Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

No. 05-10067

v.  D.C. No.

COMPREHENSIVE DRUG TESTING, MISC-04-234-SI

INC.,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

MAJOR LEAGUE BASEBALL PLAYERS 

ASSOCIATION,

No. 05-15006 Petitioner-Appellee,  D.C. No. v.

CV-04-00707-JCM

UNITED STATES OF AMERICA,

Respondent-Appellant. 

Appeal from the United States District Court

for the District of Nevada

James Mahan, District Judge, Presiding

1077
IN RE: SEARCH WARRANTS EXECUTED 

No. 05-55354 ON APRIL 8, 2004 AT CDT, INC.,

D.C. No. SEAL 1,

CV-04-02887-FMC Plaintiff-Appellant, 

v. ORDER AND

SUPERSEDING

SEAL 2, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, District Judge, Presiding

Argued and Submitted

November 15, 2005—San Francisco, California

Filed January 24, 2008

Before: Diarmuid F. O’Scannlain, Sidney R. Thomas, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Thomas

1078 UNITED STATES v. COMPREHENSIVE DRUG TESTING
COUNSEL

Erika R. Frick, Assistant United States Attorney, San Francisco, California, argued the cause for defendant-appellant,

United States of America; United States Attorney Kevin V.

Ryan, Appellate Chief Hannah Horsley, Assistant United

States Attorney Barbara J. Valliere, San Francisco, California;

and Assistant United States Attorneys Matthew A. Parrella,

Ross W. Nadel, Jeffrey D. Nedrow, Carter M. Stewart, San

Jose, California, were on the briefs. 

Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, California, argued the cause for defendants-appellees Comprehensive Drug Testing, Inc. and Major League Baseball Players

Association; Ethan A. Balogh, Keker & Van Nest, LLP, San

Francisco, California, and David P. Bancroft and Jeffrey C.

Hallam, Sideman & Bancroft, LLP, San Francisco, California,

were on the brief. 

ORDER

The petitions for panel rehearing are GRANTED. The

opinion and dissent filed on December 27, 2006, are withdrawn. The superseding opinion and dissenting opinion of

Judge Thomas will be filed concurrently with this order. 

The petition for rehearing en banc is DENIED as moot.

Further petitions for rehearing or rehearing en banc may be

filed.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1083
OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether the United States may retain evidence it seized from Major League Baseball’s drug testing

administrator, and enforce an additional subpoena, as part of

an ongoing grand jury investigation into illegal steroid use by

professional athletes.

I

These three consolidated cases arise from the federal investigation of the Bay Area Lab Cooperative (“Balco”) and its

alleged distribution of illegal steroids to enhance the performance of professional baseball athletes. The investigation

began in August 2002 and, over the following several years,

produced evidence—including grand jury testimony—

establishing probable cause to believe that at least 10 major

league baseball players received illegal steroids from Balco.

Today we decide the government’s appeals from the separate

adverse orders of three different district courts: (1) an order

by Judge Florence-Marie Cooper in the Central District of

California, denying reconsideration of her earlier order requiring the government to return property seized from Comprehensive Drug Testing, Inc. in Long Beach, California (“CDT”),1

(2) an order by Judge James Mahan in the District of Nevada,

requiring the government to return property seized from Quest

Diagnostics, Inc. in Las Vegas, Nevada (“Quest”),2 and (3) an

order by Judge Susan Illston in the Northern District of California, quashing the government’s May 6, 2004, subpoenas to

CDT and Quest that related to the grand jury sitting in San

Francisco, California.

1The court also required the government to turn over all notes made by

agents who reviewed the challenged evidence. 

2Again, the court required the government to give up all notes made by

reviewing agents. 

1084 UNITED STATES v. COMPREHENSIVE DRUG TESTING
A

As part of its investigation into Balco, the government in

November 2003 served a grand jury subpoena on Major

League Baseball (“MLB”),3 seeking drug testing information

for 11 players4 with connections to Balco. One month later,

MLB responded that it had no such information. 

The government then reasoned that because CDT5 and Quest6

had tested urine samples from MLB players during 2003,

those entities—rather than MLB—had to possess the samples

and testing records in question. Therefore, the government

issued subpoenas both to CDT and to Quest, seeking drug

testing information for all MLB players. The subpoenas were

returnable on February 5, 2004, but the government extended

that date to March 4, 2004, after CDT and Quest promised not

to destroy or to alter any of the evidence requested. 

Despite protracted negotiations, CDT and Quest resisted

producing any of the subpoenaed materials, explaining that

they would fight production of even a single drug test all the

3

“Major League Baseball,” an unincorporated association, consists of

two professional baseball leagues—the National League of Professional

Baseball Clubs and the American League of Professional Baseball Clubs.

4The names of the players are under seal and are not disclosed in this

opinion. 

5CDT is a third-party administrator of “drug and alcohol testing programs” that was hired to oversee MLB’s drug use evaluation program. The

company includes “top experts in pharmacology, forensic toxicology,

laboratory management, medical review, legal, and administrative

compliance.” Comprehensive Drug Testing: About Us, http://

www.cdtsolutions.com/about_us.html (last visited June 13, 2007). 

6Quest offers laboratories that conduct “drugs of abuse testing and therapeutic drug monitoring” with “the most advanced methodologies available.” Quest Diagnostics: Diagnostic Testing & Services, http://

www.questdiagnostics.com/brand/business/b_bus_lab_index.html (last

visited June 13, 2007). Quest’s laboratory in Las Vegas performed the

drug testing on the player specimens at issue in these consolidated appeals.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1085
way to the Supreme Court. Following further negotiations, the

government, believing that a narrower subpoena might be

effective, issued new subpoenas on March 3, 2004, seeking

documents related only to eleven7 players with Balco connections. These new subpoenas were returnable on April 8, 2004.

Two days before the new return date, the Major League

Baseball Players’ Association—the union representing athletes who play for Major League Baseball8

 —informed the

government that it intended to file a motion to quash the subpoenas. The following day, as promised, CDT and the Players

Association filed such a motion in the Northern District of

California before United States District Judge Jeffrey White.

B

After learning of the planned motion to quash, the government applied on April 7, 2004, for warrants to search CDT’s

Long Beach office and Quest’s Las Vegas laboratory. The

government expected to find testing evidence at both locations and knew that the information at CDT would be needed

to obtain all relevant records from Quest, because Quest

stored each testing record by code, not name, and CDT possessed the information identifying the code(s) that corresponded to each player in its testing program. Upon a

showing of probable cause,9 Magistrate Judge Jeffrey Johnson

in the Central District of California issued a search warrant

for the CDT office,10 and Magistrate Judge Lawrence Leavitt

7The government later decided not to seek drug testing evidence related

to one of the eleven players, and on April 22, 2004, sent a letter to counsel

for CDT withdrawing requests for documents related to that player. 

8The testing records at issue in these cases were created pursuant to a

collective bargaining agreement between Major League Baseball and the

players of Major League Baseball (represented by the Major League Baseball Players’ Association). 

9No party disputes the existence of probable cause to support the April

7, 2004, warrants. 

10The warrant was not limited to the identifying numbers of the ten

players, although those numbers were integral to obtaining meaningful

information from Quest and thus played a special role in the investigation.

1086 UNITED STATES v. COMPREHENSIVE DRUG TESTING
in the District of Nevada issued a search warrant for the Quest

laboratory.11 Affidavits submitted to support the warrants

informed both magistrates that the information sought was

already the subject of grand jury subpoenas and that a motion

to quash was expected.12 Contrary to the arguments of the

Players Association and CDT, the government did not premise its April search warrant affidavits on a claim that the evidence was in danger of being destroyed.13

The April 7 warrants authorized the seizure of drug testing

records and specimens for ten named Balco-connected players, as well as “[a]ll manuals, pamphlets, booklets, contracts,

agreements and any other materials detailing or explaining”

CDT’s or Quest’s “administration of Major League Baseball’s

drug testing program.”

14 The warrants also authorized the

search of computer equipment, computer storage devices, and

11Federal Rule of Criminal Procedure 41(b) authorizes the government

to pursue search warrants in different districts. The rule gives a magistrate

judge the authority “to issue a warrant to search for and seize a person or

property located within the district,” “to issue a warrant for a person or

property outside the district if the person or property is located within the

district when the warrant is issued but might move or be moved outside

the district before the warrant is executed,” or “in an investigation of

domestic terrorism or international terrorism . . . [to] issue a warrant for

a person or property within or outside that district.” Fed. R. Crim. P.

41(b). 

12See infra pp. 1109-1110. 

13Loss of electronic evidence during delays in litigation is a considerable risk. In its recent publication advising judges on how to manage electronic discovery in civil cases, the Federal Judicial Center explained that

judges should consider “preservation order[s]” to “minimize the risk that

relevant evidence will be deliberately or inadvertently destroyed” and to

“help ensure information is retrieved when it is most accessible (i.e.,

before it has been deleted or removed from active online data).” Federal

Judicial Center, Managing Discovery of Electronic Information: A Pocket

Guide for Judges 17 (eds. Barbara Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins) (2007) [hereinafter “Managing Discovery”]. 

14The warrant also expressly authorized the seizure of “correspondence”

and “e-mails” detailing or explaining Quest’s administration of the drug

testing program. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1087
—where an on site search would be impracticable—seizure of

either a copy of all data or the computer equipment itself.

“[L]aw enforcement personnel trained in searching and seizing computer data” (designated “computer personnel”) were

responsible for choosing the appropriate course of action to

capture the electronic data sought. If seizure of all data or

equipment was necessary, “appropriately trained personnel”

would review the data, retaining the evidence authorized by

the warrant and designating the remainder for return. 

On the morning of April 8, 2004, Special Agent Jeff

Novitzky (the lead case agent) and eleven other federal agents

—including Computer Investigative Specialist Agent Joseph

Abboud—executed the search warrant for CDT’s Long Beach

office. Although CDT personnel were initially cooperative,

one of CDT’s directors—after speaking with counsel—

informed Agent Novitzky that CDT would not assist federal

officers in locating the evidence they were authorized to seize

and that the agents should “do what they needed to do.” When

informed that agents might be forced to seize all computer

equipment for up to sixty days, the director again contacted

counsel, exclaiming that such a seizure would “shut[ ] the

business down.” 

Throughout the morning and early afternoon, Agent

Novitzky spoke several times with CDT’s attorney, David

Bancroft. Bancroft asked Agent Novitzky not to seize anything while he attempted to work out a beneficial solution

with the United States Attorney’s Office in San Francisco.

Later, Bancroft told the agent that CDT had only one hardcopy document eligible for seizure. Around noon, both Agent

Novitzky and Assistant United States Attorney Jeff Nedrow

spoke with Bancroft and CDT’s directors via conference call.

Bancroft emphasized that any help CDT provided should not

be construed to constitute consent and then informed Nedrow

and Agent Novitzky that CDT had two computers on which

agents would find information relevant to the search warrant.

1088 UNITED STATES v. COMPREHENSIVE DRUG TESTING
During this conference call, Agent Novitzky learned that

agents had discovered a hard-copy document with names and

identifying numbers for all MLB players, including some of

the ten named Balco players. Agent Novitzky faxed the document, which was not the “only document eligible for seizure”

to which Bancroft had alluded, to Nedrow for preparation of

another search warrant to seize specimen samples from Quest

based on the identifying numbers. One of CDT’s directors

became visibly upset when she noticed the document being

faxed. She left the premises, but when she returned, she

opened a locked drawer and presented agents with a document that contained drug test results for the ten named Balco

players—the document previously described as the only seizable hard-copy document on site.15

At 2:35 p.m., a CDT director finally identified a computer

directory containing all of the computer files for CDT’s sports

drug testing programs. This directory, labeled “Tracey,” contained numerous subdirectories and hundreds of files. Seeing

this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site.

The warrant had anticipated that such removal might be necessary, and provided: 

If the computer equipment and storage devices

cannot be searched on-site in a reasonable amount of

time, then the computer personnel will determine

whether it is practical to copy the data during the

execution of the search in a reasonable amount of

time without jeopardizing the ability to preserve the

data. 

15Some time later, agents located a billing document for CDT’s off-site

Long Beach storage locker. Only after agents obtained a fourth warrant

from Magistrate Judge Johnson on April 8, 2004, allowing them to search

and seize evidence in the locker, did a CDT director agree to open the

locker for the agents. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1089
The agents copied the directory and removed the copy for

later review at government offices.16

The search of the CDT facility concluded shortly after 5

p.m., but before he left the premises, Agent Novitzky

reviewed with CDT directors the evidence seized during the

search. The documents seized included a 25-page master list

of all MLB players tested during the 2003 season and a 34-

page list of positive drug test results for eight of the ten

named Balco players, intermingled with positive results for 26

other players.17 Upon returning to his office in San Jose, California, Agent Novitzky briefly reviewed the contents of the

Tracey directory, identifying five subdirectories related to

MLB. Within these directories, Agent Novitzky identified

files authorized by magistrate judges for seizure, including the

master file of positive drug test results. 

During the time in which Agent Novitzky and others were

searching CDT on April 8, 2004, another group of federal

agents had executed simultaneously a separate search warrant

at Quest’s laboratory in the District of Nevada. However,

these agents were unable to locate the specimens that the warrant authorized them to seize, because the search warrant in

the District of Nevada listed the players by name, and the

Quest specimens were identified only by number. 

Quest employees informed the searching agents in the District of Nevada that the records associating the players with

their identifying numbers could be found in files stored by

16The warrant also provided for the circumstances in which “computer

personnel determine it is not practical to perform an on-site search or

make an on-site copy of the data within a reasonable amount of time,” and

then allowed “the computer equipment and storage devices [to] be seized

and transported to an appropriate law enforcement laboratory for review.”

The agents did not make use of this procedure, however, because Agent

Abboud determined that copying the data was possible. 

17Copies of all seized documents were provided to CDT by the government on April 16, 2004. 

1090 UNITED STATES v. COMPREHENSIVE DRUG TESTING
CDT. Indeed, these records soon were discovered by agents

at CDT and faxed to the agents at Quest.18 With this information, the agents in the District of Nevada applied for a third

search warrant to seize the relevant items identified by number as well as by name. Judge Leavitt authorized this third

warrant at 6 p.m. on April 8, 2004, and agents seized from

Quest the then-identifiable Balco players’ specimens later that

same night. 

C

On April 26, 2004, the Players Association filed motions

under Fed. R. Crim. P. 41(g) (hereinafter “Rule 41(g)”)19

seeking return of the property seized.20

18See supra pp. 1089. 

19Fed. R. Crim. P. 41(g) reads: 

Motion To Return Property. A person aggrieved by an unlawful

search and seizure of property or by the deprivation of property

may move for the property’s return. The motion must be filed in

the district where the property was seized. The court must receive

evidence on any factual issue necessary to decide the motion. If

it grants the motion, the court must return the property to the

movant, but may impose reasonable conditions to protect access

to the property and its use in later proceedings. 

20On April 30, the government applied for a fifth search warrant in the

Northern District of California, asking for authorization to “seize” all electronic data “regarding drug specimens, drug testing, specimen identification numbers, athlete identification numbers, and drug test results, retained

by [CDT] . . . pertaining to the drug testing of Major League Baseball

players, located within the copy of a CDT computer sub-directory currently in the possession of the [Internal Revenue Service (“IRS”)] in San

Jose, California, identified as the ‘Tracey’ sub-directory, bearing the following computer file group names: (1) ‘MAJOR LEAGUE GROUP’ (2)

‘MLB BILLING’ (3) ‘MLB Drug SubCommittee’ (4) ‘MLB Follow UP’

(5) ‘MLB IOC.’ ” Because this copy of the Tracey directory was in the

hands of the IRS in San Jose, in the Northern District of California, the

government sought the search warrant in that district. See Fed. R. Crim.

P. 41(g). Magistrate Judge Howard Lloyd approved the warrant. The government did not notify CDT, presumably because the IRS already had in

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1091
Meanwhile, the government continued to pursue its investigation. On May 5, using information culled from the Tracey

directory, the government applied for new search warrants to

seize all specimens and records relating to more than 100 nonBalco players who had tested positive for steroids. Magistrate

Judge Leavitt in the District of Nevada authorized seizure of

the specimens from Quest, and Magistrate Judge Rosalyn M.

Chapman in the Central District of California authorized the

seizure of records from CDT. Again, the government sought

and obtained each warrant from the district court whose jurisdiction encompassed the situs of the property to be searched,

as directed by Fed. R. Crim. P. 41(b).21 The government executed the warrants on May 6, and the Players Association

immediately filed motions under Rule 41(g), seeking return of

the specimens and records seized. 

its possession the copy of the entire directory containing the relevant

materials. 

The Players Association subsequently filed a Rule 41(g) motion in the

Northern District of California seeking return of any property taken pursuant to the April 30 search warrant, and on August 9, 2004, Judge Illston

granted this motion. The government did not appeal the order and does not

dispute it now. Instead, the government asserts that it retains the right to

review the Tracey directory based upon the April 7 search warrants, a contention we address in this consolidated appeal. 

Insofar as the dissent suggests that the pursuit of the April 30 search

warrant evidences bad faith harassment by the government and an attempt

to evade a possibly adverse order on the motion for return of property filed

in the Central District of California, we decline to speculate. We have no

reason to believe that the government sought the April 30 warrant for purposes of harassment, rather than to avoid an additional search of CDT that

would have followed from authorization to seize the original copy in the

Central District. Since no district court has ever held an evidentiary hearing, and the government complied with the commands of the criminal

rules to secure search warrants from the magistrate judges in whose districts the property was located, based upon a showing of probable cause

that incriminating evidence would be found, we do not discern sufficient

indicia of bad faith to support a contrary conclusion. 

21See supra note 11. 

1092 UNITED STATES v. COMPREHENSIVE DRUG TESTING
On August 19, 2004, Judge Mahan ruled from the bench.

He granted the Rule 41(g) motion brought by the Players

Association in the District of Nevada and ordered the government to return all specimens seized from Quest and all notes

and memoranda compiled by agents who reviewed the evidence, other than those pertaining to the ten Balco players

named in the original search warrant.22 He made findings—

without conducting an evidentiary hearing—that “[t]he government callously disregarded the affected players’ constitutional rights” and that the government unreasonably refused

“to follow the procedures set forth in United States v. Tamura,

694 F.2d 591 (9th Cir. 1982),” with regard to the intermingled

records seized in the Central District of California. Almost six

weeks later, and again without conducting an evidentiary

hearing, Judge Cooper rejected the government’s suggestion

that the documents were seizable under the warrant exception

that applies to plain-view evidence of contraband,23 and

granted the Players Association’s Rule 41(g) motion in the

Central District of California. The order, which also cited the

government’s failure to follow Tamura’s procedures, mandated return to CDT of any evidence seized that was not connected to the ten players named in the warrant. Judge Cooper

denied the government’s motion for reconsideration of this

order on February 9, 2005. 

These orders are the subjects of two of the appeals consolidated here.24

22The government moved for a stay of this order because the evidence

was otherwise lawfully in its possession pursuant to the subpoena of May

6, 2004. Judge Mahan denied the motion on November 1, 2004, based on

the government’s failure to raise the subpoena argument at the original

hearing. 

23We discuss the inapplicability of this warrant exception in Section

III.A.4. See infra note 48. 

24The government returned to CDT and Quest all items mandated for

return under the two district court orders pending resolution of the appeals.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1093
D

The third appeal concerns grand jury subpoenas issued to

Quest and CDT on May 6, 2004, which were to be returned

by June 10, 2004. These subpoenas reached all specimens and

records of positive steroid drug tests for more than 100 MLB

players and were not confined to records pertaining to the ten

Balco players named in the earlier subpoenas.25 The government also sought search warrants for this larger swath of evidence on the ground that the April 8 seizures did not provide

all information needed for the investigation.26

Quest complied with the May 6 subpoena, providing the

government with hundreds of pages of documents, but the

government agreed to defer CDT’s compliance pending resolution of the search warrant litigation. On August 31, 2004,

however, the government revoked the indefinite deferral and

instructed CDT to comply with the subpoena by September

14, 2004. The Players Association filed a motion to quash the

subpoenas on September 13, 2004. 

25These subpoenas were not the first ones issued in the investigation.

The first subpoenas, dated January 16, 2004, mandated the provision of all

MLB drug testing records. On March 3, 2004, the government obtained

narrower subpoenas for eleven Balco-connected players. 

On April 22, 2004, the government sent a letter to CDT withdrawing the

January 2004 subpoenas. In the same letter, the government reduced the

March 3, 2004, subpoenas to ten, not eleven, Balco players. At the time

the government obtained the May 6 subpoenas, the only outstanding subpoenas were those of March 3, which sought the records of ten players

with Balco connections. 

26Recognizing that the documents they seized from CDT pursuant to the

April 7 search warrant might not have included all documents relevant to

the investigation (even with regard to Balco-related players, see infra note

46 and accompanying text), and deciding that the positive test results

uncovered for MLB players beyond the ten with Balco connections could

be valuable to the investigation, the government sought a broader warrant

on May 6 in the Central District of California. 

1094 UNITED STATES v. COMPREHENSIVE DRUG TESTING
In December 2004, after hearing argument but without taking testimony, Judge Illston found that the government’s conduct was unreasonable and constituted harassment. She filed

an order quashing the subpoenas, which the government

timely appealed.

II

Before we review the orders granting the Rule 41(g)

motions in the Central District of California and the District

of Nevada, we must decide two jurisdictional issues: whether

the Players Association has standing to challenge the search

and seizure of evidence from Quest and whether the government timely appealed Judge Cooper’s order to return the

materials seized from CDT in the Central District of California.27

A

The government contends that the Players Association

lacks standing to file the Rule 41(g) motion, because it lacked

access, control, and ownership over the records and specimens seized from Quest. Furthermore, it argues that the Players Association may not base its interest in the property (the

urine specimens and test results) on the privacy interests of

the individual players.28

27We need not decide whether the Players Association has standing to

challenge the CDT seizures because CDT is a party and has standing on

its own to seek return of the property seized from its office and storage

locker. 

28The Supreme Court has clearly rejected “vicarious” or “target” standing to assert Fourth Amendment rights. See Rakas v. Illinois, 439 U.S.

128, 133-34 (1978) (refusing to extend standing to a party who was not

a “victim” of the search); see also United States v. Taketa, 923 F.2d 665,

669-70 (9th Cir. 1991) (following Rakas, 439 U.S. at 134, and holding that

a defendant did not have standing to challenge a search of another defendant’s office). “A person who is aggrieved by an illegal search and seizure

only through the introduction of damaging evidence secured by a search

of a third person’s premises or property has not had any of his Fourth

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1095
[1] An association has standing to sue on behalf of its

members when they would otherwise have independent standing to sue, the interests sought to be protected are germane to

the organization’s purpose, and the claim asserted does not

require the participation of individual members in the lawsuit.

Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988); see also

Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343

(1977). 

[2] We are satisfied that the Players Association satisfies

each prong of this test. First, the Players Association represents all MLB players, each one of whom could certainly sue

in his own right to seek return of his own drug testing records.

Second, the interests sought to be protected—the players’ privacy interests in their drug testing records—are related to the

organization’s sole purpose: to represent the interests of MLB

players. Third, the Players Association sought only the return

of the players’ drug testing information and specimens; for

this type of prospective relief, the individual players need not

be parties to the action. See Warth v. Seldin, 422 U.S. 490,

515 (1975) (holding that an association lacked standing where

it sought damages rather than “a declaration, injunction, or

some other form of prospective relief”). 

[3] We therefore conclude that the Players Association has

standing to assert the Fourth Amendment rights of its members sufficient to file Rule 41(g) motions seeking return of

seized property in which their members hold privacy interests.

B

[4] The Players Association and CDT contend that the government failed to appeal in a timely manner Judge Cooper’s

Amendment rights infringed.” Rakas, 439 U.S. at 134 (emphasis added).

Because we are satisfied that the Players Association has met the requirements of associational standing, we do not reach its argument that it has

an ownership interest in the seized items sufficient to establish standing

in its own right. We leave that question for another day. 

1096 UNITED STATES v. COMPREHENSIVE DRUG TESTING
order for the return of property. In order to be timely when the

United States, its officer, or its agency is a party, a notice of

appeal must be filed “within 60 days after the judgment or

order appealed from [was] entered.” Fed. R. App. P.

4(a)(1)(B). 

Judge Cooper’s order granting the motion for a return of

property was filed on October 1, 2004. On November 19,

2004, 17 days after receiving notice of the order, the government filed a “Motion for Reconsideration and Modification of

Court’s October 1, 2004 Order Granting Return of Property,”

asking the district court to modify the factual descriptions of

the government’s conduct. Judge Cooper reviewed this

motion on the merits under Central District of California

Local Rule 7-18 (governing “Motion[s] for Reconsideration”).29

Concluding that “the Government identifie[d] no material

facts that the Court failed to consider,” she denied the motion

on February 9, 2005. On March 9, 2005, the government filed

a notice of appeal, challenging both the original Rule 41(g)

order and the denial of the motion for reconsideration. 

[5] We have jurisdiction to review the denial of the motion

for reconsideration, because the notice of appeal was filed

within 60 days of that order. See Fed. R. App. P. 4(a)(1)(B).

However, because the notice of appeal was filed more than

five months after the order granting the Rule 41(g) motion,

29Central District of California Local Rule 7-18 reads: 

A motion for reconsideration of the decision on any motion

may be made only on the grounds of (a) a material difference in

fact or law from that presented to the Court before such decision

that in the exercise of reasonable diligence could not have been

known to the party moving for reconsideration at the time of such

decision, or (b) the emergence of new material facts or a change

of law occurring after the time of such decision, or (c) a manifest

showing of a failure to consider material facts presented to the

Court before such decision. No motion for reconsideration shall

in any manner repeat any oral or written argument made in support of or in opposition to the original motion. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1097
we can review that underlying order only if the motion for

reconsideration tolled the 60-day period to file an appeal. 

[6] Federal Rule of Appellate Procedure 4(a) sets forth specific rules for calculating the time to file an appeal, and permits tolling for certain motions for reconsideration made

under the Federal Rules. See Fed. R. App. P. 4(a)(4)(iv), (vi).

A motion for reconsideration may be eligible for tolling even

if it was not filed or considered under the Federal Rules, as

long as the motion could have been filed as a motion “to alter

or amend the judgment under Rule 59” or a motion “for relief

under Rule 60 if the motion is filed no later than 10 days after

the judgment is entered.” See Fed. R. App. P. 4(a)(4)(iv), (vi);

Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857,

863 (9th Cir. 2004) (holding that tolling was appropriate

under Fed. R. App. P. 4(a), because a motion for partial

reconsideration that “[did] not state under which rule the

motion was brought” could be construed under Rule 59(e));

see also United States v. Nutri-cology, Inc., 982 F.2d 394, 397

(9th Cir. 1992) (“A motion, however labelled [sic], served

within ten days of the entry of an order that could have been

brought under Rule 59(e) tolls the time for filing a notice of

appeal.”).30

The Players Association and CDT argue that the government’s motion cannot be treated as a motion for reconsideration for tolling purposes, because it was merely “styled as one

for reconsideration,” and only “asked the court to water down

30Nutri-cology stated that “motions made under Rule 60(b) do not toll

the time for filing a notice of appeal,” but that because the “government’s

motion for reconsideration . . . could have been brought under Fed. R. Civ.

P. 59(e) . . . [it] toll[ed] the time for filing a notice of appeal.” 982 F.2d

at 397. That decision predated a 1998 amendment to Fed. R. App. P. 4(a),

which inserted a provision allowing motions filed under Rule 60(b) to also

toll the time to file an appeal, if such motions were filed within 10 days

of the entry of judgment. See Fed. R. App. P. 4(a), advisory committee’s

note. The tolling analysis in Nutri-cology now applies to both Rule 59(e)

and 60(b) motions. See Shapiro, 374 F.3d at 863. 

1098 UNITED STATES v. COMPREHENSIVE DRUG TESTING
its findings” without claiming that “the Court failed to evaluate the merits.” We disagree. The government’s motion asked

Judge Cooper to “reconsider and modify several aspects of

[her] order which inaccurately characterize[d] the government’s actions,” while expressly clarifying that it was “not

asking for a substantive reconsideration of the Court’s ultimate return order.” The motion proposed several specific

deletions of language in the opinion. These requests constitute

a motion for reconsideration and may be treated under the

Federal Rules governing such motions. See Am. Ironworks &

Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99

(9th Cir. 2001) (“[A] ‘motion for reconsideration’ is treated

as a motion to alter or amend judgment under Federal Rule of

Civil Procedure Rule 59(e) if it is filed within ten days of

entry of judgment . . . . Otherwise, it is treated as a Rule 60(b)

motion for relief from a judgment or order.” (citing Nutricology, 982 F.2d at 397)). 

[7] In this case, whether the motion could have been filed

under Rule 59(e) or could have been filed under Rule 60(b)

makes no difference. Either way, the government’s motion

fails to satisfy the time requirements for tolling under Fed. R.

App. P. 4(a). To be eligible for tolling, the motion had to have

been filed by October 11, 2005—ten days after the order

granting the Rule 41(g) motion. See Fed. R. App. P. 4(a)(4).

The motion was filed forty-nine days after the order, exceeding the time period by thirty-nine days. 

The government seeks an alternative avenue to obtain tolling by arguing that it did not receive notice of the order until

November 2, 2004, and therefore that the time limit should

not be calculated from the date of the entry of judgment. We

agree that delays in notice may offer a basis for filing after the

normal deadline, but the Federal Rules expressly state that

parties must request an extension of time to file an appeal in

such circumstances. See Fed. R. App. P. 4(a)(6) (permitting

a district court to reopen the time to file an appeal where a

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1099
party did not receive notice);31 see also Fed. R. App. P.

4(a)(5) (allowing a district court to extend the time to file an

appeal upon a showing of excusable neglect or good cause).32

The government never sought an extension of its time to

file a notice of appeal. Instead, in a footnote to its motion for

reconsideration, the government made the strange request for

“leave to file this motion for reconsideration” at a point “outside of the normal time frame for the filing such motions.”

Yet the motion was timely under the local rule on motions for

reconsideration, see C. D. Cal. Local Rule 7-18, as well as

under the applicable federal rule, see Fed. R. Crim. P. 60(b).

Neither the Players Association nor the district court

responded to the government’s odd request; they simply

focused on the merits of the motion for reconsideration.

Although we are not certain why the government requested

special cognizance of the motion, we imagine that it may have

feared that the district court otherwise would dismiss the

motion as untimely under Rule 59(e). In any case, the government’s request did not constitute a motion for an extension of

time to file an appeal, because the narrow and precise request

asked the court to review the motion for reconsideration without any mention of a future filing, and never invoked any

local or federal rule allowing time to extend the time to file

an appeal.33

31An extension under this rule may be granted upon a finding that the

party did not receive notice of the order sought to be appealed, that the

party filed “the motion” within 180 days after the judgment or order or

within 7 days after receiving notice, whichever is earlier, and that no party

would be prejudiced. Fed. R. App. P. 4(a)(6)(A)-(C). 

32A party invoking this rule must move “no later than 30 days after the

time prescribed by Rule 4(a) expires” and must show “excusable neglect

or good cause.” Fed. R. App. P. 4(a)(5)(A). An extension under this rule

may not exceed “30 days after the prescribed time or 10 days after the date

when the order granting the motion is entered.” Fed. R. App. P. 4(a)(5)(C).

33Moreover, even if we were to calculate the time to file a motion for

reconsideration or a notice of appeal from the date of notice—November

2, 2004—rather than the date of entry of judgment—October 1, 2004—the

1100 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The government seeks to evade the conclusion that its

notice of appeal was too late by arguing that the Players Association waived the right to raise a timeliness objection by first

raising such claim in its petition for rehearing. Basing its

argument on the Supreme Court’s decision in Eberhart v.

United States, 546 U.S. 12 (2005), and on our decision in

United States v. Sadler, 480 F.3d 932 (9th Cir. 2007), the government argues that the relevant tolling provisions of Fed. R.

App. P. 4(a) are nonjurisdictional and that the Players Association forfeited any argument that they were not satisfied. 

In Eberhart, the Supreme Court addressed the question of

what time limitations are jurisdictional. Acknowledging that

its prior decision in United States v. Robinson, 361 U.S. 220

(1960), “ha[d] created some confusion because of its observation that ‘courts have uniformly held that the taking of an

appeal within the prescribed time is mandatory and jurisdictional,’ ” the Court distinguished “nonjurisdictional claimprocessing rules” from rules that “deprive federal courts of

subject-matter jurisdiction.” 546 U.S. at 16. The Court

explained that only the former could be forfeited. See id. at 19

(holding that the “Court of Appeals should . . . have proceeded to the merits” of a Fed. R. Crim. P. 33 motion based

government’s motion for reconsideration was filed seven days too late to

toll the time to file a notice of appeal under Fed. R. App. P. 4(a). And if

we were to read the government’s request as a motion for an extension of

time to file an appeal under Fed. R. App. P. 4(a)(6), and the court’s February 9, 2005, order denying the motion for reconsideration as an implied

grant of such motion for an extension, the government’s notice of appeal

still would have been untimely. The government filed its notice of appeal

on March 9, 2005, but Fed. R. App. P. 4(a)(6) would have allowed an

extension only until February 23, 2005 (14 days after the order). See id.

Similarly, the notice of appeal would have been too late under Fed. R.

App. P. 4(a)(5), which would have allowed an extension only until February 19, 2005 (10 days after the order). See id. at 4(a)(5)(C). Thus, even if

the government had requested and received an extension of time under the

federal rules, its notice of appeal was filed too late to allow us to review

the underlying order granting the Rule 41(g) motion. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1101
on a court-imposed rule, because “where the Government

failed to raise a defense of untimeliness until after the District

Court had reached the merits, it forfeited that defense”). 

[8] Whether a federal rule establishing a time limitation

imposes a jurisdictional rule depends on whether the rule

derives from a statute. See Kontrick v. Ryan, 540 U.S. 443,

452 (2004) (holding that “statutory provisions . . . contain[-

ing] built-in time constraints” create jurisdictional limits but

that jurisdiction is not affected by “Court prescribed ‘rules of

practice and procedure’ ” (citation omitted)); Sadler, 480 F.3d

at 937 (“Rules provisions governing timeliness that do not

implement congressionally mandated ‘built-in time constraints’ are therefore properly considered nonjurisdictional

limitations, subject to forfeiture.” (quoting Kontrick, 540 U.S.

at 453). 

In Sadler, we applied this distinction to Fed. R. App. P. 4.

We concluded that “the timeliness dictates of Rule 4(b) are

forfeitable, because Rule 4(b) is a nonjurisdictional claimprocessing rule.” 480 F.3d at 940 (emphasis omitted). We

contrasted the mandates of Fed. R. App. P. 4(a): “Congress

has specifically limited our jurisdiction to hear civil appeals

at 28 U.S.C. § 2107(a), which codifies the same time constraints on the filing of civil appeals (but only civil appeals)

that exist in Rule 4(a).” Id. at 937 (footnote omitted). 

[9] The government seeks to benefit from the distinction

between jurisdictional and forfeitable claims under Fed. R.

App. P. 4 by arguing that the Rule 41(g) motion should be

treated under the criminal rule, Fed. R. App. P. 4(b), because

the motion sought a return of property used in a criminal investigation.34 But our governing caselaw makes clear that a Rule

34Undoubtedly, the notice of appeal would have been untimely under

the criminal rule absent forfeiture of that claim, for that rule gives the government only 30 days to file an appeal and has no provision for tolling

during pendency of motions for reconsideration such as the one at bar. See

Fed. R. App. P. 4(b). 

1102 UNITED STATES v. COMPREHENSIVE DRUG TESTING
41(g) motion is “treated as [a] civil equitable proceeding[ ].”

Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993).

The proper rule for considering civil appeals from the disposition of a Rule 41(g) motion is thus Fed. R. App. P. 4(a). 

Our dicta in Sadler states that the timing requirements of

Fed. R. App. P. 4(a) are jurisdictional and that claims under

that rule are not forfeited. See 480 F.3d at 937. The Supreme

Court recently addressed this issue. In Bowles v. Russell, 127

S.Ct. 2360 (2007), the Court ruled that Fed. R. App. P.

4(a)(6), which allows a court to grant a 14-day extension to

file an appeal, established a jurisdictional requirement. Id. at

2366. Explaining that “Congress specifically limited the

amount of time by which district courts can extend the noticeof-appeal period in § 2107(c), that limitation is more than a

simple ‘claim-processing rule’ ” and therefore the petitioner

could not rely on it “to excuse his lack of compliance with the

statute’s time limitations.” Id. 

[10] Bowles does not specifically discuss Fed. R. App. P.

4(a)(4), the tolling provision relevant here. The government

argues that “Rule 4(a) does not incorporate a statutory time

limit in its provision of tolling for Rule 59(e) or Rule 60

motions” and therefore that any failure to comply with the

rule should be immunized against belated attack. However,

although Fed. R. App. P. 4(a)(4) does not contain language

from 28 U.S.C. § 2107, which lacks a tolling provision, the

Supreme Court’s decision in Bowles suggests that the same

characterization applies: “Today we make clear that the

timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Id. 

[11] And even if Bowles did not settle the matter with

respect to Fed. R. App. P. 4(a)(4),35 we could not consider the

35An argument can be made on this score, as the advisory committee’s

note to Fed. R. App. P. 4(a)(4) reveals that this provision was created by

the Court and amended in light of developing caselaw. While the advisory

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1103
underlying order granting the Rule 41(g) motion. In order to

accept the government’s argument, we would have to grant

the jurisdictional benefit of tolling while denying the tolling

rule’s jurisdictional significance. We cannot defeat logic or

text in this manner. If Fed. R. App. P. 4(a)(4) is jurisdictional,

the government’s motion does not qualify for tolling because

it was filed outside the time frame specified in that rule. See

Fed. R. App. P. 4(a)(4)(iv), (vi) (permitting tolling for such

motions only if they are filed within 10 days of entry of judgment).36 If Fed. R. App. P. 4(a)(4) is nonjurisdictional, satisfaction of that provision (or forfeiture of a claim that the

government failed to satisfy it) would not enable us to ignore

the jurisdictional 60-day rule of Fed. R. App. P. 4(a)(1).37 See

committee’s note links Fed. R. App. P. 4(a)(1) to 28 U.S.C. § 2107, the

note contains no statutory link for Fed. R. App. P. 4(a)(4). And although

the notes state that compliance with the rule “places jurisdiction in the

courts of appeals,” that use of the word “jurisdiction” is the kind of imprecise terminology clarified in Kontrick that distinguishes between statutory

and court-based rules. See 540 U.S. at 454 (“Courts, including this Court,

it is true, have been less than meticulous in this regard; they have more

than occasionally used the term ‘jurisdictional’ to describe emphatic time

prescriptions in rules of court. ‘Jurisdiction,’ the Court has aptly observed,

‘is a word of many, too many, meanings.’ ” (quoting Steel Co. v. Citizens

for Better Env’t, 523 U.S. 83, 90 (1998) ). 

36The district court’s order denying the motion for reconsideration on

the merits did not constitute an implicit grant of an extension of time to

file within the tolling period, and even if it did, such an extension would

carry no weight: even the Supreme Court has “no authority to create equitable exceptions to jurisdictional requirements.” Bowles, 127 S. Ct. at

2366. 

37Fed. R. App. P. 4(a)(4) does not provide exceptions to tolling. Instead,

the rule permits tolling based on a limited set of motions—including

motions for reconsideration filed within 10 days of entry of judgment. If

that provision were nonjurisdictional, the Players Association and CDT

could not raise its 10-day limitation as a bar to tolling under it. But neither

could the government invoke it as a reason to alter the 60-day time limit

provided by Fed. R. App. P. 4(a)(1). No other provision of the Federal

Rule would permit tolling for a motion for reconsideration, rendering the

government’s argument ineffective. 

1104 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Bowles, Slip Op. at 8. Under either interpretation of Fed. R.

App. P. 4(a)(4), the government’s notice of appeal was

untimely as to Judge Cooper’s underlying order granting the

Rule 41(g) motion and must be dismissed for lack of jurisdiction.38

III

Having thus disposed of the two preliminary matters of

standing and jurisdiction, we turn to the merits of Judge Cooper’s order denying the motion for reconsideration in the Central District of California. We review such orders for an abuse

of discretion. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d

1097, 1100 (9th Cir. 2004) (“We review the denial of a

motion for reconsideration for abuse of discretion.” (citation

omitted)); see also United States v. Washington, 98 F.3d

1159, 1163 (9th Cir. 1996) (“This court reviews a district

court’s denial of a Rule 60(b) motion for an abuse of discretion.”). If a district court premises such denial upon a legal

determination, the legal issue must be reviewed de novo.

Smith, 358 F.3d at 1100 (citations omitted) (“Whether such a

denial rests on an inaccurate view of the law and is therefore

an abuse of discretion requires us to review the underlying

legal determination de novo.”); see also Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.

2003) (en banc) (per curiam) (“The district court’s interpretation of the underlying legal principles, however, is subject to

de novo review and a district court abuses its discretion when

it makes an error of law.”). 

The government confined its motion for reconsideration in

this case to factual matters: “While the government respectfully disagrees with the Court’s conclusion that movants are

entitled to a return of property as a matter of law, the govern38Because the notice of appeal was timely only as to her denial of the

government’s motion for reconsideration, we limit our review to that order

in Part III. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1105
ment emphasizes that it does not herein request reconsideration of the Court’s core order requiring the return of the items

seized . . . .” Instead, the motion asked the court only to “reconsider and modify several aspects of this order which inaccurately characterize the government’s conduct in this case.”

The motion argued that the district court had failed to consider aspects of the record that would have belied its finding

that the government’s behavior was “egregious,” that the

investigating agents failed to comply with the search warrant,

that the agents lacked a lawful right to seize the intermingled

documents, and that the government “ ‘blatant[ly] misrepresent[ed]’ . . . the danger of destruction of records.” The government offered evidence for the district court to consider and

requested deletions of findings of misconduct from the order.

Judge Cooper rejected these proposed modifications. She

assured the government that she “did not fail to consider the

explicit language of the warrant.” She characterized her conclusion that “the agent[s] did not have a lawful right of access

to the computer records” as a legal determination based on

Tamura, 694 F.2d 591, not a factual one—thereby placing it

outside the scope of the government’s motion, which by its

terms was confined to matters of fact. Confirming that she

had taken into account the “lengthy history of stalling and

delay by [the Players Association and CDT] in connection

with the grand jury subpoenas served prior to the government’s execution of the search warrant,” Judge Cooper nevertheless reiterated her view that the “simultaneous use of

warrants and subpoenas was inappropriate given all the circumstances.” Finding “no other material facts the Court allegedly failed to consider,” she stated that “mere disagreement

with the Court’s interpretation of the evidence and its opinions about what does and does not constitute acceptable conduct . . . does not justify reconsideration” and denied the

motion. 

[12] The question then becomes: what issues fall within the

scope of our appellate review? We recognize that “[a] district

1106 UNITED STATES v. COMPREHENSIVE DRUG TESTING
court may abuse its discretion if it does not apply the correct

law,” Washington, 98 F.3d at 1163, and that the district

court’s analysis and application of Tamura in its original

order may well have been in error. See infra Section IV.B.

However, Judge Cooper’s denial of the motion for reconsideration did not “rest[ ] on an inaccurate view of the law.” Washington, 98 F.3d at 1163. Although Judge Cooper referenced

Tamura and the legal conclusions in her underlying order, she

did not premise her denial of the government’s motion for

reconsideration upon them. She stated clearly that her denial

was based upon her review of the record and the factual arguments presented in the motion. While we might not have

reached the same findings of fact, “[o]ur review is limited and

deferential.” Sw. Voter Registration Educ. Project, 344 F.3d

at 918. We are satisfied that Judge Cooper duly assessed all

relevant facts cited in the motion. We cannot discern in her

refusal to change the language of the order an abuse of discretion and thus must affirm the denial of the government’s

motion for reconsideration.39

IV

We turn next to Judge Mahan’s order granting the Players

Association’s Rule 41(g) motion to return property seized

from Quest in the District of Nevada.

39It would be inappropriate for us to use the government’s fact-based

motion for reconsideration as a vehicle to reconsider interpretations of law

that were dispositive only to the underlying order granting the Rule 41(g)

motion, even if we believed that errors of law occurred. We have no jurisdiction over the order granting the return of property, and decline to discuss the treatment of Tamura therein. 

It is possible that the legal analysis in the order granting Rule 41(g)

motion may conflict with our authoritative interpretation of Tamura, as

explained in Section IV of this opinion with regard to the appeal from the

District of Nevada. But we are powerless to reconcile any such discrepancies, for the government’s notice of appeal grants us jurisdiction only to

review the denial of the motion for reconsideration. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1107
A

[13] Before considering the merits of that order, we must

first satisfy ourselves that the district court had the necessary

equitable jurisdiction to consider the motion.40 A district court

may exercise equitable jurisdiction to hear such a motion only

after analyzing the four factors set out in Ramsden, 2 F.3d

322. Specifically, the court must consider

1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2)

whether the movant has an individual interest in and

need for the property he wants returned; 3) whether

the movant would be irreparably injured by denying

return of the property; and 4) whether the movant

has an adequate remedy at law for the redress of his

grievance. 

Id. at 325. Without explication, Judge Mahan stated in his

order that each of the four factors weighed in favor of equitable jurisdiction. Because the government now concedes that

the parties have no adequate remedy at law, we only need to

discuss the first three Ramsden factors. 

1

In its memorandum supporting the Rule 41(g) motion in the

District of Nevada, the Players Association argued that the

seizure of urine specimens and test results constituted “callous

disregard” of the MLB players’ privacy interests:

40We review a district court’s decision to exercise equitable jurisdiction

under Fed. R. Crim. P. 41(g) for abuse of discretion. Ramsden, 2 F.3d at

324. We review the district court’s interpretation of Fed. R. Crim. P. 41(g)

de novo. Id. The lawfulness of a search and seizure is also reviewed de

novo. United States v. Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001)

(per curiam). 

1108 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Given the highly sensitive and confidential nature of

drug testing samples and records and the information

contained therein, and given the exacting measures

undertaken by the parties to the [testing agreement]

to prevent any disclosure of the players’ test results

to anyone, including MLB, the MLBPA, and the

players themselves, any seizure of these materials,

absent extraordinary justification, constitutes a “callous disregard” for the players’ privacy interests. 

Were we to accept this reasoning, any seizure of confidential

records would reveal callous disregard for privacy rights,

even if such seizure were expressly authorized by a lawful

search warrant. 

The government’s conduct in the District of Nevada does

not support a finding of callous disregard. After showing

probable cause, the government obtained approval from Magistrate Judge Leavitt to search and to seize the urine samples

and drug testing records held at Quest. Although the Players

Association contends that the government had no legal right

to use the intermingled files taken from CDT to support its

May search warrant affidavits, there is an insufficient showing of callous disregard in the government’s use of that evidence to obtain a warrant, in light of its view that the

information was authorized for seizure under Magistrate

Judge Johnson’s search warrant protocol.41

Furthermore, contrary to the assertion of the Players Association, the government agents did not offer “misleading representations” to obtain the search warrant, and the

41Because Ramsden requires an assessment of jurisdiction over a Rule

41(g) motion prior to determining the merits of the motion, we reserve our

discussion of the objective legality of the use of the intermingled evidence

seized from CDT for our review of the merits of the order granting the

motion. See infra Section IV.B. As that discussion reveals, our conclusion

with regard to the law accords with our view of jurisdiction. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1109
government did not hide the controversy surrounding the subpoena that had been issued for the same property. The affidavit for the search warrant in the District of Nevada advised

Magistrate Judge Leavitt that CDT and Quest “intend[ed] to

move to quash the subpoena.” Later, that language was

crossed out and replaced with a handwritten note: “A motion

to quash has been filed. 4.7.04,” followed by Magistrate

Judge Leavitt’s initials. The record makes clear that Magistrate Judge Leavitt was duly advised of the subpoenas and

their status in court. The government’s affidavits do not reveal

callous disregard for the players’ privacy interests in the urine

samples and other testing evidence held in the District of

Nevada. No doubt these samples and test results implicated

sensitive privacy interests, but the government was not therefore compelled to stymie its enforcement of the law by declining to pursue search warrants at all, especially since warrants

are designed to protect Fourth Amendment privacy interests.

Not only did the government establish probable cause, but

the agents executed the search warrant with due respect for

the interests of the MLB players and Quest, the third party

searched. The government seized items clearly delineated by

the warrant and accepted the assistance of Quest personnel to

avoid taking unrelated items, thus displaying attentiveness

both to the warrant’s scope and avoiding unnecessary interference with Quest’s business operations. Quest cooperated in

the search and declined to join the Players Association’s subsequent Rule 41(g) motion. We conclude that the first prong

of the Ramsden analysis weighs against invocation of the district court’s equitable jurisdiction over the Rule 41(g)

motions. 

2

As to the second of the four Ramsden factors (the movants’

individual interests in the evidence seized), the Players Association argues that its interests in the property mirror those of

its members. We agree that its members possess strong pri1110 UNITED STATES v. COMPREHENSIVE DRUG TESTING
vacy interests in both their drug test results and the actual

specimens. See Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir.

1996) (recognizing an individual’s “strong interest in protecting the confidentiality of [one’s] HIV status”). Because the

Players Association exists to represent such interests, Judge

Mahan properly found that this factor weighed in favor of

equitable jurisdiction.

3

Judge Mahan also found satisfied the third Ramsden factor

(likelihood of irreparable injury if the evidence were not

returned). As the Players Association notes, the public release

of positive drug testing evidence could irreparably damage the

careers of the affected players, even if the positive results

were not actually caused by illegal steroid use. Based on this

danger, we agree that the third factor also weighs in favor of

equitable jurisdiction. 

4

[14] Although we conclude that the district court erred in

finding callous disregard of Fourth Amendment rights, the

three other equitable jurisdiction factors weigh in favor of

hearing the motions by the Players Association. See Ramsden,

2 F.3d at 326 (holding that where three of the four factors

favored an exercise of equitable jurisdiction, the court had

power to hear a Rule 41(g) motion). As such, we cannot say

that Judge Mahan’s initial choice to hear the motion constituted an abuse of discretion.

B

We turn now to the merits of Judge Mahan’s substantive

ruling requiring the return of property seized in the District of

Nevada that did not relate solely to the ten players named in

the April 7 search warrants. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1111
1

[15] With respect to property taken during the execution of

search warrants, Rule 41(g) provides that a person “aggrieved

by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” When

such a motion is granted, the property in question must be

returned to the moving party, but a court “may impose reasonable conditions to protect access to the property and its use in

later proceedings.” Id. Although the rule itself does not set a

standard for determining when property should be returned to

a moving party, an advisory committee’s note explains that

“reasonableness under all of the circumstances must be the

test.” Fed. R. Crim. P. 41(g), advisory committee’s note.42

The Players Association argues that the seizure of property

from Quest in the District of Nevada was unreasonable. The

Players Association offers no argument that the search of

Quest exceeded the terms of the search warrant or was executed in an unconstitutional manner. Instead, the Players

Association argues that the search warrant lacked a legal

foundation because the government’s affidavits used intermingled files seized at CDT to name individuals other than

the ten players previously identified. The Players Association

contends that these files were illegally seized and that “the

government . . . [is forbidden] from disseminating or using the

fruits of an illegal search.” Under the doctrine of the “fruit of

the poisonous tree,” evidence may not be used if “ ‘granting

establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of

that illegality or instead by means sufficiently distinguishable

to be purged of the primary taint.’ ” Wong Sun v. United

States, 371 U.S. 471, 488 (1963) (citation omitted). 

42The Supreme Court previously has cited an advisory committee’s note

to illuminate the meaning of a federal rule. See Huddleson v. United

States, 485 U.S. 681, 688 (1988) (interpreting Fed. R. Evid. 404(b));

United States v. Owens, 484 U.S. 554, 555 (1988). 

1112 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The district court agreed with this fruit-of-the-poisonoustree reasoning, expressly premising its order to return property seized in the District of Nevada on the illegality of the

seizures in the Central District of California: 

Under the particular circumstances of this case, it

was unreasonable for the Government to refuse to

follow the procedures set forth in United States v.

Tamura, 694 F.2d 591 (9th Cir. 1982), upon learning

that drug-testing records for the ten athletes named

in the original April 8 warrants executed at Quest

and at Comprehensive Drug Testing, Inc. (“CDT”)

were intermingled with records for other athletes not

named in those warrants. 

2

[16] We review the district court’s legal analysis de novo.

Mendoza-Ortiz, 262 F.3d at 885. Like Judge Mahan, we look

to the seizure of intermingled data in the Central District of

California in order to determine whether that information provided a valid foundation for the warrants in the District of

Nevada.43 See United States v. Bishop, 264 F.3d 919, 924 (9th

Cir. 2001) (“Once the district court determined that the search

warrant included illegally obtained information, it properly

purged the affidavit of the offending facts and examined

whether the remaining facts still afforded a substantial basis

43Although the search and seizures at CDT occurred in a different district, Judge Mahan properly considered them, because they played a necessary and dispositive role in the authorization of the seizures at Quest.

Judge Mahan evaluated the legality of those seizures before Judge Cooper

ruled on them in the Central District of California, and did not premise his

decision on the view that he was bound by a previous decision. If anything, the litigation in the Central District suggested the opposite: Magistrate Judge Johnson had recommended that the Rule 41(g) motion filed by

the Players Association and CDT should be denied. Only later did Judge

Cooper reject that recommendation and grant the Rule 41(g) motion,

ordering the property to be returned to CDT. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1113
for concluding that the search warrant was supported by probable cause.”). 

This court has addressed previously whether the government may seize units containing information authorized for

seizure intermingled with information not described in the

search warrant. In United States v. Beusch, 596 F.2d 871 (9th

Cir. 1979), we dealt with a motion to suppress evidence consisting of hard-copy ledgers containing items covered by the

search warrant intermingled with items not covered by the

search warrant. Id. at 876-77. We concluded that no Fourth

Amendment violation occurred when agents seized “single

files and single ledgers, i.e., single items which, though theoretically separable, in fact constitute one volume or file folder.” Id. at 877. We constrained our ruling by stating that “the

reasons we have given for allowing [such] seizure may not

apply to sets of ledgers or files, but because that is not the

case here, we find it unnecessary to discuss it further.” Id.

(emphasis added). 

[17] Three years later, in Tamura, 694 F.2d 591, we considered whether the government could seize a set of hard-copy

files including target data as well as information not specified

in the search warrant. In that case, officers executed a search

warrant for three specified categories of records stored at a

Los Angeles office. Id. at 594. Agents seized—without any

limiting effort—files that were not specified in the search

warrant. Id. at 595. We condemned such “wholesale seizure

for later detailed examination of records not described in a

warrant.” Id. (emphasis omitted). Holding that the Fourth

Amendment barred the conversion of a specific warrant into

a general one, we described two methods by which the government could avoid such constitutional violations. 

First, if the government anticipated that on-site segregation

of target documents would not be feasible in a reasonable

amount of time, it can seek a preordained warrant protocol

allowing the seizure of such intermingled documents. This

1114 UNITED STATES v. COMPREHENSIVE DRUG TESTING
approach would ensure proper judicial oversight of any seizures.

If the need for transporting the documents is known

to the officers prior to the search, they may apply for

specific authorization for large-scale removal of

material, which should be granted by the magistrate

issuing the warrant only where on-site sorting is

infeasible and no other practical alternative exists.

See United States v. Hillyard, 677 F.2d 1336, 1340

(9th Cir. 1982). The essential safeguard required is

that wholesale removal must be monitored by the

judgment of a neutral, detached magistrate. 

Tamura, 694 F.2d at 596. Specific authorization to make such

seizures depends on detailed information in the government’s

search warrant affidavits, which should describe “the relevant

technological issues,” Managing Discovery, supra note 13, at

21, and the feasibility of parsing the anticipated storage

media. With such information, a magistrate can set forth

guidelines that ensure the government does not seize intermingled data without judicial oversight. If a warrant includes

such protocol, and the government abides by it, post-search

review is not necessary.44

Second, if the government obtained a search warrant without a preordained protocol for removing intermingled target

and non-target data, but encountered an unanticipated need to

seize units containing intermingled data, agents could seize

that unit and seal it pending post-search review. Only if

authorized by the “judgment of a neutral, detached magistrate” could it keep the seized items. Like the use of a presearch protocol, this second method of post-search authorization would ensure judicial oversight in cases where on-site

segregation of intermingled data cannot feasibly occur.

44In other words, a Fourth Amendment violation could still occur if the

government did not comply with the warrant protocol, or if the warrant

was issued without probable cause. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1115
[18] In the comparatively rare instances where documents

are so intermingled that they cannot feasibly be sorted on site,

we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights

by sealing and holding the documents pending approval by a

magistrate of a further search, in accordance with the procedures set forth in the American Law Institute’s Model Code

of Pre-Arraignment Procedure.45

45The Tamura court pointed to the American Law Institute’s Model

Code of Pre-Arraignment Procedure as a guide that would help agents

avoid constitutional violations in situations where intermingled documents

needed to be seized but where the search warrant lacked a protocol for

such seizures. 694 F.2d at 595-96. The Tamura court found that the agents

had violated Fourth Amendment rights by making a “wholesale seizure,”

rendering the post-search alternative approach to be advisory dicta. See id.

at 595; see also United States v. Hill, 322 F. Supp. 2d 1081, 1090 (C.D.

Cal. 2004) (noting that after the Tamura court “held that the government’s

wholesale seizure of company documents was illegal because the agents

intentionally seized materials they knew were not covered by the warrant

. . . the Tamura court suggested, albeit in dicta, that [for such seizure of

all records] a warrant would be appropriate” (emphasis added)). 

It is true that Tamura’s two methods of a pre-search protocol or postsearch review were advised in dicta and represented pragmatic approaches

rather than constitutional rules. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court

in Michigan explained: “The Court declines to follow Tamura, at least in

this case, because Tamura did not involve computer files and therefore did

not consider the specific problems associated with conducting a search for

computerized records.” United States v. Scott-Emuakpor, 2000 WL

288443, at *8 (W.D. Mich.). Although declining to apply Tamura’s pragmatic approach to computer searches, Judge Quist stated: “This is not to

suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records.” Id. Another court, also

referencing Tamura, noted that in the modern computer context a “ ‘suggestion’ by a panel of the Ninth Circuit in a 20-plus year old case is not

persuasive.” United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D.

Kan). 

Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the

Fourth Amendment. Precisely for this reason, we view Tamura as especially significant in the computer context. 

1116 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Tamura, 694 F.2d at 595-96 (footnote omitted). 

Recently, we applied Tamura to uphold seizures of intermingled documents in the computer context. In United States

v. Adjani, 452 F.3d 1140 (9th Cir. 2006), investigating agents

obtained a search warrant to seize evidence of the defendant

Adjani’s extortion activities. Id. at 1142. The search warrant

contained a detailed protocol for the seizure of intermingled

evidence. Id. at 1149 (“The Adjani warrant ‘describe[d] in

great[ ] detail the items one commonly expects to find on

premises used for the criminal activities in question . . . .’ ”

(alterations in original)). In executing the warrant, agents

seized Adjani’s computer as well as the computer of a woman

living with him, who was not identified as a suspect in the

warrant. Id. The computers were subsequently searched at an

FBI computer lab, and evidence they contained was used to

charge both Adjani and his housemate. In a motion to suppress the evidence, the two defendants argued that the

woman’s computer was not seizable under the search warrant,

and if it were, that the search warrant was overbroad. We

rejected both claims, citing the difficulty of segregating electronic data: 

We understand the heightened specificity concerns

in the computer context, given the vast amount of

data they can store. As the defendants urge, the warrant arguably might have provided for a “less invasive search . . . .” Avoiding that kind of specificity

and limitation was not unreasonable under the circumstances here, however. To require such a pinpointed computer search, restricting the search to an

email program or to specific search terms, would

likely have failed to cast a sufficiently wide net to

capture the evidence sought. Cf. [United States v.]

Ross, 456 U.S. [798,] 821 [1982] (“When a legitimate search is under way, and when its purpose and

its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1117
case of a home, or between glove compartments,

upholstered seats, trunks, and wrapped packages, in

the case of a vehicle, must give way to the interest

in the prompt and efficient completion of the task at

hand.”). 

Id. at 1149-50 (parallel citation omitted). Reiterating what we

set forth in Tamura, we approvingly noted that the warrant

incorporated a specific protocol:

The supporting affidavit attached to the warrant set

forth a detailed computer search protocol, including

instructions as to when the computers should be

searched on-site rather than taken off-site and procedures for screening the data to determine what data

could be searched and seized under the terms of the

warrant. See also U.S. Dep’t of Justice, Searching

and Seizing Computers and Obtaining Electronic

Evidence in Criminal Investigations 43, 69 (July

2002) (detailing what FBI agents should include in

warrants when they contemplate the need to search

computers). Such specificity increases our confidence that the magistrate judge was well aware of

what he was authorizing and that the agents knew

the bounds of their authority in executing the search.

Cf. [United States v.] Hay, 231 F.3d [630,] 636 [(9th

Cir. 2000)] (considering favorably an affidavit providing “that searches and seizures of evidence from

computers requires agents to seize all parts of a computer system to be processed later by a qualified

computer expert.”). 

Id. at 1149 n.7. “The contours of [the Fourth Amendment’s]

protections in the context of computer searches pose difficult

questions,” we explained. Id. at 1152. “Computers are simultaneously file cabinets (with millions of files) and locked desk

drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. . . . As soci1118 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ety grows ever more reliant on computers . . . courts will be

called upon to analyze novel legal issues and develop new

rules within our well established Fourth Amendment jurisprudence.” Id. Attuned to the needs of law enforcement as well

as privacy, we upheld the validity of the search warrant and

rejected the argument that items of evidence fell “outside the

scope of the warrant because they implicated [a person not

named in the warrant] in the crime and supported a charge of

conspiracy to commit extortion [against her].” Id. at 1151. 

In 2006, we confirmed the validity of this analysis in

United States v. Hill, 459 F.3d 966 (9th Cir.), where we

addressed a motion to suppress evidence. The defendant

argued that the warrant was overbroad because it allowed the

seizure of computer and storage media related to child pornography without requiring the government to conduct an onsite search and without providing a protocol. Id. at 973-78.

Citing Tamura and Adjani, we explained that on-site review

was not always required. Id. at 975-76. We emphasized the

“serious risk that the police might damage the storage

medium or compromise the integrity of the evidence by

attempting to access the data at the scene” and the disruption

caused by attempts to segregate complex electronic data onsite:

[T]he process of searching the files at the scene can

take a long time. To be certain that the medium in

question does not contain any seizable material, the

officers would have to examine every one of what

may be thousands of files on a disk—a process that

could take many hours and perhaps days. Taking that

much time to conduct the search would not only

impose a significant and unjustified burden on police

resources, it would also make the search more intrusive. . . . If the search took hours or days, the intrusion would continue for that entire period,

compromising the Fourth Amendment value of makUNITED STATES v. COMPREHENSIVE DRUG TESTING 1119
ing police searches as brief and non-intrusive as possible. 

Id. at 974-75. In light of these concerns, we concluded that it

was “reasonable under the Fourth Amendment for the police

to take all of [the defendant’s] computer storage media from

his home (they did not find his computer) so they could conduct their search offsite in a police laboratory, rather than carrying out the search onsite and taking only whatever evidence

of [targeted material] they might find.” Id. at 968. “[T]he warrant was not fatally defective in failing to require an onsite

search and isolation of child pornography before removing

storage media wholesale.” Id. at 975. 

[19] We then addressed whether the warrant was invalid

because it lacked a specific protocol for seizures of electronic

data. Although we made clear that a specific protocol was not

mandatory, we stated that a “warrant[ ] authorizing blanket

removal of all computer storage media for later examination,”

must be premised upon an “affidavit giving a reasonable

explanation . . . why a wholesale seizure is necessary.” Id. at

976 (citing Tamura, 694 F.2d at 595). “A warrant describing

a category of items is not invalid if a more specific description is impossible,” id. at 973, as long as the affidavit explains

why “the officers could not reasonably describe the objects of

their search with more specificity,” id. at 976. 

The agents in Hill offered neither a detailed description of

the items to be seized nor any explanation of why a specific

description was impossible. “Accordingly, we h[e]ld that the

warrant here was overbroad in authorizing a blanket seizure

in the absence of an explanatory supporting affidavit, which

would have documented the informed endorsement of the

neutral magistrate.” Id. at 976-77 (citing Tamura, 694 F.2d

596). At the same time, we held that “the search here was supported by probable cause and, notwithstanding the shortcomings of the search warrant affidavit, the manner of its

1120 UNITED STATES v. COMPREHENSIVE DRUG TESTING
execution d[id] not mandate suppression of the fruits of that

search.” Id. at 979 (emphasis added). 

3

[20] We now apply these precedents to determine whether

the seizures at CDT were unlawful. The problems of intrusiveness that we recognized in Hill are all the more apparent

here because the search was conducted on the premises of a

third party business. In this case, the government obtained

advance authorization to seize intermingled documents based

upon a search warrant protocol that had been carefully outlined and supported. The government’s affidavits were premised on the advice of computer specialists, who anticipated

that certain intermingled evidence might be difficult to separate on-site:

Upon searching the premises, law enforcement personnel trained in searching and seizing computer

data (the “computer personnel”) will make an initial

review of any computer equipment and storage

devices to determine whether these items can be

searched on-site in a reasonable amount of time and

without jeopardizing the ability to preserve the data.

. . . 

If the computer personnel determine that it is not

practical to perform an on-site search or make an onsite copy of the data within a reasonable amount of

time, then the computer equipment and storage

devices will be seized and transported to an appropriate law enforcement laboratory for review. 

As we explained in Hill, the affidavits did not require prescience but they must contain a candid recitation of the available information. 

Without such individualized justification being presented to the magistrate, we cannot be sure that the

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1121
judge was aware of the officers’ intent and the technological limitations meriting the indiscriminate

seizure—and thus was intelligently able to exercise

the court’s oversight function. An explanatory statement in the affidavit also assures us that the officers

could not reasonably describe the objects of their

search with more specificity. 

459 F.3d at 976. In this case, unlike in Hill, the government

submitted detailed affidavits describing the anticipated difficulties of sorting computer data on-site. The affidavits proposed a protocol to guide and to limit the seizures of

intermingled evidence, which Magistrate Judge Johnson

approved. 

Furthermore, the record reveals that the government complied with the protocol in the warrant. Agent Abboud, a computer analyst, determined that on-site review would not be

feasible in a reasonable amount of time. The agents then copied several intermingled documents, including the Tracey

directory. They did not seize the actual computer, although

the search warrant authorized full seizure of the hardware if

computer analysts determined that neither on-site searching

nor copying were feasible. The government thereby enabled

CDT to continue its business operations. 

Although the Players Association contends that the government behaved unreasonably by copying the entire Tracey

directory, an analysis of the difficulty of segregating intermingled electronic data reveals the opposite. The Federal Judicial

Center recently explained:

[S]ome computer-based transactions do not result in

a conventional document, but instead are represented

in integrated databases. Even less-complex ESI

[electronically stored information] may be incomprehensible and unusable when separated from the system that created it. For example, a spreadsheet

1122 UNITED STATES v. COMPREHENSIVE DRUG TESTING
produced in portable document format (PDF) may be

useless because embedded information, such as computational formulas, cannot be seen or discerned.

Finally, deleting an electronic document does not get

rid of it, as shredding a paper document would. An

electronic document may be recovered from the hard

drive, to the extent it has not been overwritten . . . .

These differences between ESI and conventional

information have implications for discovery. For

example, the dynamic nature of ESI makes it vital

that a data producer institute “litigation holds” to

preserve information that may be discoverable, often

even before the lawsuit is filed. Moreover, the volume and multiple sources of ESI may lead to disputes about the scope of discovery and may make

review to identify and segregate privileged information more difficult . . . . 

Managing Discovery, supra note 13, at 3-4.46 At the risk of

losing data, the government ensured that CDT could continue

its business activities, thus evidencing the reasonableness and

restraint conspicuously absent in the “wholesale seizure” conducted by the agents in Tamura.47

46Agent Novitsky expressed the government’s awareness of these risks

in his May search warrant affidavits: “IRS Special Agent Jeff Jack, a

Computer Investigative Specialist with the IRS, . . . gave me specific

examples of deleted files or temporary files created when printing a file

that cannot be[ ] seen or retrieved from a simple copy of a computer subdirectory, but may be retrievable using forensic tools, if allowed to examine the entire computer system.” 

47Increasingly, courts have recognized the danger of losing electronic

information or obtaining only incomplete data. See Adjani, 452 F.3d 1140;

Hill, 459 F.3d 966; see also Scott-Emuakpor, 2000 WL 288443, at *8

(“[T]he agents were not confined to searching the files on the hard drive

and disks but could also lawfully search for deleted material . . . [;] the seizure of [items other than hard drives and disks] was reasonable because

it allowed the agents to preserve the computer system as it existed for the

computer analysts . . . without taking the risk of losing any files.”). 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1123
Although the seizure of intermingled evidence was permitted under the warrant protocol, the Players Association argues

that the government violated the search warrant’s protocol by

allowing Agent Novitzky to open and to view the contents of

the Tracey directory, rather than leaving Agent Abboud to

search alone. Under this view, only Agent Abboud was permitted to open and to view CDT computer data on-site. However, the plain language of the search warrant did not exclude

the assistance of other law enforcement officers—especially

for tasks involving non-digital work (such as seeking cooperation from persons on site). The warrant only required that

computer personnel be the ones to determine whether on-site

segregation of target data is feasible. The sort of assistance

provided by Agent Novitzky, a non-specialized law enforcement officer under the guidance of Agent Abboud, was permissible under the search warrant and reasonable under the

Fourth Amendment. 

The dissent criticizes the government’s decision to “copy

the entire directory,” pursuant to Agent Abboud’s recommendation, rather than to “copy[ ] only the subdirectories that pertained to Major League Baseball” and suggests that the

government should have trusted CDT to point out the relevant

files. Dissent at 1143. The dissent explains that this approach

would have allowed the government to select the relevant

files on-site: “Dr. Jean Joseph of CDT later stated in an affidavit that the directory was easily searched by key word and

would have provided the test information about the ten players in a short period of time.” Id. 

[21] We disagree. “The government should not be required

to trust the suspect’s self-labeling when executing a warrant.”

Adjani, 452 F.3d at 1150. Agents had no duty to rely on CDT

personnel to point out the files seizable under the warrant.

Like most searched parties, CDT had an incentive to avoid

giving over documents of which the government might be

unaware and to read the search warrant as narrowly as possible. Moreover, the government had no reason to confine its

1124 UNITED STATES v. COMPREHENSIVE DRUG TESTING
search to “key words” such as the names of the baseball players. “Computer files are easy to disguise or rename, and were

we to limit the warrant to such a specific search protocol,

much evidence could escape discovery simply because of [the

defendants’] labeling of the files.” Id. Such a limited search

could easily have overlooked documents crucial to the investigation, such as the specimens at Quest, which were identified

only by number. See supra pp. 1086-90. 

[22] We do not discern a violation of the Fourth Amendment’s requirements simply because the agents determined,

upon the review and recommendation of a computer specialist, that certain intermingled files could not be feasibly sorted

on-site.48 As we explained in Tamura, and reiterated in Adjani

and Hill, the seizure of electronic evidence can entail complex

sifting efforts. By obtaining from a neutral magistrate permission to seize intermingled documents under a specific protocol, the government respected privacy interests while

pursuing the law enforcement. The agents’ ultimate decision

to remove relevant data for off-site review stemmed not from

disregard of privacy rights, but from sensitivity to the ongoing

disruption caused by the search to CDT—an innocent third

party in the underlying investigation. 

4

[23] Our determination that the search and seizures at CDT

were valid provides a necessary component of our legal analysis of Judge Mahan’s order granting the Rule 41(g) motion

in the District of Nevada. Judge Mahan premised his order on

the legal conclusion that the government unlawfully seized

48We do not reach the government’s argument that the “plain view”

exception to the warrant requirement justified seizure of the intermingled

evidence, because the evidence fell within the scope of the search warrant.

See Beusch, 596 F.2d 871 (“Because we hold that the items seized were

covered by the terms of the warrant, we find it unnecessary to deal with

the Government’s contentions that they were admissible under the ‘plain

view’ exception to the warrant requirement.”). 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1125
intermingled data from CDT and could not use that data to

support an expanded search warrant in the District of Nevada.

Our de novo legal analysis shows that Judge Mahan misinterpreted Tamura. A lawful search does not produce poisonous

fruit. Because the CDT search was lawful, the information

seized in that search provided a legitimate basis for expanded

warrants in the District of Nevada. As we explained in Adjani:

“There is no rule . . . that evidence turned up while officers

are rightfully searching a location under a properly issued

warrant must be excluded simply because the evidence found

may support charges for a related crime (or against a suspect)

not expressly contemplated in the warrant.” 452 F.3d 1151; cf.

Beusch, 596 F.2d at 877 (“[A]s long as an item appears, at the

time of the search, to contain evidence reasonably related to

the purposes of the search, there is no reason—absent some

other Fourth Amendment violation—to suppress it.” (emphasis added)); Tamura, 694 F.2d at 597 (noting that although the

agents unambiguously had flouted the limits of the search

warrant “we cannot say, although we find it a close case, that

the officers so abused the warrant’s authority that the otherwise valid warrant was transformed into a general one,

thereby requiring all fruits to be suppressed”). 

Furthermore, an order to return property under Rule 41(g)

is inappropriate where “the government’s need for the property as evidence continues.” United States v. Fitzen, 80 F.3d

387, 388 (9th Cir. 1996) (internal quotation marks omitted);

United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)

(same). “If the United States has a need for the property in an

investigation or prosecution, its retention of the property generally is reasonable.” Fed. R. Crim. P. 41(g), advisory committee’s note. It is when the government no longer needs the

property as evidence in an investigation that a presumption in

favor of return arises. Fitzen, 80 F.3d at 388. 

[24] A return of property should follow only a particularly

egregious violation: “The issue is whether the Government’s

conduct was sufficiently reprehensible in this case to warrant

1126 UNITED STATES v. COMPREHENSIVE DRUG TESTING
this sanction.” Ramsden, 2 F.3d at 327. In Ramsden, we

refused to impose this extreme sanction on police who had

time to obtain a warrant but made no effort to do so and “simply chose not to comply with [their] obligations under the

Fourth Amendment.” Id. at 325, 327. The government’s

behavior in this case was reasonable and fell far short of the

egregious and unchecked intrusions that might justify a return

of property under Rule 41(g).49

[25] The government’s seizures were neither unreasonable

nor exceeded the four corners of the warrants. Our technologically advancing world combines in novel forms the kind of

data that in a previous age might have been segregated. Parties are not immunized from law enforcement simply because

they choose to store data in complex or integrated formats.

We conclude that the district court abused its discretion by

granting the Rule 41(g) motion based upon its contrary, and

erroneous, view of the law.50

49We do not belabor the government’s alleged failure to follow its own

internal guidelines. The dissent takes note that the U.S. Attorney’s manual

states “that a search warrant should normally not be used to obtain confidential materials such as treatment records,” and that the Department of

Justice’s guidelines disfavor use of a search warrant where a subpoena

would suffice. See Dissent at 1165. The existence of those guidelines is

not disputed. Yet, quite simply, the government’s guidelines do not dictate

what is “reasonable” under the Fourth Amendment. If its guidelines did

so, the government would have every reason to enact permissive internal

rules. We have no reason or authority to give the government that perverse

incentive. 

50We do not hold that the government enjoys a right to “wholesale” seizure of evidence without judicial authorization; indeed, our decision

stands for the opposite. See supra Section IV; see also Tamura, 694 F.2d

at 594-96. 

We do not doubt that a different case might present facts under which

the seizure of intermingled documents would constitute an “unreasonable

search[ ] and seizure[ ].” U.S. Const. amend. IV. But that case is not presented here. The government obtained proper authorization in the form of

a search warrant protocol addressed specifically to the seizure of intermingled computer documents. The search warrant was obtained “upon probaUNITED STATES v. COMPREHENSIVE DRUG TESTING 1127
V

We next consider the government’s appeal of Judge Illston’s order quashing the May 6 subpoenas, which sought from

CDT and Quest the drug testing records and specimens for all

MLB players who tested positive for steroids.51 Under Fed. R.

Crim. P. 17(c)(2), a “court may quash . . . [a] subpoena if

compliance would be unreasonable or oppressive.” The district court found that the May 2004 subpoenas constituted

harassment and were unreasonable.52

To support its finding, the district court pointed to United

States v. American Honda Motor Co., 273 F. Supp. 810 (N.D.

Ill. 1967). In American Honda, the government issued subpoenas that were “substantially identical” to one another but

in different locations. Id. at 819. As a result, Honda was faced

with producing the same documents repeatedly, and the court

found this to be harassment. Id. at 819-20. American Honda,

however, does not preclude the government from pursuing the

same information through the contemporaneous issuance of

subpoenas and applications for search warrants. 

We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated

December 10, 1987, 926 F.2d at 854. There we upheld the

validity of the subpoenas against the challenge that “the subpoenas were served at the same time as the search warrants

ble cause, supported by Oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. Because our holding reaffirms that searches of electronic databases must conform to the requirements of the Fourth Amendment following the reasoning of Tamura, the dissent’s fear that all medical

databases and voluntary drug testing programs will be put at risk is utterly

unfounded. See Dissent at 1137-38, 1184-88. 

51We review a district court’s decision to quash a grand jury subpoena

for abuse of discretion. In re Grand Jury Subpoenas, 803 F.2d at 496. 

52The district court did not find that the subpoenas were oppressive. 

1128 UNITED STATES v. COMPREHENSIVE DRUG TESTING
and the federal agents attempted to ‘enforce’ the subpoenas

through immediate seizure of the documents.” Id. at 854. Noting that the challenge to the subpoenas received no support in

precedent, we clarified the differences between subpoenas and

search warrants:

Subpoenas are not search warrants. They involve different levels of intrusion on a person’s privacy. A

search warrant allows the officer to enter the person’s premises, and to examine for himself the person’s belongings. The officer, pursuant to the

warrant, determines what is seized. 

Id. By comparison:

Service of a forthwith subpoena does not authorize

an entry into a private residence. Furthermore, the

person served determines whether he will surrender

the items identified in the subpoena or challenge the

validity of the subpoena prior to compliance. 

Id. We concluded that “[t]hese differences are not eliminated

by the fact that the search warrants and subpoenas were delivered at the same time” and observed that the complaining

party had “failed to show that the papers that are described in

the subpoenas are outside the scope of a legitimate investigation by the grand jury.” Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost

a month to comply with the subpoenas. Id. at 854. 

[26] Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of

search warrants to be unreasonable. The Players Association

has not argued that the evidence sought by the subpoenas is

“outside the scope of a legitimate investigation by the grand

jury.” Id. at 855. The subpoenas were not returnable on the

same day that the search warrants were executed. As in In re

Grand Jury Subpoenas, the return dates on the subpoenas

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1129
were over a month from the date on which the warrants were

executed. The district court declared the May 6 subpoenas an

“unreasonable insurance” policy, but it failed to recognize the

different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly

delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth

Amendment, unreasonable it was not. 

The district court also deemed the government’s actions

unreasonable because it found that the agents sought search

warrants in three separate districts in an attempt to avoid a

ruling on the motion to quash the existing subpoenas of January and March 2004. We note that granting the motion to

quash would not have prevented the government from seeking

the search warrants, particularly given the existence of probable cause. Unlike a subpoena, a search warrant may be

obtained only upon a showing of probable cause—a burden

the government sometimes considers necessary to establish in

order to obtain certain production of evidence.53 In contrast,

a grand jury subpoena may issue simply because an Assistant

United States Attorney believes the evidence may assist the

grand jury in furthering the progress of an ongoing investigation which may never establish probable cause to charge anyone. If a subpoena based on the lesser standard of evidence

does not withstand review, it does not follow that a search

warrant premised on a far higher evidentiary showing could

not be authorized. As the Fourth Circuit has noted, “the fact

that a grand jury subpoena existed . . . at the time of the

search obviously had no effect upon whether probable cause

53Significantly, while a subpoena may be quashed, a “person to be

searched has no lawful way to prevent execution of the warrant.” In re

Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. His

remedy for an unlawful search and seizure or for the deprivation of property is to seek return of anything seized under Fed. R. Crim. P. 41(g), or,

if charges are filed, to move to suppress use of the evidence against him

at trial, see Fed. R. Crim. P. 12(b). 

1130 UNITED STATES v. COMPREHENSIVE DRUG TESTING
existed to search . . . for documents which were properly

included within the warrant’s scope.” United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 238 (4th Cir.

2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004). 

As such, the district court rested its order on legally insufficient grounds, and abused its discretion in granting the motion

to quash. See United States v. Iverson, 162 F.3d 1015, 1026

(9th Cir. 1998). 

VI

Finally, we address the Non-Party Journalist’s Motion To

Unseal, filed on November 23, 2005 by Joshua A. Gerstein.

Gerstein seeks access to “the dockets for these appeals and the

cases below, the district court opinions and/or orders that are

the subject of these appeals, and all briefs filed with this Court.”

54

We have jurisdiction over these documents, because the district courts’ records transferred to us upon appeal. See Fed. R.

App. P. 11. 

Although not a party, Gerstein enjoys standing to file the

motion based upon his constitutional interest in the proceedings:

Under the first amendment, the press and the public

have a presumed right of access to court proceedings

and documents. . . . This presumed right can be overcome only by an overriding right or interest “based

on findings that closure is essential to preserve

54Oral proceedings before this court on November 15, 2005, were open

to the public. On November 9, 2005, CDT and MLB filed an unopposed

Motion To Seal Courtroom During Oral Argument. We denied the motion

the next day. On November 14, 2005, CDT and MLB filed a Motion for

Reconsideration of Motion To Seal Courtroom During Oral Argument,

which the government joined. We denied the motion the same day. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1131
higher values and is narrowly tailored to serve that

interest.” 

Oregonian Publ’g Co. v. District Court, 920 F.2d 1462, 1465

(9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior

Court, 464 U.S. 501, 510 (1985)).55 The Supreme Court has

noted the particular interest of media members in “publish[-

ing] information concerning the operation of government.”

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).

To decide whether Gerstein’s interest justifies unsealing

portions of the records, the court also must consider the privacy interests of the litigants, for “the right to inspect and

copy judicial records is not absolute.” Id. In the appeals at bar,

the records contain extremely sensitive information, especially the drug testing records. If revealed, this information

could adversely affect the reputations of many competitive

baseball players. Therefore, the motion to unseal requires a

careful balancing of the interests at stake. See id. (noting that

access to judicial records may be limited to protect the privacy interests of the litigants, such as to avoid disclosure of

“sources of business information that might harm a litigant’s

competitive standing”). 

[27] Although we have jurisdiction to conduct a merits

analysis of the motion to unseal, the district courts—having

greater familiarity with the records56—are in a better position

to balance the privacy interests and to determine which materials are protected grand jury materials. See Fed. R. Crim. P.

55Gerstein premises his motion on 9th Cir. R. 27-13(c). That rule states:

“During the pendency of an appeal, any party may file a motion with this

court requesting that matters filed under seal either in the district court or

in this court be unsealed. Any motion shall be served on all parties.” Id.

(emphasis added). Although Joshua Gerstein is not a “party” under this

rule, his standing derives from his constitutional interest and does not

depend upon the applicability of 9th Cir. R. 27-13(c). 

56Sensitive portions of the records were neither revealed nor discussed

at oral argument before this court. See supra note 54. 

1132 UNITED STATES v. COMPREHENSIVE DRUG TESTING
6(e). Therefore, we refer the Gerstein motion to the district

courts for consideration. 

VII

To summarize the resolution of these consolidated appeals:

1) We have no jurisdiction to address the legal foundation

for the grant of the Rule 41(g) motion in the Central District

of California, although we recognize that our authoritative

interpretation of Tamura conflicts with the vision of Tamura

upon which that order was based. The government cannot

obtain redress for any alleged errors or impropriety in that

order, where it failed to object in a timely manner. The government’s appeal of the grant of the Rule 41(g) motion is

DISMISSED for lack of jurisdiction; the order of the Central

District of California denying the government’s motion for

reconsideration is AFFIRMED. 

2) The government’s seizures at the Quest facility in Las

Vegas were reasonable under the Fourth Amendment. The

order of the District of Nevada granting the Rule 41(g) motion

is REVERSED. 

3) The record, illuminated by caselaw, reveals that the subpoenas to CDT and Quest, which covered the same evidence

as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the

Northern District of California quashing the May 6 subpoenas

is REVERSED. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1133
Volume 2 of 2

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1135
THOMAS, Circuit Judge, concurring in part and dissenting in

part: 

One of the three extremely able district court judges who

rejected the government’s argument summarized it best, stating: “What happened to the Fourth Amendment? Was it

repealed somehow?” 

Although it only had a search warrant for data concerning

eleven Major League Baseball players, the government seized

1136 UNITED STATES v. COMPREHENSIVE DRUG TESTING
thousands of medical records and test results involving every

single Major League Baseball player. The government did not

stop there, seizing thousands of other medical records for

individuals in thirteen other major sports organizations, three

unaffiliated business entities, and three sports competitions.

The government now seeks to retain all of the medical information it obtained about persons who were not the subject of

any criminal inquiry. 

The stakes in this case are high. The government claims the

right to seize and retain—without warrant or even a suspicion

of criminal activity—any patient’s confidential medical

record or other confidential personal information contained in

a computer directory so long as it has a legitimate warrant or

subpoena for any other individual patient’s record that may be

stored on the same computer. The government attempted to

justify this novel theory on a breathtaking expansion of the

“plain view” doctrine, which clearly has no application to

intermingled private electronic data. 

The majority ignores the government’s plain view

argument—a theory rejected by every district judge involved

in this case. Instead, the majority invents a new justification

for approving the seizures. It holds that the boilerplate terms

of a computer search warrant justify both the seizure of massive amounts of confidential medical information about persons not suspected of any criminal activity and the subsequent

warrantless search of the information. Under the majority’s

rationale, the government may now seize anyone’s private

medical records and other confidential personal information,

and remove the records for a later warrantless search, so long

as those records are intermingled with records that are responsive to a warrant and the government can justify that on-site

sorting of those records would be impractical. 

The consequences of this decision are profound. Today’s

decision will allow the government unprecedented easy

access to confidential medical and other private information

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1137
about citizens who are under no suspicion of having been

involved in criminal activity. At a time when our medical

institutions are working diligently to provide physicians with

easy nationwide electronic access to patient records in order

to improve the care and treatment of our citizens, the opinion

poses a very serious threat to the confidentiality of patient

records and ultimately to the effective delivery of health care

itself. 

The majority’s holding will also significantly and adversely

impact the viability of voluntary workplace drug testing. As

the National Chamber of Commerce has pointed out in its

amicus brief, today’s decision will make it very unlikely that

employees or unions will agree to any voluntary employer

drug testing in the future, as any promise of confidentiality

has now been rendered completely illusory. It will make

efforts to curb substance abuse in the workplace harder, not

easier. 

The majority’s holding also conflicts with the procedures

detailed by our Circuit in United States v. Tamura, 694 F.2d

591 (9th Cir. 1982) for the appropriate and constitutional processing of seized information not responsive to a warrant that

is intermingled with data that is responsive to a warrant. 

The majority also improperly rejects the factual findings of

the district judges, to which we owe deference, and adopts

wholesale the government advocate’s view of events. The

careful findings and conclusions of the three distinguished

district judges who all rejected the government’s position are

completely supported by the voluminous record. 

For these reasons, I respectfully dissent. 

I

The investigation in this case ostensibly involved Bay Area

Lab Co-Operative, popularly referenced as “Balco.” The gov1138 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ernment suspected Balco of distributing illegal steroids to certain athletes, including some Major League Baseball players.

The government knew that, pursuant to a collective bargaining agreement between the Major League Baseball Players

Association (“Players Association” or “MLBPA”) and Major

League Baseball, confidential testing had been analyzed by

Comprehensive Drug Testing, Inc. (“CDT”), and other laboratories, for the sole purpose of determining whether Major

League Baseball should adopt an individualized steroid testing program. 

Through the collective bargaining agreement, the players

were assured that the testing would be anonymous and confidential, and that the samples and individual data would be

destroyed upon tabulation of the results. The only object of

the exercise was to determine the approximate magnitude of

apparent steroid use with the goal of fashioning appropriate

policies to address it. The collective bargaining agreement

acknowledged and anticipated that the tests for some players

might well yield positive results due to the ingestion of legal

and proper over-the-counter supplements. 

Although information developed by the government in its

criminal investigation pointed only to specific individuals

who might be involved with Balco, the government served a

grand jury subpoena on CDT on January 16, 2003, seeking

drug tests for all major league baseball players. After receiving the subpoena, the Players Association and CDT contacted

the United States Attorneys’ Office to discuss their concerns

with the breadth of the subpoena. At the government’s

request, the Players Association, CDT, and Major League

Baseball prepared and presented a “white paper” to the government detailing the provisions of the collective bargaining

agreement pertaining to testing, with emphasis on the many

confidentiality provisions, and raising concerns about the

invasion of the constitutionally-protected privacy interests of

the players who were not involved in the Balco investigation.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1139
The Players Association and CDT assured the government

in writing that CDT would maintain all of the subpoenaed

records until the disputes were resolved by negotiation or litigation. On February 4, 2003, the Chief of the Criminal Division wrote the counsel for CDT indicating that the

government had accepted the assurances by CDT that none of

the materials sought by the subpoena would be destroyed or

altered pending the government’s reconsideration of the subpoena and a motion to quash the subpoena, if filed. 

On February 12, 2004, the grand jury returned a 42-count

indictment against Victor Conte, Jr. (Balco’s founder), James

J. Valente (Balco’s Vice President), Greg F. Anderson (a

trainer), and Remi Korchemny (a track coach). The charges

against the defendants included conspiracy to possess with

intent to distribute anabolic steroids, possession with intent to

distribute anabolic steroids, introduction and delivery of misbranded drugs into interstate commerce with intent to defraud,

and misbranding of drugs held for sale with intent to defraud.

On March 3, the government served a second grand jury

subpoena on CDT, seeking information on only eleven named

baseball players. However, it did not withdraw the January 16

subpoena. On April 7, with no compromise reached and with

a return date passed, the Players Association filed a motion in

the Northern District of California in San Francisco to quash

the CDT subpoena. The motion was assigned to Judge Jeffrey

S. White. 

After learning that a motion to quash would be filed but

before the motion could be heard, the government applied for

a search warrant to search the CDT offices for the same information it was seeking in the grand jury subpoena. The search

warrant application was made some 240 miles away in

another federal judicial district, without notice to the Players

Association or to the district court in the Northern District of

California. 

1140 UNITED STATES v. COMPREHENSIVE DRUG TESTING
In the search warrant proceedings in the Central District of

California, the government never brought to the magistrate

judge’s attention that there was a motion pending before

Judge White in the Northern District of California to quash

the grand jury subpoena. The affidavit did not disclose that

the Players Association had joined the motion. Rather, the

affidavit stated: 

The referenced grand jury subpoena, for the items

listed in Attachment B, was issued; however, while

not denying that they have the requested materials,

CDT has declined to comply with the subpoena and

has stated its intent to attempt to quash the subpoena.1

The affidavit did not disclose that CDT had agreed in writing to keep the data and other materials secured until the

scope of the grand jury subpoena was settled, either through

negotiation or a ruling on a motion to quash. Rather, the affidavit justified removing computer data and equipment from

the searched premises on the basis that the computer data

could be concealed, altered, or destroyed by the user. 

The affidavit also informed the magistrate judge that

“[c]omputer hardware and storage devices may contain

‘booby traps’ that destroy or alter data if certain procedures

are not scrupulously followed.” It noted that computer data

was “particularly vulnerable to inadvertent or intentional

modification or destruction.” 

1Some months later, Judge Illston asked the government: “Did you

explain to Judge Johnson what was happening before Judge White, even

on the day that you got him to issue the warrant?” Government counsel

replied, “We did inform Judge Johnson of the existence of the grand jury

subpoena and it’s in the warrant application of Judge Johnson that defense

had indicated that it wanted to move to quash the subpoena. So we did

indicate to Judge Johnson there was a disputed grand jury issue. Yes, it

was disclosed to Judge Johnson.” Neither the warrant application nor the

affidavit filed in support of the application contain any reference to pending proceedings before Judge White. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1141
The government did not have any evidence or reason to

believe that CDT had engaged in steganography, boobytrapping computers, or any type of data destruction or alteration. To the contrary, it had accepted in writing CDT’s assurances “that CDT will maintain and preserve all materials

called for by the first subpoena as well as any materials called

for by the new subpoena” and that “CDT would not destroy

or alter any of the materials called for by either of the subpoenas.” However, the plain import of the application was that

CDT was improperly resisting compliance with a valid grand

jury subpoena and data was in jeopardy of being destroyed.

Based on the government’s application, a search warrant

was issued by Magistrate Judge Jeffrey W. Johnson in the

Central District of California in Los Angeles. The warrant

authorized the seizure of records regarding drug specimens,

testing, and test results of only ten specifically named Major

League baseball players. The warrant also provided that if the

computer data seized did not fall within any of the items to

be seized or was not otherwise legally seized, the government

would return the data. The affidavit provided by Special

Agent Novitzky in support of the issuance of the warrants

stated that obtaining information to link the test results to

individual players was necessary “to ensure that samples of

individuals not associated with Balco are left undisturbed.” 

The warrant was issued one day after the motion to quash

the grand jury subpoena had been filed in the Northern District of California—creating the clear implication that the government was attempting to prevent Judge White from

considering the motion to quash on the merits by seizing the

property after ex parte presentation to another judge. Upon

arrival at the premises of CDT on the morning of the search,

Special Agent Novitzky and other agents discussed with

CDT’s attorney the need to search CDT’s computers. 

The information sought in the search warrant was contained

in three places: a segregated list only containing information

1142 UNITED STATES v. COMPREHENSIVE DRUG TESTING
about the ten athletes that were the subjects of the search warrant; a master list of the drug test results for all Major League

Baseball players; and a computer directory (often referred to

as the “Tracey directory”) that contained information and

medical test results for hundreds of other baseball players and

athletes engaged in professional sports. Counsel for CDT

requested that all material pertaining to the specific items

listed in the warrant be reviewed and redacted by a magistrate

judge or special master before it was seen by the government,

pursuant to the proper procedure described in Tamura. The

government refused the request.2 The government also

rejected CDT’s offer to provide the records it had already segregated concerning the small subset of players at issue. 

In addition to the segregated materials, the government

seized the master list, all of the voluminous data in the Tracey

Directory, lists of teams and players and drug testing details,

and eleven diskettes, all of which contained drug-test results

on hundreds of Major League Baseball players and other athletes. The agents searching the Tracey directory at the scene

concluded that certain of the subdirectories appeared to contain information not called for by the warrant. In fact, the

directory contained 2,911 files that had nothing to do with

Major League Baseball drug testing, but rather contained test

results for numerous other sports entities and business organizations. However, instead of copying only the subdirectories

that pertained to Major League Baseball, the agents copied the

entire directory. Dr. Jean Joseph of CDT later stated in an

affidavit that the directory was easily searched by key word

and would have provided the test information about the ten

players in a short period of time. 

Judge Cooper later specifically found that “[o]nce the items

2Department of Justice Guidelines provide that, in cases involving confidential patient information, a search warrant “shall be executed in such

a manner as to minimize, to the greatest extent practicable, scrutiny of

confidential materials.” 28 C.F.R. § 59.4(b)(4). 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1143
were seized the requirement of the search warrant that any

seized items not covered by the warrant be first screened and

segregated by computer personnel was completely ignored.”

She further found that Agent Novitzky himself reviewed the

seized computer data and used what he learned to obtain the

subsequent search warrants issued in the Northern District of

California, the Central District of California, and Nevada. 

After the initial search, and based on the search results, the

government sought and obtained that day a second search

warrant from Magistrate Judge Johnson for a search of a storage facility maintained by CDT. 

On the same day, the government also applied for a search

warrant in the District of Nevada. The warrant sought information in the business files of Quest Diagnostics, Inc., a laboratory that had also been involved in the administration of

Major League Baseball’s drug testing program in 2003. The

warrant was limited to information concerning the ten baseball players identified in the Los Angles search warrant. The

affidavit filed in support of the warrant did not disclose the

history of the issuance of the grand jury subpoena or the filing

of a motion to quash the subpoena. Based on the information

provided by the government, Magistrate Judge Lawrence

Leavitt issued the warrant, and the warrant was executed. 

On April 9, 2004, the Players Association arranged an

emergency hearing before Judge White, before whom the

motion to quash the grand jury subpoena was pending. The

Players Association sought an order restricting the government from disseminating any information it had obtained until

the Players Association had an opportunity to litigate the

motion to quash or a Rule 41 motion to return the seized property. The government argued that Judge White had no jurisdiction over the items seized pursuant to the search warrants,

even though the grand jury subpoena sought the same materials. 

1144 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The government represented to the court that it would not

disseminate the information and would negotiate in good faith

about the seized items. Judge White accepted that representation. He noted that he did not have jurisdiction over the items

seized pursuant to the warrants, but that the motions to quash

the grand jury subpoenas remained pending before him. Judge

White acknowledged that the position of the Players Association was “well taken with respect to the U.S. Attorney’s manual and the government allegedly not following proper

procedure,” but that the Players Association had other available remedies to resolve that issue on the merits. 

On April 22, 2004, the government wrote CDT indicating

that it was withdrawing the January 16, 2004, subpoena and

modifying the subpoena of March 3, 2004. The government

did not inform Judge White of these actions and the January

16 subpoena was never withdrawn. 

On April 24, CDT and the Players Association filed a

motion in the Central District of California for return of the

seized property or, in the alternative, appointment of a special

master to redact those records so that the government retained

drug test results for only the ten players named in the warrant.

On April 30, 2004, the government filed its opposition to

the motion to return property in the Central District. In its

opposition, despite the existence of an agreement with CDT

that CDT would not destroy or alter documents, the government argued that it “had good-faith reasons to believe that

CDT was detrimentally delaying the investigation, and that

there was some danger of the sought-after records being jeopardized.” The government also argued that this jeopardy justified proceeding with a search warrant under DOJ guidelines.

On the same date, April 30, 2004, based on what it had

found in the first search, the government sought a new search

warrant in the Northern District of California in San Jose for

CDT electronic files it already had in its possession in the

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1145
Tracey Directory concerning all players whose test results

were positive. 

In contrast to the affidavit supplied in the first warrant

application, which purported “to ensure that samples of individuals not associated with Balco are left undisturbed,” the

affidavit of Agent Novitzky in support of this warrant application sought “authorization to conduct a thorough review of all

major league baseball-related computer data” and “to seize all

data pertaining to illegal drug use by any member of major

league baseball.” 

The affidavit conceded that no specific information had

been uncovered linking Balco to any individual baseball players beyond the ten listed in the April 7, 2004, search warrant.

However, in contrast to the first warrant application, Agent

Novitzky averred that even though no evidence had been

developed to link the ballplayers who were not listed in the

first warrant to Balco, “it is logical to assume that a review

of the drug testing records for other players may provide additional evidence of the use of similar illegal performanceenhancing drugs which establishes a link to the charged

defendants in the charged [Balco] case, given the relatively

small number of professional baseball players and the closelyknit professional baseball community.” 

The affidavit in support of issuance of the warrant did not

disclose that a grand jury subpoena had been issued for the

same material and that a motion to quash the subpoena was

pending in the very same district. 

The affidavit also did not disclose that the parties were litigating in the Central District of California a motion for return

of the seized property — the very property which was subject

of the new search warrant request. Based on the information

provided by the government, Magistrate Judge Howard W.

Lloyd issued a new search warrant for the same material that

the government had already searched and seized. 

1146 UNITED STATES v. COMPREHENSIVE DRUG TESTING
On May 5, 2004, the government sought a search warrant

in the District of Nevada for information contained in the files

at Quest Diagnostics concerning all baseball players who,

according to the information collected in the CDT search, had

tested positive for steroids. The application conceded that

there was no specific evidence linking these players to Balco.

The warrant was issued by Magistrate Judge Leavitt. The government took a large number (later reported by the government to be 250 to 300 because of multiple samples given by

the players) of physical samples of bodily fluids and transported them to a lab in Los Angeles. 

On May 5, 2004, the government sought a search warrant

in the Central District of California in Los Angeles before a

different magistrate judge for all information contained in the

files at CDT concerning all baseball players who, according

to the information collected in the CDT search, had a positive

marker for steroids. The application conceded that there was

no specific evidence linking these players to Balco. Neither

the application nor the affidavit filed in support of the application disclosed the pending proceedings concerning the grand

jury subpoenas. Based on the information provided by the

government, the warrant was issued by Magistrate Judge

Rosalyn Chapman. 

On May 6, 2004, after it had executed the search warrants,

the government served grand jury subpoenas on CDT and

Quest for the same materials it had sought in the April 30 and

May 5 search warrants. The subpoena contained the names of

the baseball players that had allegedly tested positive, even

though the government knew that the information Quest possessed was only identifiable by number and even though the

government had assured the Players Association and Judge

White that it would not disclose the names. The government

sent a letter to Quest Diagnostics instructing the company not

to disclose to anyone the government’s request for documents

“indefinitely” because “[a]ny such disclosure could impede

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1147
the investigation being conducted and thereby interfere with

the enforcement of the law.” 

On May 21, 2004, CDT and the Players Association filed

a motion in the District of Nevada for a return of the property

seized from Quest Diagnostics. On June 7, 2004, CDT and the

Players Association filed a motion in the Northern District of

California for return of the electronic documents seized from

CDT pursuant to the April 30 search warrant issued by Magistrate Judge Lloyd in the Northern District. 

On July 9, 2004, Judge White held a hearing on the motion

to quash the grand jury subpoenas, but deferred action pending rulings on the motions for return of property seized pursuant to the search warrants. 

On August 9, 2004, Judge Susan Illston held a hearing on

the motion for return of the electronic data seized by the government pursuant to the April 30 warrant. When asked by

Judge Illston why the government hadn’t just waited to let

Judge White rule on the motions to quash the grand jury subpoena rather than seeking search warrants for the same material, the government responded: 

What the government really perceived ultimately as

a conscious decision on the part of the Major League

Baseball Players Association and the other parties

associated with it just refused to comply with what

the government felt was [sic] legitimate grand jury

subpoenas. 

Later in the hearing the government argued that the search

warrant was necessary because a motion to quash had been

filed. 

Counsel: The concern here was, to say, okay, we’re

going to face a brick wall from this legal

avenue . . . . 

1148 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Judge: What brick wall? 

Counsel: The brick wall was . . . 

Judge: Judge White? 

Counsel: No, no, not at all. It was the concern that

the requests or that discussions about

moving to quash the subpoena would be

something that would be dragged out. 

At a later hearing, counsel for government confirmed that

it would not have sought to obtain the search warrants if the

affected parties had not filed a motion to quash the grand jury

subpoena.3 However, the Department of Justice Guidelines

provide that “The fact that the disinterested third party possessing the materials may have grounds to challenge a subpoena or other legal process is not in itself a legitimate basis

for the use of a search warrant.” 28 C.F.R. § 59.4. 

The government primarily argued that, even though the

material seized may not have been authorized under the

search warrant, seizure was appropriate under the “plain

3A hearing on December 10, 2004, discussed infra, contains this colloquy: 

Counsel: And the government never would have done the

search warrants if the grand jury process could have

worked out. But it didn’t. I feel —

Court: Say that last thing one more time. What you —

Counsel: What I just said was we may not have ever done the

search warrants if the subpoena process worked out.

Court: But, I mean, there was a subpoena process pending in

this building before Judge White.

Counsel: Yes.

Court: At the time you went and got your search warrants,

and you didn’t allow that process to complete itself.

Counsel: That is true.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1149
view” doctrine. The court engaged in an extensive colloquy

about the search, ascertaining that the data was contained in

a file that could not be accessed readily without assistance,

and that the agent had to scroll through 1,200 results to obtain

the positive tests that formed the basis of the later search warrants. After noting that the government had not provided any

case to support its contention that the plain view doctrine

applied in the computer context, Judge Illston made the following findings: 

I find absolutely staggering the implications about

what you say about the plain view doctrine in the

computer set up. In a way nothing is in plain view

because with the disk you look at it, you don’t see

anything until you stick it in the computer and it

does take quite a lot of work really to bring it up on

the screen. 

So, it’s not in plain view in the sense of walking into

the room and seeing the scale on the desk. It takes

a whole lot of work to get there. 

First off, none of it is cursory, there are whole industries that have developed in order to make it possible

for the disk to show up on the screen that way. So

it’s not cursory review. I don’t think it’s plain view.

I don’t think I have to go that far or make that kind

of choice with respect to issues that are certainly

going to arise. . . . Where it requires sorting through

information which really is on a data base, somehow

it’s being organized in different formats, you could

organize it in a format based on the ten names,

instead of taking it in other kinds of formats, then

scrolling across and taking names and information

off the screen, when it’s clearly information that

isn’t part of what was originally within the authorized search warrant, I just think is impermissible. 

1150 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Judge Illston then granted the motion for return of seized

property, with the following findings from the bench: 

So, having looked at the Ramsden factors set out,

[there are] apparently four factors. One, whether the

government displayed a callous disregard for the

constitutional rights, two, whether the [movant] has

an individual right and need for the property he

wants returned, three, whether the [movant] would

be irreparably injured by denying the motion for

return of property, and four, whether the [movant]

has an adequate remedy at law for a redress of his

grievance. I find all four factors have been met here.

I think the government has displayed, in the chronology of things that we’ve seen, in the way that the

case was taken from one judge to another judge, in

the way that as soon as it was challenged in one

court, it was immediately litigated in another court

without full information being shared among the

courts, that to me makes it a callous disregard for

constitutional rights. I think, it’s a seizure beyond

what was authorized by the search warrant, therefore

it violates the Fourth Amendment. 

Number two, I think [that both movants] here

have an interest and need for the property returned.

I think they need it returned and not so much

because they need it back, they got it, you got it, I

think what they need to get back from you what they

have, what you’ve taken from them because of the

privacy rights and the circumstances under which

this material was given. 

Whether the [movant] would be irreparably

injured by denying the return of the property, I think

they would, and I think indeed there would be, that

the injury that will be suffered by volunteers not

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1151
being able to confidently provide testing under

promise of privacy would irreparably injure not only

major league baseball, I can’t imagine that there’s

going to be any voluntary agreement to do this kind

of testing, that’s probably over with already, but also

just has implications that are very negative for these

[movants], and whether the [movant] has an adequate remedy at law, I don’t think there is any remedy at law for the redress of these grievances. 

I’m going to grant the motion. 

On August 13, in the Central District of California, Magistrate Judge Johnson issued a report and recommendation recommending denial of the motion for return of property seized

at CDT. 

On August 19, in the District of Nevada, Judge James C.

Mahan held a hearing on the motion filed by the Players

Association for the return of the property seized at Quest

Diagnostics pursuant to the search warrants. The government

did not disclose to Judge Mahan or the Players Association

that it had served on Quest a grand jury subpoena for the same

materials, coupled with a letter instructing Quest to keep that

fact confidential indefinitely. At the conclusion of the hearing,

Judge Mahan orally granted the motion. On September 7,

Judge Mahan filed a written order granting the motion for

return of the property. Judge Mahan found, in relevant part,

that: 

2. Under Ramsden v. United States, 2 F.3d 322

(9th Cir. 1993), this Court has equitable jurisdiction to order return of that seized property. All

of the factors identified in Ramsden supporting

jurisdiction are present. The government callously disregarded the affected players’ constitutional rights. The MLBPA, as representative for

the players, has an individual interest in and

1152 UNITED STATES v. COMPREHENSIVE DRUG TESTING
need for the property that it wants returned. The

MLBPA would be irreparably injured if the

property were not returned. And the MLBPA

has no adequate remedy at law for redress of the

grievances. 

3. Under the particular circumstances of this case,

it was unreasonable for the Government to

refuse to follow the procedures set forth in

United States v. Tamura, 694 F.2d 591 (9th Cir.

1982), upon learning that drug-testing records

for the ten athletes named in the original April

8 warrants executed at Quest and at Comprehensive Drug Testing, Inc. were co-mingled with

records for other athletes not named in those

warrants. 

After issuance of the order, the government declined to

return the material seized from Quest in Nevada, contending

it was entitled to retain it under the authority of the new May

6 grand jury subpoena. To that end, the government filed a

stay motion with Judge Mahan, arguing that it had a right to

retain the data and samples based on the May 6 grand jury

subpoena, which had issued after the seizures of the material

had occurred. The government argued that Judge White was

the only judge who had jurisdiction to decide that issue. Judge

Mahan denied the stay motion. The government maintained

that the May 6 grand jury subpoenas independently authorized

retention of the data and specimens; therefore, the Players

Association and CDT filed a motion to quash the May 6 subpoena in the Northern District of California. 

On October 1, 2004, in the Central District of California,

Judge Cooper declined to adopt Magistrate Judge Johnson’s

recommendation, and granted the motion for return of the

seized CDT property. She noted that she joined “an apparently ever-increasing number of district judges who have held

that the Government’s execution of the Search Warrant at

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1153
issue in this case demonstrated a callous disregard for the constitutional rights of the movants and their members.” 

With respect to the Ramsden factors, Judge Cooper found:

All four considerations weigh in favor of the moving parties in this case. In assessing whether the government displayed a callous disregard for the rights

of the persons whose records were seized, it is

important to focus on the Ninth Circuit opinion in

United States v. Tamura, 694 F.2d 591 (1982). At

the time of the search, Tamura was certainly settled

law in the Circuit, and Tamura establishes a procedure to be followed when documents to be seized are

intermingled with other documents. “. . . . [T]he

wholesale seizure for later detained examination of

records not described in a warrant is significantly

more intrusive, and has been characterized as ‘the

kind of investigatory dragnet that the fourth amendment was designed to prevent.’[citation].” Id. at 595.

Therefore, law enforcement officials are to seal and

hold such intermingled documents “pending

approval by a magistrate of a further search . . . .

Wholesale removal must be monitored by the judgment of a neutral, detached magistrate.” Id. at 596.

It is particularly telling in this case that just such a

procedure was proposed to the Government at the

time of the search, and rejected. 

Nor is the viewing of the seized files legitimized

by the Plain View doctrine. Under the exception to

the warrant requirement, an officer may seize what

he plainly views, so long as he has a lawful right to

access the evidence itself and its incriminating character is immediately apparent. Horton v. California,

496 U.S. 128, 136 (1990). Here, the agent did not

have a lawful right to access the computer records

and diskettes, and, as evidence provided in connec1154 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tion with the Motion reveals, the evidence observed

is not necessarily incriminating. The Declaration of

Dr. Joseph states that the ingestion of nutritional

supplements can produce a “positive” test for steroids. 

The Government demonstrated a callous disregard

for the rights of persons whose records were seized

and searched outside the warrants. 

The second consideration, whether the moving

party has an interest and need for return of the property, is easily answered. The athletes in question voluntarily submitted to urine testing for steroids, as

part of an agreement that all results would remain

confidential and be used only for statistical analysis.

Their interest in privacy is obvious. 

The third consideration, whether the moving party

has an interest and need for return of the property is

easily answered. The careers of these athletes could

be profoundly, negatively affected by release of

these records, and their return is vitally important.

The harm they would suffer if the records were

released (even if the positive tests are shown to be

innocuous) would be irreparable. 

Finally, it is evident that the movants have no

other legal remedy. No motion to suppress the evidence is available to them; they are neither defendants nor suspects, and no case exists in which this

issue could be litigated. 

In addition to her findings and conclusions, Judge Cooper

added these comments in a section labeled “Serious Concerns:” 

The documents presented to the Court in connection with this Motion reveal extremely troubling

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1155
conduct on the part of the Government. The picture

painted is one of almost desperate effort to acquire

evidence by whatever means could be utilized. The

Government negotiated with movants’ attorneys

over the breadth of the grand jury subpoenas;

received assurances in writing that the records of the

ten athletes would be secured while the Court

resolved the issue, and the day after the issue was

presented to a Court, went to another district and

sought a search warrant. That conduct would be suspect in itself. But in seeking the warrant (not the correct procedure for obtaining documents for a third

party who is not a suspect), the Government

explained to the Magistrate that the records in question were in danger of being destroyed. This is blatant misrepresentation, as demonstrated by the

records in this case. 

Four days after Movants filed a motion before

Magistrate Judge Johnson for return of the property,

the Government obtained a further warrant from a

Magistrate Judge in the Northern District of California. And while a motion for return of that property

was pending, the Government obtained two more

warrants in the Central District of California (not

from Magistrate Judge Johnson) and in Nevada. The

image of quickly and skillfully moving the cup so no

one can find the pea would be humorous if the matter were not so serious. 

Noting that “the Government is held to a far higher standard than has been demonstrated in this case,” and that “this

is the third District Court Order compelling the Government

to return property illegally seized,” Judge Cooper ordered

return of the seized CDT property forthwith. 

On December 10, 2004, Judge Illston held a hearing on the

Players Association motion to intervene and to quash the May

1156 UNITED STATES v. COMPREHENSIVE DRUG TESTING
6, 2004 grand jury subpoenas served on CDT and Quest. At

the conclusion of the hearing, Judge Illston made the following oral findings and conclusions: 

I find that the MLBPA has the right to intervene

in this matter under Federal Rule of Civil Procedure

24(a), as it has an interest in the samples and test

results in the possession of CDT and Quest, which

were created with the promise of anonymity under

the mandatory testing of the 2002 collective bargaining agreement. 

The May 6th, 2004 subpoenas were the culmination of a series of actions taken by the government

in order to prevent MLBPA and CDT’s attempt to

move to quash the January and March subpoenas.

Instead of allowing the matter to be resolved in a single proceeding before Judge White, the government

executed a series of search warrants in three different

districts once it learned that petitioners would move

to quash the January and March subpoenas. 

The government has provided no substantial

explanation of why this course of action was necessary. Given that the government had no other basis

for issuing the April search warrants and preempting

the subpoenas served on Quest and CDT, the decision appears to have been a tactical decision to prevent the parties from raising objections before Judge

White, which is unreasonable and constitutes harassment similar to the conduct in United States v. American Honda. 

Furthermore, the May 6th subpoenas were served

after the government had obtained evidence pursuant

to the April 7 and April 30 search warrants, which

has now been determined to have been illegally

seized. Some of the information sought in the May

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1157
6th subpoena was already in the government’s possession at the time the subpoena was served on CDT

and Quest; therefore, the Court finds that the May

6th subpoena served as an unreasonable insurance

policy as recognized in the motion for the return of

seized property cited in the papers, 681 F.Supp. [sic]

For these reasons the court grants petitioner’s

motion to quash the May 6th subpoena served on

Quest and CDT as an abuse of the grand jury process

and unreasonable under Federal Rule of Criminal

Procedure 17(c). 

On October 18, 2005, as a result of a plea agreement, Balco

founder Victor Conte received a sentence of eight months

imprisonment, with four months of the sentence to be served

in home confinement. James Valente, Balco’s vice president,

was sentenced to probation. Trainer Greg Anderson was sentenced to six months imprisonment, with three of the six

months to be spent in home confinement. On February 25,

2006, track coach Remi Korchemny was sentenced to one

year of probation. 

In reviewing both the order quashing the grand jury subpoena and the orders granting the motions for return of property pursuant to Fed. R. Crim. P. 41(g), we review the factual

findings of the district courts for clear error. In re Grand Jury

Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir.

1991) (orders to quash grand jury subpoenas); United States

v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999) (orders on

motions for return of property). We review orders quashing

subpoenas for abuse of discretion. United States v. Bergeson,

425 F.3d 1221, 1224 (9th Cir. 2005) (citing In re Grand Jury

Subpoena, 357 F.3d 900, 906 (9th Cir. 2004)). We review de

novo a district court’s denial of a motion for return of property pursuant to Rule 41(g). Marolf, 173 F.3d at 1216. 

1158 UNITED STATES v. COMPREHENSIVE DRUG TESTING
II

Regarding the two preliminary jurisdictional questions—

(1) whether the Players Association had standing to file the

Fed. R. Civ. P. 41(g) motions for return of property on behalf

of its members, and (2) whether the government timely

appealed Judge Cooper’s order granting the Rule 41(g)

motion—I agree with the conclusions reached by the majority.4

I also agree with the majority that Judge Cooper did not abuse

her discretion in denying the government’s motion to reconsider certain findings made in her order. 

III

Application of the proper standard of review should have

settled this appeal without much ado. We review the findings

of fact underlying the district court’s determination of lawfulness of a search for clear error. United States v. Stafford, 416

F.3d 1068, 1073 (9th Cir. 2005) (citing United States v.

Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004)). Review under

the clearly erroneous standard is significantly deferential,

requiring a “definite and firm conviction that a mistake has

been committed,” before a finding can be overturned. Easley

v. Cromartie, 532 U.S. 234, 242 (2001). As long as the district court’s account of the evidence is plausible in light of the

record viewed in its entirety, we may not reverse it even if we

are convinced that, had we been sitting as the trier of fact, we

would have weighed the evidence differently. SEC v. Rubera,

350 F.3d 1084, 1094 (9th Cir. 2003). 

Here, the district courts made the factual finding that the

government did not comply with the terms of the CDT search

warrant in seizing the non-Balco data. The district courts

found, as a matter of fact, that the seizure of the non-Balco

4

I acknowledge and appreciate the majority’s willingness to revisit the

question of whether the government timely appealed Judge Cooper’s

order. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1159
data was not authorized by the warrant. The district courts

found, as a matter of fact, that the government had not complied with the terms of the Tamura procedure. The district

courts collectively found that the action of the government in

seizing the property was so “egregious” that it rose to the

level of a callous disregard for the rights of the property owners. Under our significantly deferential standard of review,

that should be the end of the matter. 

We review a district court decision to exercise its equitable

jurisdiction under Rule 41(g) under the deferential abuse of

discretion standard. Ramsden, 2 F.3d at 324. Similarly, we

review district court decisions on motions to quash grand jury

subpoenas for abuse of discretion. In re Grand Jury Subpoena, Dated April 18, 2003, 383 F.3d 905, 909 (9th Cir.

2004). Under the abuse of discretion standard, we cannot

reverse unless we have a definite and firm conviction that the

district court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.

Natural Resources Defense Council, Inc. v. Winter, 2007 WL

2481465, *4 (9th Cir. 2007). Here, there is no doubt the district courts weighed the appropriate factors pertaining to the

Rule 41(g) motion and elected to exercise equitable power to

return property. There is also no doubt that Judge Illston

based her decision on the motion to quash on a correct view

of the law and appropriately considered all of the evidence. In

re Grand Jury Subpoena, 383 F.3d at 909. On appellate

review, we cannot say that these judges abused the discretion

reposed in them. 

The majority chooses instead to substitute its own factual

findings concerning the government’s compliance with the

warrants and interpose its own de novo opinion as to the exercise of discretion. That is not our function. In addition, our

appellate review ought to be significantly more deferential

when we confront the uniform factual findings and collective

exercise of judicial discretion of three experienced district

judges from three separate judicial districts. However,

1160 UNITED STATES v. COMPREHENSIVE DRUG TESTING
because our deferential standards of review were discarded in

this case, I will proceed to a merits discussion. 

IV

I agree with the majority that Judge Mahan properly exercised equitable jurisdiction over the Rule 41(g) motions.5

Ramsden identified four factors that district courts must consider before exercising equitable jurisdiction to order the

return of property, namely whether: (1) the government displayed a callous disregard for the constitutional rights of the

movant; (2) the movant has an individual interest in and the

need for the property he wants returned; (3) the movant would

be irreparably injured by denying return of the property; and

(4) the movant has an adequate remedy at law for the redress

of his grievance. 2 F.3d at 324. 

Although I agree with the majority that the district courts

properly exercised equitable jurisdiction, I disagree with the

majority’s analysis in reaching that conclusion. Because the

equitable jurisdictional analysis in large part drives the analysis of the merits of the Rule 41(g) decisions, it is important

to detail my differences with the majority on this issue. 

5Because Judge Cooper’s order is not reviewable, like the majority, I

review only Judge Mahan’s order in this section. However, the legal analysis applicable to both orders is largely the same. Further, Judge Cooper’s

conclusive determination that the materials seized from CDT must be

returned because they were taken in callous disregard of the non-Balco

players’ constitutional rights has an impact on the validity of Judge

Mahan’s order. Since the CDT materials were a necessary prerequisite for

the granting of the Quest search warrant, the fact that those materials were

improperly seized removes the foundation for the legality of the Quest

warrant. Although the Quest warrant is not directly challenged in this case,

I address below how the final order from Judge Cooper also serves to support the result reached by Judge Mahan. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1161
A

The first Ramsden factor is whether the government displayed a callous disregard for the constitutional rights of the

movant. The majority concludes the government did not. I

respectfully disagree with that conclusion. The record entirely

supports Judge Mahan’s conclusion that the government displayed a callous disregard for the constitutional rights of the

movants. 

1

The doctrine of issue preclusion requires us to accept as

decided that the government callously disregarded the nonBalco players’ rights when it seized those players’ records

from CDT. Clements v. Airport Authority of Washoe County,

69 F.3d 321, 329-30 (9th Cir. 1995). Judge Cooper ordered

the CDT-seized property returned, holding that the government demonstrated a callous disregard for the constitutional

rights of the movants and their members. That holding, now

final, is entitled to res judicata effect. Because the affidavit

submitted to Magistrate Judge Leavitt that formed the basis

for the May 5, 2004, Quest search warrant relied on the materials Judge Cooper has now conclusively determined were

seized in callous violation of the players’ rights, the materials

seized pursuant to the May 5 warrant are fruit of that poisonous tree. Wong Sun v. United States, 371 U.S. 471, 488

(1963); Silverthorne Lumber Co. v. United States, 251 U.S.

385, 391 (1920). 

Indeed, the government’s approach—using the results of

one tainted search after another to justify the next search—

was rejected decades ago by the Supreme Court. In Silverthorne Lumber, the Court considered a situation akin to the

one at bar. In describing the government’s argument in that

case, the Court wrote: 

The proposition could not be presented more

nakedly. It is that although of course its seizure was

1162 UNITED STATES v. COMPREHENSIVE DRUG TESTING
an outrage which the Government now regrets, it

may study the papers before it returns them, copy

them, and then may use the knowledge it has gained

to call upon the owners in a more regular form to

produce them; that the protection of the Constitution

covers the physical possession but not any advantages that the Government can gain over the object

of its pursuit by doing the forbidden act. 

251 U.S. at 391. 

The Supreme Court forcefully rejected this idea, stating

that adoption of such a theory would “reduce[ ] the Fourth

Amendment to a form of words.” Id. at 392. 

The Court concluded: 

The essence of a provision forbidding the acquisition

of evidence in a certain way is that not merely the

evidence so acquired shall not be used before the

Court but that it shall not be used at all. 

Id.

Judge Cooper declared the seizures illegal and ordered the

material returned. That binding decision means that the government could not use the fruits of the search to justify its

subsequent search in Nevada. The majority fails to explain

how the government can disregard the players rights in seizing the spreadsheet from CDT, but not disregard their rights

in using that spreadsheet to seize the urine samples themselves from Quest. 

2

Even notwithstanding any preclusive effect stemming from

Judge Cooper’s order, the record more than amply supports

Judge Mahan’s ruling on its own merits. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1163
The record supports the conclusion that the government

sought and executed the search warrants and took subsequent

legal action as a tactical measure to prevent the Players Association and CDT from litigating their motion to quash and

other objections to the wholesale production of CDT data and

thus the Quest data that the CDT materials begot.6 The government applied for, and executed, the initial search warrants

after CDT and the Players Association informed the government they would be filing a motion to quash the grand jury

subpoenas. Government counsel conceded on the record that

the motivation for seeking the search warrants was the “brick

wall” presented by the filing of the motions to quash, even

though DOJ guidelines state that “[t]he fact that the disinterested third party possessing the materials may have grounds

to challenge a subpoena or other legal process is not in itself

a legitimate basis for the use of a search warrant.” 28 C.F.R.

§ 59.4. 

The majority points out that the DOJ guidelines do not give

rise to substantive rights. That may be so, but it is beside the

point. The guidelines form a baseline from which to judge the

reasonableness of unjustified deviations from the standard

practices they outline. The guidelines are certainly relevant to

the question before the district court, namely whether the government exhibited callous disregard for the rights of third parties. The guidelines plainly state that it is not legitimate to use

a search warrant because a party may be challenging a subpoena; the government admitted that this was precisely the

reason it issued the warrants in this case. 

Further, as Judge Cooper found, the use of a search warrant

to obtain documents from a third party is inappropriate. The

6Although we only have jurisdiction to review Judge Mahan’s order,

because the Quest search warrant was based, in part, on materials seized

from CDT, an analysis of the propriety of the CDT warrants is necessary

to a full analysis of whether Judge Mahan properly exercised his discretion in ordering the non-Balco samples seized from Quest returned. 

1164 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Department of Justice Guidelines address this point specifically: 

A search warrant should not be used to obtain documentary materials believed to be in the private possession of a disinterested third party unless it appears

that the use of a subpoena, summons, request, or

other less intrusive alternative means of obtaining

the materials would substantially jeopardize the

availability or usefulness of the materials sought, and

the application for the warrant has been authorized

as provided in paragraph (a)(2) of this section. 

28 C.F.R. § 59.4(a)(1); see also U.S. Attorney’s Manual § 9-

19.210. 

The U.S. Attorney’s Manual also provides that a search

warrant should normally not be used to obtain confidential

materials such as treatment records. §§ 9-19.220, 9-19.230. 

The simple and undisputed fact is that the government

deviated from its usual and appropriate protocol. Documents

held in the possession of third parties are appropriately

obtained through use of grand jury subpoena, not search warrant. The record is quite clear that the government used the

vehicle of a search warrant only because it thought its grand

jury subpoenas might be contested. As the DOJ Guidelines

recognize, that is an inappropriate use of a search warrant.

Judge Mahan was entitled on the basis of the record to find

that the government undertook this action in an attempt to

prevent the Players Association and CDT from litigating the

merits of their objections to the grand jury subpoenas and thus

that the Quest search warrant was procured via tainted means.

Further, the entire record of the case shows a repeated pattern of the government attempting to prevent a full hearing on

the merits of the Players Association legal challenges. In virtually each hearing in which CDT and the Players Association

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1165
articulated their objections, the government argued that

another court had primary jurisdiction or that the action of

another court dictated the result.7 The record supports the district courts’ collective conclusion that, as Judge Cooper put it,

the government’s actions constituted a “desperate effort to

acquire evidence by whatever means could be utilized,” by

means of “quickly and skillfully moving the cup so no one

can find the pea.” 

3

The record also supports the conclusion that the government made misleading statements in its application for search

warrants and that the actions of the government in executing

the search warrants were a mere pretext for inappropriately

seizing confidential medical data about Major League Baseball players who were not under any particularized suspicion

of criminal activity. 

The application contained lengthy representations about

how computer data could be destroyed and stated that “while

not denying that they have the requested materials, CDT has

declined to comply with the subpoena and has stated its intent

to quash the subpoena.” The affidavit did not disclose that

CDT had agreed in writing to keep the data and other materials secured until the scope of the grand jury subpoena was set7To provide but a few examples: Before Judge White, who was considering the initial motion to quash, the government argued that he should

defer ruling because he had no jurisdiction over the materials seized by the

warrant. The government urged Judge Illston to wait to decide the Rule

41(g) motion until Magistrate Judge Johnson had ruled on the separate

Rule 41(g) motion. The government urged Judge Johnson to consider that

probable cause had already been established by the issuance of a search

warrant by Magistrate Judge Lloyd. The government contended Judge

Mahan lacked jurisdiction to order the property seized under the warrant

returned because it had separately obtained a grand jury subpoena for the

same item, urging him to wait until Judge White had ruled on the motion

to quash (not disclosing that it had asked Judge White to defer until the

Rule 41(g) motions had been decided). 

1166 UNITED STATES v. COMPREHENSIVE DRUG TESTING
tled, either through negotiation or a ruling on a motion to

quash. The affidavit did not disclose that the Chief of the

Criminal Division of the United States Attorney’s Office had

accepted the assurances in writing. 

Rather, the affidavit justified removing computer data and

equipment from the searched premises on the basis that: 

Computer users can attempt to conceal data within

computer equipment and storage devices through a

number of methods, including the use of innocuous

or misleading filenames and extensions. . . . Computer users can also attempt to conceal data by using

encryption, which means that a password or device,

such as a “dongle” or “keycard,” is necessary to

decrypt the data into readable form. In addition,

computer users can conceal data within another

seemingly unrelated and innocuous file in a process

called “steganography.” For example, by using steganography, a computer user can conceal text in an

image file which cannot be viewed when the image

file is opened. Therefore, a substantial amount of

time is necessary to extract and sort through data that

is concealed or encrypted to determine whether it is

evidence, contraband or instrumentalities of a crime.

The affidavit also informed the magistrate judge that

“[c]omputer hardware and storage devices may contain

‘booby traps’ that destroy or alter data if certain procedures

are not scrupulously followed.” It noted that computer data

was “particularly vulnerable to inadvertent or intentional

modification or destruction.” 

As previously stated, the government did not have any evidence or reason to believe that CDT had engaged in any of

this sort of conduct that might have jeopardized the evidence

being sought. To the contrary, it had accepted in writing

CDT’s assurances “that CDT will maintain and preserve all

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1167
materials called for by the first subpoena as well as any materials called for by the new subpoena” and that “CDT would

not destroy or alter any of the materials called for by either

of the subpoenas.” The plain import of the application was

that CDT was improperly resisting compliance with a valid

grand jury subpoena and data was in jeopardy of being

destroyed. It implied that CDT was not being forthright about

the information it possessed, when in fact there was no suggestion that CDT was attempting to mislead the government

in any respect. 

The search warrant application did not disclose that the

Players Association, on behalf of the individuals whose medical files were at issue, had intervened and had joined CDT’s

motion to quash the grand jury subpoena. The application did

not disclose the history of negotiations between the parties,

and that the concern was about the breadth of the subpoena.

The application did not disclose that the written assurances

made by CDT and accepted by the government contemplated

resolving the disputed issues through a motion to quash if

necessary. Rather, the application implied that CDT was taking unjustified unilateral action. 

The majority implies that the government constructed a

careful search protocol carefully tailored to the CDT operation that it presented to the magistrate judges. However, the

affidavits and protocol incorporate merely boilerplate language. Had the government disclosed to the magistrate judge

that it intended, in the course of its search for material on a

handful of players, to seize thousands of records pertaining to

thirteen other major sports organizations, three unaffiliated

business entities, and three sports competitions, and that the

entity to be subject to the search had already segregated the

responsive information for production, there is no doubt in my

mind that the reaction of the judge would have been completely different. 

Given these undisputed facts, the district courts were entitled to conclude that the government made misleading state1168 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ments in its applications for search warrants and that the

actions of the government in executing the search warrants

were a mere pretext for inappropriately seizing confidential

medical data about Major League Baseball players who were

not under any particularized suspicion of criminal activity. 

4

Notwithstanding the government’s bold and apparently

deceptive tactics, the majority claims the government nonetheless complied with the terms of the warrants and therefore

that Judge Mahan’s ruling must be reversed. 

First, this contention flies in the face of Judge Cooper’s

specific factual finding that the government did not comply

with the terms of the warrant. She found that “the requirement

of the Warrant that the seized items not covered by the warrant be first screened and segregated by computer personnel

was completely ignored.” As she elaborated: 

[T]he warrant did not require mere “consultation”

and “participation” with computer personnel, but

required computer personnel to actually make an initial review of computer equipment and storage

devices to determine if they could be searched onsite, to determine whether it was practical to copy

the data, and to seize and transport the equipment

devices if necessary. The warrant required “appropriately trained personnel” to review the seized items

to determine what data fell within the warrant. This

clearly not the role [agent] Abboud played. The

Court therefore considered this evidence and found

it unconvincing in showing that the Government

complied with the warrant. 

Judge Cooper’s factual finding, which we review for clear

error, is amply supported by the record. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1169
It is undisputed that, in anticipation of responding to the

grand jury subpoena, CDT had already segregated the material about the specific individuals that was sought by the government. When agents arrived the President of CDT, Kim

Jasper, informed the government that there was an envelope

that contained the drug testing results, executed chain of custody forms, and laboratory reports for all ten of the players

specified in the search warrant. When Jasper opened the box

for the agents, they seized not only the envelope, but also

computer disks and other material. They seized the material

without examining it. One of the disks was completely blank.

Similarly, another CDT employee had created hard copy

information responsive to the grand jury subpoena, which

CDT provided to the government. The government wished to

view the hard drive from which the information derived. CDT

allowed them access and directed them to the subdirectory in

the Tracey Directory were the Major League Baseball drug

testing results were kept. The agents not only copied the subdirectory, but the entire Tracey directory which included

thousands of obviously irrelevant material. The affidavit supporting the CDT search warrant explained that, if necessary,

the agents could conduct an off-site search. Rather than seize

on any of the opportunities presented to avoid the moreintrusive search, the agents proceeded to do everything possible to assure that result. In addition to rejecting CDT’s offer

to produce the responsive documents, the agents also declined

to attempt any keyword searches to isolate responsive documents on site. The agents also ignored the fact that subdirectories containing files relevant to Major League Baseball

were clearly labeled—as were the many subdirectories containing confidential information about other sports

organizations—and instead seized the entire Tracey Directory. 

The majority argues that “[t]he government should not be

required to trust the suspect’s self-labeling when executing a

warrant.” But CDT was not a suspect; it was a third party. The

1170 UNITED STATES v. COMPREHENSIVE DRUG TESTING
majority, without any support in the record, goes on to place

the independent laboratory in the category of criminal suspects, stating that “[l]ike most searched parties, CDT had an

incentive to avoid giving over documents of which the government might be unaware and to read the search warrant as

narrowly as possible.”

8

 What the undisputed record indicates

is that CDT had already segregated the material in anticipation of cooperating with the government’s grand jury subpoena; that CDT had assured the government in writing of its

cooperation; and that the government had accepted those

assurances. In the end, the proof is in the pudding. After

examining all of the massive amount of seized data, after filing numerous declarations in support of the legitimacy of the

government’s search, and after much protesting about its suspicions about CDT, the government does not identify a single

piece of information responsive to the warrant that CDT did

not have already segregated and ready for production. 

In short, the so called warrant protocol, relied on by the

majority, was completely discarded, as Judge Cooper found.

The government did not have a meaningful consultation with

CDT officials about production of responsive material. It

engaged in a wholesale dragnet operation indiscriminately

gathering as much data as it could lay its hands on. The pretextual nature of the search was highlighted in later govern8The majority’s unwarranted speculation as to the motivation of professional, independent laboratories to conceal information is belied by the

DOJ Guidelines. Indeed, the DOJ computer search manual contemplates

that “[s]ometimes, . . . [a] friendly employee or system administrator may

agree to pinpoint a file or record or may have a recent backup, permitting

the agents to obtain a hard copy of the files they seek while on-site.” See

Computer Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep’t

of Justice, Searching and Seizing Computers and Obtaining Electronic

Evidence in Criminal Investigations, pts. 1-2 at II.B.1.b. (2002), available

at http://www.cybercrime.gov/s&smanual2002.htm (citing, e.g., United

States v. Longo, 70 F. Supp. 2d 225 (W.D.N.Y. 1999) (upholding pinpoint

search aided by suspect’s secretary for two particular computer files)).

Nonetheless, the searching agents rejected precisely that kind of assistance

here. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1171
ment affidavits, in which agent Novitsky argues that he

believes he was entitled to seize data at the scene on athletes

other than those identified in warrant under the plain view

doctrine. Of course, he had previously averred to the magistrate judge that obtaining a list of the ballplayers’ names correlated to the laboratory test numbers was justified “to ensure

that samples of individuals not associated with Balco are left

undisturbed.” 

Judge Cooper’s factual finding that the government did not

comply with the terms of the warrant is completely supported

by the record. 

Second, following the seizure, the government did not follow the Tamura procedure and did not follow the warrant protocol of segregating the non-responsive information. Rather,

once off-site, instead of allowing only technical experts to

segregate the responsive from the unresponsive data, the government allowed the lead investigator to peruse all of the

material in the Tracey Directory, contrary to the specific

instructions in the warrant. After examining the confidential

information it had no right to see, the government then sought

to sanitize its actions by asking another magistrate judge for

a search warrant to examine the data it had already searched.

For decades, we have condemned the indiscriminate seizure

of materials that are not responsive to a valid search warrant.

In Tamura, we stated that “the wholesale seizure for later

detailed examination of records not described in a warrant . . .

has been characterized as ‘the kind of investigatory dragnet

that the fourth amendment was designed to prevent.’ ” 694

F.2d at 595 (quoting United States v. Abrams, 615 F.2d 541,

543 (1st Cir. 1980)). Tamura held that “the government’s

wholesale seizure of company documents [is] illegal [when]

the agents intentionally seize[ ] materials they [know] were

not covered by the warrant.” United States v. Hill, 322 F.

Supp. 2d 1081, 1088 (C.D. Cal. 2004) (Kozinski, J., sitting by

designation). 

1172 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Under Tamura, where “documents are so intermingled that

they cannot be feasibly sorted on site,” we directed that law

enforcement officers should “seal[ ] and hold[ ] the documents pending approval by a magistrate . . . .” Id. at 595-96.

As we noted: 

The essential safeguard required is that wholesale

removal must be monitored by the judgment of a

neutral, detached magistrate. In the absence of an

exercise of such judgment prior to the seizure in the

present case, it appears to us that the seizure, even

though convenient under the circumstances, was

unreasonable. 

Id. at 596 (footnote omitted).9

The Tamura protocol provides a sensible and practical

approach to the problem posed by intermingled electronic

records. It allows the government to seize the intermingled

files, but not to view them until a neutral and detached magistrate has first reviewed the records. Indeed, had the Tamura

protocol been followed, it is likely that the government would

have obtained the information it sought with the warrants:

complete drug testing and related information on the ten specified players. 

If the government is going to be allowed to sift through

reams of potentially unresponsive data in the digital context

in order to identify responsive files, it cannot be allowed to

9The Tenth Circuit adopted the Tamura approach specifically in the

computer context in Carey, holding that: 

Where officers come across relevant documents so intermingled

with irrelevant documents that they cannot feasibly be sorted at

the site, the officers may seal or hold the documents pending

approval by a magistrate of the conditions and limitations on a

further search through the documents. 

172 F.3d at 1275. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1173
use anything it finds to seek further warrants to retain that

data when there is no independent probable cause to otherwise view it or retain it. To do so completely subverts the

Fourth Amendment warrant requirement and allows the government to obtain post hoc justification for a search for which

they had no probable cause to conduct before conducting it.

Such a procedure invites an abuse of the off-site process that

threatens both the privacy of computer data as well as the

government’s ability to reasonably search it. 

The majority relies on United States v. Adjani, 452 F.3d

1140 (9th Cir. 2006), and United States v. Hill, but those decisions supply no support for a deviation from the Tamura procedure. In Adjani, in execution of a lawful warrant,

investigators seized a computer owned by the defendant and

a computer owned by his girlfriend, who was also a suspect.

In sustaining the search of her computer, we reasoned that the

government acts within the scope of the warrant when it

seizes material that is “both related to the purposes of [the]

search and [is] implicated . . . in the crime.” Id. (emphasis

added). Here, the government seized hundreds of records that

were clearly outside the scope of the Balco-limited warrant,

that were unrelated to the purposes of the Balco-limited

search, and were indicative of no crime whatsoever. The

materials seized at CDT were not related to the purpose of the

search or implicated in the alleged crimes involving Balco. 

Hill did not involve a seizure, but a challenge to an allegedly overbroad warrant. In contrast, this case is not about the

overbreadth of the warrant but rather about whether the materials seized and kept and used by the government were within

the scope of the warrant. Id. at 977 (“the officers’ wholesale

seizure was flawed here because they failed to justify it to the

magistrate, not because they acted unreasonably or improperly in executing the warrant”). To the extent Hill is relevant,

it declined to suppress material that was “described in and

therefore taken pursuant to the valid search warrant.” Id.

(quoting Tamura, 694 F.2d at 597). In contrast, the records

1174 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sought by the MLBPA here that do not pertain to the ten

named Balco-connected players were not described anywhere

in the search warrant. Importantly, Hill specifically declined

to address the question of intermingled files. 459 F.3d at 978

n.14. 

Neither Adjani nor Hill address the question of intermingled files. Tamura did, however, and there is no dispute that

the government did not follow the post-seizure Tamura protocol, as the district courts appropriately found. The majority’s

attempt to paper over this failure by suggesting the search was

conducted in accordance with the warrant or justified by the

issuance of subsequent search warrants based on the tainted

seized information is unavailing. 

In sum, the search did not comply with the warrant terms

and the post-seizure conduct did not comply with Tamura.

Thus, I must respectfully disagree with the majority’s conclusion that the CDT search and seizure was conducted in accordance with the Fourth Amendment and our precedent

governing electronic searches and seizures. 

5

For all of these reasons, the district court’s conclusion that

the government acted in callous disregard of the rights of the

players is completely supported by the record. The district

courts made no error in finding that the first Ramsden factor

was satisfied. 

B

The second Ramsden factor is whether the movant has an

individual interest in and the need for the property he wants

returned. I agree with the majority and the district courts that

the Players Association satisfied this requirement. At issue are

the Fourth Amendment rights of the players. As we know, the

Fourth Amendment protects people from unreasonable

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1175
searches and seizures into areas in which they have a legitimate expectation of privacy. Katz v. United States, 389 U.S.

347, 360-61 (1967) (Harlan, J., concurring). There is no doubt

that the affected baseball players had a justified,

constitutionally-protected privacy interest in the seized property, including the computer data and the physical urine samples. However, I believe that the majority significantly

discounts and underestimates the importance of the privacy

interests at stake. 

The legitimate expectation of privacy in medical information is as old as the Hippocratic Oath.10 Indeed, “[o]ver the

last thirty years, the federal courts have uniformly accepted

the principle that medical records are private and entitled to

protection.” Joel Glover and Erin Toll, The Right to Privacy

of Medical Records, 79 Denv. U. L. Rev. 540, 541 (2002). In

this context, the Supreme Court has recognized at least two

distinct kinds of constitutionally-protected privacy interests:

“One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in

making certain kinds of important decisions.” Doe v. Attorney

General, 941 F.2d 780, 795 (9th Cir. 1991) (quoting Whalen

v. Roe, 429 U.S. 589, 599-600 (1977)). 

We have long applied Whalen and its progeny in holding

that “[i]ndividuals have a constitutionally protected interest in

avoiding ‘disclosure of personal matters,’ including medical

information.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531,

551 (9th Cir. 2004); see also Norman-Bloodsaw v. Lawrence

Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998)

(“The constitutionally protected privacy interest in avoiding

disclosure of personal matters clearly encompasses medical

information and its confidentiality.”); Yin v. California, 95

10STEDMAN’S MEDICAL DICTIONARY, 799 (26th ed. 1995) (“All that may

come to my knowledge in the exercise of my profession or outside of my

profession, or in daily commerce with men, which ought not to be spread

abroad, I will keep secret and will never reveal.”) 

1176 UNITED STATES v. COMPREHENSIVE DRUG TESTING
F.3d 864, 870 (9th Cir. 1996) (noting that “individuals have

a right protected under the Due Process Clause of the Fifth or

Fourteenth Amendments in the privacy of personal medical

information and records.”); Doe, 941 F.2d at 795-96 (holding

that an individual has privacy interest in medical information,

including diagnosis); Caesar v. Mountanos, 542 F.2d 1064,

1067 n.9 (9th Cir. 1976) (noting that the right to privacy

encompasses the doctor-patient relationship). As we have

observed, “[o]ne can think of few subject areas more personal

and more likely to implicate privacy interests . . . .” NormanBloodsaw, 135 F.3d at 1269. 

If there were any doubt, the Supreme Court held in Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001), that individuals enjoyed a reasonable expectation of privacy in

medical test results and that “the results of those tests will not

be shared with nonmedical personnel without [the patient’s]

consent.” 

Congress has also recognized the importance of privacy in

medical records in a variety of contexts, most prominently in

the Health Insurance Portability and Accountability Act of

1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996).11

11HIPAA was far from Congress’s first foray into privacy protection. As

the United States Department of Heath and Human Services noted: 

In the 1970s, individual privacy was paramount in the passage of

the Fair Credit Reporting Act (1970), the Privacy Act (1974), the

Family Educational Rights and Privacy Act (1974), and the Right

to Financial Privacy Act (1978). These key laws were followed

in the next decade by another series of statutes, including the Privacy Protection Act (1980), the Electronic Communications Privacy Act (1986), the Video Privacy Protection Act (1988), and

the Employee Polygraph Protection Act (1988). In the last ten

years, Congress and the President have passed additional legal

privacy protection through, among others, the Telephone Consumer Protection Act (1991), the Driver’s Privacy Protection Act

(1994), the Telecommunications Act (1996), the Children’s

Online Privacy Protection Act (1998), the Identity Theft and

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1177
In the regulations promulgated pursuant to HIPAA, the

United States Department of Health and Human Services

emphasized the importance of maintaining the privacy of

medical information, concluding that “[p]rivacy is a fundamental right” and that “[a] right to privacy in personal information has historically found expression in American law.”

12

65 Fed.Reg. at 82,464. 

In sum, given controlling legal authority, there is no question that the baseball players who participated in the random

testing had a justified expectation of privacy in the test results

and, in particular, that the test results would not be disclosed.13

Assumption Deterrence Act (1998), and Title V of the GrammLeach-Bliley Act (1999) governing financial privacy. 

In 1997, a Presidential advisory commission, the Advisory

Commission on Consumer Protection and Quality in the Health

Care Industry, recognized the need for patient privacy protection

in its recommendations for a Consumer Bill of Rights and

Responsibilities (November 1997). In 1997, Congress enacted the

Balanced Budget Act (Public Law 105-34), which added language to the Social Security Act (18 U.S.C. 1852) to require

Medicare+Choice organizations to establish safeguards for the

privacy of individually identifiable patient information. Similarly,

the Veterans Benefits section of the U.S. Code provides for confidentiality of medical records in cases involving drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia (38

U.S.C. § 7332). 

Standards for Privacy of Individually Identifiable Health Information, 65

Fed.Reg. 82,462, 82,469 (Dec. 28, 2000) (codified at former 45 C.F.R. pts.

160, 164 (2002)). 

12The Department also emphasized that “While privacy is one of the

key values on which our society is built, it is more than an end in itself.

It is also necessary for the effective delivery of health care, both to individuals and to populations. . . . The need for privacy of health information,

in particular, has long been recognized as critical to the delivery of needed

medical care.” 65 Fed.Reg. at 82,467. 

13That the athletes had a justified, reasonable expectation of privacy in

the urine samples themselves that were seized by the government is

beyond question. See Skinner v. Railway Labor Executives’ Ass’n, 489

U.S. 602, 615-617 (1989) (“it is clear that the collection and testing of

urine intrudes upon expectations of privacy that society has long recognized as reasonable . . . .”). 

1178 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Of course, under appropriate circumstances, justified privacy expectations may be altered by contract. Yin, 95 F.3d at

872. In this instance, the ballplayers’ privacy expectations

were heightened, not diminished, by the collective bargaining

agreement between the Major League Baseball Players Association and Major League Baseball. The agreement was

forged after years of impasse concerning steroid testing and,

as I have discussed, called for anonymous testing to determine

the scope of the steroid abuse problem. To that end, the agreement provided, in relevant part that: 

1. During the 2003 season (which shall include

spring training but not include the post-season), all

Players will be subject to two tests (one initial test

and one follow-up test conducted not less than five

and not more than seven days following the initial

test) at unannounced times for the presence of

Schedule III steroids (“Survey Testing”). In addition

the Office of Commissioner shall have the right to

conduct additional Survey Testing in 2003 in which

up to 240 players, selected at random, may be tested.

2. If the results of the Survey Testing conducted in

2003 show that more than 5% of Players tested test

positive for Steroids, all Players will be subject to

two unannounced tests (an initial test and a followup

test five to seven days later) for Steroids during the

2004 season (“Program Testing”). If a Player tests

positive in the Program Testing, he shall immediately be placed on the Clinical Track and shall be

subject to discipline for further violations. The Program Testing shall continue each season until less

than 2.5% of the Players tested test positive for Steroids for two consecutive seasons combined.

In short, the only objective of the 2003 testing was to ascertain whether the threshold had been exceeded; it was not

intended to test and monitor individual baseball players.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1179
Indeed, the testing protocol was designed to prevent the identification of individual players and the matching of players

with test results. The record does not reflect whether any individual player was even informed of his testing results for the

2003 sample year. 

The collective bargaining agreement contains numerous

provisions assuring confidentiality. For example, the section

concerning the testing protocol provides: 

The confidentiality of the Player’s participation in

the Program is essential to the Program’s success.

Except as provided in Section 8, the Office of the

Commissioner, the Association, HPAC, Club personnel, and all of their members, affiliates, agents,

consultants and employees are prohibited from publicly disclosing information about the Player’s test

results, Initial Evaluation, diagnosis, Treatment Program (including whether a Player is on either the

Clinical or Administrative Track), prognosis or compliance with the Program. 

The collective bargaining agreement specified in great

detail the manner of collection of data and, in particular provided that: 

At the conclusion of any Survey Test, and after the

results of all tests have been calculated, all test

results, including any identifying characteristics, will

be destroyed in a process jointly supervised by the

Office of the Commissioner and the Association. 

The record contains many more references to the assurance

given Major League Baseball players that the 2003 tests

would be anonymous and kept confidential, which are unnecessary to detail. There simply is no doubt whatsoever that the

players had a justified, constitutionally protected privacy

interest in the test results — an interest that was further

1180 UNITED STATES v. COMPREHENSIVE DRUG TESTING
enhanced by the many protections and contractual obligations

contained in the collective bargaining agreement under which

the tests were conducted. 

In sum, the players had a significant privacy interest in the

medical records and physical specimens. There is no doubt

that the players have an individual interest in and a need for

the property to be returned. Thus, the second Ramsden factor

is satisfied. 

C

I agree with the majority and the district courts that the

players would be irreparably injured by denying the return of

property. As the majority notes, the government has already

conceded that the players have no adequate remedy at law for

the redress of their grievances. Therefore, the third and fourth

Ramsden factors are satisfied. 

For these reasons, I agree with the majority that the district

courts properly exercised equitable jurisdiction. However, I

would hold that the district courts correctly found that all four

Ramsden factors were satisfied. I disagree with the majority

that the government’s actions properly respected the privacy

rights of the players. 

V

We review a district court’s decision to exercise its equitable jurisdiction under Rule 41(g) under the deferential abuse

of discretion standard. Ramsden, 2 F.3d at 324. I not only fail

to see any abuse of discretion in the decision by the district

courts to exercise equitable jurisdiction, I agree entirely with

their conclusions that the seized property should be returned.

The Advisory Committee Notes to the 1989 amendments to

Rule 41(g) tell us that “reasonableness under all of the circumstances” should be the governing standard for determinUNITED STATES v. COMPREHENSIVE DRUG TESTING 1181
ing whether property should be returned. (emphasis added).

Those same notes state that “[i]f the United States has a need

for the property in an investigation or prosecution, its retention of the property generally is reasonable,” but that “in certain circumstances . . . equitable considerations might justify

requiring the government to return or destroy all copies.” Id.14

Deciding between the two hinges on “whether the Government’s conduct was sufficiently reprehensible in this case to

warrant this sanction.” Ramsden, 2 F.3d at 327. As the actions

I have discussed make clear, the government’s behavior was

sufficiently reprehensible and the privacy interests of the

players who were neither named in the warrant nor implicated

in any criminal activity are sufficiently important to affirm the

granting of the 41(g) motions. Simply put, there is no reason

for the government to retain confidential medical information

and bodily fluids of citizens who are not under any particularized suspicion of criminal activity. 

VI

For similar reasons, I would also affirm Judge Illston’s

decision to quash the May 6, 2004, subpoenas. The majority

contends that Judge Illston abused her discretion by resting

her decision to quash the subpoenas on legally insufficient

grounds, citing In re Grand Jury Subpoenas Dated Dec. 10,

1987, 926 F.2d 847 (9th Cir. 1991), for the proposition that

subpoenas and search warrants serve different purposes and

therefore arguing that it cannot be considered an abuse to use

both methods of obtaining information. However, in this case,

14The cases the majority cites for the proposition that return of property

is inappropriate when the government still needs it as evidence are hardly

analogous to the present case. In both United States v. Mills, 991 F.2d 609,

612-13 (9th Cir. 1993), and United States v. Fitzen, 80 F.3d 387, 388-89

(9th Cir. 1996), the person seeking return of the property was the criminal

defendant himself, not an innocent third party, and the court found in both

cases that the defendants didn’t even have a legitimate claim of ownership

to the property. 

1182 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the government’s conduct went beyond seeking warrants and

subpoenas for the same information at the same time. As discussed previously, the government alternately sought subpoenas and warrants to obtain highly sensitive information from

every Major League Baseball player and to continue to keep

that information after being ordered to return it. Further, as

previously noted, there were no substantiated risks justifying

the use of a warrant to obtain the documentary evidence from

a third party under 28 C.F.R. § 59.1(b). 

In addition, it is worth noting that the May 6 subpoenas

requested much of the same information sought in the April

30 and prior search warrants. The affidavit to obtain the April

30 search warrant from Judge Lloyd averred that the material

was necessary in part because the records may “establish a

link to the charged defendants in this case.” It is an abuse of

the grand jury process to use grand jury subpoenas to develop

post-indictment trial material. See, e.g., In Re Grand Jury

Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767

F.2d 26, 29 (2d Cir. 1985) (timing of subpoena, first issued

after indictment, suggested that its purpose was to obtain trial

material). The Balco indictments were returned in February.

Therefore, the issuance of the May 6 grand jury subpoena,

following on the heels of the search warrant application for

the same information indicating that its partial purpose was to

develop links to Balco, suggests an abuse of grand jury process. 

Given the history of this case, the district court’s conclusion that the filing of these subpoenas was “the culmination

of a series of actions taken by the government in order to prevent the MLBPA and CDT’s attempt to move to quash the

January and March subpoenas” is fully supported by the

record and certainly cannot be said to be an abuse of discretion. 

VII

Although I have detailed why I believe the findings and

conclusions of the district court should be sustained on

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1183
appeal, I cannot leave the matter at hand without discussing

the larger implications of this case. 

A

The principle at stake in this case is relevant in countless

modern scenarios in which data responsive to a warrant is

intermingled with private, unresponsive data. The result of the

majority’s holding is that the government has been permitted

to seize confidential medical information pertaining to individuals not under any criminal suspicion. The majority’s

holding that the government was entitled to seize all records

in computerized files and subsequently search the records

without probable cause puts Americans’ most basic privacy

interests in jeopardy. Approving of the tactics employed here

would entitle the government to seize the medical records of

anyone who had the misfortune of visiting a hospital or

belonging to a health care provider that kept patient records

in any sort of master file which also contained the data of a

person whose information was subject to a search warrant. I

agree entirely with Judge Illston’s observation that the implications of approving such behavior are staggering. Under the

majority’s holding, no laboratory or hospital or health care

facility could guarantee the confidentiality of records.15

15This is why, even when large sets of data need to be sorted to find

material responsive to a warrant, that task is assigned to a computer specialist and not the agents tasked with conducting the investigation. The

majority fails to see the relevance of this role division, but it is evident

here. Had a computer specialist sorted the data as prescribed by the warrant, it is unlikely he or she would have extracted non-responsive records

and then used them to apply for further warrants seeking access to test

results beyond the scope of the initial investigation. Instead, Agent

Novitzsky, who was tasked with leading the investigation, viewed material

he was not supposed to see and used it for purposes for which the warrant

was never initially intended. If the warrant had intended to authorize any

agent to examine the intermingled data, it would not have gone out of its

way to specify that only certain agents were permitted to engage in that

task. 

1184 UNITED STATES v. COMPREHENSIVE DRUG TESTING
The majority attempts to discount this possibility, but offers

no principled reason why it does not apply in hundreds of

other contexts. Indeed, under questioning from the district

judges, the government itself did not discount the possibility

of other widespread searches.16

16For example, a hearing before Magistrate Judge Johnson contained the

following colloquy between government counsel and the Court: 

Court: * * * If there is some other drug testing lab apart

from CDT, would you ever use — but the test for the

ten were at CDT. Would you ever use this information to go and say — just demand that you can get the

drug testing results from other labs that test professional athletes. . . . Based on the theory that it’s systemic. And so there’s a problem, there’s a problem.

And we know that these other labs test athletes, too.

So can you just go search?

Counsel: Yes, your honor.

Similarly, in another hearing Judge Illston asked government counsel

whether he thought it was possible to take the information from the Tracey

directory concerning other sports organizations and use individual test

results of athletes to launch another investigation. Strikingly, Judge Illston

posed it as a hypothetical, but the government did not appear to deny that

officers may have viewed individual records in other sports: 

Court: What if hockey had a subdirectory that had positive

results and he clicked on it to make sure it was what

it said it was, by George, that’s what it was, what

about that?

Counsel: I don’t know in checking to make sure it was hockey

that didn’t happen. If it did happen, I would think that

theoretically Agent Novitsky would have the right to

either request a search warrant or, I suppose, if you

looked at it enough, it’s possible that it was obvious,

it was plain view, it was other drug use by hockey

players. So there might be a legal entitlement for

Agent Novitzsky to use that and do something with

it. It hasn’t happened in this case. I suppose that’s

theoretically possible, again, you would have, I

believe, probable cause to believe that evidence in

there would lead to other persons potentially involved

in disputable criminal drugs, which is the crime that’s

under investigation.

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1185
The importance of this threat to our nation’s medical community cannot be overstated. In order to provide better and

more efficient heath care, doctors and hospitals have rapidly

embraced a variety of methods for sharing confidential patient

information electronically. Computerized physician order

entry, for example, allows doctors to transmit treatment

instructions widely throughout a health care computer network so that nurses, therapists, pharmacists, radiologists and

pathologists have instant and accurate access to the instructions. Computerized electronic record transmission decreases

delay, reduces costs, and minimizes errors. But it does involve

extensive electronic co-mingling of patient data throughout

computer networks. 

Likewise, mass electronic transmission and storage of confidential medical records is now ingrained in the health insurance industry. Electronic access allows more efficient and

timely determination and payment of medical insurance benefits. 

The federal government has taken an affirmative role in

promoting national patient data access. In 2004, for example,

the President created the Office of National Coordinator for

Health Information Technology in order to develop and

implement a nationwide infrastructure to allow the communication and exchange of health care data between different

information technology systems. Executive Order 13335,

2004 WL 911114 (Pres.Exec.Order), 69 FR 24059 (2004). 

The simple fact is that the majority of confidential medical

information in the United States consists, in one fashion or

another, of co-mingled electronic data. To endorse the government’s position that probable cause as to one patient’s

records justifies the seizure of all co-mingled records would

mean that the Fourth Amendment does not afford any meaningful protection at all for our citizens’ most private information. 

1186 UNITED STATES v. COMPREHENSIVE DRUG TESTING
B

As the Players Association and Amicus Chamber of Commerce have effectively argued, today’s decision will also significantly impair the ability of employers to promote

voluntary drug testing in the workplace. Employers are not

permitted unilaterally to impose workplace drug testing on

employees subject to a collective bargaining agreement.

United Foods & Commercial Workers v. Foster Poultry

Farms, 74 F.3d 169, 174 (9th Cir. 1995) (“there is no indication in the relevant statutes, the legislative history, or the regulations themselves that the drug testing requirements were

intended to preempt already existing collective bargaining

agreements or to eliminate an employer’s duty to bargain

under federal labor laws.”). If the government may violate the

confidentiality promised employees in collective bargaining

agreements without any suspicion of criminal activity and

simply seize confidential test records in the hope of finding

incriminating information, no sensible union will agree to

allow its employees to be tested. Therefore, although the government proceeds here under an apparent mission to root out

all steroid use in baseball, and perhaps other sports, the result

of its tactics will be quite the opposite. Without mandatory

testing, any steroid policy will be but an empty aspirational

goal. If today’s decision stands, it is difficult to imagine any

sports union agreeing to drug testing in collective bargaining

negotiations. The implications for employee testing in all

industries are obvious. 

C

Finally, today’s decision marks the return of the prohibited

general warrant through an endorsement of a disguised impermissible general search warrant—a tactic we rejected in

United States v. Rettig, 589 F.2d 418 (9th Cir. 1978). Indeed,

as the Supreme Court has observed, “[i]t is familiar history

that indiscriminate searches and seizures conducted under the

authority of ‘general warrants’ were the immediate evils that

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1187
motivated the framing and adoption of the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 583 (1980). It was

for this reason that the particularity requirement in warrants

was adopted. As the Court noted in Maryland v. Garrison,

480 U.S. 79, 84 (1987): 

The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant

except one “particularly describing the place to be

searched and the persons or things to be seized.” The

manifest purpose of this particularity requirement

was to prevent general searches. By limiting the

authorization to search to the specific areas and

things for which there is probable cause to search,

the requirement ensures that the search will be carefully tailored to its justifications, and will not take on

the character of the wide-ranging exploratory

searches the Framers intended to prohibit. 

The majority allows the government to circumvent these

important Fourth Amendment principles by allowing the government to use boilerplate computer search language in a warrant to justify the seizure and subsequent warrantless search

of massive amounts of data not responsive to the warrant. In

doing so, the majority has allowed the government with the

wave of a computer curser to transform a limited search warrant into an impermissible general warrant. 

VIII

I also cannot leave our consideration of this case without

addressing the actual argument made by the government in

justifying its actions. The government did not advocate the

position adopted by the majority. The government’s sole justification for the warrantless seizure of the data of the unlisted

players is that it was in “plain view,” which is one of the limited exceptions to the Fourth Amendment’s warrant requirement. Although the majority did not reach this question, the

1188 UNITED STATES v. COMPREHENSIVE DRUG TESTING
theory formed the entire basis for the government’s legal justification for its actions and was the primary focus of the proceedings before the district courts. Therefore, it is important

to address it to demonstrate the soundness of the various decisions by the district courts. 

The plain view doctrine is based on the assumption that if

there is probable cause for the search, and the officer is

legally entitled to be at the premises under the Fourth Amendment, seizure of an object in plain view that is contraband or

evidence of a crime does not involve an invasion of privacy.

Payton, 445 U.S. at 586-87. The Supreme Court has identified

several conditions that must be satisfied before a plain view

seizure of an object is upheld: (1) the officer conducting the

seizure must lawfully arrive at the position from which the

object is plainly seen; (2) the object must be in plain view; (3)

the object’s incriminating character must be “immediately

apparent,” that is, the officer must have probable cause to

believe the object is contraband or evidence of a crime; and

(4) the officer must have a lawful right of access to the object

itself. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);

Horton, 496 U.S. at 136-37; Texas v. Brown, 460 U.S. 730,

737 (1983). 

Under the circumstances presented by this case, not only is

it clear that the government had not met its burden of establishing that the seizure of the data was justified under the

plain view doctrine, but it is also clear why the plain view

doctrine would be inappropriate to apply in the computer context. 

A

The fundamental requirement of the plain view doctrine is

that the object seized be in “plain view,” that is, “obvious to

the senses.” United States v. Sifuentes, 504 F.2d 845, 848 (4th

Cir. 1974). After an extensive colloquy, Judge Illston concluded that the computer data seized was not in “plain view.”

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1189
Not only is this factual conclusion not clearly erroneous, the

undisputed record completely supports her conclusion under

any standard of review. 

As Judge Illston pointed out, this was not a case in which

an incriminating photo or similar evidence could be viewed

on a computer screen; rather, at best, it involved scrolling

through thousands of records none of which were immediately visible. In its application for a search warrant, the government justified removal of data and computer equipment on

the basis that: 

The volume of data stored on many computer systems and storage devices will typically be so large

that it will be highly impractical to search for data

during the execution of the physical search of the

premises. A single megabyte of storage space is the

equivalent of 500 double-spaced pages of text. A

single gigabyte of storage space, or 1,000

megabytes, is the equivalent of 500,000 doublespaced pages of text. Storage devices capable of

storing fifteen gigabytes of data are now commonplace in desktop computers. Consequently, each nonnetworked desktop computer found during a search

can easily contain the equivalent of 7.5 million pages

of data, which, if printed out, would completely fill

a 10’ x 12’ x 10’ room to the ceiling. 

The government also indicated in its affidavit that it would

be using consulting computer specialists to analyze the data.

The affidavit explained: 

Searching computer systems is highly technical process which requires specific expertise and specialized equipment. There are so many types of

computer hardware and software in use today that it

is impractical to bring to the search site all of the

necessary technical manuals and specialized equip1190 UNITED STATES v. COMPREHENSIVE DRUG TESTING
ment to conduct a thorough search. In addition, it

may also be necessary to consult with computer personnel who have specific expertise in the type of

computer software application or operating system

that is being searched. 

According to the government, the search of the computers

at CDT could not be completed at the scene. There were, in

fact, 16 computers. However, one computer was eventually

isolated and data retrieved. As Special Agent Novitsky’s

memorandum of activity stated: 

At approximately 2:35 p.m., S/A Abboud began

working on a computer with [a CDT employee].

[She] directed us to a computer in the office labeled

“E” for purposes of the search warrant and sketch.

At this computer, [she] identified a sub-directory

entitled “Tracey”, which she said contained all of the

computer documents for CDT’s sports drug testing

division. A cursory review of the subdirectory indicated multiple further subdirectories and several

hundred computer files. As authorized by the warrant, because of the length of time it would take to

search each file and the intrusiveness it would cause

on CDT, it was decided to make a complete copy of

the “Tracey” subdirectory in order to perform a

search of it in the IRS-CID offices at a later time. 

Agent Novitsky later explained in a subsequent affidavit

that: 

This subdirectory contained hundreds of files and a

significant amount of computer data. After consulting with agents at the scene specifically trained in

the search of computers, we determined that we

could not realistically search the entire directory onsite in a reasonable amount of time. We therefore

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1191
made the determination to copy the entire subdirectory. 

After it was examined, the Tracey directory itself was

determined to contain 2,911 files, with an unknown amount

of data in each file, that were not connected with Major

League Baseball player drug testing at all. In the files that

concerned Major League Baseball players, there was information on approximately 1,200 players, with multiple test

results. 

Given these circumstances, the data seized cannot be considered to be in “plain view.” As the Supreme Court has

noted, “If, however, the police lack probable cause to believe

that an object in plain view is contraband without conducting

some further search of the object — i.e., if its incriminating

character is not immediately apparent, the plain view doctrine

cannot justify its seizure.” Dickerson, 508 U.S. at 375 (alterations and quotations omitted). The data now sought by the

government was not “obvious to the senses” at the scene, nor

were the positive tests in “plain view” from a glance at a computer screen. The data required analysis and thorough examination off-site before the data at issue was discovered. 

The “plain view” doctrine is inapplicable in the general

electronic context because it is at complete odds with the

underlying theory of the doctrine. As the Supreme Court has

explained: 

The theory of that doctrine consists of extending to

nonpublic places such as the home, where searches

and seizures without a warrant are presumptively

unreasonable, the police’s longstanding authority to

make warrantless seizures in public places of such

objects as weapons and contraband. And the practical justification for that extension is the desirability

of sparing police, whose viewing of the object in the

course of a lawful search is as legitimate as it would

1192 UNITED STATES v. COMPREHENSIVE DRUG TESTING
have been in a public place, the inconvenience and

risk—to themselves or to preservation of the

evidence—of going to obtain a warrant. 

Horton, 480 U.S. at 326-27 (internal citations omitted). 

Neither of those considerations is present when we consider

the off-site examination of electronic data. As the government

essentially acknowledged in its search warrant applications,

examination of computer data is a forensic exercise. It necessarily involves the application of software to interpret the

data; without external software aid, the data would appear

only as binary numbers. In addition, as in this case, the government often requires computer specialists to decipher the

data. Electronic data is simply not the kind of evidence that

forms a natural extension of an officer’s discovery of obvious

contraband in a public place. The fact that further careful

electronic assistance is required outside the searched premises

to interpret the data belies the “practical” justification that

there is insufficient time to obtain a warrant. Indeed, electronically assisted searches of binary numbers bear a closer

resemblance to the thermal imaging searches of homes that

the Supreme Court rejected as violative of the Fourth Amendment in Kyllo v. United States, 533 U.S. 27 (2001). 

The ultimate fact that, after the assistance of electronic software programs, the data may be observed “in plain view”

does not alter this conclusion. As the Supreme Court has

warned: 

[I]n the vast majority of cases, any evidence seized

by the police will be in plain view, at least at the

moment of seizure. The problem with the “plain

view” doctrine has been to identify the circumstances in which plain view has legal significance

rather than being simply the normal concomitant of

any search, legal or illegal. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1193
Coolidge, 403 U.S. at 465. 

The off-site forensic examination of computer data is simply not one of those circumstances that fits the “plain view”

paradigm. Indeed, to hold otherwise would be to write out the

Fourth Amendment’s particularity requirement with respect to

electronic data and to transform particularized search warrants

into general search warrants, with the government authorized

to conduct indiscriminate, dragnet searches. 

B

The government also failed to sustain its burden to establish the plain view exception because, as the district courts

found, the incriminating character of the information was not

“immediately apparent.” It was clear under the testing protocol that positive tests did not necessarily reflect steroid use;

the use of nutritional supplements—which is common in professional sports—could yield a false positive. In addition,

there are a whole host of legitimate reasons for individuals to

be prescribed steroid products. The CDT testing was not

undertaken to test individual players; but rather to provide a

survey for the possible establishment of an individual drug

testing protocol. 

The government relied on sheer speculation that the presence of positive steroid markers would mean that the athlete

had received steroids without prescription from some

unknown person. The crime that the government was interested in pursuing was the illegal distribution of steroids. The

evidence of a positive test was not affirmative evidence of any

distribution. The government’s theory was that, armed with

the test results, the government could then summon the athlete

before a grand jury to see if it could obtain evidence from

whom and under what circumstances the athlete may have

obtained steroids. 

However, the mere suspicion of criminal activity or the suspicion of knowledge of a criminal activity is not sufficient to

1194 UNITED STATES v. COMPREHENSIVE DRUG TESTING
sustain a seizure of evidence under the plain view doctrine.

As the Supreme Court has made abundantly clear, the “immediately apparent” requirement means that the law enforcement

officer must have probable cause to seize the property that the

officer observed in plain view. As the Court explained: 

We now hold that probable cause is required. To say

otherwise would be to cut the “plain view” doctrine

loose from its theoretical and practical moorings. . . .

Dispensing with the need for a warrant is worlds

apart from permitting a lesser standard of cause for

the seizure than a warrant would require, i.e., the

standard of probable cause. No reason is apparent

why an object should routinely be seizable on lesser

grounds, during an unrelated search and seizure, than

would have been needed to obtain a warrant for that

same object if it had been known to be on the premises. 

Arizona v. Hicks, 480 U.S. 321, 326-27 (1987). 

The government conceded that it did not have probable

cause to search or seize any data or specimens beyond what

was relevant to the ten players listed in the warrant. For those

players, the government provided extensive information

showing their alleged connection to Balco. However, the government conceded that it had no information connecting any

of the other players to Balco. Indeed, it made that clear in

both its affidavits and subsequent hearings. The affidavit provided to Judge Lloyd speculated that evidence might be

developed linking the players who tested positive to Balco

“because of the closely-knit professional baseball community,” but also speculated that the positive test results could suggest “another significant source of illegal performanceenhancing drugs.” In fact, the government tendered no evidence whatsoever in support of either theory. The government

did not have any information concerning who might be

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1195
involved in any distribution scheme; in fact, it had no idea at

all.17

The government did not submit any evidence contradicting

the affidavits indicating the possibility of false positives and

that a positive result did not necessarily indicate illegal steroid

use. There was no specific target of the investigation against

whom the government sought incriminating evidence. 

Mere speculation is not sufficient to establish probable

cause. United States v. Howard, 828 F.2d 552, 555 (9th Cir.

1987). Perhaps the government had reasonable suspicion, but

that is not sufficient to justify a seizure under the plain view

doctrine. See Hicks, 480 U.S. at 326 (holding that “probable

cause is required”); Payton, 445 U.S. at 587 (explaining the

plain view requirement that there be “probable cause to associate the property with criminal activity.”). 

The government’s plain view theory cannot justify its

actions in this case. 

IX

I concur in the majority’s conclusion that the media has

standing on appeal to file a motion to unseal records. I also

agree that, under the circumstances presented by this case, the

motion should be referred to the district courts on remand. 

I write separately to comment on what I view as a regrettable effort by both parties in the district courts to circumvent

17For example, the government engaged in the following colloquy at

one hearing: 

Counsel: Your honor, it’s evidence because it’s evidence of an

illegal distribution of steroids to other people.

Court: From where? 

Counsel: From where? That’s an excellent question, and that is

why we need the evidence.

1196 UNITED STATES v. COMPREHENSIVE DRUG TESTING
the procedures we have established to balance the First

Amendment rights of the press with the confidentiality that is

required for some criminal proceedings.18 Specifically, I note

that all of the district court proceedings were closed by insistence of the parties, without notice to the press or public. 

In some instances, courtroom closures were obtained without prior notice to the district court itself. For example, the

transcript of one of the hearings before one of the district

court judges reflects the following colloquy: 

Court: Why is that, that you are locking the door?

Clerk: Since the case was filed under seal. 

Court: Is this all under seal? * * * You want the

hearings under seal. There was no motion

made to seal the hearing. I wasn’t aware

you wanted it that way. 

Counsel: Your honor, we filed the pleadings under

seal. We think this proceeding should be

under seal. The information at issue is

highly confidential. 

After some colloquy, the court allowed the courtroom to be

sealed, but admonished counsel to file an appropriate motion

if they wished any further courtroom proceedings to be closed

in the future. However, neither the public nor the press were

notified that the doors were to be locked and the public

barred. 

“Under the first amendment, the press and the public have

a presumed right of access to court proceedings and docu18The government and the Players Association also sought to have oral

argument in the court of appeals closed to the public. We denied that

motion, and a subsequent motion for reconsideration. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1197
ments.” Oregonian Pub. Co. v. District Court, 920 F.2d 1462,

1465 (9th Cir. 1990) (citing Press-Enterprise Co. v. Superior

Court, 464 U.S. 501, 510 (1985)(“Press-Enterprise I”)). “This

presumed right can be overcome only by an overriding right

or interest ‘based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that

interest.’ ” Id. (quoting Press-Enterprise I, 464 U.S. at 510)

In determining questions of public and press access to the

courts, courts are to examine whether a right attaches to a particular proceeding, using the Supreme Court’s “logic and

experience” test articulated in Press-Enterprise v. Superior

Court of California for the County of Riverside, 478 U.S. 1,

8-9 (1986) (“Press-Enterprise II”). “If a proceeding fulfills

both parts of the test, a qualified First Amendment right of

access arises, to be overcome ‘only by an overriding interest

based on findings that closure is essential to preserve higher

values and is narrowly tailored to serve that interest.’ ” Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th

Cir. 1998) (quoting Press-Enterprise II, 478 U.S. at 9-10).

Provisions for narrow tailoring may include later release of

transcripts, or redacted transcripts. Id. at 947.19 In making its

decision to close proceedings, “[t]he trial court must articulate

this interest ‘along with findings specific enough that a

reviewing court can determine whether the closure order was

properly entered.’ ” Id. at 946-47. None of these procedural

steps were undertaken in the district courts. 

To be sure, the right of access to court proceedings is not

absolute. Id. at 946. Both parties have legitimate privacy

interests to protect. The Federal Rules of Criminal Procedure

require “matters affecting a grand jury proceeding to be

closed to the extent necessary to prevent disclosure of matters

occurring before a grand jury.” Fed. R. Crim. P. 6(e)(5). In

addition, as I have discussed, the athletes represented by the

19Indeed, transcripts of court proceedings “must be released when the

factors militating in favor of closure no longer exist.” Id. at 947-48. 

1198 UNITED STATES v. COMPREHENSIVE DRUG TESTING
Players Association have a very strong privacy interest in

their medical records. However, there are non-grand jury

materials involved in this case, and there are some proceedings that do not appear to have involved confidential material.20

In any case, these are matters best considered in the first

instance by the district court, with public notice so that the

First Amendment right of access may be balanced with the

privacy interests of the parties. Unfortunately, the parties

presented hearing closure and record sealing as a fait accompli to the district courts, without notice to the press or public.

Now that we have remanded the motion to unseal, this issue

may be addressed. 

X

In discussions of the use of alleged use of steroids by baseball players, much is made about “the integrity of the game.”

Even more important is the integrity of our legal system. Perhaps baseball has become consumed by a “Game of Shadows,”

21

but that is no reason for the government to engage in a “Prosecution of Shadows.” The district judges were entirely right

to order the government to return the thousands of private

medical records it wrongfully seized by use of pretext and

artifice. 

I would affirm the orders of the district court and must

20The government, in at least one proceeding, seemed to indicate that

it might not oppose unsealing some material, with government counsel

stating before Judge Mahan: “As a matter of DOJ regulation and policy,

we actually have taken the position and we do take the position that there

isn’t a need to have these proceedings actually sealed, and that is because

of the paramount interest in having actual public proceedings in courtrooms held in public.” However, the government did not object formally

to sealing the transcript of that hearing, and the transcript has, to date,

been sealed. 

21Mark Fainaru-Wada and Lance Williams, Game of Shadows (2006).

UNITED STATES v. COMPREHENSIVE DRUG TESTING 1199
respectfully dissent from the majority’s contrary conclusion.

I concur in the remand of the motion to unseal records. 

1200 UNITED STATES v. COMPREHENSIVE DRUG TESTING