good afternoon ladies and gentlemen we're here to consider a rehearing on bach in the case of united states versus dreier  appellant michael dreier i'd like to reserve five minutes for rebuttal this country was founded on a tradition of strong resistance to any military intrusion into civilian affairs this tradition finds expression in our constitution as well as the laws and regulations governing the military the panel below honored this tradition and these laws by excluding evidence obtained as a result of a navy investigation that targeted civilians the government now asked this court to disregard that tradition and history and the law and in effect condone the military as a new national police force but as the supreme court observed in laird v tatum nothing in our nation's history gives any indication that the  military would go unnoticed or on remedied you still have in me i ask you what exactly did they violated they violate a statute a regulation a policy or what all of the above which statute did they violate the statute that governs the ability of the navy to participate in search caesar's arrests or other similar activities that prohibits that conduct is ten u s c section three seventy five as a result of that statute the congress directed the secretary of defense to prescribe such regulations as may be necessary to prevent those kinds of activities as a result the secretary of the defense issued first instructions and later directives the secretary of the navy issued instructions and ultimately the department of defense issued regulations so that's why i say it's all of the above but regardless of was there a regulation in place at the time that these activities took place the regulation was not in its final form i believe it was announced in two thousand and ten and in its final form in two thousand and thirteen however the content of that regulation is in no way different than the instructions and directors that came before it as the navy found that the regulation or their policy was violated i'm not aware of what the navy has done  don't they get the last word on whether their policy or their regulation is violated well i think i do believe that the navy is that the navy's interpretation of the statute is entitled to some deference i have no idea of what the navy how the navy views this i know that in the panel there was some request by the panel to get the input of the military but once we have a statute that is mandated that mandates regulations did what the statute literally says a search seizure arrest or other similar activity and so when in an acting the regulations the military included among those prohibited activities in the department of defen statute and that limits its authority as i understand her to conducting supervising and coordinating investigations of criminal activity and programs and operations in the department th section c of that statute does require that they be exercised in accordance with guidelines prescribed by the secretary of the navy and the secretary of the navy has given clear guidance here that that that they are not allowed t is only allowed to exercise its authority over when furthering a department of defense or foreign affairs function of the united states that statute did not create a national police force in the  s what it did it is is it gave them authority to conduct arrests and another police functions but it has to be read within the context of all the other limitations that are placed on the n c a a s what happens if they stumble on a civilian in the course of investigating a military person well what in the in the most current form which is thirty two c f r one hundred two point six there is permissible there is a carve out for permissible direct the systems but it has to be in that when they're furthering that when the primary purpose of what they're doing is to further a department of defense direct interest so if there an incidental benefit then that is permissible as long as they are remaining intentionally within the confines of their authority now that's entirely different than what we have here the n c a a s agent here knew that his authority was limited to department of defense directives but yet he made no attempt whatsoever to limit his targets to be before you get him i want to understand a little bit better how broad this how big this program is well we do know what we know is that this particular agent had at least conducted twenty other similar investigations we know that there were other and c i s agents at least two who similarly conducting these that i thought they organized by geographic region or under some command organized view graphically some of this is less than clear we do know that this particular n c s agent was sitting in headquarters in was a person designated to the national center for missing children they were part of of a task force yes and there was somebody in in the state of washington who was involved in this as well well we know that we do know that there is another case out of the back in two thousand and eight where an n c i as agent in washington was investigating chat rooms on yahoo chat rooms that were involved individuals in the state of tennessee so we've seen at least what's clear here is that the violation here was widespread but i don't really know how many we don't know whether this is a nationally directed program or a regional program one of trying to get some sense of how much of a problem we're dealing with here we're talking about the posse comitatus act is just a a lone wolf is this a whole army of military people who are prying into the lives of civilians all over the country what are we talking about here well we do know that this particular n c s agent indicated that this was his standard practice and in other words that he had begun this because they had access to this particular software that enabled them to do it that he had done at least twenty other investigation it was targeting proper targets those associated with the department of defense that the u s navy or involving facilities of the department of defense or some other foreign affairs function of the military this didn't start like that this started as a general investigation into illegal activity over a file sharing network so what is that what constitutional rights if any does the posse comitatus act protect well at the time the original posse comitatus act of eight hundred seventy eight was an acted there was discussions that really what the act was was no more than an expression of the constitutional limitations of the military to enforce civil laws in fact in india versus rumsfeld the second circuit found that the third amendment itself reflected the framers beliefs or concerns about the need to prevent military intrusion into civilian law and what all of this draws on goes back even before the constitution back to the declaration of independence when when one of our one of the complaints about the tyranny of king george was his placing of the military superior to the civil law and since that time r r you know our country struggled with how to contain the military and then keep them both subordinate to civilian law and focused on what their proper role was and if you look at cases like youngstown sheet two versus sawyer concur justice douglas's concurrence in that case talks about our history and tradition rebelling at the thought that the grant the military power carries with it authority over civilian affairs are those concerns that you're describing related to individual rights or some kind of structural concern and does that matter to whether the if applies i don't think that it does matter  well i i agree with you that that that that is the rule and i don't i don't challenge that rule i think we prevail under that rule i believe the question was much more oriented as to the dissent in the case which said hey this is a public right not a private right and therefore we're not that doesn't implicate the exclusionary rule and what i think a mickey pointed out very well in their brief is that is that the exclusionary rule is not a personal constitutional right either the purpose of the rule is to is not to redress injury but it's to prevent violations from occurring in the future and what you're talking about if we were to agree with you  does that create a split in the circuit because it seems that the other circuits that have considered this particular issue have consistently held that the creation application of the exclusionary rule for p c a violations is not appropriate well you know i've taken a look at a lot of these cases united states versus walden which is probably the first instance in one nine hundred seventy four the four circuit did not suppress but it did say in an instance of widespread and repeated violations of may be appropriate united states versus wolfs in one nine hundred seventy nine said the same thing out of the fifth circuit in roberts this is what the ninth circuit was drawing on in roberts when it found the same thing and and so i don't see i haven't found a court that said even in the face of widespread and repeated violations there's no remedy instead what i've seen is the opposite of and here the government conceded that they got the point by the majority opinion and so why isn't that enough i mean telling telling a party that something is illegal hasn't been found to be enough exclusionary rule where the exclusionary rule is the most efficient way to prevent it from occurring again now and united so i guess what we have to conclude that they i mean they did concede that they now know that that's sufficient to defer to for to deter future violations so should we just not trust what they're saying well i did notice that in the footnote in there in their own conduct is going on in terms in attorney whether or not the exclusionary rule should apply do we consider whether or not this pca violation whether there was bad the the question of whether use of the court's supervisory power to support to suppress exclude evidence for statutory violations one of the questions or one of the values that it furthers deter  so to the extent that we have a willful disobedience of the law that perhaps is is maybe at it you might have a willful disobedience of the law i mean there's there in the testimony that specifically addressed whether ancient logan knew that he violating the p c it logan testified that he knew his authority to investigate crimes was limited to department of navy its assets and personnel well he also thought he was able to investigate crimes that might violate the uniform code of military justice and i think he said the federal code which i'm not sure i understand but he thought he was able to apply and there isn't i guess a law that says you know child pornography within the code of military justice is inappropriate or criminal i have no quarrel with that but it was as it related to the department of navy its assets and personnel in other words he may have the ability to investigate those crimes but only as to a certain subset group and he understood that and we know he understood it because when he caused an administrative subpoena to be issued he represented that he was conducting his investigation in an area of department of defense and u s navy saturation that's what he said and but we know that's not true we know that he was conducting an investigation across the state of washington and i asked this is a follow up to judge murphy is question is there any context in which  we preface it by saying let's assume that the exclusionary rule does apply here and there if there was a violation is there any context where you have you apply the exclusionary rule but you don't also apply the good faith exception and that exception has been developed by the supreme court because if if the good faith and does apply you know it brings in a pretty low or high bar however you want to conceive of it to find that an agent you know an agent's actions fell outside that and i guess i'm hearing judgment here say that perhaps even if you're convinced that you know transgressed is authority maybe under the supreme court standard a reasonable officer in his shoes could have at least you know had some some doubt so i'm wondering if if you know of a context in which the good faith exception just does not come into play well  the i guess i i would answer that it in by saying that i think there's no indication that there was good faith here this individual may have testified at the at the believe he testified at the hearing that he which is very similar to this one said this was fine so could he have not have thought i mean there's not a lot of the record here is not very extensive because i don't think this is the point this was never really truly addressed this pca violation down below for the district court and so to me the record seems rather sparse especially when we have to consider whether this was done in good or bad the problem with the case that you're referring to united states versus holloway which the government cites as a reason to find a good faith exception here that that case post dated this case so to the extent that that they're seeking that as reliance or demonstrating good faith it just seems that it doesn't but  subjective question i think it has to be reasonable good faith so it has to there has to be a certain objective nature of it he can't just be convinced but also the the wasn't directly executing the laws he was gathering evidence therefore it wasn't a violation it didn't say that these restrictions didn't govern the conduct of the military it's that now if you look at the regulations that were promulgated to congress directed the military to promulgated it's very clear that this conduct is completely not  government as a whole waging a nationwide series of violations oh repeatedly over a period of time with involvement with a number of other agencies rather than he would do we judge here is that the entire program then yes was carrying on when we look at good faith or isn't this individual officer who got caught on one occasion there's no indication that this officer had gotten any approval from any higher up within in there and then he thought time seemed they were aware of this continuing practice the years where he conducted twenty investigations nationwide as well as other and cia officers and they were coordinating with and then c i s officer time and time to a multi agency task force that now and the government has never or argued that he had a basis for a good faith therefore introduce any evidence of any kind of funny well if the point just the opposite i e if that is if this was not one individual doing this it was individual who said he was authorized it was to other people coordinate with another person at this national center i was somebody else in the state of washington so it is it appears to be wh authorized program i know of no case that has applied the good faith exception to such an entrenched bill let me let me ask you this why isn't i don't think it matters how many agents were engaged in this if under of an objective standard it was unclear whether this was off or not it's not neither here nor there if it's one or one hundred but i guess i'm trying to focus on looking at the state of the law at the time that this agent acted or however many of his cohorts were acting the same way why was it unreasonable for them to think  that you know we have the authority to investigate child pornography offenses as to military officers we have this tool that allows us to look at you know not not private information but information that the target has shared but we don't have any way ahead of time of narrowing the focus as you were saying that he should have he's just saying i can't i don't have any way of just targeting the military folks i can my my software allows me to look at all the computers in an area i then figure out once i' done a five specific individuals if they might have violated the law and if it turns out that it's not a military person handed off i don't want anything to do with that why was it so clear at the time that he acted that that was unlawful well what was unlawful is that the department of defense directives perhaps added surveillance and for him it investigation unless it related primarily to a department of defense interest and if you do not know if you have no reason to believe that you're investigating  something over which you have authority to investigate that is the personnel or facilities of the partment of the fence then you have no justification for doing it he didn't there are multiple ways in which this agent could have gone about conducting an investigation he chose to go about it in a way that was both widespread and completely disregarded any of the limitations that we've placed on the military in terms of what they're allowed to be you're saying that and your you would say i guess that we know that because he targeted the entire state as opposed to like an area right around a military base or something is that where you're going with that i think if he had done it if it were a different situation and and and he had focus on an area that was indeed saturated with the department military or department of defense personnel we might have a different situation instead he focused on the entire state of washington as was his common practice counsel congress tomorrow amended the p c a to say a violation of p c a cannot lead to suppression so no suppression remedy what happens to your position well my position becomes more difficult because i'm asking this court to exercise its supervisory power and so the question would then become could congress constitutionally take away that that authority and there it's not something you know the area that you're treading on isn't not a lot of gone before you and so the question is a difficult one we do know from cases like laird v tatum and and and and youngstown sheet and tube versus  that there is something else going on here that this is a fundamental value that concerns about the military exercising authority over civilian affairs is in a category by itself and it was for that reason that the eight circuit invest in that versus hague found that in all the wise lawful search and seizure when conducted by the military was and reasonable under the fourth amendment i guess that the trouble i'm having with your position is that if congress can amend the pca presumably it could repeal the pca of the for the first nearly hundred years of this country's history there was no p c a as least spelled out in the code if that's the case and i'm having trouble understanding how the right here is so fundamental to be equated with the fourth and fifth amendments it implicate constitutional interests it does it explicitly because it explicitly prohibits search seizures in vet rests and other similar activity those are that it does relate to constitutional interests and the history of  you know at the time it was an act that it was seen as an expression of nothing more than the constitutional limitation of the military over civilian years so you want to reserve  it please the court howling bruner on behalf of the united states the question before the court is whether the extension of collection of child pornography found on michael driers computer should be suppressed because the person who discovered  general counsel's office taking a look at this case and limiting it and put control more controls on what agents can do before they can conduct any sort of computer related activity  the government get the message that whatever restrictions there are applied to the navy as well as he army and the air force well your honor if you're asking me that  still free to continue to engage in the same conduct or has it is that said gotten the message your honor if you're asking what the government's  to engage in the conduct that was engaged in here in the future in the future no but if i could explain why i'm saying no  department of the navy itself sees and c i s as having a limitation at least attaches it its investigative authority to navy related matters and if i can  the agent in this case i think was clearly saying that the navy has a reason to investigate child pornography possession by military members or people on a military base and certainly h is activity was directed at that purpose no he used a very blunt instrument no question about that was the only instrument he had at the time and  mean that impliedly mean there's a different it's i'm over here i'm over here does that mean there's a degree you know that's all right does that mean there's a different instrument now my understanding is he couldn't ratchet back the software is that right he couldn't at the time and my understanding now is that they actually can limit it to at least postal codes so codes which would help a great deal but at the time he didn't have that option position on the of the l a billet e of the exclusionary i mean not because the super exclusionary rule has been limited at least by this courts rule cases and the courts and the supreme court's cases to situations where there has been a violation of the despite roberts leaving it open that the exclusionary rule would never be appropriate is that what you're arguing that's certainly what we are arguing this court has never extended it to even violations of statutes where there were no constitutional rights at least implicated by the statute itself just so i understand your argument then you your first argument would be that the exclusionary rule does not apply to violations of the p c a or p c a like restrictions correct that's correct all right but if the court just let's go hypothetically down what if the court were not to decide on that your in reverse order certainly had a good faith basis for thinking that it was not an individual agent i mean the person who did it even he was an individual agency involved at least three other or two or three other agents i've been c i s and getting this time right certainly and again it goes to the military's interest in ending that kind of conduct by military members and  individual persons mindset and all circumstances just make a lot of sense doesn't it was not an individual person well i want to hear what both arguments are and then maybe if you could just say what both of them are then i know that judge berth on has other questions but i want to know i kind of want to know that well the what what i'm attempting to say here is that where you have a situation where there is less than clear that he chairman decision couple of things happened at that point in time congress did enact seventy four eighty which judge prison you refer to and it provided broad law enforcement powers to i s agents including arrest authority for any felony cognizable under the laws of the united states for which they have probable cause now their authority may be limited to investigating matters related to the navy but the rest authority was very very very broad so under those circumstances i don't think and the fact that this court's determination finding a violation if if this court were to find one would be enough to deter the military it wouldn't require suppression in answer to judge reinhard question it seems pretty clear to me now that what you're saying is yes question is yes that the navy feel like it has the authority whether we use it in other matters but it has the authority to do exactly what was done here all right if i will if i left you with that impression i 'm trying to take the i guess what i'm trying to say is it has self limited or it was not the question need to answer the question we understand yourself limited we understand you in court get the message but as a matter of law is the answer to judge reinhart's question that the navy believes that it has the right under the law to do exactly what was done here and c that i mean in terms of judge reinhart's question the position of the united states in this hearing is that it's perfectly legal for and c i s to conduct this kind of activity but what you're telling us now that they in time this court has withdrawn the panel's decision so they didn't have to reach that question yet and yet they have let's say you just assume that we hold on to roberts and say that it's still available the exclusionary rule of law may not be available here what would be the approach what would be the remedy that you would suggest well i think the remedy is this court's decision saying regulations that would then flow from that disciplinary actions that could flow from that and they do understand that they have limitations as well based on their appropriations clarify something did you know about your representation because it isn't in writing or at least not yet if it were a would be useful to submit it somehow but as as to why policy change has been made but from what i'm hearing you say and specifically limited to computer questions it does not take the position that the n c a a s just couldn't for example go walking down the street and looking for looking for drugs or something no but the  federal agent with who was able to enforce any law as a federal law that's what he had to strike and i know my understanding is that i'm trying to understand whether the revis policy that you're suggesting is narrowly focused on the computer question or this computer question or goes beyond that it goes beyond that in the sense of any sort of cyber related enforcement officer with arrest and search powers that allow him at least in respect to matters within his investigative authority again  harman thinks he has a lot of authority sell and if you watch and say i asked you but at least with respect to his investigative authority it's not doesn't limit him in terms of the statutes that he can in fact so i think you're united states that the n c i s whether they're naval or civilian employees does not have the authority to become a general roving law enforcement agency looking for civilian  or that has the authority to seek out civilian crimes and conduct investigations of civilian crimes whatever they may be and whatever means may be used do they do they take this a government take the position that the n c i the navy the army the air force the mooing whatever whatever else that they are limited to conducting military investigations and may not conduct ordinary investigations villian crimes do they take that position your honor in answer to the question the way you have phrased it yes well  me let me perhaps rephrase it and c i s believes its investigative authority is certainly limited it to matters pertaining to the military and in in that context  it has one force me in powers and ability to investigate violations of federal law but not broadly as it applies to any civilian in the united states but it seems to me that the th this week here this this week you described it as a blunt instrument this this was a sweep that consisted of the state of washington so there's the military people in the state of washington i'm sure there's thousands of them but but but but still when you say that that's the limitation it seems to need to be no limitation at all your honor i would with as i said it described it as a blunt instrument for reason and it was certainly limited to the state of washington attempted not i mean he had no no other tool available it is a state with five major military bases so it's not but this is an ammeter made area five military bases and he and that allow them to sweep the entire state of washington is that the limitation well that the limitation was also based on which would say to people who use peer to peer systems but why we know he was not attempting to do anything beyond military or enforcing against civilians is by his own action as soon as he knew that mr to our dryer was retired military and now a civilian he did not take for their actions other than to send his report which left the question of what happened to mr dreier and what happened to that information entirely to civilian law enforcers us to another really just serving part of the record though it sounds like there was i think heard judge question there was a regular affiliate in the national center for missing children it really sounds like an ongoing program  s agents are part of those task forces again related to their interest in prosecuting these crimes among military members or people who are on the base  no it would still not be that far i suppose if they more akin to if you saw a drug transaction on the street and you happen to be able to determine who that individual was or perhaps a better analogy you watch a car weaving back and forth on the street and you get the license plate and you know that there is new navy affiliated marks on the car that you call nine one one it's about some for you know and otherwise just say that the n c a a s does have general authority to search season arrest for any federal crime and and that and so he put that together with the assertion that it had the as i understand it had i mean are are just issued aside had the authority to do what it did with regard to just looking at you know random not computers it seems you have conclude that it could in fact survey people in general until i'd know they weren't in the navy no your honor i don't think so when i say they have broad law enforcement powers it does that's what the statute provided them they obviously have to exercise those in can conjunction with their authority which is there in investigative authority which relates back to the navy now the what what i was saying about the officer and why i prefaced it this way is when you're dealing with a young officer who officer action call him an office status and they brought law enforcement powers and interest in and stopping child pornography in the military what you have here is someone who thinks well perhaps i can use that different agencies impact the military take that action take take that case and investigate that case crn genuinely with the military and the suppression would only affect cases against civilians why do you even care that it where we need to apply exclusionary rule and your mission is to police the navy or some other branch of the military and these are just the computer they were somebody was doing something that went there and there were a whole bunch of civilians that were arrested based upon the information that your agent had developed you feel that is that is a primary role would answer the question this way and we're obviously from the point of view of the n c i yes they would like it if we said that the e u said that that p c a did not or p c a type restrictions did not apply to them but that's not the primary concern of the government in this matter it is creating a remedy where we are talking about as pressuring remedy created f violation of a regulation where there has been no constitutional violation and there's your talk about why that is let's assume you know really concerned about remedy and you're willing willing maybe a in this one case because once we say that and you think you'll abide by it we won't have any more cases and if we do have our cases in violation of that clear where we would have to consider the rule well obviously this case but leaving that aside you would be creating a remedy that would allow for an application of the exclusionary rule for what is essentially  least structurally to the constitution if not to individual rights in the constitution and it's very hard to see this expanded beyond this particular very unusual circumstance your honor i would respectfully disagree that it hundred years after the constitution which contained no such restriction they thought it did and they were upset and that's why they put it and they kept saying that well in the hundred year period i think the history has shown that multiple occasions the u s marshals use the military and that was part of the concern and the cost but in any event it did not create the kind of right that we have an individual right for under four th exception i mean are you suggesting that leon applies in this context well yes now if given that and you have to refresh me but that was not an argument made to the district court true that correct and it was not made to three judge panel in briefing in the briefing not in those terms no and the change that you're referring to is my understanding is that the phrase should we is the question whether agent logan thought that he might be violating the pca or a reasonable person in asia logan's position should have thought it was violating the p c a or is the real question whether the people who did the search at the state level at the state police level should have realized that someone if and this is hypothetical if i were convinced that the exclusionary rule does not apply to the p c air pca like restrictions what i still have to deal with the frank issue and the dobber tissue or to put that need to be remanded i notice judge i think judge scanlon said he would affirm the district court and that the district court doesn't go into a lot of detail on that but did have a hearing on that your honor i think this court as a i just want to touch briefly on two issues judge feel and ask the question of whether the whether we look at trim sure logan and i would point out that logan played a very important part role in this case quite apart from sure which is the evidence that he obtained as a result of his investigation was the evidence that under that proved the fifteen year mandatory minimum  testified at the trial itself in support of the distribution cow which carry the fifteen year mandatory minimum so even quite apart from whether or not sure i'm sure whether we look at his good faith as opposed to logan's it really there are two different harms that are going on but otherwise i do agree with the government i think you look at the actor and not and not derivative if we thought i mean the if we thought shrimps or though might have good faith then some count survive and not others we all may be reversing that one c no i think ultimately what you what you would do is you would suppress the fruits of the warren is the fruits of the of the violation is as you would in any other case i don't think that that you can purge the  violation simply by handing it off to another individual that would seem to frustrate the whole purpose of the exclusionary rule do you think military police have the right to go to civilian bars in places like that in look for military people who  the regulation was an act of the directors were very clear that we can't use the exception for the primary purpose of furthering a but how about my example can they go into a bar i'm sure looking for for sailors who are getting drunk and fighting alternately the question would be whether whether that was a subterfuge to avoid the posse comitatus act restrictions in this case that the investigation was simply too broad it simply had no basis or no reasonable  were given under seven for eighty they have to be fulfilling a purpose of the military you know that you are not answering a question i think it would depend on the bar and it would depend on they would have to have some indication that there was military there and  that's that's where that's where this example differs from from your example there was no indication there were any military there thank you counsel ok sir just argue to be submitted for a decision and we'll be in recess