Argued and Submitted, Seattle, Washington May 16, 2014.
Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:12-cr-00119-MJP-1. Marsha J. Pechman, Chief District Judge, Presiding.
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 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.
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.
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.
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.
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.
Agent Logan found a computer using the Internet Protocol (IP) address 18.104.22.168 sharing several files identified by RoundUp as child pornography. 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. 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 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. 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. 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. 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.
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. 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).
The Posse Comitatus Act (PCA), 18 U.S.C. § 1385, " 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). In 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. Kahn, 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). " [T]he Secretary of the Navy, using nearly identical language, has adopted this policy." Chon, ...