F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

M I C H A E L A L L

A N D R E Y E R , D efendant-Appellant

. No. 13-30077

D.C. No. 2 :12-cr-00119-MJ P-1

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Marsha J . Pechman, Chief District J udg e, Presiding

Arg ued and Submitted May 16, 2014—Seattle, W ashing ton

F iled September 12, 2014

B efore: Diarmuid F . O’Scannlain, Andrew J . Kleinfeld, and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e B erz on; Concurrence by

J udg e Kleinfeld; Partial Concurrence and P artial Dissent by J udg e O’ScannlainU N I T E D S T A T E S V

. D R

E Y E R 2

SUMMARY *

Crim inal Law

The p anel reve r s ed the district c ourt’s denial of a suppression motion, and remanded for further proceeding s, in a case in which the defendant was convicted of one count of d istributing child pornog raphy and one count of possessi n g child pornog raphy , and remanded for further proceeding s.

A special ag ent of the N aval Criminal I nv e s tig ative Service launched an investig a tion for online criminal activity by any one in the state o f W a s h ing ton, whether connected with the military or not. T he ag ent 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 N CI S ag ents are bo und b y Posse Comitatus Act-like restrictions o n direct assist a n ce to civilian law enforcement, a nd held that the ag e n t ’s broad investig ation into sharing of c h ild p ornog raphy b y a ny o ne within the state of W ashing ton, no t j u s t those on a military base or w ith a reasonable likeliho o d of a Navy affiliation, violated t h e reg ulations and policies proscribing direct military enforcement of civilian laws.

The panel held that the ex c lusionary rule sho u l d be applied, and that the district court erred in deny ing t he d e f e ndant’s motion to suppress, b ecause there is abundan t evidence that the violation at issue h as occurred repe a t e d ly

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. D R

E Y E R 3

and f r equently

, and that the g overnment believes that its conduct is p e rmissible, despite p rior cautions by this court and others that military personnel, including NCI S ag en ts, may not enforce the civilian laws.

Concurring

, J udg e Kleinfeld wrote separately to address applicability of the e x clusionary rule to this case , w h ich
amounts to the military acting as a nation a l p o l i c e force to investig ate civilian law violations by civilians.

Concurring in p a r t and dissenting in part, J udg e O’Scann l ain concluded that the ag e nt violated the Posse Comitatus Act, but dissented from the majority ’s a pplication of the ex clusionary

rule.

COUNSEL

Erik B

. L evin (argued), L aw Office of Erik B

. L evin, B erkeley , California, for Defendant-Appellant.

Marci E llsworth (arg

ued), Assistant Unit ed States Attorney
, and J enny A

. D urkan, United States Attorney
, W estern District of W ashing ton, Seattle, W a s h i ng ton, for PlaintiffAppellee.U N I T E D S T A T E S V

. D R

E Y E R 4

OP INION

B ERZ ON, Circuit J udg e :

A special ag ent of the N aval Criminal I nvesti ga tive Service (NCI S) launched an investig ation for online criminal activity by any on e in the state of W ashing ton, whether connected with the military or not. The ag ent found evidence of a crime c ommitted by a civilian in the state and turned it

over to civilian law enforcement officials. The c ivilian, Michael Drey er, was prosecuted, convicted, and sentenced to eig hteen y ears in prison. W e hold that the NCI S ag ent’s investig ation constituted improper military e n f o rcement o f civilian laws and that the evidence collected as a result of that investig ation should have been suppressed.

B ACKGROUND

I n late 2010, NCI S Special Ag ent Stev e L o g an b eg an investig ating the d istribution of child p ornog raphy online. Several months later, from his office in Georg ia, Age n t L og an used a software prog ram, RoundUp, to search for any computers located in W ashing ton state shar i n g known child
pornog raphy

on the Gnutella file-sharing network. 1

Ag ent L o g an found a c omputer using the I nternet Protoco l (I P) address 67.160.77.21 sharing several f iles

1 Drey er ch allen g es th e ad m issio n o f ev id en ce related to Ro u n d Up
, arg u in g i t d id n o t m eet th e req u irem en ts f or th e ad m issio n of ex p ert testim o n y estab lish ed b y Fed eral Ru l e o f E v i d en ce 7 0 2 an d Da u b ert v. M e r r e l l Do w Ph arma ceu tica ls, In c. , 5 0 9 U.S. 5 7 9 (1 9 9 3). B ecau se w e

co n clu d e th at su

pp ressi o n w as w arran ted f o r o th er reaso n s, w e do n o t reach th is issu e.U N I T E D S T A T E S V

. D R

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identified by Rou n d U p as child pornog r aphy

. 2 He downloaded three of the files, two imag es and a video, from that computer. After viewing the files, Age n t L o g an concluded that they

were child pornog

raphy

.
Thereafter, Ag ent L og an made a reques t f o r an administrative subpoena for the n ame and address associated
at the t i me of the downloads with the I P address. He submitted his request to NCI S’s representative at the National Center for Missing and Ex ploited Children, which turned the request o ver to the F ederal B ureau of I nvestig ation (F B I ). The F B I sent an administrative sub p oena to Comcast. Comcast responded b y providing Drey er’s name and address in Alg ona, W ashing ton.

After receiving that information, Ag ent L og an checked a Department of Defense (DoD) database to d etermine if Drey er had a military affiliation. He found that Drey er h ad

no c urrent military affiliation. 3 Ag ent L og an t h en wrote a report summariz ing his investig ation and forwarded it and the supporting material to the NCI S office in the state o f W a shing ton. That office then turned the information over to Officer J ames Schrimpsher of the A lg ona Police D epartment.

Officer Schrimpsher verified that Drey er lived in Alg o na based on property and u t i l ity records. B ecause Officer Schrimpsher had never worked on a ny case involving internet

2 Ro u n d Up id en tif

ied su ch f iles b y co m

p arin g th e “ SHA

- 1 h ash v alu es”

o f f iles b ein g o f

f ered f o r d o w n lo ad

– u n iq u e id en tif

iers th at d o n o t ch an g e

w h en a f ile n am e is altered – w ith v alu es alread y k n o w n to b e asso ciated

w ith ch ild p orn o g rap h y

.

3 Drey er h ad

p rev io u sly

b een a m em

b er o f th e A ir Fo rce.U N I T E D S T A T E S V

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crimes or c hild pornog raphy

, he contacted the I nternet Crimes Ag ainst Children Task F orce for assistance and was referred
to Detective I an Polhemus of the Seattle Police D epartment. Detective Polhemus reviewed some of the information in the NCI S report, a n d p rovided Officer Schrimpsher with a sample of a search warrant affidavit.

Subsequently

, Officer Schrimpsher soug ht, and was issued, a search warrant by a state c ourt judg e. 4 Officer Schrimpsher, along with sever al other officers, including Detective Polhemus, Detective Timothy L uckie of the Seattle Police Department, a

nd Serg eant L e e Gaskill of the Alg o na Police Department, ex ecuted the search w arrant. At D rey er’s residence, Detective L u ckie conducted an on- site “preview” search of a d esktop computer he found in th e h ouse. 5 He identified some imag es as p oss i b l e child pornog raphy a nd directed the Alg ona officers to seiz e the computer.

Months later, United States Departmen t of Homeland Security Special Ag ent Cao Triet Huy nh applied for a warrant to search the electronic media seiz ed fr om Drey er’s h ome.

4 O f f icer Sch rim

p sh er p rep ared t

h e search w arran t ap p licatio n

. Of f icer Sch rim p sh er testif

ied th at he attach ed A g en t L o g an ’ s rep o rt an d

su p p o rtin g m aterial to h i s af f i d av i t. In draf

tin g th e af

f id av it, h e co pied

an d p a s t e d l a r g e sectio n s o f Detectiv e P o lh em u s’ s sam p le. A s a resu lt, Of f icer Sch rim

p sh er m ad e a n

u m b er o f f alse rep resen tatio n s in h is af f id av it.

Drey er raises a Fra n ks is su e reg ard i n g th e f alsities in th e af

f id av it. A s w e h o ld su

p p ressio n w as req u ired o n o th er g ro u n d s, w e d o n o t ad d ress th is issu e.

5 W e do n o t ad d ress Drey er’ s co n ten tio n th at th e o n

- site search o f h is

co m pu ter ex ceed ed t h e sc o p e o f th e s tate w arran t, as w e co n clu d e th at

su p p ressio n is ap p ro p riate f

o r a d i f f eren t reaso n

.U N I T E D S T A T E S V

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E Y E R 7

Huy nh b a s e d h is application o n the media found b y Ag ent L og an and D etective L uckie, as w e l l as incriminating
statements Drey er made during the car ride. A f e d eral

m ag istrate judg e issued a search warrant. T h e res u l t i n g forensic ex amination of Dre y er’s computer revealed many videos and imag es of child pornog raphy

.
Drey er was charg ed with one count of distr i b u ting child
pornog raphy on April 1 4
, 2011 in violation of 1 8 U .S.C. §§ 2252(a) (2) and (b)(1), and one count of possessing child
pornog raphy o n J uly 6, 2011 in viol a t i o n o f 1 8 U .S.C. § § 2252(a)(4)(B ) and (b)(2). He moved to suppress t h e evidence seiz ed d

uring the J uly 6, 2011 search, as w ell as the evidence f

o u n d during the later federal search of the computer.

I n his reply brief on his suppression mot i o n , D rey er arg ued that, as an NCI S ag ent, Ag ent L o ga n had no lawful authority to investig ate civilian c rime. The g overnment filed

a surreply addressing that arg ument. T he parties addressed this issue ag a in at the hearing on th e m o tion to suppress. F ollowing an evidentiary hearing

, t h e district court orally denied his motion to suppress.

Subsequently

, following a four-day jury trial, Drey er was

conv i c t ed o f b oth charg e s and sentenced to 216 months o f incarceration and lifetime supervised release. H e timely appealed.

D I SCUSSI ON

Drey er arg ues that the fruits of the NCI S investig ation into his online file shar i ng should h ave been suppressed because military enforcement of c ivilian laws is prohibited.U N I T E D S T A T E S V

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B ecause the issue of w hether the NCI S involvement v iolated the limitations on military enforcement o f civilian laws “is a mix ed question of fact and law which is primarily leg al,” we review de novo the district court’s denial of Drey er’s motion to suppress based on this claim. United States v. Hitchcock

, 286 F

. 3d 1 064, 1069 (9th Cir.), as amended by 298 F .3d 1021 (9th Cir. 2002).

I

.

T h e Posse Comitatus Act (PCA), 18 U.S.C. § 1385
, 6 “prohibits Army and Air F orce military personnel from participating in civilian law enforcement activities.” United States v. Chon

, 210 F .3d 990, 993 ( 9 t h C ir. 2000). 7 I n

6 T h e P CA s tates, “ W h o ev er, ex cep t in cases an d u n d er circu m stan ces

ex p ressly au th o rized b y th e Co n stitu tio n o r A ct o f Co n g ress, w illf u lly u ses

an y p art of th e A rm

y o r th e A ir F o rce as a p o ss e c o m i t a t u s o r o th erw ise
to ex ecu te th e law s sh all b e f in ed u n d er th is title o r im p riso n ed n o t m ore th an tw o y ears, o r b o th .” 1 8 U.S.C. § 1 3 8 5

.

7 “ P o s s e co m itatu s (literally ‘ p o w er o f th e co u n try ’ ) w as d ef i n ed at

co m m o n law as all th o se o v er th e ag e o f 1 5 u p o n w h o m a sh eriff c o u l d call f o r assistan ce in p rev en tin g an y ty p e of civ il d iso rd er.” H.R. Rep

. No

. 9 7 -7 1
, pt. 2
, at 4 (citin g 1 W illiam B lack sto n e, Co m m en taries 3 4 3

- 4 4 )

. A lth o u g h th e P CA itself “ w as en acted d u rin g th e Reco n s tru ctio n Perio d
to elim in ate th e d i rect activ e u se o f Fed eral t ro o p s b y civ il law au th o rities”
to en f orce th e civ il law

, Un i ted Sta tes v. Ba n ks

, 53 9 F.2 d 1 4
, 16 (9 th Cir. 1 9 7 6 ); see a l

so Un ited S ta tes v. Red Fea th er , 3 9 2 F.Su p p. 9 1 6
, 9 2 1

– 2 5 (D. S.D. 1 9 7 5 ), it ref

lected lo n g

- stan d in g A m erican co n c e r n s ab o u t th e

u se o f th e m i litary to k eep th e civ il peace, Un ited S ta tes v. W a ld en , 4 9 0 F.2 d 37 2
, 3 7 5 (4 th C i r

. 1 9 7 4 ); see a lso T h e Declaratio n of In d ep en d en ce p aras. 1 1
, 1 2
, 1 4 (U.S. 1 77 6 ) (criticizin g t h e Kin g of Great B ritain f o r h av in g “k e p t am o n g u s , in tim es o f p eace, Stan d i n g A rm ies

w ith o u t th e Co n sen t o f o u r leg islatu res”; “ af f ected to ren d er th e MilitaryU N I T E D S T A T E S V

. D R

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addition, Cong ress has directed “[ t] h e Secretary of Defense [ to] prescri b e such reg u lations a s may be n ecessary ” to prevent “direct participation by a member of the Army
, Navy
, Air F orce, or Marine C o r p s ” in civilian law enforcement activities unless otherw i s e a u thoriz ed by law. 10 U .S.C. § 375. Cong ress has authoriz ed certain ex ceptions to § 375,

s u c h as permitting the military to make equipment a n d facilitie s available to civilian law enforcement and allowing the military to provide suppo r t i n particular situations, such

as during an emerg ency situation involving a weapon of mass destruction. See 10 U.S.C. §§ 372-74, 379-82. None of these specific ex ceptions are at issue here.

W e have previously recog niz ed that, “ [ a] lthoug h the PCA does not directly reference the Navy
, ” “PCA-like restrictions” apply to the N avy as a mat t e r of Department of Defense (DoD) and N aval policy

. Chon

, 21 0 F. 3 d at 993; see also United States v. Khan

, 35 F

. 3d 426, 431 (9th Cir. 1994). Specifically

, D oD policy states that its “g uidance on the Posse Comitatus Act

. . . is applicable to the Department o f the Navy and the Marine Corps as a matter of DoD policy

, with such ex ceptions as may be provided by the Secretary o f
t h e Navy on a case-by -case b asis.” DoD Directive ( D o D D ) 5525.5 Enclosure 4 E 4.3 (J an. 15, 1986). 8 “[ T] h e Secretary

in d ep en den t o f an d s u p erio r t o th e Civ il p ow er”; an d “ Qu arterin g larg e b o d ies o f arm ed tro op s am o n g u s”); 7 Co n g . Rec. 3 5 86 (1 8 7 8 ) (rem ark s

o f Rep . W i lliam

Kim m el).

8 Af ter A g en t L o g an ’ s actio n s at i ssu e in th is ap p eal, o n Feb ru ary 2 7
, 2 0 1 3
, Do D issu ed In s tru ctio n N o

. 3 0 2 5 .2 1
, w h ich in co rp o rated th e

su b stan ce o f

, an d can celled , Directiv e No

. 55 2 5.5

. S ee Do D In stru ctio n (Do DI) 3 0 25 .2 1 (1 )(c). L i k e th e can celled Directiv e, In stru ctio n N o

. 3 0 2 5 .2 1 also p ro v i d e s, “ B y p o l icy

, Po s s e C o m itatu s A ct restrictio n s (as

w ell as o th er restrictio n s in t h is In s tru ctio n ) a r e a p p licab le to th eU N I T E D S T A T E S V

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of the Navy
, using nearly identical lang uag e, has adopted this policy .” Chon

, 210 F .3d at 9 93 (c i t ing former Secretary o f the Navy I nstructions (SECNAVI

N ST) 5820.7B (March 28, 1988)); see SECNAVI

NST 5820.7C (J an. 26, 2006).

The g ov e rnment maintains that, even thoug h PCA-like restrictions app l y t o the Navy
, they do not apply to civilian NCI S ag ents. Chon rejected t h e same arg ument. T h ere, a s here, the g o vernment arg ued that “§ 375 does not apply to the NCI S because most of its a g ents a re civilians,” a n d “it is headed by a civilian director with a civilian c h a i n o f command.” Id. at 993–94. The go v e r n m ent based its first
arg ument on provisions in DoD and Naval policies that

ex e mpt four cat egories of people f rom PCA-like restrictions: ( 1) members of reserve components when not on a ctive du t y ; (2) members of the National Guard when not in the F ederal Service; (3) civilian employ ees of DoD unless u nder the direct c ommand a nd control of a m i litary officer; and (4) military

Dep artm en t of th e Nav y (in clu d in g t h e M arin e Co rp s) w ith su ch

ex cep tio n s as th e Se c r e t a r y of Def en se m ay au th o rize in ad v an ce on a

case- by

- case b asis.” Do DI 3 0 2 5.2 1 , En clo su re 3 (3 ). T h e o th er relev an t p ro v isio n s also rem ain m aterially u n ch an g ed

, ex cep t as o th erw ise in d icated later in th is o p in io n

.

In ad d itio n , o n A

p ril 1 3
, 2 01 3
, th e Dep artm en t o f Def en s e issu ed a f in al ru le pro m

u lg atin g reg u latio n s co n cern in g th e restrictio n o n m ilitary

su p p o rt of civ i lian law en f

o rcem en t. S

ee Def en se Su p p o rt of Civ ilian L aw En f o rcem en t A g en cies, 7 8 Fed

. Reg

. 2 1 8 2 6

- 0 2 ( c o d i f ied at 3 2 C .F.R. § 1 8 2 (2 0 1 3 )). T h e ru le w as o rig in ally p ro p o sed o n Decem b er 2 8, 2 0 1 0

. 7 5 Fed

. Reg

. 8 1 54 7

- 0 1

. T h e reg u latio n s as issu ed are larg ely i den tical to th e Do D In stru ctio n

No . 3 0 2 5 .2 1

.U N I T E D S T A T E S V

. D R

E Y E R 11

service members when off d uty and i n a private capacity

.

Id. at 9 93. Chon interpreted “these ex emptions to mean that the PCA and PCA-like restrictions f unction to proscribe use of the streng th and authority o f the military rather than u se o f the private f

orce of the individual s w h o make up the institution.” Id. “I n other words, while DoD personnel may participate i n civilian law enforcement activities in their private capacities, they may not do so under the auspices o f the mil itary .” Id. Apply ing this understanding

, Chon h eld that the PCA-like restrictions d o a pply to “civilian NCI S

a gents” w ho “represented and furthered the interests o f the Navy ,” and were not d ist i n gu i shable by the civilians w ho

m i ght interact with them from members of the military

. I d

. These same status-based ex e mpt i o n s are maintained in the

re gulations and policies today

. S ee SECNAVI

NST 5820.7C(8)(e)(1)–(4); DoDD 5525.5, E n c l osure 4 E4.2; see also 3 2 C.F .R. § 182.6(a)(2); DoDI 3025.21, Enclosure 3(2). W e see no basis for r evisiting our prior interpretation of them.

Chon also reje cted the g overnment’s second contention, “that the NCI S should b e ex empt from PCA-like r e strictions because it is headed by a c i v i l i a n director with a civilian chain of command.” 210 F .3d at 993–94. The court reasoned that “the NCI S Director has a d irect reporting relationship to the Chief of the N aval O perations, a military officer,” and so “[ d] espite a civilian Director, the NCI S continues to be a unit of, and accountable to, the Navy .” I d

. T he g overnment arg ues that Chon ’s reasoninghas been undermined, because the “reporting relationship ” between the NCI S director a nd the Chief of Naval Operations “ was eliminated in 2005” when the Secretary of the N avy issued I n struction 5430.107.U N I T E D S T A T E S V

. D R

E Y E R 12

The g o vernment is incorrect. At the time that Chon was decided, the command structure o f NCI S was set forth in I nstruction 5520.3B
, which provided, “The Direc t o r , NCI S reports directly to the S e cretary of the Navy ,” and “[ i] n

a d dition, the Director, NCI S reports to the Chief of N a v al Operations for phy sical, personnel and information security

. ” SECNAVI

NST 5 520.3B (4). I nstruction 5430.107 has since

c a n c e l l e d In s t r u c t i o n 5 5 2 0

. 3 B
, s e e S E C NA V IN S T 5430.107(2) ( Dec. 28, 2005), a nd now p rovides, “ T he Director, NCI S reports directly to the Secretary of the Navy
, ” and “[ i] n addit i o n , the Director, N CI S serves as Special Assistant for Naval I nvestig ative Matters and Security to the Chief of Naval Operations,” SECNAVI N ST 5430.107(5)(a). That the NCI S director still serves as the “Special A ssistant”
to the Chief of Naval Opera t i o n s means a reporting relationship continues to ex ist. I n a ddit i on, I nstruction 5430.107 created a B oard of Direc t o r s that oversees NCI S strateg y and operations; the B oard includes several m i litary officers. See SECNAVI NST 5430.107(5)(c) (estab l ishing B oard of Directors inc luding the Vice Chief of Naval Operations and the A s sistant Commandant of the Marine Corps). So the chang e in NCI S’s policies reg a rding its command structure did not undermine this portion of Chon ’s reasoning

.

More fundamentally

, the g overnment’s a ssertion that there is a meaningf

u l difference between civilian and other

em p l o y ees o f 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 o f DoD p e r s o n n el in civilian law enforcement activities.” See DoDD 5525.5, Enclosure 4; DoDI 3025.21, Enclosure 3. They do not limit their reach to n on-civilian personnel only

. And any c onten t i on to the contrary is belied by theU N I T E D S T A T E S V

. D R

E Y E R 13

abundantly clear ex pressions in the m ost recent reg ulations and p olicy i n structions. B oth state that they “[ a] p pl[ y ] to civilian employ ees of the DoD Components,” and that their restrictions on direct par

ticipation in c ivilian law enforcement “apply to all actions of Do D personnel worldwide,” with “DoD personnel” defined t o i n c lude “F ederal military officers and enlisted personnel and civilian employ ees 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 I I

. 9

According ly

, we r e -affirm Chon ’s holding that NCI S
ag ents are bound by PCA-like restrictions on direct assistance to civilian law enforcement.

I I

.

The reg ulations and policies implementing the PCA a nd § 375 “g enerally p rohibit ‘direct’ military involvement in civilian law enforcement activities bu t permit ‘indirect’ assistance such as the transfer o f information obtained during the normal course of military operations or o ther actions that ‘do not subject civilians to [ the] use [ of] military power that is reg ulatory

, prescriptive, or compulsory .’” United States v. Hitchcock

, 286 F .3d a t 1069 (citations omitted). Prohibited direct assistance includ es “[ u] se of military personnel for

surv e i l l ance or pursuit of individuals, or as u ndercover

9 A lth o u g h th e m o st recen t Do D In stru ctio n an d reg u latio n s w ere issu ed

a ft er th e s earch at issu e h ere, th eir co n t en t is larg ely id en tical to t h a t

co n tain ed in th e e arlier D o D Directiv e. A lso

, th e A rm y p o licy im p lem en tin g t h e n ew er In stru ctio n an d reg u latio n is th e sam e o n e th at im p lem en ted th e earlier Directiv e. S o t h e D o D’ s ex p lan atio n s o f th e in ten t an d m ean in g o f th e n ew er do cu m en ts i s a u sef u l aid in to i n terp retin g th e earlier on es. C

f

. P i p efitters Lo ca l Un i o n No

. 5 6 2 v. Un ited Sta tes , 4 0 7 U.S. 3 8 5 , 4 1 2 (1 9 7 2 ).U N I T E D S T A T E S V

. D R

E Y E R 14

ag ents, informants, investig a tors, or i nterrog a tors.” DoDD 5525.5, Enclosure 4, E4.1.3.4.

W e have “set forth three tests f or d etermining whe t h e r military involvement in civilian law enforcement constitutes permissible indirect assistance: ‘[ 1] The involvemen t must not constitute the e x e r cise of r eg ulatory

, p roscriptive, o r compul sory military power, [ 2 ] must not amount to direct active involvement in the ex e cution of the laws, and [ 3] must not pervade the activities of civilian authorities.’” Hitchcock

, 286 F .3d at 1 069 (quoting Khan

, 35 F

. 3d at 431). 1 0 “I f any

one of these tests is met, the assistance is not indirect.” Khan

, 35 F .3d at 431.

Ag ent L og a

n’s RoundUp surveillance of a ll computers in W a shing ton amounted to impermissible direc t active involvement in civilian enforcement of the child pornog raphy laws, not permissible indirect assistanc e

. He acted as an investig ator, a

n activity specifically p ro h i b i ted as direct assistance. DoDD 5525.5, E nclosure 4
, E 4

. 1

. 3.4; see also Red F eather

, 392 F .Supp. at 925 ( “Activities which constitute

an act i v e role in direct law enforcement” include “investig ation of crime

. . . and other like activities.”). Ag ent L o gan’s actions were akin to the c o n duct that the F our t h Circuit held violated th ese reg ulations in United States v

. W alden

, 490 F. 2 d 372, 373–76 (4th Cir. 1 974), where Marines e ng a g ed in undercover investig ations into store

10 Kh a n in terp reted 3 2 C .F.R. § 2 1 3 .1 0
, a reg u l atio n th at h as s in ce b een

w ith d r a w n

. S ee 5 8 Fed

. Reg

. 25 ,7 7 6 (A p r. 2 8
, 1 99 3 ). Hitch co ck

reco g n ized th at th e w ith d raw n reg u latio n ’ s relev an t p ro v isio n s rem ain ed in Do D Directiv e 5 5 2 5 .5 as it w as in ef f ect at th e tim e of th e s earch at issu e h ere. 2 8 6 F.3 d at 1 0 6 9

– 7 0 n .8

. T h o se sam e p ro v i sio n s are

m ain tain ed in Do D In stru ctio n No

. 3 0 2 5 .2 1 an d t h e n ew reg u latio n s. S

ee 3 2 C.F.R. § 1 8 2 .6 ; Do DI 3 02 5.2 1 , En clo su re 3

.U N I T E D S T A T E S V

. D R

E Y E R 15

employ e es’ illeg a l firearms sales to minors and to individuals not residents of the state.

Also, Ag ent L og an eng a g ed in his investig ation not in any support capacity to civilian law enforcement, but rather as an independent actor who initiated and carried out this a ctivity

. H i s actions thus were not “incidental” to the overal l investig ation into D rey er, or limited to b ackup support. Cf. Khan

, 3 5 F .3d a t 432; United States v. Klimavicius-Viloria

, 144 F .3d 124 9
, 1 2 59 (9th Cir. 1998). The results of his investig ation served a s the primary basis for the state search
warrant. Officer Schrimpsher c onducted no sig nificant additional investig ation before procuring the warrant – he

o n l y v erified that Drey er lived at the address he was g iv e n and that the descriptions that Ag ent L og an p r o v i d e d o f the files seemed to describe child pornog raphy

. W ithout Ag ent L og an’s identification o f Drey er, his c omputer, and the child
pornog raphy on his computer, there would have b ee n no search and no prosecution.

According ly

, Ag e n t L og an’s actions amounted to direct

as s i stance to civilian law enforcement. The g overnment nonethe l e s s arg ues that Ag ent L og an’s investig ation was proper because it falls into t h e “independent military purpose” ex ception to the prohibition on direct assistance.

The pol icies and reg ulations create “an ex ception to the
g eneral prohibition on direct involvement where” there is “an independent m i litary purpose,” that is, “where the military participation is undertaken ‘for the p rima ry purpose o f furthering a military or foreig n affairs function of the United States, reg a r d l ess of incidental benefits to civilian authorities.’” Hitchcock

, 286 F

. 3d at 1 069 ( quoting DoD Directive 5 5 25.5, Enclosure 4
, E4.1.2.1). Such militaryU N I T E D S T A T E S V

. D R

E Y E R 16

activities include “[ i] nvestig ations a n d o ther a ctions r elated
to enforcement of the Uniform Code of Milita r y J ustice.” DoD Directive 5525.5, Enclosure 4, E.4.1.2.1.1.

The Uniform Code o f M i l i t ary J ustice prohibits distribution o f child pornog raphy by a member of the armed forces. I t has a ssimilated the elements of the federal child
pornog raphy statute throug h Article 1 34, its g eneral provision that prohibits “all conduct o f a nature to bring discredit upon the armed forces.” 10 U.S.C. § 934; see, e.g. , United S tates

v. Brown
, 529 F .3d 1260, 1263–64 (10th Cir. 2008). I n 2011, the President issued Ex ecutive O r d e r 1 3593, adding to the Manual for Courts Martial a specific Article 134 provision for child pornog raphy

. I nvestig ation by military law enforce m ent officers of p ossession and distribution of child
pornog raphy

by military personnel is therefore proper.

B u t Ag ent L og an’s search was not reasonably focused on carry ing out such a leg itimate military investig ation. 1 1 NCI S is authori z e d to investig ate criminal operations that

“ s i g n i f i c a n t l y a f

f e c t t h e n a v a l e s t a b l i s h m e n t

. ” SECNAVI

NST 5430.107(3)(c), 7(b)( 2 ). Ag e nt L og an understood that he did n o t hav e the authority to search a ny location, but had to l i m i t his searches to areas where there

w a s “a Department of Navy interest.” Yet, Ag ent L og an’s search did not meet the required limitation. He survey ed the entire state of W

ashington for computers sharing child

11 B ecau se A g en t L o g an ’ s in v e s t i g a t i o n itself v io lated th e PCA

- lik e restrictio n s, it is irrelev an t w h eth er it w as p erm issib le f o r h im to tran sf er to civ ilian au th orities “ i n f o rm atio n co llected d u rin g th e n o rm al co u rse of

m ilitary train in g o r op eratio n s th at m ay b e relev an t to a v i o l a t i o n of an y Fed eral o r State law

w ith i n th e j u risd ictio n

o f su ch o f

f icials.” 1 0 U.S.C. § 37 1 (a); see a lso Do D Directiv e 5 5 2 5 .5
, En clo su re 2
, E.2 .1
, En clo su

re 4
, E4 .1 .7 .1 ; SECNA VINST 5 8 2 0.7 C(5 ); Hitch co ck , 2 8 6 F.3 d at 1 0 6 9

.U N I T E D S T A T E S V

. D R

E Y E R 17

pornog raphy

. His initial search was not limited to Unite d States military or g overnment co m p u ters, a nd, as the
g overnment acknowledg ed, Ag ent L og an had no ide a w h e t h er the computers searched belong ed t o s omeone with any

“ a f f i liation w ith the military at all.” I nstead, it was h i s “standard practice to m o n i tor all computers in a g eog raphic area,” here, every computer in the state of W ashing ton.

Ag ent L og an’s further investig ation into Drey er’s s p e c ific computer and i d e ntity also was not reasonably limited to searching for crimes that “sign i f i c a ntly affect the naval establishment.” SECNAVI NST 5430.107(3)(c), 7(b)(2). Ag ent L og an testified that RoundUp display s the g eog raphic location of t h e I P address “within a 25- to 30-mile radius.” The screen shot for Age n t L o g an’s search shows that RoundUp identified the g eog raphic location f o r Drey er’s I P address a s F ederal W ay , W ashing to n

. A gent L og an did not report at the evidentiary hearing on the suppression motion o r

a t t r i al that he chose to pursue that I P address based on this
g eog raphic identification.

Ag ent L og an did write in his a dministrative s u b p oena request that the “ Suspect I P w a s identified in area of larg e DOD and USN saturation indicating likelihood of U SN/DOD suspect.” B ut the r ecor d c o ntains n o evidence establishing
any meaning ful military “saturat i o n ” of the area at issue. Althoug h the g overnment represents that F ederal W ay , W a shing ton is located within thirty miles of several military installations, it also is similarly near both Seattle and T acoma,

as well as much of the surrounding metropolitan areas. 1 2 The

12 W e m ay pro p erly tak e j u d icial n otice o f Un ited States C en su s B u reau d ata, as s u ch d ata “ can be accu rately an d read i ly d eterm in ed f ro m so u rces

w h o se accu racy can n o t reaso n ab ly b e q u estio n e d

. ” Fed

. R. Ev id

.U N I T E D S T A T E S V

. D R

E Y E R 18

t h r ee-thousand-square-mile area circling F ederal W a y – th e approx imate area of a circle with a thirty -m i l e radius

–
e n compasses much o f the state’s c ivilian population. Th at Ag ent L o g an ended his investig ation once he confirmed that Drey er h ad no current military affiliation is of no matter; his overly broad investig ation until t h at point had already

ex c e eded the scope of his authority

.

The g overnment’s p osition that the military may monitor and search all computers in a s tate e ven thoug h it h as no

reason to believe that the computer’s owner has a m i l itary affiliation would render the PCA’s restrictions entirely meaning less. T o accept that position would mean that NCI S
ag ents could, for e x ample, routinely stop suspected d runk drivers in downtown Seattle on the off-chance that a driver is

2 0 1 (b )(2 ); see Un ited S ta tes v. Esq u ivel

, 8 8 F.3 d 7 2 2
, 7 2 6

– 2 7 (9 th Cir. 1 9 9 6 ); S ko ln ick v. Bd

. o

f C o mm’rs o f Co o k Cn ty. , 4 3 5 F.2 d 3 6 1, 3 6 3 (7 th Cir. 1 9 7 0 ).

T h e Un ited States C en su s B u reau ’ s 2 01 1 p o p u latio n estim ate f o r th e Seattle- T aco m a- B ellev u e Metro p o l itan S tatistical A rea w as ab ou t 3 .5

m illio n

. S

ee U.S. Cen su s B u reau , A n n u al Estim ates of th e P o p u latio n of Metro p o litan an d Micro p o litan Statistical A reas: A p ril 1
, 2 0 1 0 to Ju ly 1
, 2 0 1 2
, a va ila b le a t h ttp ://w w w .cen s u s .g ov /p o p est/d a t a / m e t r o / t o t a l s/2 0 1 2 /. T h e C e n s u s B u reau estim ates th at th e to t al s tate p o p u latio n in th at y ear

w as ab o u

t 6 .8 m illio n p eo p le. S ee U .S. C e n s u s B u

reau , A n n

u al Estim ates o f th e P o p u latio n f o r th e U n ited States, Reg io n s, States, an d P u erto R i c o : A

p ril 1, 2 0 1 0 to J u ly 1
, 2 0 1 3
, a va ila b le a t h ttp ://w w w .cen su s.g o v /

p o pest/d ata/in d ex .h tm l.

Cen su s B u reau d at a also u n d erm in es an

y n o tio n th at F ed eral W ay

co n tain s sig n i f

ican tly m o re m ilitary perso n n el th an o th er p arts o f th e

co u n try

. In 2 0 1 1
, th e Cen su s B u reau estim ated th at ab o u t 0 .4 % o f Fed eral W ay ’ s ad u lt p o p u l a t i o n w as em p lo y ed b y th e A rm ed F o rces, t h e sam e p ercen t ag e as it e s t im ated f o r th e Un ited States p o p u latio n

. See U .S. Cen su s B u reau , 2 0 1 1 A m erican Co m m u n ity Su rv ey

.U N I T E D S T A T E S V

. D R

E Y E R 19

a member of the military

, and then turn over all information collected about civilians to the Seattle Police Department for prosecution.

The go v e rnment’s position that the military may search the entire civilian p opulation of a state is also incons istent with a basic principle und e r ly ing the PCA and the r elated
statutes and reg ulations, “a traditional and strong resistance of Americans to any military intrusion into civilian affairs.” Laird v. Tatum
, 408 U .S. 1, 1 5 (1972). The PCA was orig inally enacted on the understanding s that “ [ t] he g reat b eauty of our sy stem of g overnment is that it is to b e g overned by the people,” and tha t if we use the “military
power

. . . to discharg e those duties that b e l o n g to civil officers a nd to the citiz ens,” we “have g iven up the character of [ our] Government; it is no long er a g overnment f or liberty ; it is n o long er a g overnment founded in t h e consent of the people; it has become a g overnment of force.” 7 Cong

. Rec. 4247 (1878) (remarks of Sen. B enjamin H ill). Consistent with those fundamental premises, DoD policy warns ag ainst

an ex pansive reading such as the o n e espoused by the
g overnment here: D irective 5525.5 specifically notes that the independent military purpose ex ception “mu s t be used with caution, and does not inclu d e actions taken for the primary
purpose o f aiding civilian law enforcement officials o r otherwise serving a s a subterfug e to avoid the restrictions of” the PCA. DoDD 5525.5, Enclosure 4, E.4.1.2.1.

The lack of any r easonable c onnection between the military and the crimes that A ge n t L og a n was investig ating
separa t es this case from those in which we h ave applied the independent military purpo s e ex ception. I n Hitchcock

, for

ex a mple, the defendant “sold L SD to L ake, a U.S. Marine, who was, in turn, selling L SD to other military personnel” onU N I T E D S T A T E S V

. D R

E Y E R 20

his base. 286 F .3d at 1066, 1070. NCI S ag ents participated in the investig ation “in o rder to determine w h et h er [ the defendant] h ad sold drug s to other military personnel b esides L ake.” Id. a t 1070. Hitchcock held the independent military
purpose ex c e p t i o n a p p l i c a b l e b e c a u s e t h e m i l itary participation was justified to “ d etermin[ e] the ex tent to which [ the defendant’s] L SD was being used and distributed on the military base” i n violation of the Uniform Code of Military J ustice, and t o h elp “‘maintain law and order on a military installation.’” Id. (quoting DoDD 5 525 .5, Enclosure 4, E4

. 1

. 2.1.3). And Chon applied the ex c eption where NCI S
ag ents w ere investig ating the t h e f t of military equipment from a N aval facility

, and so were acting with “ t he independent military purpose of r ecovering military equipment.” 210 F .3d at 994. 1 3

Thus, w e hold that A g ent L og an’s broad in v e s t ig ation into sharing of child p ornog raphy b y anyone within the state of W ashing ton, not just those on a military base or w ith a reasonable likelihood of a Navy affilia tion, v iolated the
reg ulations and policies proscrib i n g d i rect military enforcement of civilian laws.

13 Sim i lar co n n ectio n s to th e m ilitary ex isted in th e o u t- o f

- circu it cases

u p o n w h i ch t h e g o v ern m en t relies. In Ha yes v. Ha w es , 9 21 F

. 2 d 1 0 0
, 1 0 1

– 0 4 (7 th Cir. 1 9 9 0 )

, a Nav y i n v estig ato r assisted civ ilian p olice in v estig atin g d ru g traf

f ick in g i n a m all acro ss t

h e street f ro m a Nav al b ase, af ter a sailo r w a s fo u n d w ith d ru g s p u rch ased at th at m all. A n d Un ited S ta tes v. Ba co n , 8 5 1 F.2 d 1 31 2
, 1 3 1 3– 1 4 (1 1 th Cir. 19 8 8 ), f o u n d n o

v io latio n of th e P CA w

h ere an arm

y i n v estig ato r assisted civ i l i an law

en f o rcem en t “ to f

erret o u t a so u rce o f so m e o f th e co cain e b ein g su pp lied
to b o t h civ ilian s an d arm y

p erso n n el.”U N I T E D S T A T E S V

. D R

E Y E R 21

I I I

. Having held that Ag ent L og an’s investig ation violated the

re s t r i c t ions on the use of the military to enforce civilians law s , w e consider w hether suppression of the resulting evidence should have been ordered here. W e have held that “an ex clusionary rule should not be applied to v i o l a t i ons o f 10 U.S.C. §§ 371–378 until a need to deter future violations is demonstrated.” United States v. Roberts

, 779 F. 2 d 5 6 5, 568 (9th Cir. 1986), superseded by statute on other grounds

as recognized in Khan

, 35 F .3d at 432 n .7. Such a need ex ists h e r e , as there is evidence of “widespread and repeat e d violations” of these provisions. Id.

The record here demonstrates that Ag ent L og an and other NCI S ag ents routinely c a

rry out b road surveillance activities that violate the r estrictions on m i l itary enforcement o f

c i v i l i a n law. A g ent L o g an testified that it was his standard practice to “monitor[ ] any computer I P add r e s s w ithin a specific g eog raphic location,” not just those “ s p ec i fic to US military only

, or US g overnment computers.” He did not try to isolate military service members within a g eog raphic area. He appeared to believe that these overly broad investig ations

were permissible, because he was a “U.S. federal ag ent[ ] ” a nd

so could investig ate violations of either the Uniform Code o f Military J ustice or federal law.

The ex trao r d inary nature of the surveillance here demonstrates a need to deter future violation s

. So far as we

can tell from the record, it has become a routine p r actice for the Navy to c onduct surveillance of all the civilian computers in an entire state to see whether any child pornog r aphy can be fo u n d o n them, and then to turn over the information to civilian law e nforcement when no military connection ex ists.U N I T E D S T A T E S V

. D R

E Y E R 22

This is squarely a case of the military undertaking the initiative to enforce civilian law ag ainst civilian s

. “ There
must b e an ex ceptional reason” to invoke the e x clusionary rule for violation of posse comitatus-like reg ulations, United States v

. Harrington
, 681 F

. 2d 612, 615 (9th Cir. 1982), a nd
t h e broad use of military surveillance of overwhelming ly civilian populations is an ex ceptional reason.

Ag ent L og an c a

rried out these searches repeatedly

. He

was monitori n g a n o ther computer a t the same time that he found Drey e r’s I P address. And he was involved with at least twenty other child p o rnog r aphy investig ations. F urther, Ag ent L o g an was not the only N CI S a g ent who eng a g ed in such searches. He beg an carry ing out these searches w ith two other ag ents at least several months before he found D rey er’s I P address. 1 4

That a need to deter future violatio n s e x i sts is f urther supported b y the g overnment’s litig ation positions. The
g overnment is arg u ing v ehemently that the military may monitor for criminal activity all th e c o mputers any where in
any state with a military base or installation, reg ardless o f how likely or unlikely the computers are to be associated with

a member of the military

. S uch an e x pansive reading of the military ’s role i n the e nforcement of the civilian laws demo n s t r a tes a p r ofound lack of reg ard for the important limitations on the role of the military in our civilian society

.

14 W e n o te th at in Un ited

S ta tes v. Ho llo w a

y , 5 3 1 Fed . A pp x . 5 8 2 (6 th Cir. 2 0 1 3 ), an NCIS ag en t also carri e d o u t a n on lin e ch ild p o rn og rap h y in v estig atio n th at targ eted a c i v i l ian

. A s th ere is n o p reced en tial circu i t

o p in io n in Ho l lo wa

y , s e e 6 th Cir. R. 3 2 .1 (b ); Un ited S ta tes v. Utesch

, 5 9 6 F.3 d 3 0 2 , 3 12 (6 th

Cir. 2 0 1 0 ), w e d o n o t d iscu ss it f u rth er.U N I T E D S T A T E S V

. D R

E Y E R 23

The ex istence o f these factors make this c ase unlike those in which courts have declined to r equire suppression of the evidence r esulting from a violation of these laws. I n R oberts

, we concluded that suppression was not necessary because the violation there was not widespread or repeated. 779 F .2d at 5 6 8

. Similarly

, in United States v. W alden

, 490 F .2 d 3 7 2
, 377 (4th Cir. 1974), after holding that the Marines’ activities violated the Navy reg ulations, the F ourth Circuit declined to require suppr e s sion, based p rimarily on “the fact that this

c a s e is the f

irst instance to our knowledg e in which mil i t a r y personnel have been used as the principal inves t i gators o f civilian crimes in violation of the I nstruction,” and so it was

unaware of “any other v i olation, let a lone widespread o r repeated violatio n s .” A nd in United States v. Johnson

, 410 F

. 3d 137, 149 ( 4 t h Cir. 2005), the court held that

ex c lusion would not be a ppropriate there b e c a u s e there was

no e vidence in the record that th e c o nduct complained o f occurred frequently

or even repeatedly

.

I n contrast, we have h e re abundant evidence that the violation at issue has occurred r epeatedly and frequently

, a nd that the g o vernment b elieves that i ts conduct is permissible, despite prior cautions by o u r c o urt and others that military personnel, including NCI S ag ents, may not enfo r c e the civilian laws. A c c o rd i ng ly

, we find that the d istrict court erred in deny

ing Drey er’s motion to suppress. 1 5

15 W e n o te t

h at, co n t rary to th e g o v ern m en t’ s rep eated rep resen tatio n s in its b rief an d at o ral arg u m e n t th at “ t o d ate, n o co u rt h as ex clu ded

e v i d en ce g ath ered in v io l atio n of th e P o sse Co m itatu s A ct,” at least t w o

co u rts h a v e d o n e s o

. In U n ited S ta tes v. Pa ttio a

y , 8 9 6 P .2 d 9 1 1
, 9 2 5 (Haw

. 1 9 9 5 ), th e Haw aii Su p rem e Co u rt d eem ed su

p p ressio n n ecessary

w h ere “ to ig n o re t h e v io latio n

. . . w o u ld be to j u stif y th e illeg ality an d

co n d o n e t h e receip t an d u se o f tain ted ev id en ce i n th e co u rts o f t h is state.” An d Ta ylo r v. S ta te , 6 4 5 P .2 d 5 2 2
, 5 2 4

– 2 5 (Ok la. Crim

. A p p

. 1 9 8 2 ),U N I T E D S T A T E S V

. D R

E Y E R 24

CONCL USI ON

F or the reasons set forth a bove, we reverse the d i s trict court’s denial o f Drey er’s motion to suppress, a nd we remand
to the district court for f

urt h e r p r o ceeding s consistent with this opinion.

REVERSED AND REMANDED.

KL EI N F EL D , Senior Circuit J udg e, concurring :

I join fully in the majorit y o p i n i o n. I write separately to address applicability of the ex clusionary rule to this case. W e all ag ree that the Navy conduct in this case violated the Posse Comitatus p olicy provisions, thoug h not the criminal Pos se Comitatus statute.

W e re we sug g esting something like app l i c a tion of the

e x c lusionary r

ule to a ll Posse Comitatus violations, th e n application o f the e x clusionary rule would b e i n ap p ropriate. And if there were any reason to think that the violation in this

c ase were a fluke, it would b e inappropriate. This c ase, thoug h, amounts to the military acting a s a national police force to investig ate civilian law violations by civilians.

Generally

, the ex clusiona r y r u le does not apply to Posse C o m itatus violations, in the absence of “widespread a n d

su p p ressed ev id en ce o b tain ed in v io l atio n o f th e P CA b ecau se u n d er th e facts o f t h at case, “ th e illeg al co n d u ct b y th e law en f o rcem en t p erso n n el [ro s e] to an in to lerab le l ev el as to n ecessitate an ex clu sio n o f th e ev id en ce

resu ltin g f

ro m th e tain ted arrest.”U N I T E D S T A T E S V

. D R

E Y E R 25

repeated violations” d em o nstrating a need to deter future violations. 1 I n this case, un f o rt u nately

, that is just what we have. The Navy did n ot just p eek into Drey e r ’ s h o me computer. I t peeked into e very computer in the St a t e o f W a shing ton using the p eer-t o

- p e er file sharing prog ram,

“ G n u t e lla.” That is more “widespread” than any military investig ation of civilians in any c ase that has been broug ht to our attention. Millions of people use Gnutella, and millions of people live in W ashing ton, so the number of Gnutella users in Washing ton is likely quite larg e. A s for being “repeated,” the Posse Comit a t u s violation was repeated ag a inst every Gnutella u ser in W ashing ton. I t does not m a t t e r t hat this is the first case w e have seen, and that we d o not have repeated circuit c o u r t cases. T he offense is to the people in W a shing ton whose computers were hacked by the Navy
, not t o this court. The repetition that matters is the r e p e a t e d invasions of W ashing tonians’ privacy , as the Navy software went from civilian computer to civilian computer.

W e have no t f

o u n d another case in this circuit or our sister circuits apply ing the ex clusionary rule to Po s s e Comitatus violations, but neither have we found another case in which the violations were so massive. The cases deeming the ex clusionary rule inapplicable a r e all quite different factually

, a s i n Roberts

, where a g uided-missile frig ate with Coast G uard and Navy personnel aboard caug ht a drug runner

on the hig h seas. That was one sailboat, not all the computers in the S t ate of W ashing ton using G nutella. Military surveillance of all the civilian computers in a state is unique,

1 Un i ted S t

a tes v. Ro berts

, 7 7 9 F.2 d 5 65
, 5 6 8 (9 th C ir. 1 9 8 6 ). T h e sam e p rin cip le ap p lies t o v io l atio n s o f th e PCA

- lik e reg u latio n s th at are at issu e h ere.U N I T E D S T A T E S V

. D R

E Y E R 26

and disting uishable from all the cases we have found that stop short of applying the ex clusionary rule. 2

The military n ot infre q u e n tly investig ates civilians o r

a ssists in civilian law enforcement incidentally to milit a r y law enforcement. A Navy shore patrol may

break up a fig ht involving sailors at a waterfront saloon, a nd turn the civilians

over to the local police. The Army may investig a t e a d r ug ring on base, and turn civilian spouses living on base and offbase civilian participants over to civilian aut h o r i t i es. There would b e l ittle reason to deter military law enforcement in

cases like those, and indeed they w ould ordinarily not even be Posse Comitatus violations. 3 This c ase is d ifferent. T h e re could be no bona fide military purpose to this indiscriminate peeking into civili a n computers. I t should be easy to disting uish this case from r u n o f the mill military law enforcement that incidentally bring s a bou t a p prehension o f civilians.

True, the practical e f

fect of the d eci s i o n may be to let a criminal g o. As J ustice Cardoz o w rot e , application of the

ex c lusionary rule means that “[ t] he cr i m i n al is to g o free because the constable has b l u n d ered.” 4 W e are unlikely to

see so widespread and repeated a P osse Comitatus violation from the Army or Air F orce, because their military personnel

2 Cf. Ro b erts , 7 7 9 F.2 d at 5 6 8 ; Un i ted S ta tes v. W a ld en , 4 9 0 F.2 d 3 7 2 (4 th Cir. 1 97 4 ).

3 Cf. Un ited S ta tes v. H

itch co ck

, 2 8 6 F.3 d 1 0 6 4 (9 t h Cir. 20 0 2 ); Un ited S ta tes v. Ch o n , 2 1 0 F.3 d 99 0
, 99 4 (9 th Cir. 2 0 00 ); Do D Directiv e 5 5 2 5 .5
, En clo su re 4 , E4 .1 .2 .1

.

4 Peo p le v. DeFo re , 2 4 2 N.Y. 1 3, 2 1 (1 9 2 6 ).U N I T E D S T A T E S V

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w o u l d risk prison. 5 I f the military chooses to become a national police force to detect civilians committin g c ivilian crimes, the Navy w ould be the branch to use, be c a u se the criminal penalty does not apply to Navy personnel. W ithout the criminal penalty

, the ex clusionary rule is about all that the judiciary has to deter su c h widespread and repeated Posse Comitatus violations as we have here. L etting a criminal g o free to deter national military investig ation o f civilians is worth it.

O’SCANNL AI

N, C i r c uit J udg e, concurring in part a nd dissenting in part:

B e fore today

, “not a sing le federal court” had applied the

e x clusionary rule to violations of the Posse Comitatus A ct (PCA), 18 U.S.C. § 1385, and its implementing reg ulations. 1 United States v. Vick

, 842 F

. Supp. 2d 891, 894 (E.D. Va. 2012). That is n o a c cident. As we have observed, the

ex c lusionary rule is an “ ex traordinary remedy ,” United States

v. Roberts

, 779 F .2d 565, 568 (9th Cir. 1986), and the Supreme Court has counseled that it is only t o b e u sed as a “last resort,” Hudson v. Michigan

, 547 U.S. 5 86, 591 (2006). Yet, in a breathtaking assertion o f jud i c i al power, today ’s majority invokes this disfa v o r e d r emedy for the benefit of a convicted c hild pornog rapher. I t d oes so without any demonstrated need to deter future violations of the PCA a nd

5 S ee 1 8 U.S.C. § 1 3 8 5

.

1 T o av o id cu m

b erso m e co n stru ctio n s, I w ill n o t d istin g u ish b etw een th e P CA an d its im

p lem en tin g reg u latio n s, ex cep t w h ere it is n ecessary to d o

so

.U N I T E D S T A T E S V

. D R

E Y E R 28

without any consideration of the “sub s tantial social costs” associated with the ex clusionary rule. United States v. Leon
, 468 U.S. 897, 907 (198 4 )

. L ike my colleag ues, I conclude
t h at A g ent L og an violated the PCA, and I concur in Par t s I and I I of the majority opinion. B ut I respectfully dissent from the majority ’s misbeg otten remedy for that violation.

I

The ex clusio n a ry rule is “a judicially created remedy o f [ the Supreme Court’s] own making ” whose “ sole purpose” is “to deter misconduct by law enforcement.” Dav i s v. United States
, 131 S. Ct. 2419, 2427, 2432 (2011) (internal quotation marks omitted). That is a w o r t h y o bjective, but it “ex acts a heavy toll on both th e judicial sy stem and society at larg e.” Id. at 2427. Ex clusion “un d e niably detracts from the truthfinding process and allows m any 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 e f fect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.” Davis
, 131 S. Ct. at 2427; s ee also H udson

, 547 U.S. at 591 (stating that the costs of ex clusion “sometimes include setting the g uilty free and the dang erous at larg e ”).

F or these reasons, the Su preme Court h as, since the 19 7 0 s, “imposed a more rig orous weig hing of [ the

e x c lusionary rule’s] costs and deterrence benefits.” D av i s , 131 S. Ct. at 2427. Gone a re the day s when courts imposed the ex clusionary rule in a manner that was “not ne a rly so discriminating .” Id. Under current doctr i n e , the important and sig nificant costs o f the rule “ present[ ] a hig h obstacle for those urg ing [ its] application.” S cott , 524 U.S. at 364–65.U N I T E D S T A T E S V

. D R

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I n short, ex clusion is “our l a s t r e s ort, n o t our first impulse.” Hudson , 547 U.S. at 591.

I I

Our precedents reflect this skep t ical view of ex clusion with reg a rd to v i o l a t ions o f the PCA. 2 I n United States v

. Roberts

, we held that the e x clusionary rule should n ot be applied to ev i d ence o btained as a result of a PCA violation “until a need to deter f

u ture violations is demo n s t rated.” 779 F .2d at 568. Such a demonstration requires a showing o f “widespread and repeated violations” of the PCA. Id.

I n announcing thi s rule, we adopted the approach o f the F ourth and F ifth C i rc u its in United States v. W a lden

, 490 F .2d 372, 376–77 (4th Cir. 1974), and Un i t e d S tates v

. W olffs

, 594 F .2d 77, 84–85 (5th Cir. 1979). Sig nificantly

, none of those three cases applied the ex c l u sionary r ule to violations o f the PCA, and all three referred to the

ex c lusionary rule as an “ex traordinary remedy .” Roberts

, 779 F .2d at 568; W

olffs

, 594 F .2d a t 85; W

alden

, 490 F .2d at 377. I ndeed, in Roberts

, we “consider[ ed] it sig nificant that courts have uniformly refused to apply the ex clusionary ru l e to evidence seiz ed in violation of the Posse Comitatus Act.” 779 F .2d at 568.

B e fore today

, that descript i o n r e mained true of federal
courts.

2 Oth er co u rts o f ap p eals h av e r e c o g ni z e d t h at th e Su p rem e Co u rt’ s d escrip tio n o f th e ex clu s io n ary ru le in th e Fo u rth A m en d m en t co n t e x t ap p lies to PCA cases. S e e , e

. g

. , Un ited S ta tes v. Al-Ta l ib

, 5 5 F.3 d 9 2 3
, 9 3 0 (4 t h Cir. 1 9 9 5 ).U N I T E D S T A T E S V

. D R

E Y E R 30

I I I

As the foreg oing survey o f Supreme Court and Ni n th Circuit precedent makes c lear, the application of the

e x c l usionary rule to v iolations of the PCA is not automat i c. Rather, it is a ssessed by considering whether “the clear costs of a p p l y ing an e x clusionary rule” a r e outweig hed by “any discernible benefits.” Id. This case dem o n s t r ates that the
costs of ex clusion substantially outweig h the evanescent benefits. I ndeed, it is not a close call.

A

Any evaluation of w hether to apply the ex clusionary rule
to PCA violations must take into account the sig nificant costs of ex clusion. I n W

alden

, the F ourth Circuit believed that the facts of the case before it w ere p a r ticularly u seful in hig hlig hting the c o sts o f ex clusion. The F ourth Circuit
t h oug h t it sig nificant that “the evidence of [ the] defendant’s
g uilt [ wa] s o verwhelming ” and that application of the

ex c lusionary rule would have suppressed “the bulk of the

ev i d e n c e ” ag ainst the defendant. 490 F .2d at 376. The possibility of setting fre e a convicted felon was a troubling
cost of ex clusion, and because there was n o n e ed t o deter future v i o l ations, nothing justified incurring such costs. Id.
at 376–77; see also U

nited States v. Jones , 13 F .3d 100, 104 (4th Cir. 1 993) (rec o gn iz ing that setting free g uilty defendants is a cost courts sh o u l d c onsider in d etermining whether to apply

the ex clusionary

rule to PCA violations).

I n Drey er’s case, a jury convicted him of possession and distribution o f child pornog raphy

. As in W alden

, the evidence of g uilt is o v e rwhelming

. Using specializ ed software called RoundUp, Ag e nt L og an searched the state o fU N I T E D S T A T E S V

. D R

E Y E R 31

W a shing ton for c ompu ters trafficking in child pornog raphy

o n the G nutella file-sharing network. Maj. op. at 4. T h e softwar e i d entified a computer bearing the I nternet Protocol (I P ) a ddress 67.160.77.21 a s offering several files of known

c h i l d pornog raphy to fellow Gnutella users. Id. at 4 –5. W e know that the f

iles contained child pornog raphy because they bear unique identifiers—called “SHA-1 hash values”—that match the identifiers of k n o wn child pornog raphy f iles contained in a da t a b a s e maintained by RoundUp and the National Center f

or Missing a

n d Ex ploited Children. Id. a t 5 The I P address offering child porno gr a p hy belong ed to Drey er. I d

. A g ent L og an, u sing a method that permitted him
to ensure that he was d ownloading f iles only f

r o m D rey er’s computer, downloaded two imag es a nd a video, which, upon review, he confirme d contained c hild pornog raphy

. Id. Subsequent searches of Drey er’s seiz ed hard drives revealed several such files. Id. at 6–7. There can be little doubt, then, that Drey er trafficked in child pornog raphy

, an activity that is “intrinsically related to the sex ual abuse of children.” New Y o rk v. Ferber , 458 U.S. 747, 759 (1982).

Ap p l i c a tion of the ex clusionary rule would suppress all evidence obtained by Ag e n t L o g an. Moreover, as the majority opinion observes, without the e vidence obtained b y Ag ent L og an, it is probable that “ t h e r e w ould h a ve been no [ subsequent] search[ es] and no prosecution.” Maj. op. a t 15. Thus, application o f t h e e x clusionary rule to the alleg edly tainted e vidence and its fruits is likely to result in a convicted child pornog rapher being released from prison.

I t is impossible to state this conclusion without feeling its
g ravity

. I n this contex t, the Supreme Court’s warning ag ainst unnecessarily “setting the g uilty free and the dang erous a t larg e ” should g ive any jurist pause. Hudson

, 5 47 U.S. at 591.U N I T E D S T A T E S V

. D R

E Y E R 32

Yet, such a result would n ot b e u ncommon if we w ere to beg in apply ing the ex clusionary rule to PCA cases. Thus, the costs of ex clusion are hig h

.

B

Despite this cost, a

p plication o f the ex clusionary rule mig ht still be justified if there w ere e vidence of “widespread

an d r e p e ated violations” of the PCA. 3 R oberts

, 779 F .2d at 568. On this record, there is not.

The majority opinion primarily focuses on Ag ent L og an’s ostensible violations of the relevant reg ulations apply ing the PCA to the Navy

. Maj. op. at 2 1–22. B ut the actions of o ne ag ent—no matter how e gr eg ious—do not show that violations a

re widespread. Ag e nt L og a n’s descriptions o f his own practices are, therefore, of limited relevance.

Perhaps recog niz ing the thinness of this eviden c e , the majority o pinion also points o ut that Ag en t L og an “beg an carry ing out these searches with two other ag e nts a t least several months before he found D r ey er’s I P address.” Id. at

3 Ro b erts im

p lied th at ap plicatio n of th e ex clu sio n ary ru le in th e P CA

co n tex t co u ld be j u stif

ied

, an d I d o n o t q u estio n th at c o n clu s io n h ere. 7 7 9 F.2 d a t 56 8

. Ho w ev er, I n o te th at th ere is a stro n g arg u m en t to b e

m ad e th at ex clu s io n is n ever j u stif ied f o r v io latio n s o f

th e P CA

. Sev eral

c o n s i d e r atio n s m ig h t su

p p o rt su ch an arg u m en t, su ch as (1 ) th e f act th a t Co n g ress co u ld h av e p ro v id ed f o r ex clu sio n h ad it th o u g h t su ch a rem ed y

w as ap pro p riate; (2 ) th e P C A p ro v i d es f o r its o w n en f o rcem en t t

h ro u g h crim in al san ctio n s , see 1 8 U.S.C. § 1 3 8 5 ; an d (3 ) “ th e [P CA ] ex p ress[] a p o licy th at is f

o r t h e b en ef it o f th e p eo p l e as a w

h o le, b u t n o t o n e th at m ay f airly b e ch aracterized as ex p ressly d esig n ed to pro tect th e p erso n al rig h ts

o f d ef en d an t s,” W

a l d en , 4 9 0 F.2 d at 3 7 7

. Ho w ev er, ev en assu m in g th at th e ex clu sio n ary ru le co u ld b e ap p l ied to th e P CA co n tex t, I b eliev e w e d o

n o t y et h av e a reaso n

to d o so

.U N I T E D S T A T E S V

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E Y E R 33

2 2

. I t also references another supposed violation i n Kentucky

. Id. at 22 n.14. I f ail to see how evidence that four
ag ents committed violations—three of whom were part of the

same investig ative team—demonstrates a wide s pread problem. Such anecdotal evidence f alls far short of what our precedents require before we will r esort to the “ex traordinary

rem e d y ” of ex clusion, especially considering the cost o f doing so i n t h i s case. Roberts

, 7 79 F .2d at 568. I ndeed, at least one of our sister circuits rejected ex clusion in the face o f similarly scattershot evidence. W hen the E leven t h Circuit

was confronted with five alleg e d violations of the PCA within the same c ircuit over a ten-y ear period, it concluded that this amounted to only

a “few” incidents that provided “no basis” for apply i n g the ex clusionary rule. United States v

. Mendoza-Cecelia

, 963 F .2d 1467, 1478 n .9 (11th Cir. 1992), abrogated on other grounds as recog n ized by United States

v. Rainey
, 362 F .3d 733, 7 35 (11th Cir. 2004). The arg ument in favor of ex clusion is no more c o mp e l l i n g on the record before us.

F inally

, the majority opinion cit e s the g overnment’s litig ating p osition in this case as e vidence of “ a profound lack of reg a rd f or the important limitat i o n s on the r o le o f the military in our civilian society .” Maj. op. at 22. Reg ardless of whether that observation is true, it does nothing to show that there have, in fact, been w idespread a n d r e peated violations of the PCA; it simpl y shows that the g overnment wanted to win this case and pu t forward the best arg uments it could to justify what Ag ent L og an d id here. F rom the premise that the g o v ernment believes it has a c ertain power, it does not follow that the g overnment routinely ex ercises that
pow e r

. The g overnment’s litig ating position is, therefore, irrelevant to the Roberts inquiry

.U N I T E D S T A T E S V

. D R

E Y E R 34

Thus, far from having “abundant evidence that the violation at issue has occurred repeatedly and frequently

, ” Maj. op

. at 2 3
, w e h ave before u s a paucity of evidence that does not come close to o vercoming the “hig h obstac l e for those urg ing application of the [ ex clusionary ] rule.” Scott
, 524 U.S. at 364–65.

I V

Given the sig nificant costs of ex c lusion in PCA cases, a s well as the meag er evidence of PCA violations co n t ained in the record, I would hold that the violation at issue here does
not merit application of the e x clusionary rule. 4 The majority opinion’s contrary holding ig nores the Supreme Court’s clear teaching on ex clusion, our own precedents’ string ent test for application of that ex traordinary r em e d y , and the u niform rejection of e x clusion by federal courts in the PCA contex t. B ecause this case provides no justifi ca t i on for setting a convicted child pornog rapher free, I respectfully

dissent.

4 A s f o r Drey er’ s rem ain in g claim s, alth o u g h I w o u ld af f irm th e d istrict

co u rt acro ss th e b o ard

, I l i m i t m y d i scu ssio n h ere to th e issu e ad d ressed b y th e m aj o rity

o p in io n

.