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9th Cir. Tosses Out Evidence in Case of NCIS Overreach

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By Mark Wilson, Esq. on September 12, 2014 2:12 PM

The only thing I know about NCIS is that my mom loves it (the TV show, that is). And I love to see Mark Harmon working a steady job.

But today, the Ninth Circuit ruled that the real-life NCIS exceeded the scope of its authority by investigating civilian child pornography. Cue David Caruso. Oops, wrong show.

Investigate All the Things

NCIS, in case you don't know, is the Naval Criminal Investigative Service. For some reason, a special agent at NCIS (Steve Logan, not Mark Harmon) decided he would investigate online criminal activity by anyone in Washington state, whether or not connected to the military. The Ninth Circuit's opinion isn't clear why Logan decided to do this, but maybe he had some spare time on his hands.

Anyway, using a program called RoundUp to find child pornography, he found it and alerted the FBI. The FBI got the name of the person sharing it -- Michael Dreyer -- and sent that name back to Logan. Logan checked to see if Dreyer had anything to do with the military, which he didn't (though he had been a member of the Air Force). And so on. Dreyer moved to suppress any evidence because it resulted from military enforcement of civilian laws, which is prohibited by law.

The King of England Doesn't Work Here

Indeed it is. The Posse Comitatus Act prevents the military from aiding in civilian law enforcement. So how did the government think it was going to get any purchase on this? It attempted to argue that the PCA doesn't apply to civilian NCIS agents, but the court disagreed: While certain military personnel can "participate in civilian law enforcement activities in their private capacities, they may not do so under the auspices of the military."

Even so, maybe Logan provided permissible "indirect" assistance. Except that he didn't: His dragnet surveillance of all computers wasn't limited in scope to just the military, and he began the investigation on his own, without a civilian request.

Notably, the civilian authorities didn't independently verify Logan's results, meaning "[w]ithout Agent Logan's identification of Dreyer, his computer, and the child pornography on his computer, there would have been no search and no prosecution."

On to the Exclusionary Rule

The exclusionary rule doesn't mandate suppression in every instance of an invalid search, but here, the scope of the search was particularly egregious -- and not a one-time occurrence. "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," Judge Berzon said. "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. This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians."

Concurring and Dissenting Opinions

Judge Andrew Kleinfeld, concurring in part, said that he believed exclusion of the evidence was completely necessary to deter future wrongdoing because he believed the Navy might be technically outside the authority of the PCA. Without the PCA, "the exclusionary rule is about all that the judiciary has to deter such widespread and repeated Posse Comitatus violations as we have here."

Judge Diarmuid O'Scannlain concurred and dissented. He agreed that the PCA applied, and that the Navy violated it, but rejected using the "disfavored remedy" of the exclusionary rule "for the benefit of a convicted child pornographer." O'Scannlain felt it necessary to emphasize that this is a really bad guy who did really bad things, so he doesn't get the benefit of constitutional protections. Because that's how this country works: There's an inverse relationship between severity of crime and due process rights. I seem to recall the Lady Justice statue wearing really thick Coke bottle eyeglasses, so O'Scannlain must be right.

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