FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL ALLAN DREYER,

Defendant-Appellant.

No. 13-30077

D.C. No.

2:12-cr-00119-MJP-1

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 PlaintiffAppellee.
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 TimothyLuckie 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

SecuritySpecial 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).7In

6 The PCA states, “Whoever, except in cases and under circumstances

expressly authorized by the Constitution or Act ofCongress, 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 directlyreference 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 “§ 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 lawenforcement. See Defense Support ofCivilian 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 militaryofficers

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 byPCA-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 ofthe 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

pornographystatute 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 ideawhether

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’sspecific

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 froma 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.1In 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 offbase civilian participants over to civilian authorities. There

would be little reason to deter military law enforcement in

cases like those, and indeed theywould 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.5If 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 “extraordinaryremedy.” 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.