not a case in which
an incriminating photo or similar evidence could be viewed
on a computer screen; rather, at best, it involved scrolling
through thousands of records none of which were immedi-
ately visible. In its application for a search warrant, the gov-
ernment justified removal of data and computer equipment on
the basis that:
The volume of data stored on many computer sys-
tems and storage devices will typically be so large
that it will be highly impractical to search for data
during the execution of the physical search of the
premises. A single megabyte of storage space is the
equivalent of 500 double-spaced pages of text. A
single gigabyte of storage space, or 1,000
megabytes, is the equivalent of 500,000 double-
spaced pages of text. Storage devices capable of
storing fifteen gigabytes of data are now common-
place in desktop computers. Consequently, each non-
networked desktop computer found during a search
can easily contain the equivalent of 7.5 million pages
of data, which, if printed out, would completely fill
a 10′ x 12′ x 10′ room to the ceiling.
The government also indicated in its affidavit that it would
be using consulting computer specialists to analyze the data.
The affidavit explained:
Searching computer systems is highly technical pro-
cess which requires specific expertise and special-
ized equipment. There are so many types of
computer hardware and software in use today that it
is impractical to bring to the search site all of the
necessary technical manuals and specialized equip-
ment to conduct a thorough search. In addition, it
may also be necessary to consult with computer per-
sonnel who have specific expertise in the type of
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19879
computer software application or operating system
that is being searched.
According to the government, the search of the computers
at CDT could not be completed at the scene. There were, in
fact, 16 computers. However, one computer was eventually
isolated and data retrieved. As Special Agent Novitsky’s
memorandum of activity stated:
At approximately 2:35 p.m., S/A Abboud began
working on a computer with [a CDT employee].
[She] directed us to a computer in the office labeled
“E” for purposes of the search warrant and sketch.
At this computer, [she] identified a sub-directory
entitled “Tracey”, which she said contained all of the
computer documents for CDT’s sports drug testing
division. A cursory review of the subdirectory indi-
cated multiple further subdirectories and several
hundred computer files. As authorized by the war-
rant, because of the length of time it would take to
search each file and the intrusiveness it would cause
on CDT, it was decided to make a complete copy of
the “Tracey” subdirectory in order to perform a
search of it in the IRS-CID offices at a later time.
Agent Novitsky later explained in a subsequent affidavit
that:
This subdirectory contained hundreds of files and a
significant amount of computer data. After consult-
ing with agents at the scene specifically trained in
the search of computers, we determined that we
could not realistically search the entire directory on-
site in a reasonable amount of time. We therefore
made the determination to copy the entire sub-
directory.
After it was examined, the Tracey directory itself was
determined to contain 2,911 files, with an unknown amount
19880 UNITED STATES v. COMPREHENSIVE DRUG TESTING
of data in each file, that were not connected with Major
League Baseball player drug testing at all. In the files that
concerned Major League Baseball players, there was informa-
tion on approximately 1,200 players, with multiple test
results.
Given these circumstances, the data seized cannot be con-
sidered to be in “plain view.” As the Supreme Court has
noted, “If, however, the police lack probable cause to believe
that an object in plain view is contraband without conducting
some further search of the object — i.e., if its incriminating
character is not immediately apparent, the plain view doctrine
cannot justify its seizure.” Dickerson, 508 U.S. at 375 (alter-
ations and quotations omitted). The data now sought by the
government was not “obvious to the senses” at the scene, nor
were the positive tests in “plain view” from a glance at a com-
puter screen. The data required analysis and thorough exami-
nation off-site before the data at issue was discovered.
The “plain view” doctrine is inapplicable in the general
electronic context because it is at complete odds with the
underlying theory of the doctrine. As the Supreme Court has
explained:
The theory of that doctrine consists of extending to
nonpublic places such as the home, where searches
and seizures without a warrant are presumptively
unreasonable, the police’s longstanding authority to
make warrantless seizures in public places of such
objects as weapons and contraband. And the practi-
cal justification for that extension is the desirability
of sparing police, whose viewing of the object in the
course of a lawful search is as legitimate as it would
have been in a public place, the inconvenience and
risk—to themselves or to preservation of the
evidence—of going to obtain a warrant.
Horton, 480 U.S. at 326-27 (internal citations omitted).
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19881
Neither of those considerations is present when we consider
the off-site examination of electronic data. As the government
essentially acknowledged in its search warrant applications,
examination of computer data is a forensic exercise. It neces-
sarily involves the application of software to interpret the
data; without external software aid, the data would appear
only as binary numbers. In addition, as in this case, the gov-
ernment often requires computer specialists to decipher the
data. Electronic data is simply not the kind of evidence that
forms a natural extension of an officer’s discovery of obvious
contraband in a public place. The fact that further careful
electronic assistance is required outside the searched premises
to interpret the data belies the “practical” justification that
there is insufficient time to obtain a warrant. Indeed, electron-
ically assisted searches of binary numbers bear a closer
resemblance to the thermal imaging searches of homes that
the Supreme Court rejected as violative of the Fourth Amend-
ment in Kyllo v. United States, 533 U.S. 27 (2001).
The ultimate fact that, after the assistance of electronic soft-
ware programs, the data may be observed “in plain view”
does not alter this conclusion. As the Supreme Court has
warned:
[I]n the vast majority of cases, any evidence seized
by the police will be in plain view, at least at the
moment of seizure. The problem with the “plain
view” doctrine has been to identify the circum-
stances in which plain view has legal significance
rather than being simply the normal concomitant of
any search, legal or illegal.
Coolidge, 403 U.S. at 465.
The off-site forensic examination of computer data is sim-
ply not one of those circumstances that fits the “plain view”
paradigm. Indeed, to hold otherwise would be to write out the
Fourth Amendment’s particularity requirement with respect to
19882 UNITED STATES v. COMPREHENSIVE DRUG TESTING
electronic data and to transform particularized search warrants
into general search warrants, with the government authorized
to conduct indiscriminate, dragnet searches.
b
The government also failed to sustain its burden to estab-
lish the plain view exception because, as the district courts
found, the incriminating character of the information was not
“immediately apparent.” It was clear under the testing proto-
col that positive tests did not necessarily reflect steroid use;
the use of nutritional supplements—which is common in pro-
fessional sports—could also yield a false positive. In addition,
there are a whole host of legitimate reasons for individuals to
be prescribed steroid products. The CDT testing was not
undertaken to test individual players; but rather to provide a
survey for the possible establishment of an individual drug
testing protocol.
What the government relied on was sheer speculation that
the presence of positive steroid markers would mean that the
athlete had received steroids without prescription from some
unknown person. The crime that the government was inter-
ested in pursuing was the illegal distribution of steroids. The
evidence of a positive test was not affirmative evidence of any
distribution. The government’s theory was that, armed with
the test results, the government could then summon the athlete
before a grand jury to see if it could obtain evidence from
whom and under what circumstances the athlete may have
obtained steroids.
However, the mere suspicion of criminal activity or the sus-
picion of knowledge of a criminal activity is not sufficient to
sustain a seizure of evidence under the plain view doctrine.
As the Supreme Court has made abundantly clear, the “imme-
diately apparent” requirement means that the law enforcement
officer must have probable cause to seize the property that the
officer observed in plain view. As the Court explained:
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19883
We now hold that probable cause is required. To say
otherwise would be to cut the “plain view” doctrine
loose from its theoretical and practical moorings. . . .
Dispensing with the need for a warrant is worlds
apart from permitting a lesser standard of cause for
the seizure than a warrant would require, i.e., the
standard of probable cause. No reason is apparent
why an object should routinely be seizable on lesser
grounds, during an unrelated search and seizure, than
would have been needed to obtain a warrant for that
same object if it had been known to be on the prem-
ises.
Arizona v. Hicks, 480 U.S. 321, 326-27 (1987).
The government conceded that it did not have probable
cause to search or seize any data or specimens beyond the ten
players listed in the warrant. For those players, the govern-
ment provided extensive information showing their alleged
connection to Balco. However, the government conceded that
it had no information connecting any of the other players to
Balco. Indeed, it made that clear in both its affidavits and sub-
sequent hearings. The affidavit provided to Judge Lloyd spec-
ulated that evidence might be developed linking the players
who tested positive to Balco “because of the closely-knit pro-
fessional baseball community,” but also speculated that the
positive test results could suggest “another significant source
of illegal performance-enhancing drugs.” In fact, the govern-
ment had no evidence whatsoever that it tendered in support
of either theory. The government did not have any informa-
tion concerning who might be involved in any distribution
scheme; in fact, it had no idea at all.12
12
For example, the government engaged in the following colloquy at
one hearing:
Counsel: Your honor, it’s evidence because it’s evidence of an
illegal distribution of steroids to other people.
Court: From where?
Counsel: From where? That’s an excellent question, and that is
why we need the evidence.
19884 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The government did not submit any evidence contradicting
the affidavits indicating the possibility of false positives and
that a positive result did not necessarily indicate illegal steroid
use. There was no specific target of the investigation against
whom the government sought incriminating evidence.
Mere speculation is not sufficient to establish probable
cause. United States v. Howard, 828 F.2d 552, 555 (9th Cir.
1987). Perhaps the government had reasonable suspicion, but
that is not sufficient to justify a seizure under the plain view
doctrine. See Hicks, 480 U.S. at 326 (holding that “probable
cause is required”); Payton, 445 U.S. at 587 (explaining the
plain view requirement that there be “probable cause to asso-
ciate the property with criminal activity.”).
6
For all of these reasons, I would hold that the finding that
the government acted in callous disregard of the rights of the
players is completely supported by the record. The district
courts made no error, much less a clear error, in finding that
the first Ramsden factor was satisfied. The district courts
rightfully rejected the government’s “plain view” justifica-
tion, and I respectfully disagree with the majority’s new rule
rejecting the sound procedures described in Tamura.
B
The second Ramsden factor is whether the movant has an
individual interest in and the need for the property he wants
returned. I agree with the majority and the district courts that
the Players Association satisfied this requirement. At issue are
the Fourth Amendment rights of the players. As we know, the
Fourth Amendment protects people from unreasonable
searches and seizures into areas in which they have a legiti-
mate expectation of privacy. Katz v. United States, 389 U.S.
347, 360-61 (1967) (Harlan, J., concurring). There is no doubt
that the affected baseball players had a justified,
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19885
constitutionally-protected privacy interest in the seized prop-
erty, including the computer data and the physical urine sam-
ples. However, I believe that the majority significantly
discounts and underestimates the importance of the privacy
interests at stake.
The legitimate expectation of privacy in medical informa-
tion is as old as the Hippocratic Oath.13 Indeed, “[o]ver the
last thirty years, the federal courts have uniformly accepted
the principle that medical records are private and entitled to
protection.” Joel Glover and Erin Toll, The Right to Privacy
of Medical Records, 79 Denv. U. L. Rev. 540, 541 (2002). In
this context, the Supreme Court has recognized at least two
distinct kinds of constitutionally-protected privacy interests:
“One is the individual interest in avoiding disclosure of per-
sonal matters, and another is the interest in independence in
making certain kinds of important decisions.” Doe v. Attorney
General, 941 F.2d 780, 795 (9th Cir. 1991) (quoting Whalen
v. Roe, 429 U.S. 589, 599-600 (1977)).
We have long applied Whalen and its progeny in holding
that “[i]ndividuals have a constitutionally protected interest in
avoiding ‘disclosure of personal matters,’ including medical
information.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531,
551 (9th Cir. 2004); see also Norman-Bloodsaw v. Lawrence
Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998)
(“The constitutionally protected privacy interest in avoiding
disclosure of personal matters clearly encompasses medical
information and its confidentiality.”); Yin v. California, 95
F.3d 864, 870 (9th Cir. 1996) (noting that “individuals have
a right protected under the Due Process Clause of the Fifth or
Fourteenth Amendments in the privacy of personal medical
information and records.”); Doe, 941 F.2d at 795-96 (holding
13
STEDMAN’S MEDICAL DICTIONARY, 799 (26th ed. 1995) (“All that may
come to my knowledge in the exercise of my profession or outside of my
profession, or in daily commerce with men, which ought not to be spread
abroad, I will keep secret and will never reveal.”)
19886 UNITED STATES v. COMPREHENSIVE DRUG TESTING
that individual has privacy interest in medical information,
including diagnosis); Caesar v. Mountanos, 542 F.2d 1064,
1067 n.9 (9th Cir. 1976) (noting that the right to privacy
encompasses the doctor-patient relationship). As we have
observed, “[o]ne can think of few subject areas more personal
and more likely to implicate privacy interests . . . .” Norman-
Bloodsaw, 135 F.3d at 1269.
If there were any doubt, the Supreme Court held in Fergu-
son v. City of Charleston, 532 U.S. 67, 78 (2001), that indi-
viduals enjoyed a reasonable expectation of privacy in
medical test results and that “the results of those tests will not
be shared with nonmedical personnel without [the patient’s]
consent.”
Congress has also recognized the importance of privacy in
medical records in a variety of contexts, most prominently in
the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996).14
14
HIPAA was far from Congress’s first foray into privacy protection. As
the United States Department of Heath and Human Services noted:
In the 1970s, individual privacy was paramount in the passage of
the Fair Credit Reporting Act (1970), the Privacy Act (1974), the
Family Educational Rights and Privacy Act (1974), and the Right
to Financial Privacy Act (1978). These key laws were followed
in the next decade by another series of statutes, including the Pri-
vacy Protection Act (1980), the Electronic Communications Pri-
vacy Act (1986), the Video Privacy Protection Act (1988), and
the Employee Polygraph Protection Act (1988). In the last ten
years, Congress and the President have passed additional legal
privacy protection through, among others, the Telephone Con-
sumer Protection Act (1991), the Driver’s Privacy Protection Act
(1994), the Telecommunications Act (1996), the Children’s
Online Privacy Protection Act (1998), the Identity Theft and
Assumption Deterrence Act (1998), and Title V of the Gramm-
Leach-Bliley Act (1999) governing financial privacy.
In 1997, a Presidential advisory commission, the Advisory
Commission on Consumer Protection and Quality in the Health
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19887
In the regulations promulgated pursuant to HIPAA, the
United States Department of Health and Human Services
emphasized the importance of maintaining the privacy of
medical information, concluding that “[p]rivacy is a funda-
mental right” and that “[a] right to privacy in personal infor-
mation has historically found expression in American law.”15
65 Fed.Reg. at 82,464.
In sum, given controlling legal authority, there is no ques-
tion that the baseball players who participated in the random
testing had a justified expectation of privacy in the test results
and, in particular, that the test results would not be disclosed.16
Care Industry, recognized the need for patient privacy protection
in its recommendations for a Consumer Bill of Rights and
Responsibilities (November 1997). In 1997, Congress enacted the
Balanced Budget Act (Public Law 105-34), which added lan-
guage to the Social Security Act (18 U.S.C. 1852) to require
Medicare+Choice organizations to establish safeguards for the
privacy of individually identifiable patient information. Similarly,
the Veterans Benefits section of the U.S. Code provides for confi-
dentiality of medical records in cases involving drug abuse, alco-
holism or alcohol abuse, HIV infection, or sickle cell anemia (38
U.S.C. 7332).
Standards for Privacy of Individually Identifiable Health Information, 65
Fed.Reg. 82,462, 82,469 (Dec. 28, 2000) (codified at former 45 C.F.R. pts.
160, 164 (2002)).
15
The Department also emphasized that “While privacy is one of the
key values on which our society is built, it is more than an end in itself.
It is also necessary for the effective delivery of health care, both to indi-
viduals and to populations. . . . The need for privacy of health information,
in particular, has long been recognized as critical to the delivery of needed
medical care.” 65 Fed.Reg. at 82,467.
16
That the athletes had a justified, reasonable expectation of privacy in
the urine samples themselves that were seized by the government is
beyond question. See Skinner v. Railway Labor Executives’ Ass’n, 489
U.S. 602, 615-617 (1989) (“it is clear that the collection and testing of
urine intrudes upon expectations of privacy that society has long recog-
nized as reasonable . . . .”).
19888 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Of course, under appropriate circumstances, justified pri-
vacy expectations may be altered by contract. Yin, 95 F.3d at
872. In this instance, the ballplayers’ privacy expectations
were heightened, not diminished, by the collective bargaining
agreement between the Major League Baseball Players Asso-
ciation and Major League Baseball. The agreement was
forged after years of impasse concerning steroid testing and,
as I have discussed, called for anonymous testing to determine
the scope of the problem. To that end, the agreement pro-
vided, in relevant part that:
1. During the 2003 season (which shall include
spring training but not include the post-season), all
Players will be subject to two tests (one initial test
and one follow-up test conducted not less than five
and not more than seven days following the initial
test) at unannounced times for the presence of
Schedule III steroids (“Survey Testing”). In addition
the Office of Commissioner shall have the right to
conduct additional Survey Testing in 2003 in which
up to 240 players, selected at random, may be tested.
2. If the results of the Survey Testing conducted in
2003 show that more than 5% of Players tested test
positive for Steroids, all Players will be subject to
two unannounced tests (an initial test and a followup
test five to seven days later) for Steroids during the
2004 season (“Program Testing”). If a Player tests
positive in the Program Testing, he shall immedi-
ately be placed on the Clinical Track and shall be
subject to discipline for further violations. The Pro-
gram Testing shall continue each season until less
than 2.5% of the Players tested test positive for Ste-
roids for two consecutive seasons combined.
In short, the only objective of the 2003 testing was to ascer-
tain whether the threshold had been exceeded; it was not
intended to test and monitor individual baseball players.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19889
Indeed, the testing protocol was designed to prevent the iden-
tification of individual players and the matching of players
with test results. The record does not reflect whether any indi-
vidual player was even informed of his testing results for the
2003 sample year.
The collective bargaining agreement contains numerous
provisions assuring confidentiality. For example, the section
concerning the testing protocol provides:
The confidentiality of the Player’s participation in
the Program is essential to the Program’s success.
Except as provided in Section 8, the Office of the
Commissioner, the Association, HPAC, Club per-
sonnel, and all of their members, affiliates, agents,
consultants and employees are prohibited from pub-
licly disclosing information about the Player’s test
results, Initial Evaluation, diagnosis, Treatment Pro-
gram (including whether a Player is on either the
Clinical or Administrative Track), prognosis or com-
pliance with the Program.
The collective bargaining agreement specified in great
detail the manner of collection of data and, in particular pro-
vided that:
At the conclusion of any Survey Test, and after the
results of all tests have been calculated, all test
results, including any identifying characteristics, will
be destroyed in a process jointly supervised by the
Office of the Commissioner and the Association.
The record contains many more references to the assurance
given Major League Baseball players that the 2003 tests
would be anonymous and kept confidential, which are unnec-
essary to detail. There simply is no doubt whatsoever that the
players had a justified, constitutionally protected privacy
interest in the test results — an interest that was further
19890 UNITED STATES v. COMPREHENSIVE DRUG TESTING
enhanced by the many protections and contractual obligations
contained in the collective bargaining agreement under which
the tests were conducted.
In sum, the players had a significant privacy interest in the
medical records and physical specimens. There is no doubt
that the players have an individual interest in and a need for
the property to be returned. Thus, the second Ramden factor
is satisfied.
C
I agree with the majority and the district courts that the
players would be irreparably injured by denying the return of
property. As the majority notes, the government has already
conceded that the players have no adequate remedy at law for
the redress of their grievances. Therefore, the third and fourth
Ramsden factors are satisfied.
For these reasons, I agree with the majority that the district
courts properly exercised equitable jurisdiction. However, I
would hold that the district courts correctly found that all four
Ramsden factors were satisfied. I disagree with the majority
that the government’s actions properly respected the privacy
rights of the players.
IV
We review a district court decision to exercise its equitable
jurisdiction under Rule 41(g) under the deferential abuse of
discretion standard. Ramsden, 2 F.3d at 324. I not only fail to
see any abuse of discretion in the decisions by the district
judges to exercise their equitable jurisdiction, I agree entirely
with the district courts that the seized property should be
returned.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19891
A
The Advisory Committee Notes to the 1989 amendments to
Rule 41(g) tell us that “reasonableness under all of the cir-
cumstances” should be the governing standard for determin-
ing whether property should be returned. (emphasis added).
Those same notes state that “[i]f the United States has a need
for the property in an investigation or prosecution, its reten-
tion of the property generally is reasonable,” but that “in cer-
tain circumstances . . . equitable considerations might justify
requiring the government to return or destroy all copies.” Id.17
Deciding between the two hinges on “whether the Govern-
ment’s conduct was sufficiently reprehensible in this case to
warrant this sanction.” Ramsden, 2 F.3d at 327. As the actions
I have discussed make clear, the government’s behavior was
sufficiently reprehensible and the privacy interests of the
players who were neither named in the warrant nor implicated
in any criminal activity sufficiently important to affirm the
granting of the 41(g) motions. Simply put, there is no reason
for the government to retain confidential medical information
and bodily fluids of citizens who are not under any particular-
ized suspicion of criminal activity.
B
I have already detailed my disagreement with the majori-
ty’s evisceration of the Tamura procedure. In addition to that,
I strongly disagree with the new procedure adopted by the
majority to supplant Tamura. The majority proposes that the
17
The cases the majority cites for the proposition that return of property
is inappropriate when the government still needs it as evidence are hardly
analogous to the present case. In both United States v. Mills, 991 F.2d 609,
612-13 (9th Cir. 1993), and United States v. Fitzen, 80 F.3d 387, 388-89
(9th Cir. 1996), the person seeking return of the property was the criminal
defendant himself, not an innocent third party, and the court found in both
cases that the defendants didn’t even have a legitimate claim of ownership
to the property.
19892 UNITED STATES v. COMPREHENSIVE DRUG TESTING
government may seize all computer databases containing
intermingled evidence, and if an objection is raised, must then
turn the material over to a magistrate judge for review. Under
the majority’s new rule, the magistrate judge is to allow the
government to retain the data if it is not feasible to segregate
material responsive to the warrant without altering the origi-
nal character of the information.
1
The majority’s remedy violates the “neutral and detached
magistrate” requirement. As the Supreme Court observed
many decades ago:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its pro-
tection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead
of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13 (1948).
The protections of requiring a “neutral and detached magis-
trate” to make “informed and deliberate determinations” con-
cerning probable cause are lost when the magistrate’s review
comes after the material has been seized and searched. As the
Supreme Court explained in Aguilar v. Texas, 378 U.S. 108
(1964):
The reasons for [the neutral and detached magistrate]
rule go to the foundations of the Fourth Amendment.
A contrary rule “that evidence sufficient to support
a magistrate’s disinterested determination to issue a
search warrant will justify the officers in making a
search without a warrant would reduce the Amend-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19893
ment to a nullity and leave the people’s homes
secure only in the discretion of police officers.”
Id. at 111 (quoting Johnson, 333 U.S. at 14).
For a magistrate’s role to be effective, it must come before
the privacy interests have been compromised. Under the
majority’s holding, the government is newly empowered to
search the data before the magistrate authorizes the search.
This flips the traditional relationship of the magistrate to the
searching officer on its head. In all other contexts, the magis-
trate stands between the government and the privacy of indi-
viduals; in the majority’s proposed world, the magistrate only
appears after the privacy interests have been invaded.
Worse, under the majority’s holding, the seized material is
not presented to a magistrate at all except upon a “proper
post-seizure motion by the aggrieved parties.” In other words,
if no motion is made, there is never an “informed and deliber-
ate” examination of probable cause by a “neutral and
detached magistrate.” The government simply keeps and
searches the confidential data it seized without any suspicion
of criminal activity. But how precisely is an honest citizen to
know if his or her confidential medical records have been
seized by the government so that he or she may seek redress?
The search warrant is not directed to the innocent party; it is
served on the data repository. In the case at bar, the parties
knew of the seizure of data pursuant to the search warrant
because they were litigating (or at least thought they were liti-
gating) the production of the material pursuant to a grand jury
subpoena. However, at least until this opinion has been
issued, no one in the National Hockey League knew that the
government had seized medical records pertaining to its play-
ers without a warrant. Indeed, in the normal case, when a
search warrant is directed to a third party, the innocent citizen
whose privacy interests are at stake will have no notice what-
soever that his privacy interests have been compromised.18
18
This problem is one of the reasons why the use of search warrants
against third parties is strongly discouraged.
19894 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Without notice, the “aggrieved party” will have no opportu-
nity to make a “proper post-seizure motion” to have the mate-
rial reviewed by the magistrate. The oddity of the majority’s
holding is readily apparent: those suspected of crime or
involved in some manner in the underlying criminal investiga-
tion will learn of the seizure and can take steps to protect their
Fourth Amendment rights. However, the completely innocent
citizen with no involvement in the underlying investigation
whose data has been seized will not have notice or any oppor-
tunity to protest. It is quite difficult to understand how this
procedure protects the right of law-abiding citizens “to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
Even if, as in this case, a representative of the innocent “ag-
grieved party” had sufficient notice of the seizure, the inno-
cent citizen is now required under the majority holding to hire
an attorney and make a “proper post-seizure motion” to
require the government do to what the Fourth Amendment
required it to do in the first instance: establish before a neutral
and detached magistrate that probable cause exists to seize
and search the property.
In sum, under the majority’s holding, the eversion of the
Fourth Amendment is thus rendered complete. The govern-
ment is entitled to warrantless searches and seizures without
probable cause or particularized suspicion, and the honest citi-
zen bears the cost and the burden of showing that the govern-
ment should have demonstrated probable cause before seizing
and searching the law-abiding citizen’s personal property.
2
The majority’s holding unfortunately does not stop with
requiring citizens to force the government to establish proba-
ble cause. Under the majority holding, even if a neutral and
detached magistrate concludes after an informed and deliber-
ate examination of the data that the government has not estab-
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19895
lished probable cause, the magistrate is not directed to limit
the seizure. To the contrary, if the magistrate determines that
confidential data cannot be separated, or cannot be separated
“without creating new documents,” or that the unrelated con-
fidential information cannot be excised “without distorting the
character of the original document,” then the government is
entitled to keep the unrelated confidential data without show-
ing probable cause or reasonable suspicion. In the age of elec-
tronic data, this holding virtually eliminates Fourth
Amendment protections for confidential data. The usual prac-
tice is to err on the side of redaction for the protection of
those whose privacy interests may be unnecessarily jeopar-
dized. Unfortunately, the majority tilts the balance in the
opposite direction, encouraging magistrates to allow the gov-
ernment to retain all unrelated data if the original data is co-
mingled in some fashion.
Placing restrictions on magistrate’s ability to redact infor-
mation and allowing the government to retain whole data-
bases of confidential electronic information on the theory that
some data relevant to the warrant is “co-mingled” defies com-
mon sense and the realities of electronic data storage. One of
the chief advantages of electronic data storage is that it allows
large volumes of information to be retained in a very small
space, such as a computer hard drive. Another advantage of
electronic data storage is the ease of searching and examining
data. A relational database, such as the one at issue in this
case, is one in which the database is organized and accessed
according to the relationships between data items without the
need for any consideration of physical orientation and rela-
tionship. Software programs allow the examination and corre-
lation of information. A relational database provides the
perfect vehicle for segregating non-relevant information. For
example, in this case, a simple search would have yielded the
information responsive to the search warrant.19 However, an
19
The majority suggests that I would place the searching agents under
a duty to rely on CDT to guide their search, but I suggest no such thing.
19896 UNITED STATES v. COMPREHENSIVE DRUG TESTING
inherent feature of a relational database is that data is “co-
mingled.” Instead of using the power of a relational database
to protect legitimate privacy interests, the majority would
adopt a rule discouraging—if not precluding—such a use.
Under the majority’s approach, the government would be
entitled to retain all electronic information if “co-mingled.”
Given that “co-mingling” is an inherent aspect of electronic
databases, this restriction renders the Fourth Amendment a
nullity in the electronic context.
The logic is circulate and the result completely predictable.
The government is entitled to seize property without a warrant
only if it is “co-mingled” and cannot be segregated. Then, if
a party objects the seizure, the data must be presented to a
magistrate judge who must release it back to the government
intact if the magistrate judge determines that the irrelevant
data is “co-mingled” and cannot be segregated. The exercise
is purely illusory and can only lead to an intellectual cul-de-
sac. The Fourth Amendment’s probable cause requirement is
neatly and entirely eliminated.
The majority not only countenances this procedure, but
encourages it. I cannot agree. In the electronic age, magistrate
judges should be required to use all available tools—software
as well as black marker—to redact confidential information
not responsive to a warrant in order to protect the privacy of
innocent citizens who are not suspected of any crime.
3
The profound consequences of the majority rule are readily
demonstrated by the case at bar. Because they had no notice
When data searching functions are available, as they were here, agents or
their consultants are perfectly capable of conducting key word searches
themselves, with or without any information from the party being
searched. Here, CDT—a third party entity not suspected of any crime—
offered to segregate the data utilizing the functions of the program. A fur-
ther, and much better alternative, would be to transfer the data to a magis-
trate judge for segregation and management.
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19897
of the governments’s seizure, no objections were filed by the
thirteen other major sports organizations, three unaffiliated
business entities, and three sports competitions whose data
was seized. Therefore, a magistrate will never review that
unauthorized seizure under the majority holding. Under the
majority’s rule, the government will also be allowed to retain
all of the information it seized from those who did object
because the information is co-mingled and cannot be segre-
gated without changing its original character.
There is no need to reinvent the wheel. The Tamura proce-
dure has been part of our court’s precedent for almost a quar-
ter of a century. Tamura provides a practical and sensible
method by which the government may obtain data to which
it is rightfully entitled without violating the constitutional
rights of honest citizens. We should reaffirm Tamura, not
supplant it.
V
For similar reasons, I would also affirm Judge Illston’s
decision to quash the May 6, 2004, subpoenas. The majority
contends that Judge Illston abused her discretion by resting
her decision to quash the subpoenas on legally insufficient
grounds, citing In re Grand Jury Subpoenas Dated Dec. 10,
1987, 926 F.2d 847 (9th Cir. 1991), for the proposition that
subpoenas and search warrants serve different purposes and
therefore arguing that it cannot be considered an abuse to use
both methods of obtaining information. However, in this case,
the government’s conduct went beyond seeking warrants and
subpoenas for the same information at the same time. As dis-
cussed previously, the government alternately sought subpoe-
nas and warrants to obtain highly sensitive information from
every Major League Baseball player and to continue to keep
that information after being ordered to return it. Further, as
previously noted, there were no substantiated risks justifying
the use of a warrant to obtain the documentary evidence from
a third party under 28 C.F.R. § 59.1(b).
19898 UNITED STATES v. COMPREHENSIVE DRUG TESTING
In addition, it is worth nothing that the May 6 subpoenas
requested much of the same information sought in the April
30 and prior search warrants. The affidavit to obtain the April
30 search warrant from Judge Lloyd averred that the material
was necessary in part because the records may “establish a
link to the charged defendants in this case.” It is an abuse of
the grand jury process to use grand jury subpoenas to develop
post-indictment trial material. See, e.g., In Re Grand Jury
Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767
F.2d 26, 29 (2d Cir.1985) (timing of subpoena, first issued
after indictment, suggested that its purpose was to obtain trial
material). The Balco indictments were returned in February.
Therefore, the issuance of the May 6 grand jury subpoena,
following on the heels of the search warrant application for
the same information indicating that its partial purpose was to
develop links to Balco, suggests an abuse of grand jury pro-
cess.
Given the history of this case, the district court’s conclu-
sion that the filing of these subpoenas was “the culmination
of a series of actions taken by the government in order to pre-
vent the MLBPA and CDT’s attempt to move to quash the
January and March subpoenas” is fully supported by the
record and certainly cannot be said to be an abuse of discre-
tion.
VI
I concur in the majority’s conclusion that the media has
standing on appeal to file a motion to unseal records. I also
agree that, under the circumstances presented by this case, the
motion should be referred to the district courts on remand.
I write separately to comment on what I view as a regretta-
ble effort by both parties in the district courts to circumvent
the procedures we have established to balance the First
Amendment rights of the press with the confidentiality that is
UNITED STATES v. COMPREHENSIVE DRUG TESTING 19899
required for some criminal proceedings.20 Specifically, I note
that all of the district court proceedings were closed by insis-
tence of the parties, without notice to the press or public.
In some instances, courtroom closures were obtained with-
out prior notice to the district court itself. For example, the
transcript of one of the hearings before one of the district
court judges reflects the following colloquy:
Court: Why is that, that you are locking the door?
Clerk: Since the case was filed under seal.
Court: Is this all under seal? * * * You want the
hearings under seal. There was no motion
made to seal the hearing. I wasn’t aware
you wanted it that way.
Counsel: Your honor, we filed the pleadings under
seal. We think this proceeding should be
under seal. The information at issue is
highly confidential.
After some colloquy, the court allowed the courtroom to be
sealed, but admonished counsel to file an appropriate motion
if they wished any further courtroom proceedings to be closed
in the future. However, neither the public nor the press were
notified that the doors were to be locked and the public
barred.
“Under the first amendment, the press and the public have
a presumed right of access to court proceedings and docu-
ments.” Oregonian Pub. Co. v. District Court, 920 F.2d 1462,
1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior
20
The government and the Players Association also sought to have oral
argument in the court of appeals closed to the public. We denied that
motion, and a subsequent motion for reconsideration.
19900 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Court, 464 U.S. 501, 510 (1985)(“Press-Enterprise I”). “This
presumed right can be overcome only by an overriding right
or interest ‘based on findings that closure is essential to pre-
serve higher values and is narrowly tailored to serve that
interest.’ ” Id. (quoting Press-Enterprise I, 464 U.S. at 510)
In determining questions of public and press access to the
courts, courts are to examine whether a right attaches to a par-
ticular proceeding, using the Supreme Court’s “logic and
experience” test articulated in Press-Enterprise v. Superior
Court of California for the County of Riverside, 478 U.S. 1,
8-9 (1986) (“Press-Enterprise II”). “If a proceeding fulfills
both parts of the test, a qualified First Amendment right of
access arises, to be overcome ‘only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.’ ” Phoe-
nix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th
Cir. 1998) (quoting Press-Enterprise II, 478 U.S. at 9-10).
Provisions for narrow tailoring may include later release of
transcripts, or redacted transcripts. Id. at 947.21 In making its
decision to close proceedings, “[t]he trial court must articulate
this interest ‘along with findings specific enough that a
reviewing court can determine whether the closure order was
properly entered.’ ” Id. at 946-47. None of these procedural
steps were undertaken in the district courts.
To be sure, the right of access to court proceedings is not
absolute. Id. at 946. Both parties have legitimate privacy
interests to protect. The Federal Rules of Criminal Procedure
require “matters affecting a grand jury proceeding to be
closed to the extent necessary to prevent disclosure of matters
occurring before a grand jury.” Fed. R. Crim. P. 6(e)(5). In
addition, as I have discussed, the athletes represented by the
Players Association have a very strong privacy interest in
their medical records. However, there are non-grand jury
21
Indeed, transcripts of court proceedings “must be released when the
factors militating in favor of closure no longer exist.” Id. at 947-48.
 UNITED STATES v. COMPREHENSIVE DRUG TESTING 19901
materials involved in this case, and there are some proceed-
ings that do not appear to have involved confidential material.22
In any case, these are matters best considered in the first
instance by the district court, with public notice so that the
First Amendment right of access may be balanced with the
privacy interests of the parties. Unfortunately, the parties
presented hearing closure and record sealing as a fait accom-
pli to the district courts, without notice to the press or public.
Now that we have remanded the motion to unseal, this issue
may be addressed.
VII
In discussions of the alleged use of steroids by baseball
players, much is made about “the integrity of the game.” Even
more important is the integrity of our legal system. Perhaps
baseball has become consumed by a “Game of Shadows,”23
but that is no reason for the government to engage in a “Pros-
ecution of Shadows.” The district judges were entirely right
to order the government to return the thousands of private
medical records it wrongfully seized by use of pretext and
artifice.
I would affirm the orders of the district court and must
respectfully dissent from the majority’s contrary conclusion.
I concur in the remand of the motion to unseal records.
22
The government, in at least one proceeding, seemed to indicate that
it might not oppose unsealing some material, with government counsel
stating before Judge Mahan: “As a matter of DOJ regulation and policy,
we actually have taken the position and we do take the position that there
isn’t a need to have these proceedings actually sealed, and that is because
of the paramount interest in having actual public proceedings in court-
rooms held in public.” However, the government did not object formally
to sealing the transcript of that hearing, and the transcript has, to date,
been sealed.
23
Mark Fainaru-Wada and Lance Williams, Game of Shadows (2006).