United States v. Michael Dreyer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30077
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00119-MJP-1
MICHAEL ALLAN DREYER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted
May 16, 2014—Seattle, Washington
Filed September 12, 2014
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Kleinfeld;
Partial Concurrence and Partial Dissent by Judge
O’Scannlain
2 UNITED STATES V. DREYER
SUMMARY*
Criminal Law
The panel reversed the district court’s denial of a
suppression motion, and remanded for further proceedings, in
a case in which the defendant was convicted of one count of
distributing child pornography and one count of possessing
child pornography, and remanded for further proceedings.
A special agent of the Naval Criminal Investigative
Service launched an investigation for online criminal activity
by anyone in the state of Washington, whether connected
with the military or not. The agent found evidence of a crime
committed by the defendant, a civilian, in the state and turned
it over to civilian law enforcement officials.
The panel reaffirmed that NCIS agents are bound by
Posse Comitatus Act-like restrictions on direct assistance to
civilian law enforcement, and held that the agent’s broad
investigation into sharing of child pornography by anyone
within the state of Washington, not just those on a military
base or with a reasonable likelihood of a Navy affiliation,
violated the regulations and policies proscribing direct
military enforcement of civilian laws.
The panel held that the exclusionary rule should be
applied, and that the district court erred in denying the
defendant’s motion to suppress, because there is abundant
evidence that the violation at issue has occurred repeatedly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DREYER 3
and frequently, and that the government believes that its
conduct is permissible, despite prior cautions by this court
and others that military personnel, including NCIS agents,
may not enforce the civilian laws.
Concurring, Judge Kleinfeld wrote separately to address
applicability of the exclusionary rule to this case, which
amounts to the military acting as a national police force to
investigate civilian law violations by civilians.
Concurring in part and dissenting in part, Judge
O’Scannlain concluded that the agent violated the Posse
Comitatus Act, but dissented from the majority’s application
of the exclusionary rule.
COUNSEL
Erik B. Levin (argued), Law Office of Erik B. Levin,
Berkeley, California, for Defendant-Appellant.
Marci Ellsworth (argued), Assistant United States Attorney,
and Jenny A. Durkan, United States Attorney, Western
District of Washington, Seattle, Washington, for Plaintiff-
Appellee.
4 UNITED STATES V. DREYER
OPINION
BERZON, Circuit Judge:
A special agent of the Naval Criminal Investigative
Service (NCIS) launched an investigation for online criminal
activity by anyone in the state of Washington, whether
connected with the military or not. The agent found evidence
of a crime committed by a civilian in the state and turned it
over to civilian law enforcement officials. The civilian,
Michael Dreyer, was prosecuted, convicted, and sentenced to
eighteen years in prison. We hold that the NCIS agent’s
investigation constituted improper military enforcement of
civilian laws and that the evidence collected as a result of that
investigation should have been suppressed.
BACKGROUND
In late 2010, NCIS Special Agent Steve Logan began
investigating the distribution of child pornography online.
Several months later, from his office in Georgia, Agent
Logan used a software program, RoundUp, to search for any
computers located in Washington state sharing known child
pornography on the Gnutella file-sharing network.1
Agent Logan found a computer using the Internet
Protocol (IP) address 67.160.77.21 sharing several files
1
Dreyer challenges the admission of evidence related to RoundUp,
arguing it did not meet the requirements for the admission of expert
testimony established by Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Because we
conclude that suppression was warranted for other reasons, we do not
reach this issue.
UNITED STATES V. DREYER 5
identified by RoundUp as child pornography.2 He
downloaded three of the files, two images and a video, from
that computer. After viewing the files, Agent Logan
concluded that they were child pornography.
Thereafter, Agent Logan made a request for an
administrative subpoena for the name and address associated
at the time of the downloads with the IP address. He
submitted his request to NCIS’s representative at the National
Center for Missing and Exploited Children, which turned the
request over to the Federal Bureau of Investigation (FBI).
The FBI sent an administrative subpoena to Comcast.
Comcast responded by providing Dreyer’s name and address
in Algona, Washington.
After receiving that information, Agent Logan checked a
Department of Defense (DoD) database to determine if
Dreyer had a military affiliation. He found that Dreyer had
no current military affiliation.3 Agent Logan then wrote a
report summarizing his investigation and forwarded it and the
supporting material to the NCIS office in the state of
Washington. That office then turned the information over to
Officer James Schrimpsher of the Algona Police Department.
Officer Schrimpsher verified that Dreyer lived in Algona
based on property and utility records. Because Officer
Schrimpsher had never worked on any case involving internet
2
RoundUp identified such files by comparing the “SHA-1 hash values”
of files being offered for download – unique identifiers that do not change
when a file name is altered – with values already known to be associated
with child pornography.
3
Dreyer had previously been a member of the Air Force.
6 UNITED STATES V. DREYER
crimes or child pornography, he contacted the Internet Crimes
Against Children Task Force for assistance and was referred
to Detective Ian Polhemus of the Seattle Police Department.
Detective Polhemus reviewed some of the information in the
NCIS report, and provided Officer Schrimpsher with a
sample of a search warrant affidavit.
Subsequently, Officer Schrimpsher sought, and was
issued, a search warrant by a state court judge.4 Officer
Schrimpsher, along with several other officers, including
Detective Polhemus, Detective Timothy Luckie of the Seattle
Police Department, and Sergeant Lee Gaskill of the Algona
Police Department, executed the search warrant. At Dreyer’s
residence, Detective Luckie conducted an on-site “preview”
search of a desktop computer he found in the house.5 He
identified some images as possible child pornography and
directed the Algona officers to seize the computer.
Months later, United States Department of Homeland
Security Special Agent Cao Triet Huynh applied for a warrant
to search the electronic media seized from Dreyer’s home.
4
Officer Schrimpsher prepared the search warrant application. Officer
Schrimpsher testified that he attached Agent Logan’s report and
supporting material to his affidavit. In drafting the affidavit, he copied
and pasted large sections of Detective Polhemus’s sample. As a result,
Officer Schrimpsher made a number of false representations in his
affidavit.
Dreyer raises a Franks issue regarding the falsities in the affidavit.
As we hold suppression was required on other grounds, we do not address
this issue.
5
We do not address Dreyer’s contention that the on-site search of his
computer exceeded the scope of the state warrant, as we conclude that
suppression is appropriate for a different reason.
UNITED STATES V. DREYER 7
Huynh based his application on the media found by Agent
Logan and Detective Luckie, as well as incriminating
statements Dreyer made during the car ride. A federal
magistrate judge issued a search warrant. The resulting
forensic examination of Dreyer’s computer revealed many
videos and images of child pornography.
Dreyer was charged with one count of distributing child
pornography on April 14, 2011 in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1), and one count of possessing child
pornography on July 6, 2011 in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). He moved to suppress the
evidence seized during the July 6, 2011 search, as well as the
evidence found during the later federal search of the
computer.
In his reply brief on his suppression motion, Dreyer
argued that, as an NCIS agent, Agent Logan had no lawful
authority to investigate civilian crime. The government filed
a surreply addressing that argument. The parties addressed
this issue again at the hearing on the motion to suppress.
Following an evidentiary hearing, the district court orally
denied his motion to suppress.
Subsequently, following a four-day jury trial, Dreyer was
convicted of both charges and sentenced to 216 months of
incarceration and lifetime supervised release. He timely
appealed.
DISCUSSION
Dreyer argues that the fruits of the NCIS investigation
into his online file sharing should have been suppressed
because military enforcement of civilian laws is prohibited.
8 UNITED STATES V. DREYER
Because the issue of whether the NCIS involvement violated
the limitations on military enforcement of civilian laws “is a
mixed question of fact and law which is primarily legal,” we
review de novo the district court’s denial of Dreyer’s motion
to suppress based on this claim. United States v. Hitchcock,
286 F.3d 1064, 1069 (9th Cir.), as amended by 298 F.3d 1021
(9th Cir. 2002).
I.
The Posse Comitatus Act (PCA), 18 U.S.C. § 1385,6
“prohibits Army and Air Force military personnel from
participating in civilian law enforcement activities.” United
States v. Chon, 210 F.3d 990, 993 (9th Cir. 2000).7 In
6
The PCA states, “Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully uses
any part of the Army or the Air Force as a posse comitatus or otherwise
to execute the laws shall be fined under this title or imprisoned not more
than two years, or both.” 18 U.S.C. § 1385.
7
“Posse comitatus (literally ‘power of the country’) was defined at
common law as all those over the age of 15 upon whom a sheriff could
call for assistance in preventing any type of civil disorder.” H.R. Rep. No.
97-71, pt. 2, at 4 (citing 1 William Blackstone, Commentaries 343-44).
Although the PCA itself “was enacted during the Reconstruction Period
to eliminate the direct active use of Federal troops by civil law authorities”
to enforce the civil law, United States v. Banks, 539 F.2d 14, 16 (9th Cir.
1976); see also United States v. Red Feather, 392 F. Supp. 916, 921–25
(D. S.D. 1975), it reflected long-standing American concerns about the
use of the military to keep the civil peace, United States v. Walden,
490 F.2d 372, 375 (4th Cir. 1974); see also The Declaration of
Independence paras. 11, 12, 14 (U.S. 1776) (criticizing the King of Great
Britain for having “kept among us, in times of peace, Standing Armies
without the Consent of our legislatures”; “affected to render the Military
UNITED STATES V. DREYER 9
addition, Congress has directed “[t]he Secretary of Defense
[to] prescribe such regulations as may be necessary” to
prevent “direct participation by a member of the Army, Navy,
Air Force, or Marine Corps” in civilian law enforcement
activities unless otherwise authorized by law. 10 U.S.C.
§ 375. Congress has authorized certain exceptions to § 375,
such as permitting the military to make equipment and
facilities available to civilian law enforcement and allowing
the military to provide support in particular situations, such
as during an emergency situation involving a weapon of mass
destruction. See 10 U.S.C. §§ 372-74, 379-82. None of these
specific exceptions are at issue here.
We have previously recognized that, “[a]lthough the PCA
does not directly reference the Navy,” “PCA-like restrictions”
apply to the Navy as a matter of Department of Defense
(DoD) and Naval policy. Chon, 210 F.3d at 993; see also
United States v. Khan, 35 F.3d 426, 431 (9th Cir. 1994).
Specifically, DoD policy states that its “guidance on the
Posse Comitatus Act . . . is applicable to the Department of
the Navy and the Marine Corps as a matter of DoD policy,
with such exceptions as may be provided by the Secretary of
the Navy on a case-by-case basis.” DoD Directive (DoDD)
5525.5 Enclosure 4 E4.3 (Jan. 15, 1986).8 “[T]he Secretary
independent of and superior to the Civil power”; and “Quartering large
bodies of armed troops among us”); 7 Cong. Rec. 3586 (1878) (remarks
of Rep. William Kimmel).
8
After Agent Logan’s actions at issue in this appeal, on February 27,
2013, DoD issued Instruction No. 3025.21, which incorporated the
substance of, and cancelled, Directive No. 5525.5. See DoD Instruction
(DoDI) 3025.21(1)(c). Like the cancelled Directive, Instruction No.
3025.21 also provides, “By policy, Posse Comitatus Act restrictions (as
well as other restrictions in this Instruction) are applicable to the
10 UNITED STATES V. DREYER
of the Navy, using nearly identical language, has adopted this
policy.” Chon, 210 F.3d at 993 (citing former Secretary of
the Navy Instructions (SECNAVINST) 5820.7B (March 28,
1988)); see SECNAVINST 5820.7C (Jan. 26, 2006).
The government maintains that, even though PCA-like
restrictions apply to the Navy, they do not apply to civilian
NCIS agents. Chon rejected the same argument. There, as
here, the government argued that Ҥ 375 does not apply to the
NCIS because most of its agents are civilians,” and “it is
headed by a civilian director with a civilian chain of
command.” Id. at 993–94. The government based its first
argument on provisions in DoD and Naval policies that
exempt four categories of people from
PCA-like restrictions: (1) members of reserve
components when not on active duty;
(2) members of the National Guard when not
in the Federal Service; (3) civilian employees
of DoD unless under the direct command and
control of a military officer; and (4) military
Department of the Navy (including the Marine Corps) with such
exceptions as the Secretary of Defense may authorize in advance on a
case-by-case basis.” DoDI 3025.21, Enclosure 3(3). The other relevant
provisions also remain materially unchanged, except as otherwise
indicated later in this opinion.
In addition, on April 13, 2013, the Department of Defense issued a
final rule promulgating regulations concerning the restriction on military
support of civilian law enforcement. See Defense Support of Civilian Law
Enforcement Agencies, 78 Fed. Reg. 21826-02 (codified at 32 C.F.R.
§ 182 (2013)). The rule was originally proposed on December 28, 2010.
75 Fed. Reg. 81547-01. The regulations as issued are largely identical to
the DoD Instruction No. 3025.21.
UNITED STATES V. DREYER 11
service members when off duty and in a
private capacity.
Id. at 993. Chon interpreted “these exemptions to mean that
the PCA and PCA-like restrictions function to proscribe use
of the strength and authority of the military rather than use of
the private force of the individuals who make up the
institution.” Id. “In other words, while DoD personnel may
participate in civilian law enforcement activities in their
private capacities, they may not do so under the auspices of
the military.” Id. Applying this understanding, Chon held
that the PCA-like restrictions do apply to “civilian NCIS
agents” who “represented and furthered the interests of the
Navy,” and were not distinguishable by the civilians who
might interact with them from members of the military. Id.
These same status-based exemptions are maintained in the
regulations and policies today. See SECNAVINST
5820.7C(8)(e)(1)–(4); DoDD 5525.5, Enclosure 4 E4.2; see
also 32 C.F.R. § 182.6(a)(2); DoDI 3025.21, Enclosure 3(2).
We see no basis for revisiting our prior interpretation of them.
Chon also rejected the government’s second contention,
“that the NCIS should be exempt from PCA-like restrictions
because it is headed by a civilian director with a civilian
chain of command.” 210 F.3d at 993–94. The court reasoned
that “the NCIS Director has a direct reporting relationship to
the Chief of the Naval Operations, a military officer,” and so
“[d]espite a civilian Director, the NCIS continues to be a unit
of, and accountable to, the Navy.” Id. The government
argues that Chon’s reasoning has been undermined, because
the “reporting relationship” between the NCIS director and
the Chief of Naval Operations “was eliminated in 2005”
when the Secretary of the Navy issued Instruction 5430.107.
12 UNITED STATES V. DREYER
The government is incorrect. At the time that Chon was
decided, the command structure of NCIS was set forth in
Instruction 5520.3B, which provided, “The Director, NCIS
reports directly to the Secretary of the Navy,” and “[i]n
addition, the Director, NCIS reports to the Chief of Naval
Operations for physical, personnel and information security.”
SECNAVINST 5520.3B(4). Instruction 5430.107 has since
cancelled Instruction 5520.3B, see SECNAVINST
5430.107(2) (Dec. 28, 2005), and now provides, “The
Director, NCIS reports directly to the Secretary of the Navy,”
and “[i]n addition, the Director, NCIS serves as Special
Assistant for Naval Investigative Matters and Security to the
Chief of Naval Operations,” SECNAVINST 5430.107(5)(a).
That the NCIS director still serves as the “Special Assistant”
to the Chief of Naval Operations means a reporting
relationship continues to exist. In addition, Instruction
5430.107 created a Board of Directors that oversees NCIS
strategy and operations; the Board includes several military
officers. See SECNAVINST 5430.107(5)(c) (establishing
Board of Directors including the Vice Chief of Naval
Operations and the Assistant Commandant of the Marine
Corps). So the change in NCIS’s policies regarding its
command structure did not undermine this portion of Chon’s
reasoning.
More fundamentally, the government’s assertion that
there is a meaningful difference between civilian and other
employees of the Navy for the purposes of the PCA-like
restrictions is unsound. The DoD policies have consistently
proclaimed that they set forth “restrictions on participation of
DoD personnel in civilian law enforcement activities.” See
DoDD 5525.5, Enclosure 4; DoDI 3025.21, Enclosure 3.
They do not limit their reach to non-civilian personnel only.
And any contention to the contrary is belied by the
UNITED STATES V. DREYER 13
abundantly clear expressions in the most recent regulations
and policy instructions. Both state that they “[a]ppl[y] to
civilian employees of the DoD Components,” and that their
restrictions on direct participation in civilian law enforcement
“apply to all actions of DoD personnel worldwide,” with
“DoD personnel” defined to include “Federal military officers
and enlisted personnel and civilian employees of the
Department of Defense.” 32 C.F.R. §§ 182.2(e), 182.3,
182.4(c); DoDI 3025.21(2)(e), (4)(c), Glossary Part II.9
Accordingly, we re-affirm Chon’s holding that NCIS
agents are bound by PCA-like restrictions on direct assistance
to civilian law enforcement.
II.
The regulations and policies implementing the PCA and
§ 375 “generally prohibit ‘direct’ military involvement in
civilian law enforcement activities but permit ‘indirect’
assistance such as the transfer of information obtained during
the normal course of military operations or other actions that
‘do not subject civilians to [the] use [of] military power that
is regulatory, prescriptive, or compulsory.’” United States v.
Hitchcock, 286 F.3d at 1069 (citations omitted). Prohibited
direct assistance includes “[u]se of military personnel for
surveillance or pursuit of individuals, or as undercover
9
Although the most recent DoD Instruction and regulations were issued
after the search at issue here, their content is largely identical to that
contained in the earlier DoD Directive. Also, the Army policy
implementing the newer Instruction and regulation is the same one that
implemented the earlier Directive. So the DoD’s explanations of the
intent and meaning of the newer documents is a useful aid into interpreting
the earlier ones. Cf. Pipefitters Local Union No. 562 v. United States,
407 U.S. 385, 412 (1972).
14 UNITED STATES V. DREYER
agents, informants, investigators, or interrogators.” DoDD
5525.5, Enclosure 4, E4.1.3.4.
We have “set forth three tests for determining whether
military involvement in civilian law enforcement constitutes
permissible indirect assistance: ‘[1] The involvement must
not constitute the exercise of regulatory, proscriptive, or
compulsory military power, [2] must not amount to direct
active involvement in the execution of the laws, and [3] must
not pervade the activities of civilian authorities.’” Hitchcock,
286 F.3d at 1069 (quoting Khan, 35 F.3d at 431).10 “If any
one of these tests is met, the assistance is not indirect.” Khan,
35 F.3d at 431.
Agent Logan’s RoundUp surveillance of all computers in
Washington amounted to impermissible direct active
involvement in civilian enforcement of the child pornography
laws, not permissible indirect assistance. He acted as an
investigator, an activity specifically prohibited as direct
assistance. DoDD 5525.5, Enclosure 4, E4.1.3.4; see also
Red Feather, 392 F. Supp. at 925 (“Activities which constitute
an active role in direct law enforcement” include
“investigation of crime . . . and other like activities.”). Agent
Logan’s actions were akin to the conduct that the Fourth
Circuit held violated these regulations in United States v.
Walden, 490 F.2d 372, 373–76 (4th Cir. 1974), where
Marines engaged in undercover investigations into store
10
Khan interpreted 32 C.F.R. § 213.10, a regulation that has since been
withdrawn. See 58 Fed. Reg. 25,776 (Apr. 28, 1993). Hitchcock
recognized that the withdrawn regulation’s relevant provisions remained
in DoD Directive 5525.5 as it was in effect at the time of the search at
issue here. 286 F.3d at 1069–70 n.8. Those same provisions are
maintained in DoD Instruction No. 3025.21 and the new regulations. See
32 C.F.R. § 182.6; DoDI 3025.21, Enclosure 3.
UNITED STATES V. DREYER 15
employees’ illegal firearms sales to minors and to individuals
not residents of the state.
Also, Agent Logan engaged in his investigation not in any
support capacity to civilian law enforcement, but rather as an
independent actor who initiated and carried out this activity.
His actions thus were not “incidental” to the overall
investigation into Dreyer, or limited to backup support. Cf.
Khan, 35 F.3d at 432; United States v. Klimavicius-Viloria,
144 F.3d 1249, 1259 (9th Cir. 1998). The results of his
investigation served as the primary basis for the state search
warrant. Officer Schrimpsher conducted no significant
additional investigation before procuring the warrant – he
only verified that Dreyer lived at the address he was given
and that the descriptions that Agent Logan provided of the
files seemed to describe child pornography. Without Agent
Logan’s identification of Dreyer, his computer, and the child
pornography on his computer, there would have been no
search and no prosecution.
Accordingly, Agent Logan’s actions amounted to direct
assistance to civilian law enforcement. The government
nonetheless argues that Agent Logan’s investigation was
proper because it falls into the “independent military
purpose” exception to the prohibition on direct assistance.
The policies and regulations create “an exception to the
general prohibition on direct involvement where” there is “an
independent military purpose,” that is, “where the military
participation is undertaken ‘for the primary purpose of
furthering a military or foreign affairs function of the United
States, regardless of incidental benefits to civilian
authorities.’” Hitchcock, 286 F.3d at 1069 (quoting DoD
Directive 5525.5, Enclosure 4, E4.1.2.1). Such military
16 UNITED STATES V. DREYER
activities include “[i]nvestigations and other actions related
to enforcement of the Uniform Code of Military Justice.”
DoD Directive 5525.5, Enclosure 4, E.4.1.2.1.1.
The Uniform Code of Military Justice prohibits
distribution of child pornography by a member of the armed
forces. It has assimilated the elements of the federal child
pornography statute through Article 134, its general provision
that prohibits “all conduct of a nature to bring discredit upon
the armed forces.” 10 U.S.C. § 934; see, e.g., United States
v. Brown, 529 F.3d 1260, 1263–64 (10th Cir. 2008). In 2011,
the President issued Executive Order 13593, adding to the
Manual for Courts Martial a specific Article 134 provision for
child pornography. Investigation by military law
enforcement officers of possession and distribution of child
pornography by military personnel is therefore proper.
But Agent Logan’s search was not reasonably focused on
carrying out such a legitimate military investigation.11 NCIS
is authorized to investigate criminal operations that
“significantly affect the naval establishment.”
SECNAVINST 5430.107(3)(c), 7(b)(2). Agent Logan
understood that he did not have the authority to search any
location, but had to limit his searches to areas where there
was “a Department of Navy interest.” Yet, Agent Logan’s
search did not meet the required limitation. He surveyed the
entire state of Washington for computers sharing child
11
Because Agent Logan’s investigation itself violated the PCA-like
restrictions, it is irrelevant whether it was permissible for him to transfer
to civilian authorities “information collected during the normal course of
military training or operations that may be relevant to a violation of any
Federal or State law within the jurisdiction of such officials.” 10 U.S.C.
§ 371(a); see also DoD Directive 5525.5, Enclosure 2, E.2.1, Enclosure 4,
E4.1.7.1; SECNAVINST 5820.7C(5); Hitchcock, 286 F.3d at 1069.
UNITED STATES V. DREYER 17
pornography. His initial search was not limited to United
States military or government computers, and, as the
government acknowledged, Agent Logan had no idea whether
the computers searched belonged to someone with any
“affiliation with the military at all.” Instead, it was his
“standard practice to monitor all computers in a geographic
area,” here, every computer in the state of Washington.
Agent Logan’s further investigation into Dreyer’s specific
computer and identity also was not reasonably limited to
searching for crimes that “significantly affect the naval
establishment.” SECNAVINST 5430.107(3)(c), 7(b)(2).
Agent Logan testified that RoundUp displays the geographic
location of the IP address “within a 25- to 30-mile radius.”
The screen shot for Agent Logan’s search shows that
RoundUp identified the geographic location for Dreyer’s IP
address as Federal Way, Washington. Agent Logan did not
report at the evidentiary hearing on the suppression motion or
at trial that he chose to pursue that IP address based on this
geographic identification.
Agent Logan did write in his administrative subpoena
request that the “Suspect IP was identified in area of large
DOD and USN saturation indicating likelihood of USN/DOD
suspect.” But the record contains no evidence establishing
any meaningful military “saturation” of the area at issue.
Although the government represents that Federal Way,
Washington is located within thirty miles of several military
installations, it also is similarly near both Seattle and Tacoma,
as well as much of the surrounding metropolitan areas.12 The
12
We may properly take judicial notice of United States Census Bureau
data, as such data “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
18 UNITED STATES V. DREYER
three-thousand-square-mile area circling Federal Way – the
approximate area of a circle with a thirty-mile radius –
encompasses much of the state’s civilian population. That
Agent Logan ended his investigation once he confirmed that
Dreyer had no current military affiliation is of no matter; his
overly broad investigation until that point had already
exceeded the scope of his authority.
The government’s position that the military may monitor
and search all computers in a state even though it has no
reason to believe that the computer’s owner has a military
affiliation would render the PCA’s restrictions entirely
meaningless. To accept that position would mean that NCIS
agents could, for example, routinely stop suspected drunk
drivers in downtown Seattle on the off-chance that a driver is
201(b)(2); see United States v. Esquivel, 88 F.3d 722, 726–27 (9th Cir.
1996); Skolnick v. Bd. of Comm’rs of Cook Cnty., 435 F.2d 361, 363 (7th
Cir. 1970).
The United States Census Bureau’s 2011 population estimate for the
Seattle-Tacoma-Bellevue Metropolitan Statistical Area was about 3.5
million. See U.S. Census Bureau, Annual Estimates of the Population of
Metropolitan and Micropolitan Statistical Areas: April 1, 2010 to July 1,
2012, available at http://www.census.gov/popest/data/metro/totals/2012/.
The Census Bureau estimates that the total state population in that year
was about 6.8 million people. See U.S. Census Bureau, Annual
Estimates of the Population for the United States, Regions, States, and
Puerto Rico: April 1, 2010 to July 1, 2013, available at
http://www.census.gov/popest/data/index.html.
Census Bureau data also undermines any notion that Federal Way
contains significantly more military personnel than other parts of the
country. In 2011, the Census Bureau estimated that about 0.4% of Federal
Way’s adult population was employed by the Armed Forces, the same
percentage as it estimated for the United States population. See U.S.
Census Bureau, 2011 American Community Survey.
UNITED STATES V. DREYER 19
a member of the military, and then turn over all information
collected about civilians to the Seattle Police Department for
prosecution.
The government’s position that the military may search
the entire civilian population of a state is also inconsistent
with a basic principle underlying the PCA and the related
statutes and regulations, “a traditional and strong resistance
of Americans to any military intrusion into civilian affairs.”
Laird v. Tatum, 408 U.S. 1, 15 (1972). The PCA was
originally enacted on the understandings that “[t]he great
beauty of our system of government is that it is to be
governed by the people,” and that if we use the “military
power . . . to discharge those duties that belong to civil
officers and to the citizens,” we “have given up the character
of [our] Government; it is no longer a government for liberty;
it is no longer a government founded in the consent of the
people; it has become a government of force.” 7 Cong. Rec.
4247 (1878) (remarks of Sen. Benjamin Hill). Consistent
with those fundamental premises, DoD policy warns against
an expansive reading such as the one espoused by the
government here: Directive 5525.5 specifically notes that the
independent military purpose exception “must be used with
caution, and does not include actions taken for the primary
purpose of aiding civilian law enforcement officials or
otherwise serving as a subterfuge to avoid the restrictions of”
the PCA. DoDD 5525.5, Enclosure 4, E.4.1.2.1.
The lack of any reasonable connection between the
military and the crimes that Agent Logan was investigating
separates this case from those in which we have applied the
independent military purpose exception. In Hitchcock, for
example, the defendant “sold LSD to Lake, a U.S. Marine,
who was, in turn, selling LSD to other military personnel” on
20 UNITED STATES V. DREYER
his base. 286 F.3d at 1066, 1070. NCIS agents participated
in the investigation “in order to determine whether [the
defendant] had sold drugs to other military personnel besides
Lake.” Id. at 1070. Hitchcock held the independent military
purpose exception applicable because the military
participation was justified to “determin[e] the extent to which
[the defendant’s] LSD was being used and distributed on the
military base” in violation of the Uniform Code of Military
Justice, and to help “‘maintain law and order on a military
installation.’” Id. (quoting DoDD 5525.5, Enclosure 4,
E4.1.2.1.3). And Chon applied the exception where NCIS
agents were investigating the theft of military equipment
from a Naval facility, and so were acting with “the
independent military purpose of recovering military
equipment.” 210 F.3d at 994.13
Thus, we hold that Agent Logan’s broad investigation
into sharing of child pornography by anyone within the state
of Washington, not just those on a military base or with a
reasonable likelihood of a Navy affiliation, violated the
regulations and policies proscribing direct military
enforcement of civilian laws.
13
Similar connections to the military existed in the out-of-circuit cases
upon which the government relies. In Hayes v. Hawes, 921 F.2d 100,
101–04 (7th Cir. 1990), a Navy investigator assisted civilian police
investigating drug trafficking in a mall across the street from a Naval base,
after a sailor was found with drugs purchased at that mall. And United
States v. Bacon, 851 F.2d 1312, 1313–14 (11th Cir. 1988), found no
violation of the PCA where an army investigator assisted civilian law
enforcement “to ferret out a source of some of the cocaine being supplied
to both civilians and army personnel.”
UNITED STATES V. DREYER 21
III.
Having held that Agent Logan’s investigation violated the
restrictions on the use of the military to enforce civilians
laws, we consider whether suppression of the resulting
evidence should have been ordered here. We have held that
“an exclusionary rule should not be applied to violations of
10 U.S.C. §§ 371–378 until a need to deter future violations
is demonstrated.” United States v. Roberts, 779 F.2d 565,
568 (9th Cir. 1986), superseded by statute on other grounds
as recognized in Khan, 35 F.3d at 432 n.7. Such a need exists
here, as there is evidence of “widespread and repeated
violations” of these provisions. Id.
The record here demonstrates that Agent Logan and other
NCIS agents routinely carry out broad surveillance activities
that violate the restrictions on military enforcement of
civilian law. Agent Logan testified that it was his standard
practice to “monitor[] any computer IP address within a
specific geographic location,” not just those “specific to US
military only, or US government computers.” He did not try
to isolate military service members within a geographic area.
He appeared to believe that these overly broad investigations
were permissible, because he was a “U.S. federal agent[]” and
so could investigate violations of either the Uniform Code of
Military Justice or federal law.
The extraordinary nature of the surveillance here
demonstrates a need to deter future violations. So far as we
can tell from the record, it has become a routine practice for
the Navy to conduct surveillance of all the civilian computers
in an entire state to see whether any child pornography can be
found on them, and then to turn over the information to
civilian law enforcement when no military connection exists.
22 UNITED STATES V. DREYER
This is squarely a case of the military undertaking the
initiative to enforce civilian law against civilians. “There
must be an exceptional reason” to invoke the exclusionary
rule for violation of posse comitatus-like regulations, United
States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and
the broad use of military surveillance of overwhelmingly
civilian populations is an exceptional reason.
Agent Logan carried out these searches repeatedly. He
was monitoring another computer at the same time that he
found Dreyer’s IP address. And he was involved with at least
twenty other child pornography investigations. Further,
Agent Logan was not the only NCIS agent who engaged in
such searches. He began carrying out these searches with two
other agents at least several months before he found Dreyer’s
IP address.14
That a need to deter future violations exists is further
supported by the government’s litigation positions. The
government is arguing vehemently that the military may
monitor for criminal activity all the computers anywhere in
any state with a military base or installation, regardless of
how likely or unlikely the computers are to be associated with
a member of the military. Such an expansive reading of the
military’s role in the enforcement of the civilian laws
demonstrates a profound lack of regard for the important
limitations on the role of the military in our civilian society.
14
We note that in United States v. Holloway, 531 Fed. Appx. 582 (6th
Cir. 2013), an NCIS agent also carried out an online child pornography
investigation that targeted a civilian. As there is no precedential circuit
opinion in Holloway, see 6th Cir. R. 32.1(b); United States v. Utesch,
596 F.3d 302, 312 (6th Cir. 2010), we do not discuss it further.
UNITED STATES V. DREYER 23
The existence of these factors make this case unlike those
in which courts have declined to require suppression of the
evidence resulting from a violation of these laws. In Roberts,
we concluded that suppression was not necessary because the
violation there was not widespread or repeated. 779 F.2d at
568. Similarly, in United States v. Walden, 490 F.2d 372,
377 (4th Cir. 1974), after holding that the Marines’ activities
violated the Navy regulations, the Fourth Circuit declined to
require suppression, based primarily on “the fact that this
case is the first instance to our knowledge in which military
personnel have been used as the principal investigators of
civilian crimes in violation of the Instruction,” and so it was
unaware of “any other violation, let alone widespread or
repeated violations.” And in United States v. Johnson,
410 F.3d 137, 149 (4th Cir. 2005), the court held that
exclusion would not be appropriate there because there was
no evidence in the record that the conduct complained of
occurred frequently or even repeatedly.
In contrast, we have here abundant evidence that the
violation at issue has occurred repeatedly and frequently, and
that the government believes that its conduct is permissible,
despite prior cautions by our court and others that military
personnel, including NCIS agents, may not enforce the
civilian laws. Accordingly, we find that the district court
erred in denying Dreyer’s motion to suppress.15
15
We note that, contrary to the government’s repeated representations
in its brief and at oral argument that “to date, no court has excluded
evidence gathered in violation of the Posse Comitatus Act,” at least two
courts have done so. In United States v. Pattioay, 896 P.2d 911, 925
(Haw. 1995), the Hawaii Supreme Court deemed suppression necessary
where “to ignore the violation . . . would be to justify the illegality and
condone the receipt and use of tainted evidence in the courts of this state.”
And Taylor v. State, 645 P.2d 522, 524–25 (Okla. Crim. App. 1982),
24 UNITED STATES V. DREYER
CONCLUSION
For the reasons set forth above, we reverse the district
court’s denial of Dreyer’s motion to suppress, and we remand
to the district court for further proceedings consistent with
this opinion.
REVERSED AND REMANDED.
KLEINFELD, Senior Circuit Judge, concurring:
I join fully in the majority opinion. I write separately to
address applicability of the exclusionary rule to this case. We
all agree that the Navy conduct in this case violated the Posse
Comitatus policy provisions, though not the criminal Posse
Comitatus statute.
Were we suggesting something like application of the
exclusionary rule to all Posse Comitatus violations, then
application of the exclusionary rule would be inappropriate.
And if there were any reason to think that the violation in this
case were a fluke, it would be inappropriate. This case,
though, amounts to the military acting as a national police
force to investigate civilian law violations by civilians.
Generally, the exclusionary rule does not apply to Posse
Comitatus violations, in the absence of “widespread and
suppressed evidence obtained in violation of the PCA because under the
facts of that case, “the illegal conduct by the law enforcement personnel
[rose] to an intolerable level as to necessitate an exclusion of the evidence
resulting from the tainted arrest.”
UNITED STATES V. DREYER 25
repeated violations” demonstrating a need to deter future
violations.1 In this case, unfortunately, that is just what we
have. The Navy did not just peek into Dreyer’s home
computer. It peeked into every computer in the State of
Washington using the peer-to-peer file sharing program,
“Gnutella.” That is more “widespread” than any military
investigation of civilians in any case that has been brought to
our attention. Millions of people use Gnutella, and millions
of people live in Washington, so the number of Gnutella users
in Washington is likely quite large. As for being “repeated,”
the Posse Comitatus violation was repeated against every
Gnutella user in Washington. It does not matter that this is
the first case we have seen, and that we do not have repeated
circuit court cases. The offense is to the people in
Washington whose computers were hacked by the Navy, not
to this court. The repetition that matters is the repeated
invasions of Washingtonians’ privacy, as the Navy software
went from civilian computer to civilian computer.
We have not found another case in this circuit or our
sister circuits applying the exclusionary rule to Posse
Comitatus violations, but neither have we found another case
in which the violations were so massive. The cases deeming
the exclusionary rule inapplicable are all quite different
factually, as in Roberts, where a guided-missile frigate with
Coast Guard and Navy personnel aboard caught a drug runner
on the high seas. That was one sailboat, not all the computers
in the State of Washington using Gnutella. Military
surveillance of all the civilian computers in a state is unique,
1
United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986). The same
principle applies to violations of the PCA-like regulations that are at issue
here.
26 UNITED STATES V. DREYER
and distinguishable from all the cases we have found that stop
short of applying the exclusionary rule.2
The military not infrequently investigates civilians or
assists in civilian law enforcement incidentally to military
law enforcement. A Navy shore patrol may break up a fight
involving sailors at a waterfront saloon, and turn the civilians
over to the local police. The Army may investigate a drug
ring on base, and turn civilian spouses living on base and off-
base civilian participants over to civilian authorities. There
would be little reason to deter military law enforcement in
cases like those, and indeed they would ordinarily not even be
Posse Comitatus violations.3 This case is different. There
could be no bona fide military purpose to this indiscriminate
peeking into civilian computers. It should be easy to
distinguish this case from run of the mill military law
enforcement that incidentally brings about apprehension of
civilians.
True, the practical effect of the decision may be to let a
criminal go. As Justice Cardozo wrote, application of the
exclusionary rule means that “[t]he criminal is to go free
because the constable has blundered.”4 We are unlikely to
see so widespread and repeated a Posse Comitatus violation
from the Army or Air Force, because their military personnel
2
Cf. Roberts, 779 F.2d at 568; United States v. Walden, 490 F.2d 372
(4th Cir. 1974).
3
Cf. United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002); United
States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000); DoD Directive 5525.5,
Enclosure 4, E4.1.2.1.
4
People v. DeFore, 242 N.Y. 13, 21 (1926).
UNITED STATES V. DREYER 27
would risk prison.5 If the military chooses to become a
national police force to detect civilians committing civilian
crimes, the Navy would be the branch to use, because the
criminal penalty does not apply to Navy personnel. Without
the criminal penalty, the exclusionary rule is about all that the
judiciary has to deter such widespread and repeated Posse
Comitatus violations as we have here. Letting a criminal go
free to deter national military investigation of civilians is
worth it.
O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:
Before today, “not a single federal court” had applied the
exclusionary rule to violations of the Posse Comitatus Act
(PCA), 18 U.S.C. § 1385, and its implementing regulations.1
United States v. Vick, 842 F. Supp. 2d 891, 894 (E.D. Va.
2012). That is no accident. As we have observed, the
exclusionary rule is an “extraordinary remedy,” United States
v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986), and the
Supreme Court has counseled that it is only to be used as a
“last resort,” Hudson v. Michigan, 547 U.S. 586, 591 (2006).
Yet, in a breathtaking assertion of judicial power, today’s
majority invokes this disfavored remedy for the benefit of a
convicted child pornographer. It does so without any
demonstrated need to deter future violations of the PCA and
5
See 18 U.S.C. § 1385.
1
To avoid cumbersome constructions, I will not distinguish between the
PCA and its implementing regulations, except where it is necessary to do
so.
28 UNITED STATES V. DREYER
without any consideration of the “substantial social costs”
associated with the exclusionary rule. United States v. Leon,
468 U.S. 897, 907 (1984). Like my colleagues, I conclude
that Agent Logan violated the PCA, and I concur in Parts I
and II of the majority opinion. But I respectfully dissent from
the majority’s misbegotten remedy for that violation.
I
The exclusionary rule is “a judicially created remedy of
[the Supreme Court’s] own making” whose “sole purpose” is
“to deter misconduct by law enforcement.” Davis v. United
States, 131 S. Ct. 2419, 2427, 2432 (2011) (internal quotation
marks omitted). That is a worthy objective, but it “exacts a
heavy toll on both the judicial system and society at large.”
Id. at 2427. Exclusion “undeniably detracts from the
truthfinding process and allows many who would otherwise
be incarcerated to escape the consequences of their actions.”
Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364 (1998).
The rule’s “bottom-line effect, in many cases, is to suppress
the truth and set the criminal loose in the community without
punishment.” Davis, 131 S. Ct. at 2427; see also Hudson,
547 U.S. at 591 (stating that the costs of exclusion
“sometimes include setting the guilty free and the dangerous
at large”).
For these reasons, the Supreme Court has, since the
1970s, “imposed a more rigorous weighing of [the
exclusionary rule’s] costs and deterrence benefits.” Davis,
131 S. Ct. at 2427. Gone are the days when courts imposed
the exclusionary rule in a manner that was “not nearly so
discriminating.” Id. Under current doctrine, the important
and significant costs of the rule “present[] a high obstacle for
those urging [its] application.” Scott, 524 U.S. at 364–65.
UNITED STATES V. DREYER 29
In short, exclusion is “our last resort, not our first
impulse.” Hudson, 547 U.S. at 591.
II
Our precedents reflect this skeptical view of exclusion
with regard to violations of the PCA.2 In United States v.
Roberts, we held that the exclusionary rule should not be
applied to evidence obtained as a result of a PCA violation
“until a need to deter future violations is demonstrated.”
779 F.2d at 568. Such a demonstration requires a showing of
“widespread and repeated violations” of the PCA. Id.
In announcing this rule, we adopted the approach of the
Fourth and Fifth Circuits in United States v. Walden,
490 F.2d 372, 376–77 (4th Cir. 1974), and United States v.
Wolffs, 594 F.2d 77, 84–85 (5th Cir. 1979). Significantly,
none of those three cases applied the exclusionary rule to
violations of the PCA, and all three referred to the
exclusionary rule as an “extraordinary remedy.” Roberts, 779
F.2d at 568; Wolffs, 594 F.2d at 85; Walden, 490 F.2d at 377.
Indeed, in Roberts, we “consider[ed] it significant that courts
have uniformly refused to apply the exclusionary rule to
evidence seized in violation of the Posse Comitatus Act.”
779 F.2d at 568.
Before today, that description remained true of federal
courts.
2
Other courts of appeals have recognized that the Supreme Court’s
description of the exclusionary rule in the Fourth Amendment context
applies to PCA cases. See, e.g., United States v. Al-Talib, 55 F.3d 923,
930 (4th Cir. 1995).
30 UNITED STATES V. DREYER
III
As the foregoing survey of Supreme Court and Ninth
Circuit precedent makes clear, the application of the
exclusionary rule to violations of the PCA is not automatic.
Rather, it is assessed by considering whether “the clear costs
of applying an exclusionary rule” are outweighed by “any
discernible benefits.” Id. This case demonstrates that the
costs of exclusion substantially outweigh the evanescent
benefits. Indeed, it is not a close call.
A
Any evaluation of whether to apply the exclusionary rule
to PCA violations must take into account the significant costs
of exclusion. In Walden, the Fourth Circuit believed that the
facts of the case before it were particularly useful in
highlighting the costs of exclusion. The Fourth Circuit
thought it significant that “the evidence of [the] defendant’s
guilt [wa]s overwhelming” and that application of the
exclusionary rule would have suppressed “the bulk of the
evidence” against the defendant. 490 F.2d at 376. The
possibility of setting free a convicted felon was a troubling
cost of exclusion, and because there was no need to deter
future violations, nothing justified incurring such costs. Id.
at 376–77; see also United States v. Jones, 13 F.3d 100, 104
(4th Cir. 1993) (recognizing that setting free guilty
defendants is a cost courts should consider in determining
whether to apply the exclusionary rule to PCA violations).
In Dreyer’s case, a jury convicted him of possession and
distribution of child pornography. As in Walden, the
evidence of guilt is overwhelming. Using specialized
software called RoundUp, Agent Logan searched the state of
UNITED STATES V. DREYER 31
Washington for computers trafficking in child pornography
on the Gnutella file-sharing network. Maj. op. at 4. The
software identified a computer bearing the Internet Protocol
(IP) address 67.160.77.21 as offering several files of known
child pornography to fellow Gnutella users. Id. at 4–5. We
know that the files contained child pornography because they
bear unique identifiers—called “SHA-1 hash values”—that
match the identifiers of known child pornography files
contained in a database maintained by RoundUp and the
National Center for Missing and Exploited Children. Id. at 5
The IP address offering child pornography belonged to
Dreyer. Id. Agent Logan, using a method that permitted him
to ensure that he was downloading files only from Dreyer’s
computer, downloaded two images and a video, which, upon
review, he confirmed contained child pornography. Id.
Subsequent searches of Dreyer’s seized hard drives revealed
several such files. Id. at 6–7. There can be little doubt, then,
that Dreyer trafficked in child pornography, an activity that
is “intrinsically related to the sexual abuse of children.” New
York v. Ferber, 458 U.S. 747, 759 (1982).
Application of the exclusionary rule would suppress all
evidence obtained by Agent Logan. Moreover, as the
majority opinion observes, without the evidence obtained by
Agent Logan, it is probable that “there would have been no
[subsequent] search[es] and no prosecution.” Maj. op. at 15.
Thus, application of the exclusionary rule to the allegedly
tainted evidence and its fruits is likely to result in a convicted
child pornographer being released from prison.
It is impossible to state this conclusion without feeling its
gravity. In this context, the Supreme Court’s warning against
unnecessarily “setting the guilty free and the dangerous at
large” should give any jurist pause. Hudson, 547 U.S. at 591.
32 UNITED STATES V. DREYER
Yet, such a result would not be uncommon if we were to
begin applying the exclusionary rule to PCA cases. Thus, the
costs of exclusion are high.
B
Despite this cost, application of the exclusionary rule
might still be justified if there were evidence of “widespread
and repeated violations” of the PCA.3 Roberts, 779 F.2d at
568. On this record, there is not.
The majority opinion primarily focuses on Agent Logan’s
ostensible violations of the relevant regulations applying the
PCA to the Navy. Maj. op. at 21–22. But the actions of one
agent—no matter how egregious—do not show that
violations are widespread. Agent Logan’s descriptions of his
own practices are, therefore, of limited relevance.
Perhaps recognizing the thinness of this evidence, the
majority opinion also points out that Agent Logan “began
carrying out these searches with two other agents at least
several months before he found Dreyer’s IP address.” Id. at
3
Roberts implied that application of the exclusionary rule in the PCA
context could be justified, and I do not question that conclusion here.
779 F.2d at 568. However, I note that there is a strong argument to be
made that exclusion is never justified for violations of the PCA. Several
considerations might support such an argument, such as (1) the fact that
Congress could have provided for exclusion had it thought such a remedy
was appropriate; (2) the PCA provides for its own enforcement through
criminal sanctions, see 18 U.S.C. § 1385; and (3) “the [PCA] express[] a
policy that is for the benefit of the people as a whole, but not one that may
fairly be characterized as expressly designed to protect the personal rights
of defendants,” Walden, 490 F.2d at 377. However, even assuming that
the exclusionary rule could be applied to the PCA context, I believe we do
not yet have a reason to do so.
UNITED STATES V. DREYER 33
22. It also references another supposed violation in
Kentucky. Id. at 22 n.14. I fail to see how evidence that four
agents committed violations—three of whom were part of the
same investigative team—demonstrates a widespread
problem. Such anecdotal evidence falls far short of what our
precedents require before we will resort to the “extraordinary
remedy” of exclusion, especially considering the cost of
doing so in this case. Roberts, 779 F.2d at 568. Indeed, at
least one of our sister circuits rejected exclusion in the face of
similarly scattershot evidence. When the Eleventh Circuit
was confronted with five alleged violations of the PCA within
the same circuit over a ten-year period, it concluded that this
amounted to only a “few” incidents that provided “no basis”
for applying the exclusionary rule. United States v.
Mendoza-Cecelia, 963 F.2d 1467, 1478 n.9 (11th Cir. 1992),
abrogated on other grounds as recognized by United States
v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004). The argument
in favor of exclusion is no more compelling on the record
before us.
Finally, the majority opinion cites the government’s
litigating position in this case as evidence of “a profound lack
of regard for the important limitations on the role of the
military in our civilian society.” Maj. op. at 22. Regardless
of whether that observation is true, it does nothing to show
that there have, in fact, been widespread and repeated
violations of the PCA; it simply shows that the government
wanted to win this case and put forward the best arguments
it could to justify what Agent Logan did here. From the
premise that the government believes it has a certain power,
it does not follow that the government routinely exercises that
power. The government’s litigating position is, therefore,
irrelevant to the Roberts inquiry.
34 UNITED STATES V. DREYER
Thus, far from having “abundant evidence that the
violation at issue has occurred repeatedly and frequently,”
Maj. op. at 23, we have before us a paucity of evidence that
does not come close to overcoming the “high obstacle for
those urging application of the [exclusionary] rule.” Scott,
524 U.S. at 364–65.
IV
Given the significant costs of exclusion in PCA cases, as
well as the meager evidence of PCA violations contained in
the record, I would hold that the violation at issue here does
not merit application of the exclusionary rule.4 The majority
opinion’s contrary holding ignores the Supreme Court’s clear
teaching on exclusion, our own precedents’ stringent test for
application of that extraordinary remedy, and the uniform
rejection of exclusion by federal courts in the PCA context.
Because this case provides no justification for setting a
convicted child pornographer free, I respectfully dissent.
4
As for Dreyer’s remaining claims, although I would affirm the district
court across the board, I limit my discussion here to the issue addressed
by the majority opinion.