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Nov. 5 — Although the Navy improperly participated in civilian law enforcement by sharing with local police the statewide data it collected in a child pornography investigation, there is no need to suppress that evidence to deter future violations because it is unlikely to happen again, the en banc U.S. Court of Appeals for the Ninth Circuit ruled Nov. 4.
“Invoking the exclusionary rule in this case would do little to redress an ongoing investigative operation that appears to be the product of institutional error somewhere in the military's command structure, rather than intentional disregard of a statutory constraint,” the court said in an opinion by Judge Morgan Christen.
The opinion reverses in part a ruling in which a panel said suppression was called for because the government took an aggressive litigation stance that, in the panel's mind, downplayed the severity of the massive intrusion into civilian matters and essentially took the position that the military had the right to monitor criminal activity on any computer anywhere in the state, regardless of whether the computers were associated with military personnel.
This time around, however, the en banc court changed tack and concluded that the investigating agent's decision to use special software to spy on every computer in the state, regardless of whether it was owned by a member of the armed forces, was attributable to a “poor understanding” of the restrictions against involvement in civilian law enforcement and to “an entirely incorrect understanding” of the law.
This is more a case of “institutional confusion” than of purposeful disregard of the law, the court said.
It also suggested that the government has softened its stance and was now acknowledging the need to rein in unrestricted military investigations. “The Government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so,” the court said.
The Posse Comitatus Act, 18 U.S.C § 1385, forbids Army and Air Force military personnel to participate in civilian law enforcement activities.
Moreover, Congress has directed the Secretary of Defense to adopt regulations preventing the “direct participation by a member of the Army, Navy, Air Force, or Marine Corps” in civilian law enforcement activities. 10 U.S.C. § 375.
An agent with the Naval Criminal Investigative Service testified that it was “standard practice” to monitor all computers in a specific geographic area for peer-to-peer file-sharing of child porn. Michael Allan Dreyer, who was not a member of the military, was arrested after the NCIS alerted local police that its investigation revealed he had child pornography images on his computer.
The government argued that the PCA didn't apply in this case because the NCIS is a civilian law enforcement agency with no direct reporting relationship to a military officer. The en banc court disagreed and affirmed the panel's conclusion that the conduct was unlawful.
“Congress did not make voluntary its requirement that the Secretary of Defense establish regulations prohibiting military involvement in civilian law enforcement, and NCIS was subject to these restrictions when it undertook its investigation of Dreyer,” it said
Three concurrences were filed.
The author of the original panel decision, Judge Marsha S. Berzon, wrote separately to explain she was now “comfortable” with taking suppression off the table because the Navy had assured the court at oral argument that it had learned its lesson and had changed its policies. Judge Stephen Reinhardt joined this concurrence.
Judge Barry G. Silverman, joined by Judge Consuelo M. Callahan, agreed with the result but argued that the NCIS agents here didn't violate the Posse Comitatus Act or related regulations in the first place because the assistance of civilian law enforcement was indirect and had an independent military purpose.
Judge John B. Owens, in a concurrence joined by Silverman and Callahan, went even further and contended that Posse Comitatus Act violations “never warrant suppression.”
Helen J. Brunner, of the U.S. Attorney's Office, Seattle, argued on behalf of the government. Erik B. Levin, Berkeley, Calif., argued for Dreyer.
To contact the reporter on this story: Lance J. Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
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