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 MISC-04-234-SI DRUG TESTING, INC.,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Susan Yvonne 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 C. Mahan, District Judge, Presiding

13933
IN RE: SEARCH WARRANTS 

EXECUTED ON APRIL 8, 2004 AT

CDT, INC.,

In Re, No. 05-55354

D.C. No.  CV-04-02887-FMC SEAL 1,

Plaintiff-Appellant, ORDER AND

OPINION

v.

SEAL 2,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, District Judge, Presiding

Argued and Submitted

December 18, 2008—Pasadena, California

Filed September 13, 2010

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,

Susan P. Graber, Kim McLane Wardlaw, W. Fletcher,

Richard A. Paez, Marsha S. Berzon, Consuelo M. Callahan,

Carlos T. Bea, Milan D. Smith, Jr. and Sandra S. Ikuta,

Circuit Judges.

Per Curiam Opinion;

Concurrence by Chief Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge Bea;

Partial Concurrence and Partial Dissent by Judge Callahan;

Dissent by Judge Ikuta

13934 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
COUNSEL

Argued by Joseph Douglas Wilson, Assistant United States

Attorney, San Francisco, California, who was joined on the

briefs by Erika R. Frick, Assistant United States Attorney,

San Francisco, California, for the United States.

Argued by Elliot R. Peters, Keker & Van Nest LLP, San Francisco, California, who was joined on the briefs by David J.

Silbert, Keker & Van Nest LLP, San Francisco, California,

and Ethan Atticus Balogh, Coleman & Balogh LLP, San

Francisco, California, for the Major League Baseball Players

Association.

David P. Bancroft, Sideman & Bancroft LLP, San Francisco,

California, and Jeffrey C. Hallam Sideman & Bancroft LLP,

San Francisco, California, for Comprehensive Drug Testing,

Inc.

Peter Buscemi, Morgan, Lewis & Bockius LLP, Washington,

DC, for amicus curiae Chamber of Commerce of the United

States.

ORDER

The revised opinion filed concurrently herewith shall constitute the final action of the court. No petitions for rehearing

will be considered.

13940 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
OPINION

PER CURIAM:

This case is about a federal investigation into steroid use by

professional baseball players. More generally, however, it’s

about the procedures and safeguards that federal courts must

observe in issuing and administering search warrants and subpoenas for electronically stored information.

Facts

The complex facts underlying this case are well summed up

in the panel’s opinion and dissent, and we refer the interested

reader there for additional information. United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008).

We reiterate here only the key facts.

In 2002, the federal government commenced an investigation into the Bay Area Lab Cooperative (Balco), which it suspected of providing steroids to professional baseball players.

That year, the Major League Baseball Players Association

(the Players) also entered into a collective bargaining agreement with Major League Baseball providing for suspicionless

drug testing of all players. Urine samples were to be collected

during the first year of the agreement and each sample was to

be tested for banned substances. The players were assured that

the results would remain anonymous and confidential; the

purpose of the testing was solely to determine whether more

than five percent of players tested positive, in which case

there would be additional testing in future seasons. 

Comprehensive Drug Testing, Inc. (CDT), an independent

business, administered the program and collected the specimens from the players; the actual tests were performed by

Quest Diagnostics, Inc., a laboratory. CDT maintained the list

of players and their respective test results; Quest kept the

actual specimens on which the tests were conducted.

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13941
During the Balco investigation, federal authorities learned

of ten players who had tested positive in the CDT program.

The government secured a grand jury subpoena in the Northern District of California seeking all “drug testing records and

specimens” pertaining to Major League Baseball in CDT’s

possession. CDT and the Players tried to negotiate a compliance agreement with the government but, when negotiations

failed, moved to quash the subpoena.

The day that the motion to quash was filed, the government

obtained a warrant in the Central District of California authorizing the search of CDT’s facilities in Long Beach. Unlike

the subpoena, the warrant was limited to the records of the ten

players as to whom the government had probable cause.

When the warrant was executed, however, the government

seized and promptly reviewed the drug testing records for

hundreds of players in Major League Baseball (and a great

many other people).

The government also obtained a warrant from the District

of Nevada for the urine samples on which the drug tests had

been performed. These were kept at Quest’s facilities in Las

Vegas. Subsequently, the government obtained additional

warrants for records at CDT’s facilities in Long Beach and

Quest’s lab in Las Vegas. Finally, the government served

CDT and Quest with new subpoenas in the Northern District

of California, demanding production of the same records it

had just seized.

CDT and the Players moved in the Central District of California, pursuant to Federal Rule of Criminal Procedure 41(g),

for return of the property seized there. Judge Cooper found

that the government had failed to comply with the procedures

specified in the warrant and, on that basis and others, ordered

the property returned. We will refer to this as the Cooper

Order.

CDT and the Players subsequently moved in the District of

Nevada, pursuant to Federal Rule of Criminal Procedure

13942 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
41(g), for return of the property seized under the warrants

issued by that court. The matter came before Judge Mahan,

who granted the motion and ordered the government to return

the property it had seized, with the exception of materials pertaining to the ten identified baseball players. We will refer to

this as the Mahan Order. 

CDT and the Players finally moved in the Northern District

of California, pursuant to Federal Rule of Criminal Procedure

17(c), to quash the latest round of subpoenas and the matter

was heard by Judge Illston. (The original subpoena, and the

motion to quash it that was filed in 2003, aren’t before us.) In

an oral ruling, Judge Illston quashed the subpoenas. We will

refer to this as the Illston Quashal. See Bryan A. Garner, A

Dictionary of Modern American Legal Usage 725 (2d ed.

1995). 

All three judges below expressed grave dissatisfaction with

the government’s handling of the investigation, some going so

far as to accuse the government of manipulation and misrepresentation. The government nevertheless appealed all three

orders and a divided panel of our court reversed the Mahan

Order and the Illston Quashal, but (unanimously) found that

the appeal from the Cooper Order was untimely. Upon a vote

of eligible judges, we took the case en banc. As luck would

have it, none of the three judges on the original panel was

drawn for this en banc court. Nevertheless, we rely heavily on

their work in resolving the case now before us.

Discussion

For reasons that will become apparent, we don’t consider

the three orders chronologically. Rather, we consider the Cooper Order first, the Mahan Order next and the Illston Quashal

last. 

1. The Cooper Order

[1] The three-judge panel unanimously held that the government’s appeal from the Cooper Order was untimely. ComUNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13943
prehensive Drug Testing, 513 F.3d at 1096-1101, 1128. We

agree with the panel and adopt its analysis of the issue, seeing

no reason to burden the pages of the Federal Reporter by redoing the work the panel already performed so well. On that

basis, we dismiss the government’s appeal in No. 05-55354.

[2] This does not end our discussion of the Cooper Order,

however, because it has substantial consequences for the

remaining two cases before us. As Judge Thomas pointed out

in his panel dissent, once the Cooper Order became final, the

government became bound by the factual determinations and

issues resolved against it in that order. Comprehensive Drug

Testing, 513 F.3d at 1130. Specifically, Judge Cooper found

that the government failed to comply with the conditions of

the warrant designed to segregate information as to which the

government had probable cause from that which was swept up

only because the government didn’t have the time or facilities

to segregate it at the time and place of the seizure. Cooper

Order at 4. Relatedly, Judge Cooper determined that the government failed to comply with the procedures outlined in our

venerable precedent, United States v. Tamura, 694 F.2d 591

(9th Cir. 1982), which are designed to serve much the same

purpose as the procedures outlined in the warrant. Finally,

Judge Cooper concluded that the government’s actions displayed a callous disregard for the rights of third parties, viz.,

those players as to whom the government did not already have

probable cause and who could suffer dire personal and professional consequences from a disclosure of their test results. 

The affidavit supporting the first search warrant, the one

that sought the drug testing records of the ten suspected baseball players, contains an extensive introduction that precedes

any information specific to this case. The introduction seeks

to justify a broad seizure of computer records from CDT by

explaining the generic hazards of retrieving data that are

stored electronically. In essence, the government explains,

computer files can be disguised in any number of ingenious

ways, the simplest of which is to give files a misleading name

13944 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
(pesto.recipe in lieu of blackmail.photos) or a false extension

(.doc in lieu of .jpg or .gz). In addition, the data might be

erased or hidden; there might be booby traps that “destroy or

alter data if certain procedures are not scrupulously followed,” Warrant Affidavit at 3; certain files and programs

might not be accessible at all without the proper software,

which may not be available on the computer that is being

searched; there may simply be too much information to be

examined at the site; or data might be encrypted or compressed, requiring passwords, keycards or other external

devices to retrieve. Id. at 4. The government also represented

that “[s]earching computer systems requires the use of precise, scientific procedures which are designed to maintain the

integrity of the evidence.” 

By reciting these hazards, the government made a strong

case for off-site examination and segregation of the evidence

seized. The government sought the authority to seize considerably more data than that for which it had probable cause,

including various computers or computer hard drives and

related storage media, and to have the information examined

and segregated in a “controlled environment, such as a law

enforcement laboratory.” While the government did not point

to any specific dangers associated with CDT, which is after

all a legitimate business not suspected of any wrongdoing, it

nevertheless made a strong generic case that the data in question could not be thoroughly examined or segregated on the

spot.

Not surprisingly, the magistrate judge was persuaded by

this showing and granted broad authority for seizure of data,

including the right to remove pretty much any computer

equipment found at CDT’s Long Beach facility, along with

any data storage devices, manuals, logs or related materials.

The warrant also authorized government agents to examine all

the data contained in the computer equipment and storage

devices, and to attempt to recover or restore hidden or erased

data. The magistrate judge, however, wisely made such broad

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13945
seizure subject to certain procedural safeguards, roughly

based on our Tamura opinion. Thus, the government was first

required to examine the computer equipment and storage

devices at CDT to determine whether information pertaining

to the ten identified players “c[ould] be searched on-site in a

reasonable amount of time and without jeopardizing the ability to preserve the data.” 

The warrant also contained significant restrictions on how

the seized data were to be handled. These procedures were

designed to ensure that data beyond the scope of the warrant

would not fall into the hands of the investigating agents. Thus,

the initial review and segregation of the data was not to be

conducted by the investigating case agents but by “law

enforcement personnel trained in searching and seizing computer data (‘computer personnel’),” whose job it would be to

determine whether the data could be segregated on-site. These

computer personnel—not the case agents—were specifically

authorized to examine all the data on location to determine

how much had to be seized to ensure the integrity of the

search. Moreover, if the computer personnel determined that

the data did not “fall within any of the items to be seized pursuant to this warrant or is not otherwise legally seized,” the

government was to return those items “within a reasonable

period of time not to exceed 60 days from the date of the seizure unless further authorization [was] obtained from the

Court.” Subject to these representations and assurances, Magistrate Judge Johnson authorized the seizure.

A word about Tamura is in order, and this seems as good

a place as any for it. Tamura, decided in 1982, just preceded

the dawn of the information age, and all of the records there

were on paper. The government was authorized to seize evidence of certain payments received by Tamura from among

the records of Marubeni, his employer. To identify the materials pertaining to the payments involved a three step procedure: Examining computer printouts to identify a transaction;

locating the voucher that pertained to that payment; and find13946 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ing the check that corresponded to the voucher. Tamura, 694

F.2d at 594-95. The government agents soon realized that this

process would take a long time unless they got help from the

Marubeni employees who were present. The employees, however, steadfastly refused, so the agents seized several boxes

and dozens of file drawers to be sorted out in their offices at

their leisure.

We disapproved the wholesale seizure of the documents

and particularly the government’s failure to return the materials that were not the object of the search once they had been

segregated. Id. at 596-97. However, we saw no reason to suppress the properly seized materials just because the government had taken more than authorized by the warrant. For the

future, though, we suggested that “[i]n the comparatively rare

instances where documents are so intermingled that they cannot feasibly be sorted on site, . . . the Government [should]

seal[ ] and hold[ ] 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 PreArraignment Procedure.” Id. at 595-96. “If the need for transporting the documents is known to the officers prior to the

search,” we continued, “they may apply for specific authorization for large-scale removal of material, which should be

granted by the magistrate issuing the warrant only where onsite sorting is infeasible and no other practical alterative

exists.” Id. at 596.

No doubt in response to this suggestion in Tamura, the

government here did seek advance authorization for sorting

and segregating the seized materials off-site. But, as Judge

Cooper found, “[o]nce the items were seized, the requirement

of the Warrant that any seized items not covered by the warrant be first screened and segregated by computer personnel

was completely ignored.” Brushing aside an offer by on-site

CDT personnel to provide all information pertaining to the ten

identified baseball players, the government copied from

CDT’s computer what the parties have called the “Tracey

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13947
Directory” which contained, in Judge Cooper’s words, “information and test results involving hundreds of other baseball

players and athletes engaged in other professional sports.” 

Counsel for CDT, contacted by phone, pleaded in vain that

“all material not pertaining to the specific items listed in the

warrant be reviewed and redacted by a Magistrate or Special

Master before it was seen by the Government.” Instead, the

case agent “himself reviewed the seized computer data and

used what he learned to obtain the subsequent search warrants

issued in Northern California, Southern California, and

Nevada.” Judge Cooper also found that, in conducting the seizure in the manner it did, “[t]he Government demonstrated a

callous disregard for the rights of those persons whose records

were seized and searched outside the warrant.” 

[3] As previously noted, the government failed to timely

appeal the Cooper Order and is therefore bound by its factual

determinations and legal rulings. The government also failed

to appeal another ruling, by Judge Illston, that ordered return

of the Tracey directory and all copies thereof. We will call

this the Illston Order. It held unlawful the government’s failure to segregate data covered by the warrant from data not

covered by it simply because both types were intermingled in

the Tracey directory. In reaching this conclusion, Judge Illston necessarily rejected the argument about the scope of the

warrant the government made before Judge Mahan. The Illston Order therefore has preclusive effect on the core legal

questions resolved in the Mahan Order, viz., the government’s

failure to segregate intermingled data, as required by Tamura.

[4] Issue preclusion attaches when, as here, “the first and

second action involve application of the same principles of

law to an historic fact setting that was complete by the time

of the first adjudication.” Steen v. John Hancock Mut. Life

Ins. Co., 106 F.3d 904, 913 n.5 (9th Cir. 1997) (quoting 18

Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice & Procedure § 4425 (West Supp. 1996)).

13948 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
The determinations in the Cooper and Illston Orders are significant because orders the government does appeal contain

similar findings as to the government’s conduct. The government cannot contest those rulings if it is bound by the identical rulings in the Cooper and Illston Orders. 

2. The Mahan Order

[5] Like Judges Cooper and Illston, Judge Mahan determined that “[t]he government callously disregarded the

affected players’ constitutional rights.” Judge Mahan also

concluded that the government “unreasonab[ly] . . . refuse[d]

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

. . . upon learning that drug-testing records for the ten athletes

named in the original April 8 warrants executed at Quest and

at [CDT] were intermingled with records for other athletes not

named in those warrants.” We can and do uphold these findings based on the preclusive effect of the Cooper and Illston

Orders. However, because the matter is important, and to

avoid any quibble about the proper scope of preclusion, we

also dispose of the government’s contrary arguments.

A. Compliance with Tamura

The government argues that it did comply with the procedures articulated in Tamura, but was not required to return

any data it found showing steroid use by other baseball players because that evidence was in plain view once government

agents examined the Tracey Directory. Officers may lawfully

seize evidence of a crime that is in plain view, the government

argues, and thus it had no obligation under Tamura to return

that property. The warrant even contemplated this eventuality,

says the government, when it excluded from the obligation to

return property any that was “otherwise legally seized.” 

[6] Putting aside the fact that Judges Cooper and Illston,

whose courts issued the warrants and whose orders are now

final, rejected this argument, it is at any rate too clever by

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13949
half. The point of the Tamura procedures is to maintain the

privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and

computer databases. If the government can’t be sure whether

data may be concealed, compressed, erased or booby-trapped

without carefully examining the contents of every file—and

we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory,

automatically come into plain view. Since the government

agents ultimately decide how much to actually take, this will

create a powerful incentive for them to seize more rather than

less: Why stop at the list of all baseball players when you can

seize the entire Tracey Directory? Why just that directory and

not the entire hard drive? Why just this computer and not the

one in the next room and the next room after that? Can’t find

the computer? Seize the Zip disks under the bed in the room

where the computer once might have been. See United States

v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take

everything back to the lab, have a good look around and see

what we might stumble upon.

[7] This would make a mockery of Tamura and render the

carefully crafted safeguards in the Central District warrant a

nullity. All three judges below rejected this construction, and

with good reason. One phrase in the warrant cannot be read

as eviscerating the other parts, which would be the result if

the “otherwise legally seized” language were read to permit

the government to keep anything one of its agents happened

to see while performing a forensic analysis of a hard drive.

The phrase is more plausibly construed as referring to any

evidence that the government is entitled to retain entirely

independent of this seizure. The government had no such

independent basis to retain the test results of other than the ten

players specified in the warrant. 

B. Initial Review by Computer Personnel

[8] The government also failed to comply with another

important procedure specified in the warrant, namely that

13950 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
“computer personnel” conduct the initial review of the seized

data and segregate materials not the object of the warrant for

return to their owner. As noted, Judge Cooper found that these

procedures were completely ignored; rather, the case agent

immediately rooted out information pertaining to all professional baseball players and used it to generate additional warrants and subpoenas to advance the investigation. Judge

Illston found the same. The record reflects no forensic lab

analysis, no defusing of booby traps, no decryption, no cracking of passwords and certainly no effort by a dedicated computer specialist to separate data for which the government had

probable cause from everything else in the Tracey Directory.

Instead, as soon as the Tracey Directory was extracted from

the CDT computers, the case agent assumed control over it,

examined the list of all professional baseball players and

extracted the names of those who had tested positive for steroids. See Comprehensive Drug Testing, 513 F.3d at 1134-35

(Thomas, J., dissenting). Indeed, the government admitted at

the hearing before Judge Mahan that “the idea behind taking

[the copy of the Tracey Directory] was to take it and later on

briefly peruse it to see if there was anything above and

beyond that which was authorized for seizure in the initial

warrant.” The government agents obviously were counting on

the search to bring constitutionally protected data into the

plain view of the investigating agents.

But it was wholly unnecessary for the case agent to view

any data for which the government did not already have probable cause because there was an agent at the scene who was

specially trained in computer forensics. This agent did make

an initial determination that the CDT computer containing the

Tracey Directory could not be searched and segregated onsite, and that it would be safe to copy the Tracey Directory,

rather than seizing the entire hard drive or computer. After

that copy was made, however, it was turned over to the case

agent, and the specialist did nothing further to segregate the

target data from that which was swept up simply because it

was nearby or commingled. The sequence of events supports

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13951
the suspicion that representations in the warrant about the

necessity for broad authority to seize materials were designed

to give the government access to the full list of professional

baseball players and their confidential drug testing records.

The government argues that it didn’t violate the warrant

protocol because the warrant didn’t specify that only computer personnel could examine the seized files, and the case

agent was therefore entitled to view them alongside the computer specialist. This, once again, is sophistry. It would make

no sense to represent that computer personnel would be used

to segregate data if investigatory personnel were also going to

access all the data seized. What would be the point? The government doesn’t need instruction from the court as to what

kind of employees to use to serve its own purposes; the representation in the warrant that computer personnel would be

used to examine and segregate the data was obviously

designed to reassure the issuing magistrate that the government wouldn’t sweep up large quantities of data in the hope

of dredging up information it could not otherwise lawfully

seize. Judge Cooper found that the government utterly failed

to follow the warrant’s protocol. Judge Illston also found that

the government’s seizure, in callous disregard of the Fourth

Amendment, reached information clearly not covered by a

warrant. These findings are binding on the government, but

simple common sense leads to precisely the same conclusion:

This was an obvious case of deliberate overreaching by the

government in an effort to seize data as to which it lacked

probable cause. 

C. Federal Rule of Criminal Procedure 41(g)

[9] Judge Mahan cured this overreaching by ordering the

government to return the illegally seized data. We have long

held that Rule 41(g) empowers district courts to do just that.

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

styled as a motion under a Federal Rule of Criminal Procedure, when the motion is made by a party against whom no

13952 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
criminal charges have been brought, such a motion is in fact

a petition that the district court invoke its civil equitable jurisdiction. Id. at 324. We agree with the panel that the district

court in this case did not abuse its discretion in choosing to

exercise that jurisdiction. Comprehensive Drug Testing, 513

F.3d at 1104.

The government argues that Rule 41(g) is inapplicable

because it is not designed to be used as a suppression motion.

But CDT and the Players Association are not seeking to have

evidence suppressed, as they are not criminal defendants.

Rather, by forcing the government to return property that it

had not properly seized, CDT is preserving the integrity of its

business and the Players Association is protecting the privacy

and economic well-being of its members, which could easily

be impaired if the government were to release the test results

swept up in the dragnet. 

Judge Ikuta’s dissent overlooks the crucial distinction

between a motion to suppress and a motion for return of property: The former is limited by the exclusionary rule, the latter

is not. In United States v. Calandra, 414 U.S. 338, 348 n.6

(1974), and United States v. Payner, 447 U.S. 727, 728, 735-

36 & n.7 (1980), the Court addressed the suppression, not the

return, of seized materials—a detail perhaps obscured because

the version of Rule 41 then in existence addressed motions to

suppress and motions to return in the same subsection. Lest

there be any doubt that these are only suppression cases, note

that Calandra used the availability of a motion to return,

among other remedies, as a reason the exclusionary rule need

not apply to grand jury proceedings. See 414 U.S. at 354 n.10.

Payner, which never mentions Rule 41 or a motion to return,

simply held that “the supervisory power does not authorize a

federal court to suppress otherwise admissible evidence on the

ground that it was seized unlawfully from a third party not

before the court.” 447 U.S. at 735. This rule has no relevance

here because no motion to suppress, whether based on Rule

41(h) or the supervisory power, is before us. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13953
That Rule 41(g) is broader than the exclusionary rule can

no longer be in doubt in light of the 1989 amendments which

explicitly authorize a motion to return property on behalf of

any “person aggrieved by an unlawful search and seizure of

property or by the deprivation of property.” Fed. R. Crim. P.

41(g) (emphasis added). This language was designed to

expand the rule’s coverage to include property lawfully

seized. See id. advisory committee notes. It goes without saying that lawfully seized evidence may not be suppressed. 

The return of seized property under Rule 41(g) and the

exclusionary rule serve fundamentally different purposes.

Suppression helps ensure that law enforcement personnel

adhere to constitutional norms by denying them, and the government they serve, the benefit of property that is unlawfully

seized. Rule 41(g) is concerned with those whose property or

privacy interests are impaired by the seizure. Suppression

applies only to criminal defendants whereas the class of those

aggrieved can be, as this case illustrates, much broader. 

Most importantly, judicially-imposed restrictions on the

scope of the exclusionary rule—itself a judicially-created

remedy—are not applicable to orders for return of property

which derive their authority from the Federal Rules of Criminal Procedure and their enabling legislation. This is not, in

any event, a question properly presented in the case now

before us: What uses the government may make of the Quest

evidence during a criminal proceeding must be decided in the

context of such a proceeding, when and if criminal charges

are brought against any of the players. 

Under Ramsden, the district court is required to balance

four discretionary factors to determine whether to allow the

government to retain the property, order it returned or (as happened in Ramsden) craft a compromise solution that seeks to

accommodate the interests of all parties. The Players Association is (1) plainly aggrieved by the deprivation, Fed. R. Crim.

P. Rule 41(g), and (2) likely to suffer irreparable injury if it’s

13954 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
not returned. And as the three judge panel recognized, the

government has conceded (3) the lack of an adequate remedy

at law. Comprehensive Drug Testing, 513 F.3d at 1103. 

[10] Judge Ikuta is thus mistaken when she suggests that

the Players Association is not entitled to bring the 41(g)

motion because it lacks a property interest in the urine samples and other bodily fluids. Ikuta dissent at 13391-92 n.2.

The rule nowhere speaks of an ownership interest; rather, by

its plain terms, it authorizes anyone aggrieved by a deprivation of property to seek its return. Here, the Players Association is aggrieved by the seizure as the removal of the

specimens and documents breaches its negotiated agreement

for confidentiality, violates its members’ privacy interests and

interferes with the operation of its business. Cf. NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 458-60 (1958). In

any event, we are again bound by the preclusive effect of the

Illston and Cooper orders.

The only Ramsden factor fairly in dispute is (4) whether the

government showed a callous disregard for the rights of third

parties. Judge Mahan concluded that it did—as did every

other district judge who examined the question. There is

ample evidence to support this determination, even if the government were not bound by that same finding in the Cooper

and Illston Orders. As a factual finding, we review such a

determination only for clear error. SEC v. Coldicutt, 258 F.3d

939, 941 (9th Cir. 2001). We find none here. 

[11] Contrary to our dissenting colleagues’ view of the

matter, Ikuta dissent at 13391-95, Rule 41(g) does indeed

contemplate that district judges may order the return of the

originals, as well as any copies, of seized evidence: “In some

circumstances, however, equitable considerations might justify an order requiring the government to return or destroy all

copies of records that it has seized.” Fed. R. Crim. P. 41 advisory committee notes (1989 amendments). What circumstances merit this remedy is left to the discretion of the district

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13955
court in the first instance, and our review of this issue is limited by the Illston Order’s preclusive effect. 

[12] Apart from preclusion, however, we cannot see how

Judge Mahan abused his discretion by concluding that “equitable considerations” required sequestration and the return of

copies. The risk to the players associated with disclosure, and

with that the ability of the Players Association to obtain voluntary compliance with drug testing from its members in the

future, is very high. Indeed, some players appear to have

already suffered this very harm as a result of the government’s seizure. See, e.g., Michael S. Schmidt, Ortiz and

Ramirez Said to Be on 2003 Doping List, N.Y. Times, July

31, 2009, at A1; Michael S. Schmidt, Sosa Is Said to Have

Tested Positive in 2003, N.Y. Times, June 17, 2009, at B11;

Michael S. Schmidt, Rodriguez Said to Test Positive in 2003,

N.Y. Times, February 8, 2009, at A1. Judge Mahan certainly

did not abuse his broad discretion in balancing these equities.

[13] We affirm Judge Mahan on an alternative ground as

well: When, as here, the government comes into possession of

evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit

from its own wrongdoing by retaining the wrongfully

obtained evidence or any fruits thereof. When the district

court determines that the government has obtained the evidence through intentional wrongdoing—rather than through a

technical or good faith mistake—it should order return of the

property without the need for balancing that is applicable in

the more ordinary case.

3. The Illston Quashal

Judge Illston quashed the government’s final subpoena

under Federal Rule of Criminal Procedure 17(c), which authorizes quashal if compliance would be “unreasonable or

oppressive.” Determining whether this standard is met is committed to the district judge’s discretion, and we will reverse

13956 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
only if that discretion has been abused. In re Grand Jury Proceedings, 13 F.3d 1293, 1295 (9th Cir. 1994) (per curiam).

Judge Illston quashed the subpoena after both the Cooper

and Mahan Orders. Judge Illston described the subpoena as

“served after the government had obtained evidence . . .

which has been determined now to have been illegally

seized.” Under the circumstances, Judge Illston regarded the

subpoena as an unreasonable “insurance policy”—having

seized materials unlawfully, the government then subpoenaed

the very same materials in an attempt to moot any future proceedings for a return of property. Cf. J.B. Manning Corp. v.

United States, 86 F.3d 926 (9th Cir. 1996).

[14] It isn’t per se unreasonable to conduct an investigation

using both search warrants and subpoenas. E.g., In re Grand

Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 851-55

(9th Cir. 1991). But the presence of substantial government

misconduct and unlawful seizure of evidence (which was

absent from In re Grand Jury Subpoenas) is quite properly

taken into account when determining whether a subpoena is

unreasonable. Moreover, Judge Illston found that the government’s entire course of conduct had been intended to prevent

the Players Association and CDT from litigating the legality

of the original subpoenas. This, too, is a valid consideration

in evaluating quashal.

[15] For us to reverse a decision as an abuse of discretion,

we must have “a definite and firm conviction that the district

court committed a clear error of judgment in the conclusion

it reached.” Coldicutt, 258 F.3d at 941. That standard—

difficult to meet under any circumstances—cannot possibly

be satisfied here, in light of Judge Cooper’s preclusive findings and Judge Mahan’s well-reasoned order. We therefore

affirm the Illston Quashal. In doing so, we emphasize that,

while the government is free to pursue warrants, subpoenas

and other investigatory tools, and may do so in whichever

judicial district is appropriate in light of the location of the

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13957
information sought, it must fully disclose to each judicial officer prior efforts in other judicial fora to obtain the same or

related information, and what those efforts have achieved.

This is no more than we require of, for example, a prisoner

seeking to file a second or successive habeas petition.

More than one of the judges involved in this case below

commented that they felt misled or manipulated by the government’s apparent strategy of moving from district to district

and judicial officer to judicial officer in pursuit of the same

information, and without fully disclosing its efforts elsewhere.

The cause of justice will best be served if such judicial reactions to the government’s conduct can be avoided in the

future.

Concluding Thoughts

This case well illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy

of innocent parties from a vigorous criminal investigation. At

the time of Tamura, most individuals and enterprises kept

records in their file cabinets or similar physical facilities.

Today, the same kind of data is usually stored electronically,

often far from the premises. Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems

used—something that can often only be determined by closely

analyzing the data in a controlled environment. Tamura

involved a few dozen boxes and was considered a broad seizure; but even inexpensive electronic storage media today can

store the equivalent of millions of pages of information.

Wrongdoers and their collaborators have obvious incentives to make data difficult to find, but parties involved in

lawful activities may also encrypt or compress data for

entirely legitimate reasons: protection of privacy, preservation

of privileged communications, warding off industrial espio13958 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
nage or preventing general mischief such as identity theft.

Law enforcement today thus has a far more difficult, exacting

and sensitive task in pursuing evidence of criminal activities

than even in the relatively recent past. The legitimate need to

scoop up large quantities of data, and sift through it carefully

for concealed or disguised pieces of evidence, is one we’ve

often recognized. See, e.g., United States v. Hill, 459 F.3d 966

(9th Cir. 2006).

This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case,

see pp. 13944-45 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The

problem can be stated very simply: There is no way to be sure

exactly what an electronic file contains without somehow

examining its contents—either by opening it and looking,

using specialized forensic software, keyword searching or

some other such technique. But electronic files are generally

found on media that also contain thousands or millions of

other files among which the sought-after data may be stored

or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to

exclude the possibility that the sought-after data are concealed

there. 

Once a file is examined, however, the government may

claim (as it did in this case) that its contents are in plain view

and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically

becomes authorization to search all files in the same subdirectory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media.

Where computers are not near each other, but are connected

electronically, the original search might justify examining

files in computers many miles away, on a theory that incrimiUNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13959
nating electronic data could have been shuttled and concealed

there. 

The advent of fast, cheap networking has made it possible

to store information at remote third-party locations, where it

is intermingled with that of other users. For example, many

people no longer keep their email primarily on their personal

computer, and instead use a web-based email provider, which

stores their messages along with billions of messages from

and to millions of other people. Similar services exist for photographs, slide shows, computer code and many other types of

data. As a result, people now have personal data that are

stored with that of innumerable strangers. Seizure of, for

example, Google’s email servers to look for a few incriminating messages could jeopardize the privacy of millions.

It’s no answer to suggest, as did the majority of the threejudge panel, that people can avoid these hazards by not storing their data electronically. To begin with, the choice about

how information is stored is often made by someone other

than the individuals whose privacy would be invaded by the

search. Most people have no idea whether their doctor, lawyer

or accountant maintains records in paper or electronic format,

whether they are stored on the premises or on a server farm

in Rancho Cucamonga, whether they are commingled with

those of many other professionals or kept entirely separate.

Here, for example, the Tracey Directory contained a huge

number of drug testing records, not only of the ten players for

whom the government had probable cause but hundreds of

other professional baseball players, thirteen other sports organizations, three unrelated sporting competitions, and a nonsports business entity—thousands of files in all, reflecting the

test results of an unknown number of people, most having no

relationship to professional baseball except that they had the

bad luck of having their test results stored on the same computer as the baseball players.

Second, there are very important benefits to storing data

electronically. Being able to back up the data and avoid the

13960 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
loss by fire, flood or earthquake is one of them. Ease of access

from remote locations while traveling is another. The ability

to swiftly share the data among professionals, such as sending

MRIs for examination by a cancer specialist half-way around

the world, can mean the difference between death and a full

recovery. Electronic storage and transmission of data is no

longer a peculiarity or a luxury of the very rich; it’s a way of

life. Government intrusions into large private databases thus

have the potential to expose exceedingly sensitive information

about countless individuals not implicated in any criminal

activity, who might not even know that the information about

them has been seized and thus can do nothing to protect their

privacy.

It is not surprising, then, that all three of the district judges

below were severely troubled by the government’s conduct in

this case. Judge Mahan, for example, asked “what ever happened to the Fourth Amendment? Was it . . . repealed somehow?” Judge Cooper referred to “the image of quickly and

skillfully moving the cup so no one can find the pea.” And

Judge Illston regarded the government’s tactics as “unreasonable” and found that they constituted “harassment.” Judge

Thomas, too, in his panel dissent, expressed frustration with

the government’s conduct and position, calling it a “breathtaking expansion of the ‘plain view’ doctrine, which clearly

has no application to intermingled private electronic data.”

Comprehensive Drug Testing, 513 F.3d at 1117.

Everyone’s interests are best served if there are clear rules

to follow that strike a fair balance between the legitimate

needs of law enforcement and the right of individuals and

enterprises to the privacy that is at the heart of the Fourth

Amendment. Tamura has provided a workable framework for

almost three decades, and might well have sufficed in this

case had its teachings been followed. We have updated

Tamura to apply to the daunting realities of electronic

searches. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13961
We recognize the reality that over-seizing is an inherent

part of the electronic search process and proceed on the

assumption that, when it comes to the seizure of electronic

records, this will be far more common than in the days of

paper records. This calls for greater vigilance on the part of

judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The

process of segregating electronic data that is seizable from

that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to

collect. 

* * *

The appeal in No. 05-55354 (the Cooper Order) is dismissed as untimely.

The judgments in Nos. 05-15006 (the Mahan Order) and

05-10067 (the Illston Quashal) are affirmed.

Chief Judge KOZINSKI, with whom Judges KLEINFELD,

W. FLETCHER, PAEZ and M. SMITH join, concurring: 

The opinion correctly disposes of the Fourth Amendment

issues in this case, so I join it in full. I write separately

because these issues are important and likely often to arise

again. It would therefore be useful to provide guidance about

how to deal with searches of electronically stored data in the

future so that the public, the government and the courts of our

circuit can be confident such searches and seizures are conducted lawfully. The guidance below offers the government a

safe harbor, while protecting the people’s right to privacy and

property in their papers and effects. District and magistrate

judges must exercise their independent judgment in every

case, but heeding this guidance will significantly increase the

13962 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
likelihood that the searches and seizures of electronic storage

that they authorize will be deemed reasonable and lawful. 

* * *

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium to

search for certain incriminating files, or when a search for

evidence could result in the seizure of a computer, see, e.g.,

United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges should insist that the government forswear reliance on the plain view doctrine. They should also require the

government to forswear reliance on any similar doctrine that

would allow retention of data obtained only because the government was required to segregate seizable from non-seizable

data. This will ensure that future searches of electronic

records do not “make a mockery of Tamura”—indeed, the

Fourth Amendment—by turning all warrants for digital data

into general warrants. Maj. op. at 13950. If the government

doesn’t consent to such a waiver, the magistrate judge should

order that the seizable and non-seizable data be separated by

an independent third party under the supervision of the court,

or deny the warrant altogether.

In addition, while it’s perfectly appropriate for a warrant

application to acquaint the issuing judicial officer with the

theoretical risks of concealment and destruction of evidence,

the government should also fairly disclose the actual degree

of such risks in the case presented to the judicial officer. In

this case, for example, the warrant application presented to

Judge Johnson discussed the numerous theoretical risks that

the data might be destroyed, but failed to mention that Comprehensive Drug Testing had agreed to keep the data intact

until its motion to quash the subpoena could be ruled on by

the Northern California district court, and that the United

States Attorney’s Office had accepted this representation.

This omission created the false impression that, unless the

data were seized at once, it would be lost. Comprehensive

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13963
Drug Testing, 513 F.3d at 1132 (Thomas, J., dissenting). Such

pledges of data retention are obviously highly relevant in

determining whether a warrant is needed at all and, if so, what

its scope should be. If the government believes such pledges

to be unreliable, it may say so and explain why. But omitting

such highly relevant information altogether is inconsistent

with the government’s duty of candor in presenting a warrant

application. A lack of candor in this or any other aspect of the

warrant application must bear heavily against the government

in the calculus of any subsequent motion to return or suppress

the seized data.

The process of sorting, segregating, decoding and otherwise separating seizable data (as defined by the warrant) from

all other data should also be designed to achieve that purpose

and that purpose only. Thus, if the government is allowed to

seize information pertaining to ten names, the search protocol

should be designed to discover data pertaining to those names

only, not to others, and not those pertaining to other illegality.

For example, the government has sophisticated hashing tools

at its disposal that allow the identification of well-known illegal files (such as child pornography) without actually opening

the files themselves. These and similar search tools should not

be used without specific authorization in the warrant, and

such permission should only be given if there is probable

cause to believe that such files can be found on the electronic

medium to be seized.

To that end, the warrant application should normally

include, or the issuing judicial officer should insert, a protocol

for preventing agents involved in the investigation from

examining or retaining any data other than that for which

probable cause is shown. The procedure might involve, as in

this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the

investigation. In that case, it should be made clear that only

those personnel may examine and segregate the data. The

government should also agree that such computer personnel

13964 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
will not communicate any information they learn during the

segregation process absent further approval of the court.

At the discretion of the issuing judicial officer, and depending on the nature and sensitivity of the privacy interests

involved, the computer personnel in question may be government employees or independent third parties not affiliated

with the government. In a case such as this one, where the

party subject to the warrant is not suspected of any crime, and

where the privacy interests of numerous other parties who are

not under suspicion of criminal wrongdoing are implicated by

the search, the presumption should be that the segregation of

the data will be conducted by an independent third party

selected by the court. That third party should be prohibited

from communicating any information learned during the

search other than that covered by the warrant. 

Once the data has been segregated (and, if necessary,

redacted), the government agents involved in the investigation

should be allowed to examine only the information covered

by the terms of the warrant. Absent further judicial authorization, any remaining copies should be destroyed or, at least so

long as they may be lawfully possessed by the party from

whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive

or computer). The government should not retain copies of

such returned data unless it obtains specific judicial authorization to do so. 

Also, within a time specified in the warrant, which should

be as soon as practicable, the government should provide the

issuing officer with a return disclosing precisely what it has

obtained as a consequence of the search, and what it has

returned to the party from whom it was seized. The return

should include a sworn certificate that the government has

destroyed or returned all copies of data that it’s not entitled

to keep. If the government believes it’s entitled to retain data

as to which no probable cause was shown in the original warUNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13965
rant, it may seek a new warrant or justify the warrantless seizure by some means other than plain view.

This guidance can be summed up as follows:

1. Magistrate judges should insist that the government

waive reliance upon the plain view doctrine in digital evidence cases. Pp. 13962-63 supra; see maj. op. at 13949-50.

2. Segregation and redaction of electronic data must be

done either by specialized personnel or an independent third

party. Pp. 13964-65 supra; see maj. op. at 13945-48,

13950-52. If the segregation is to be done by government

computer personnel, the government must agree in the warrant application that the computer personnel will not disclose

to the investigators any information other than that which is

the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of

destruction of information as well as prior efforts to seize that

information in other judicial fora. Pp. 13963-64 supra; see

maj. op. at 13944-45, 13957-58. 

4. The government’s search protocol must be designed to

uncover only the information for which it has probable cause,

and only that information may be examined by the case

agents. Pp. 13964-65 supra; see maj. op. at 13950-52.

5. The government must destroy or, if the recipient may

lawfully possess it, return non-responsive data, keeping the

issuing magistrate informed about when it has done so and

what it has kept. P. 13965 supra; see maj. op. at 13952-56. 

* * *

This guidance is hardly revolutionary. It’s essentially

Tamura’s solution to the problem of necessary over-seizing of

evidence. Just as Tamura has served as a guidepost for dec13966 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ades, the procedures outlined above should prove a useful tool

for the future. Nothing any appellate court could say, however, would substitute for the sound judgment that magistrate

judges must and, I am confident will, exercise in striking this

delicate balance.

BEA, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority’s result, based on its analysis of

the issues presented in this case, as applied to this case only.1

The government failed to follow either the procedures of

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), or

those outlined in the approved warrant, which would have

required the government to conduct its search of the seized

intermingled computer files by using computer technicians

not case investigators.

Further, I would affirm the Cooper, Mahan, and Illston

orders because the seized names at issue were not in “plain

view” when seized. The plain view doctrine requires evidence

of illegality to be “immediately apparent” to the searching

investigator. Horton v. California, 496 U.S. 128, 139-140

(1990). Here, the portion of the spreadsheet (located within

the “Tracey” directory) that contained the drug testing results,

contained both the names of the ten ballplayers who were the

subjects of the warrant and the names of many other ballplayers, the records of whom the government did not have probable cause to search and seize. The spreadsheet did not,

however, initially display on the agent’s computer screen the

results of steroid testing as to the other ballplayers. To see the

spreadsheet column containing the results of the tests of the

1

I agree, however, with Judge Callahan and Judge Ikuta that the laterfiled Cooper Order does not have preclusive effect on the earlier-filed

Mahan Order. That said, the majority reaches the correct result in this case

even if the Cooper order is not given preclusive effect. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13967
other ballplayers, the agent had to scroll to his right on the

spreadsheet, onto another screen. However, once he scrolled

to the right, the agent could see not only the testing results for

the targeted ten, but also the results for all of the other ballplayers whose results were listed on the spreadsheet. 

A valid “plain view” seizure of items that are truly “immediately apparent” would have required the agent to display

only the testing results for the ballplayers for whom he had a

warrant, and seize only evidence of additional illegality if

such evidence is “immediately apparent” as part of the segregated results for those ballplayers. For instance, the agent

could have selected the spreadsheet rows for the ten ballplayers for whom he had a warrant, then copied and pasted those

rows into a blank spreadsheet.2 If he had done so, he would

2The record reveals the spreadsheet was in Microsoft Excel format.

Agent Novitsky viewed the spreadsheet on or about April 8, 2004. By that

time, Microsoft Excel was the most widely used spreadsheet application

available for Microsoft Windows and Mac OS X operating systems. See

http://en.wikipedia.org/wiki/Microsoft_Excel. Microsoft Excel became

commercially available in 1985, and currently sells for $229 retail. See

http://office.microsoft.com/en-us/excel/FX102464391033.aspx. 

In Microsoft Excel, to avoid scrolling to the right and viewing the

results column for all of the ballplayers instead of just for the targeted ten,

all Agent Novitsky had to do was the following: While depressing and

holding the Control key, he would click on the numbers on the left side

of the spreadsheet that corresponded to the rows that contain the names of

the targeted ballplayers. The rows containing those ballplayers’ names

would become highlighted. Novitsky would then release the Control key.

He would next go to the top of the screen, click on the “Edit” menu, and

choose “Copy.” Then, he would click on the “File” menu at the top of the

screen, and choose “New Blank Workbook.” When the new blank spreadsheet appeared on the screen, he would click on the “Edit” menu in the

new blank spreadsheet and choose “Paste.” The rows of the ten targeted

ballplayers selected in the original spreadsheet and only those rows—

would appear in the new spreadsheet. Novitsky would then scroll to the

right in the new blank spreadsheet and would see only the test results for

the targeted ballplayers for whom he had probable cause to search and

seize. 

13968 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
have seen only those drug testing results for which he had a

warrant. 

However, as the government conceded at oral argument

before Judge Mahan, rather than limiting the scope of his

search in any way, or seizing only that evidence of illegality

“immediately apparent” on the first screen he called up, Agent

Novitsky intentionally and volitionally scrolled right on the

spreadsheet, without first having segregated only the responsive data, “to see if there was anything above and beyond that

which was authorized for seizure in the initial warrant.” This

demonstrates the seized evidence of illegality was not “immediately apparent” or in “plain view.”

Thus, I agree with the majority and vote to affirm the district courts’ orders. I write separately, however, because the

majority’s opinion goes beyond the current case or controversy in two respects.

I.

The majority affirms the Mahan Order finding Judge

Mahan did not abuse his discretion in deciding the evidence

seized by the government must be sequestered and returned

because the balance of the equities favored Comprehensive

Drug Testing. With that portion of the opinion, I concur. The

majority holds further, as an alternative ground on which to

affirm Judge Mahan’s order, that the fact that the government

deliberately disregarded the terms of the search warrant when

it executed its search compelled Judge Mahan to order the

sequestration and return of the evidence. Majority Op. at

13956. I cannot concur with that alternative ground because

it is unnecessary to the majority’s decision; our court should

affirm only on the ground Judge Mahan correctly balanced

the equities. 

Furthermore, the rule that the government’s deliberate disregard of the terms of a search warrant is by itself sufficient

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13969
to order the return of evidence is unnecessarily broad. Under

Ramsden v. United States, whether the government acted in

willful disregard of the limits of a search warrant is just one

factor in a four factor analysis. 2 F.3d 322, 325 (9th Cir.

1993). The majority transforms that one factor of the balancing test into a dispositive issue. See Majority Op. at 13956-57.

The Ramsden factors have been sufficient to govern motions

for the return of property for nearly two decades and the

majority does not explain the rationale for modifying that rule

in this case. 

There may be cases where the government did show willful

disregard of the terms of the search warrant, but the motion

for the return of evidence should nonetheless be denied. For

example, when a movant cannot prove he will be irreparably

harmed if the seized property is not returned—the second element of the Ramsden inquiry—then it seems the district court

should not return the evidence merely because the government obtained the evidence through intentional wrongdoing.

An example would be images of child pornography, which is

always “contraband,” possession of which is criminal. See

United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999).

Instead, the district court should balance the equities to determine whether sequestration and return of the evidence is necessary, based on the specific facts of the case presented.

II.

The majority affirms because Judge Illston did not abuse

her discretion in quashing the subpoenas sought by the government after the Cooper and Mahan Orders were filed. I

agree and would affirm on that ground as well. 

The majority then holds that whenever the government

seeks a subpoena, it “must fully disclose to each judicial officer prior efforts in other judicial fora to obtain the same or

related information, and what those efforts have achieved.”

Majority Op. at 13958. Although I imagine such disclosure is

13970 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
generally a good practice for the government to follow, I do

not see why such a practice should have the force of law. If

it is good policy, its adoption should be decided by Congress

or the Executive as the policy-making branches of our government. This new requirement is simply not necessary to the

decision. 

The majority supports this new requirement by stating:

“This is no more than we require of, for example, a prisoner

seeking to file a second or successive habeas petition.” Id.

This analogy to habeas petitions does not hold up to scrutiny.

Congress enacted the requirement that habeas petitioners disclose their prior petitions so the burden on the courts of excessive petitions would be lightened. See 28 U.S.C.

§ 2244(b)(3)(A) (Revision Notes and Legislative Reports,

1948 Acts). Here, the majority imposes a similar requirement

to protect owners of property and defendants in criminal

cases, not to improve judicial efficiency. 

III.

Finally, I do not join Chief Judge Kozinski’s concurrence

because it is advisory and unnecessary to the current case and

controversy. It would be nice to give magistrates clear “guidance” when possible. But that is true in all cases, and yet we

still approach that goal by issuing rulings on the cases and

controversies properly before us, and nothing more.

CALLAHAN, Circuit Judge, with whom IKUTA, Circuit

Judge, joins, concurring in part and dissenting in part from the

en banc panel’s per curiam opinion:

I initially express my concerns with the proposed guidelines for searches of electronically stored data that are set

forth in the Chief Judge’s concurring opinion. The concurrence is not joined by a majority of the en banc panel and

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13971
accordingly the suggested guidelines are not Ninth Circuit

law. Nonetheless, although they are only suggestions, there

are sound reasons for declining to follow them. In Section B

of this dissent, I reiterate my objections to the majority’s

opinion as set forth in my concurring and dissenting opinion

to Chief Judge Kozinski’s initial opinion for the majority of

the en banc panel. United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc).

A.

As noted in my dissent from our initial en banc opinion, the

breadth of the proposed guidelines for future digital evidence

cases raises several serious concerns. Although I appreciate

the desire to set forth a new framework with respect to

searches of commingled electronic data, I remain wary of this

prophylactic approach. The prescriptions go significantly

beyond what is necessary to resolve this case. 

Furthermore, the proffered “guidelines” are troubling

because they are over-broad, unreasonably restrictive of how

law enforcement personnel carry out their work, and unsupported by citations to legal authority. For example, the concurring opinion does not explain why it is now appropriate to

grant heightened Fourth Amendment protections in the context of searches of computers based on the nature of the technology involved when we have previously cautioned just the

opposite. See United Sates v. Giberson, 527 F.3d 882, 887-88

(9th Cir. 2008) (declining to impose heightened Fourth

Amendment protections in computer search cases as a result

of a computer’s ability to store large amounts of potentially

intermingled information, and stating that such heightened

protections must be “based on a principle that is not

technology-specific”). 

The concurring opinion also fails to acknowledge that its

proffered guidance conflicts with the amendments to Federal

Rule of Criminal Procedure 41(f)(1)(B), effective December

13972 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
1, 2009. For instance, Rule 41(f)(1)(B) now states that in

cases where an officer is seizing or copying electronically

stored information, “[t]he officer may retain a copy of the

electronically stored information that was seized or copied.”

This provision directly contradicts the suggestion that “[t]he

government should not retain copies of such returned data.”

Conc. Op. at 13965. Similarly, Rule 41(f)(1)(B) now provides

that “[i]n a case involving the seizure of electronic storage

media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied.” The concurring

opinion, however, suggests that “the government should provide the issuing officer with a return disclosing precisely what

it has obtained as a consequence of the search, and what it has

returned to the party from whom it was seized.” Conc. Op. at

13965. Presumably these suggestions are superseded by the

detailed amendments to Rule 41, which provide comprehensive guidance in this area. 

In addition, the suggested protocols essentially jettison the

plain view doctrine in digital evidence cases, urging that magistrate judges “insist that the government waive reliance upon

the plain view doctrine in digital evidence cases.”

1

 Conc. Op.

at 13963. This is put forth without explaining why the

Supreme Court’s case law or our case law dictates or even

suggests that the plain view doctrine should be entirely abandoned in digital evidence cases. Instead of tailoring its analysis of the plain view doctrine to the facts of this case, the

concurring opinion takes the bold, and unnecessary step of

casting that doctrine aside. The more prudent course would be

to allow the contours of the plain view doctrine to develop

incrementally through the normal course of fact-based case

1Although the suggestion is framed in terms of what a magistrate

“should insist,” the practical effect of this proposal — were it to be

adopted as law — would be to prescribe a mandatory procedure. The creation of a “safe harbor” (Conc. Op. at 13962), implicitly warns judges and

lawyers of the perils of any other approach. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13973
adjudication. A measured approach based on the facts of a

particular case is especially warranted in the case of

computer-related technology, which is constantly and quickly

evolving. 

Moreover, the concurring opinion offers no legal authority

for its proposal requiring the segregation of computer data by

specialized personnel or an independent third party. See Conc.

Op. at 13964-65, 13966. Also, the proposed ex ante restriction

on law enforcement investigations raises practical, costrelated concerns. With respect to using an in-house computer

specialist to segregate data, the suggestion essentially would

require that law enforcement agencies keep a “walled-off,”

non-investigatory computer specialist on staff for use in

searches of digital evidence. To comply, an agency would

have to expand its personnel, likely at a significant cost, to

include both computer specialists who could segregate data

and forensic computer specialists who could assist in the subsequent investigation. The alternative would be to use an

independent third party consultant, which no doubt carries its

own significant expense. Both of these options would force

law enforcement agencies to incur great expense, perhaps a

crushing expense for a smaller police department that already

faces tremendous budget pressures.

In sum, although the suggestions are well-intentioned, they

certainly are not legally compelled and their adoption would

create more problems than it would solve. Certainly the Chief

Judge and my colleagues who have joined his concurring

opinion may express their opinions on future protocols; however, their suggestions should not be confused with the en

banc court’s opinion which, although I dissent from it, is

properly confined to the issues required to decide the appeal.

B.

I agree with the majority that the government’s appeal from

13974 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
the Cooper Order2

 was untimely and that the appeal in case

number 05-55354 should be dismissed. I disagree, however,

with the majority’s conclusion that the findings stated in the

Cooper Order or the Illston Order have dispositive preclusive

effect with respect to this court’s review of the Mahan Order.

Setting aside the Cooper Order and the Illston Order, I would

reverse the Mahan Order on the merits. In addition, I would

vacate and remand the Illston Quashal. Accordingly, I

respectfully dissent, in part, from the per curiam opinion.

I.

The majority holds that with respect to this court’s review

of the findings and conclusions stated in the Mahan Order, the

government is bound by the factual and legal determinations

contained in the Cooper Order and the Illston Order. P.C. Op.

at 13948. Based on the collateral estoppel or issue preclusive

effect of these orders, the majority upholds Judge Mahan’s

findings that “ ‘[t]he government callously disregarded the

affected players’ constitutional rights,” and that it “unreasonab[ly] . . . refuse[d] to follow the procedures set forth in

United States v. Tamura . . . 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

(“CDT”)] were intermingled with records for other athletes

not named in those warrants.’ ” Id. at 13949 (internal quotation marks omitted, alterations in original). Neither the Cooper Order nor the Illston Order has preclusive effect over our

review of the Mahan Order, and I address each order in turn.

I disagree that the Cooper Order has preclusive effect with

respect to the Mahan Order. The problem is a temporal

one—the Cooper Order, entered October 1, 2004, does not

have preclusive effect over this court’s review of the Mahan

2For ease of reference, I adopt the majority’s definition conventions as

to the orders referred to in the majority opinion: the Cooper Order, the

Mahan Order, the Illston Order, and the Illston Quashal. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13975
Order because it was entered after the Mahan Order, which

was entered September 7, 2004. 

The single case that the majority relies on for its application

of the issue preclusion doctrine, Steen v. John Hancock

Mutual Life Insurance Co., addressed whether issues decided

in an earlier decision had a preclusive effect in a subsequent

decision. See 106 F.3d 904, 908-09 (9th Cir. 1997). Steen

does not support the proposition that a later-in-time order has

a retroactive preclusive effect on an earlier one.3 Although

this case presents a peculiar backdrop for the application of

the issue preclusion doctrine, our decision in Nationwide

Mutual Insurance Company v. Liberatore, 408 F.3d 1158 (9th

Cir. 2005), is instructive. Liberatore was a member of the

U.S. Navy who was traveling on orders and picked up his

friend, Ivey, for a social evening during his trip. Liberatore

drank and drove, causing a traffic accident in which Ivey suffered serious injuries. The accident resulted in two lawsuits:

(1) Ivey’s negligence action against Liberatore, the rental car

company, and the United States; and (2) a declaratory relief

action by Nationwide, Liberatore’s insurance company,

against Liberatore, the United States, the rental car company,

and Ivey. In Ivey’s negligence lawsuit, the government moved

for summary judgment on the grounds that Liberatore was not

acting within the scope of his employment and thus there was

no waiver of sovereign immunity under the Federal Tort

Claims Act. In Nationwide’s lawsuit, Nationwide moved for

summary judgment on the grounds that insurance coverage

did not exist because Liberatore was acting within the scope

of his employment and thus the government had indemnification responsibility; the government also filed a motion to dis3The language from Steen cited by the majority discusses the circumstances under which issue preclusion extends to principles of law. For

example, a legal principle applied in an earlier action may have a preclusive effect in a later action if the factual scenario in the earlier and later

action are the same. Steen, 106 F.3d at 913 & n.5. Steen does not support

the proposition that a decision in a later action has a preclusive effect on

an earlier action. 

13976 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
miss for lack of subject matter jurisdiction. The central

question in both lawsuits was the scope of Liberatore’s

employment. See id. at 1160-61.

The district court granted the government’s motion for

summary judgment in Ivey’s negligence action, and that order

was not appealed. On the same day, and through a separate

order, the district court denied the government’s motion to

dismiss and denied Nationwide’s motion for summary judgment. On appeal in the Nationwide action, the government

argued that Nationwide was bound by the decision in the Ivey

action that Liberatore was not acting within the scope of his

employment duties at the time of the accident, which was

contrary to the position taken by Nationwide in its lawsuit.

We rejected this attempted application of the issue preclusion

doctrine, stating that “[a]lthough a district court judgment carries preclusive effect going forward, it cannot operate to bar

direct review of an extant judgment.” Liberatore, 408 F.3d at

1162 (citing Orion Tire Corp. v. Goodyear Tire & Rubber

Co., 268 F.3d 1133, 1136 (9th Cir. 2001) (holding that appeal

could not be barred by claim preclusion based on a judgment

that post-dated the judgment on appeal)). We thus held that

Nationwide was not precluded from arguing on appeal in the

Nationwide case that Liberatore acted within the scope of

employment, and we decided that issue on the merits. Id.

(stating that “a decision entered coincident with the judgment

on appeal, just as a judgment entered after the judgment on

appeal, ‘can scarcely constitute a bar to the instant action’ ”

(citation omitted)).

Here, the majority’s use of the later-decided Cooper Order

to preclude or limit review of the earlier-decided Mahan

Order is contrary to our well-reasoned opinions in Liberatore

and Orion Tire.

4

 Therefore, I would review the Mahan Order

without giving issue preclusive effect to the Cooper Order.

4The Second Circuit has held that an issue decided in a later-in-time,

non-appealed action can have issue preclusive effect on the prior decision

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13977
Although the majority’s analysis of the Illston Order does

not suffer from the temporal flaw presented by the Cooper

Order, its reliance on the preclusive effect of the Illston Order

is also questionable. First, the Illston Order dealt with the

April 30, 2004 warrant that the government presented to

Judge Lloyd to search files in the government’s possession,

not the April 7, 2004 warrants that sought to search CDT and

Quest Diagnostics, Inc. (“Quest”). This raises a concern about

the scope of preclusion in terms of what was actually decided

in the Illston Order. Second, the majority relies on the Illston

Order to uphold Judge Mahan’s finding that the government

refused to follow the procedures set forth in United States v.

Tamura, 694 F.2d 591, 596 (9th Cir. 1982). P.C. Op. at

13949. But Judge Illston did not make a clear finding regarding the government’s adherence to Tamura. Finally, the

majority upholds Judge Mahan’s finding that “the government

callously disregarded the affected players’ constitutional

rights” based on the Illston Order. Id. However, whereas

Judge Illston’s “callous disregard” finding was almost entirely

premised on the government’s issuing subpoenas and seeking

search warrants in different district courts, Judge Mahan’s

finding appears to be premised on the government’s adherence to the Tamura procedures. At a minimum, the use of a

tool as powerful as issue preclusion in the context of such disparities is unwise, especially where Judge Mahan did not rule

on the preclusive effect of the Illston Order. Accordingly, I

would review the Mahan Order without reliance on the Illston

Order.

II.

Regarding the Mahan Order, I agree with the three-judge

panel majority’s thorough analysis and conclusions that (1)

that is on appeal. See Grieve v. Tamerin, 269 F.3d 149, 153-54 (2d Cir.

2001) (“The effect of the Southern District’s final judgment was no different simply because the Eastern District action was the first to be ruled on

at the district court level.”). However, we have not adopted this variation

of the issue preclusion doctrine and should not do so sub silentio. 

13978 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
the district court properly exercised its equitable jurisdiction

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

(2) the government did not display a callous disregard for the

constitutional rights of others in conducting its seizure of the

materials from CDT, which gave rise to Judge Mahan’s decision and order to return the materials seized from Quest; and

(3) that it was not reasonable under all the circumstances for

the district court to order the return of the subject property

under Federal Rule of Criminal Procedure 41(g). See United

States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085,

1103-13 (9th Cir. 2008). I do not restate those points here, but

write to highlight aspects of my disagreement with the per

curiam opinion’s resolution of the Mahan Order.

Judge Mahan’s decision with respect to the return of materials seized from Quest in Las Vegas, Nevada, on April 8,

2004 was premised on his view that these materials were poisonous fruit which acquired their taint as a result of the government’s seizure of intermingled materials from CDT in

Long Beach, California. The majority here does not appear to

take issue with the government’s physical seizure and

removal of the intermingled materials from CDT, including a

copy of the “Tracey directory.” Consistent with our recommendation in Tamura, the government, anticipating that it

might encounter intermingled relevant and non-relevant evidence in its search of CDT’s computers and that an on-site

search might not be feasible, crafted its April 7, 2004 warrant

to provide for seizure and removal of such intermingled evidence for offsite review. See 694 F.2d at 596 (“If the need for

transporting documents is known to the officers prior to the

search, they may apply for specific authorization for largescale removal of material . . . .”). Our subsequent decisions in

the computer context have approved of the seizing of units

that contain information authorized for seizure and information not described in the warrant where an on-site search is

infeasible. See Giberson, 527 F.3d at 889-90 (holding that seizure of suspect’s computer was justified, despite the potential

for intermingling of relevant and non-relevant material, based

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13979
on the officers’ reasonable belief that items enumerated in the

search warrant could be found therein); United States v. Hill,

459 F.3d 966, 975-76 (9th Cir. 2006) (stating that wholesale

seizure of materials is permissible where affidavit in support

of warrant provides a reasonable explanation for why such a

seizure is necessary); United States v. Adjani, 452 F.3d 1140

(9th Cir. 2006) (finding permissible the removal for off-site

search of a suspect’s computer along with the computer of a

woman living with the suspect who was not identified in the

warrant).

Apart from the government’s arguments related to the plain

view doctrine, I interpret the majority’s primary concern to be

Agent Novitsky’s search of the Tracey directory after it was

removed from CDT’s premises.5See P.C. Op. 13951-52. The

majority focuses on statements made by Assistant United

States Attorney Nedrow at the hearing before Judge Mahan

that the idea behind taking the Tracey directory was to provide Agent Novitsky with an opportunity to “briefly peruse it

to see if there was anything above and beyond that which was

authorized for seizure in the initial warrant.”

6

 P.C. Op. at

5

I do not address here the government’s argument that the plain view

doctrine independently justified its search of the materials seized from

CDT. I share some of the majority’s concerns regarding broad application

of the plain view doctrine to the search of computer data in this case.

However, there are other contexts where application of the plain view doctrine might be more appropriate. See, e.g., United States v. Wong, 334 F.3d

831, 838 (9th Cir. 2003) (applying plain view doctrine to discovery of

child pornography in the context of a valid search of a computer for evidence related to a murder investigation). Accordingly, as discussed below,

I cannot subscribe to the generalized requirement set forth in Chief Judge

Kozinski’s “concurring opinion” that the government foreswear reliance

on the plain view doctrine in digital evidence cases or that magistrate

judges insist on such a waiver by the government. Conc. Op. at 13966. 

6Nedrow stated: 

The agents, which [sic] some cooperation, limited cooperation

from CDT, had identified a set — a subdirectory on an employee’s computer named Tracy [sic], and this was the drug testing

13980 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
13951. Although Nedrow’s language is troubling on its face,

Agent Novitsky acted with the reasonable purpose of learning

the location of the relevant material in the Tracey directory.

Upon encountering other potentially incriminating material in

the Tracey directory, he sought a subsequent warrant. We

have previously found this approach acceptable. See Giberson, 527 F.3d at 889-90 (holding that the district court properly denied the motion to suppress evidence of child

pornography found on a copied computer hard drive during a

search for evidence of the production of false identification

cards pursuant to a valid warrant); Adjani, 452 F.3d at 1151

(“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.”). Therefore, the

majority’s determination that the government’s actions in this

case were inconsistent with Tamura is inconsistent with our

case law.

subdirectory with thousands of files, thousands of files on it. And

the agents identified it, and they knew some of those files were

going to have information definitely authorized for seizure under

the Judge Johnson [April 7, 2004] warrant, but they also, frankly,

had no ability to say that with respect to every file. Of course not.

It’s ridiculous, it’s too large. 

So the idea behind taking that was to take it and later briefly

peruse it to see if there was anything above and beyond that

which was authorized for seizure in the initial warrant. And that’s

what Agent Nivitsky [sic] did, and that’s why Agent Nivitsky

[sic] went to Judge Lloyd in San Francisco, because after perusing it he found some documents that contained information for

the players in the case and some lists that contained that information, the ten players, but he also saw other things on there. And

he said, okay, there are other things on here that show positive

drug tests and that’s of interest and as a plain view matter, based

on the experience in the case, I know that constitutes possible

criminal activity on its face but what I’m going to do is I’m going

to get Judge Lloyd’s authorization to seize all these other items.

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13981
In addition, the majority reads the warrant to state that the

computer specialist, and only the computer specialist, was

permitted to conduct the initial review of the commingled evidence seized from CDT. From this premise, the majority concludes that Agent Novitsky’s involvement in that initial

review of the seized materials constituted “deliberate overreaching.” See P.C. Op. at 13952. But, as the majority of the

three-judge panel stated, the warrant did not expressly limit

the initial review to the computer specialist. Comprehensive

Drug Testing, 513 F.3d at 1111. It provided that the computer

specialist would be involved in the determination of whether

on-site review of the computer files was feasible and in the

segregation process. It did not, however, by its terms exclude

other case agents. The majority calls reliance on the lack of

any explicit exclusion in the warrant “sophistry,” arguing that

“the representation in the warrant that computer personnel

would be used to examine and segregate the data was obviously designed to reassure the issuing magistrate that the government wouldn’t sweep up large quantities of data in the

hope of dredging up information it could not otherwise lawfully seize.” P.C. Op. at 13952. However, that is an inference

drawn by the majority and is but one of several reasonable inferences.7

 The record does not indicate precisely why that language was included in the warrant. The computer specialist

may have been included to facilitate the search and segregation efforts, to ensure that data would not be destroyed, to

assist in the navigation through the computer files, or to

uncover any mislabeled or hidden files. These purposes do not

necessarily require exclusion of all other case agents.

Even assuming some overreaching by the government, I

would conclude that the return of the property pursuant to

Rule 41(g) is not necessarily the appropriate relief in this

case. The Advisory Committee Notes to the 1989 Amendments to Rule 41 state that “reasonableness under all of the

7

Interestingly, the newly minted search protocols set forth in Chief

Judge Kozinski’s “concurring opinion” make clear that only persons not

involved in the investigation may examine and segregate the data. 

13982 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
circumstances must be the test when a person seeks to obtain

the return of property.” See also Ramsden, 2 F.3d at 326.

These notes further 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.” Fed. R.

Crim. P. 41, Advisory Committee Notes to 1989 Amendments

(referring to then-existing Rule 41(e)). In Ramsden, we stated

that “[t]he United States’ retention of the property generally

is reasonable if it has a need for the property in an investigation or prosecution.” 2 F.3d at 326; see also United States v.

Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (“Generally, a Rule

41(e) motion is properly denied ‘if . . . the government’s need

for the property as evidence continues.’ ” (quoting United

States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)). The government stated in its briefs and at oral argument that it has a

continuing need for the seized property in connection with its

ongoing investigation into the distribution of illegal steroids

in professional baseball. Judge Mahan’s order did not address

this government need. At a minimum, a remand is warranted

to develop this issue in the district court in the first instance.

Furthermore, I would find that the government’s conduct in

this case is not sufficiently egregious, in light of our case law,

to warrant an order that the government return the seized

property without retaining copies for its investigatory purposes.8

Our decision in Ramsden, 2 F.3d 322, is illustrative. There,

deputy U.S. marshals executed a provisional arrest warrant for

Ramsden at his hotel room. The marshals asked Ramsden to

8The Advisory Committee Notes to Rule 41 state that the rule “avoids

an all or nothing approach whereby the government must either return

records and make no copies or keep originals notwithstanding the hardship

to the owner.” Fed. R. Crim. P. 41, Advisory Committee Notes to 1989

Amendments. Although these notes state that there may be some circumstance under which “equitable considerations might justify an order

requiring the government to return or destroy all copies of records that it

has seized,” they further state that the rule, as amended in 1989, “contemplates judicial action that will respect both possessory and law enforcement interests.” Id. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13983
enter the hallway and then arrested him. When the marshals

accompanied Ramsden back into the hotel room to retrieve

some clothes, the marshals seized documents contained in a

closed briefcase. They made this warrantless seizure despite

having the opportunity to obtain a search warrant and conceded before the district court “that the search and seizure

violated Ramsden’s Fourth Amendment rights.” Id. at 325.

We held that the district court properly invoked its equitable

jurisdiction under then-numbered Rule 41(e) and upheld the

district court’s conclusion that the marshals had demonstrated

a callous disregard for Ramsden’s constitutional rights. Id. at

325-27. Although we affirmed the district court’s order that

the government return the original documents to prevent

Ramsden from suffering harm to his business, we allowed the

government, in what the majority here calls a “compromise

solution,” to retain a copy of the documents for ongoing

investigative purposes. See id. at 327; see also P.C. Op. at

13954-55.

Assuming that the government overreached in this case, its

conduct was not as egregious as the marshals’ conduct in

Ramsden, where the government was permitted to retain a

copy of the documents ordered to be returned. Unlike the warrantless search conducted in Ramsden, the government sought

and received valid search warrants in this case, but then arguably erred in its execution of the warrants. Under these circumstances, Ramsden counsels a compromise solution as

contemplated by Rule 41(g). Accordingly, I disagree with the

majority’s decision to affirm the Mahan Order.

III.

Finally, I would vacate and remand the Illston Quashal.

Judge Illston quashed the two subpoenas served on Quest and

CDT on the grounds that their issuance constituted harassment and abuse of the grand jury process and was unreasonable under Federal Rule of Criminal Procedure 17(c). In

essence, she stated two reasons for quashing the subpoenas:

13984 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
(1) the subpoenas “served as an unreasonable insurance policy” for materials that the government had already seized

through the use of search warrants; and (2) the government

impermissibly executed a series of search warrants in three

different districts once it learned that CDT would move to

quash the January and March subpoenas, which was a “tactical decision” designed to prevent Judge White from ruling on

the earlier-served subpoenas. Judge Illston stated that the government’s tactical decision was unreasonable and constituted

harassment. 

Judge Illston’s decision was based, in part, on the legal

error that the government may not simultaneously seek the

same information through grand jury subpoenas and search

warrants. The majority agrees that this is legal error. See P.C.

Op. at 13957 (“It isn’t per se unreasonable to conduct an

investigation using both search warrants and subpoenas.”).

Our case law allows the simultaneous use of warrants and

subpoenas in light of the substantial differences between these

devices, e.g., the differing levels of intrusion on a person’s

privacy, the ability and manner of challenging each device.

See In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926

F.2d 847, 854-55 (9th Cir. 1991) (upholding the validity of

grand jury subpoenas served at the same time as “functionally

equivalent” search warrants, where officers allegedly sought

to enforce the subpoenas through immediate seizure of the

materials at issue). Accordingly, Judge Illston’s conclusion

that the subpoenas were unreasonable is infected by her misapprehension that the law did not provide for the simultaneous use of warrants and subpoenas. 

This legal error also underlies Judge Illston’s determination

that the government made an unreasonable tactical decision to

pursue search warrants in different districts in an attempt to

“prevent” Judge White from ruling on earlier-issued subpoenas.9

9As noted in the original panel majority’s opinion, Judge Illston made

no finding that the subpoenas were “oppressive.” Comprehensive Drug

Testing, 513 F.3d at 1114 n.52. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13985
But, as the preceding discussion indicates, the government

was entitled to seek parallel search warrants and subpoenas,

and the use of those devices is judged by different standards.

Therefore, as the three-judge panel majority concluded, the

government could have sought the search warrants notwithstanding the motion to quash the subpoenas pending before

Judge White, and even if Judge White had quashed the subpoenas. See Comprehensive, 513 F.3d at 1114-15. 

In addition, Judge Illston gleaned the government’s intent

behind the issuance of the subpoenas—in her view to harass

CDT and Quest—based on its contemporaneous seeking of a

series of search warrants. The hearing transcript indicates that

Judge Illston was focused on the government’s motivations

and placed the burden on the government to provide “a substantial explanation” for both executing search warrants and

issuing subpoenas, implying that doing so gave rise to a presumption of bad faith. From the existing record, it is difficult

to discern the government’s actual motive behind issuing the

May 6th subpoenas. In any event, as indicated, the government was not obligated to provide an explanation for its decision to use two types of investigatory tools at its disposal.

Finally, the prejudice to the government from Judge Illston’s misconception of the law may be seen in her failure to

analyze the propriety of the subpoenas under the correct legal

standard. A district court may quash or modify a subpoena “if

compliance would be unreasonable or oppressive.” Fed. R.

Crim. P. 17(c)(2) (emphasis added); see also United States v.

Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005). For example,

a district court may quash a subpoena when compliance

would destroy a valid privilege, see Bergeson, 425 F.3d at

1225, when the subpoena seeks material that is outside of the

scope of a legitimate grand jury investigation, see In re Grand

Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 854, or

when the subpoena would compel a person to incriminate

himself or would violate a legitimate privacy interest of the

13986 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
person served. See United States v. Calandra, 414 U.S. 338,

346 (1974). 

Here, Judge Illston focused on the contemporaneous use of

subpoenas and search warrants, which is not improper, and

the government’s related conduct,10 but did not identify what

aspect of the subpoenas would render compliance “unreasonable or oppressive.”

11 She did not, for example, base her decision on a finding that the subpoenas exceeded the legitimate

scope of the grand jury’s investigation or that compliance

would violate some valid privilege. Judge Illston’s reasons for

quashing the subpoenas were infected by the erroneous view

that the government is not entitled to employ parallel warrants

and subpoenas. As a result, the Illston Quashal should be

vacated and remanded for an explanation that is not based on

that premise.

IV.

I disagree with the majority’s conclusion that the Cooper

Order and the Illston Order are entitled to issue preclusive

effect in connection with our review of the Mahan Order. On

the merits of the Mahan Order, I would reverse Judge

Mahan’s decision because the government acted reasonably in

searching the Tracey directory. Even assuming that the government overreached, the district court’s order for the wholesale return of property failed to account for the government’s

10In the context of a charge of harassment, the Third Circuit has held

that the repeated service of grand jury subpoenas on an individual does not

constitute harassment that justifies quashing a subpoena. See In re Grand

Jury Matter, 802 F.2d 96, 102 (3d Cir. 1986) (citing In re Grand Jury

Applicants, C. Schmidt & Sons, Inc., 619 F.2d 1022, 1028-29 (3d Cir.

1980)); cf. United States v. Bell, 902 F.2d 563, 566 (7th Cir. 1990) (holding that grand jury witness could not refuse to testify on the grounds that

the government allegedly already had the answers to the questions to be

asked of the witness). 

11Indeed, Quest complied with the subpoena served on it. See Comprehensive Drug Testing, 513 F.3d at 1094. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13987
ongoing need for the information, a valid consideration when

evaluating a motion under Rule 41(g). Finally, because Judge

Illston appears to have misapprehended the propriety of the

government using both warrants and subpoenas, I would

vacate the Illston Quashal and remand for further explanation

or proceedings. Accordingly, I respectfully dissent. 

IKUTA, Circuit Judge, with whom Circuit Judge

CALLAHAN joins, dissenting:

I agree with Judge Callahan’s dissenting opinion, and I join

it in full. I write separately to underline Judge Callahan’s concern that “the return of property pursuant to Rule 41(g) is not

necessarily the appropriate relief in this case.” Dissent at

13982. Even if the government had violated the plaintiffs’

Fourth Amendment rights, the remedy for the alleged violation imposed by the Nevada district court (Judge Mahan), and

upheld by the majority, is both unprecedented and in conflict

with the past several decades of the Supreme Court’s Fourth

Amendment jurisprudence. Although a party can seek the

return of property under Rule 41(g), and the exclusionary rule

may prevent illegally seized evidence from being used for

particular purposes during criminal proceedings, ordering the

government to expunge all the information it obtained from a

search or seizure of property is inconsistent with the limited

scope of the modern exclusionary rule. But that is just what

the district court’s order did: it directed the government not

only to return the property seized during its search of Quest’s

facilities, but to destroy all traces of information derived from

that search. I therefore dissent from the majority’s affirmance

of this order.

Because there is no criminal proceeding pending against

the plaintiffs in this case, we analyze their motion for return

of property as an equitable analog to a motion under Rule 41(g).1

1Federal Rule of Criminal Procedure 41(g), which was previously codified at Rule 41(e), states as follows: 

13988 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993)

(recognizing that “district courts have the power to entertain

motions to return property seized by the government when

there are no criminal proceedings pending against the

movant”). Such pre-indictment Rule 41 motions “are treated

as civil equitable proceedings,” id., arising under the courts’

“supervisory jurisdiction.” Richey v. Smith, 515 F.2d 1239,

1245 (5th Cir. 1975). The Supreme Court has explained that

a court’s authority to suppress evidence, whether under the

court’s supervisory jurisdiction or under those provisions of

the federal rules of criminal procedure expressly providing for

suppression, is limited by the scope of the exclusionary rule.

See United States v. Payner, 447 U.S. 727, 735-36 (1980)

(holding that a federal court could not exercise its equitable

supervisory powers to suppress evidence in circumstances

where the exclusionary rule did not allow such suppression);

United States v. Calandra, 414 U.S. 338, 348 n.6 (1974)

(holding that a motion for the return of property “does not

constitute a statutory expansion of the exclusionary rule”); see

also Grimes v. Comm’r, 82 F.3d 286, 290 (9th Cir. 1996)

(holding that Rule 41 does not provide movants “any protection beyond that provided by the exclusionary rule”). Accordingly, courts must follow the Supreme Court’s exclusionary

rule jurisprudence when fashioning suppression remedies

under Rule 41(g) or its equitable counterpart. 

Over the past few decades, the Supreme Court has refined

the rules governing suppression of evidence due to the government’s Fourth Amendment violations and made clear that

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. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13989
suppression is a circumstance-specific remedy. As the Court

has recently explained: 

Suppression of evidence . . . has always been our last

resort, not our first impulse. The exclusionary rule

generates substantial social costs, which sometimes

include setting the guilty free and the dangerous at

large. We have therefore been cautious against

expanding it, and have repeatedly emphasized that

the rule’s costly toll upon truth-seeking and law

enforcement objectives presents a high obstacle for

those urging its application. We have rejected indiscriminate application of the rule, and have held it to

be applicable only where its remedial objectives are

thought most efficaciously served—that is, where its

deterrence benefits outweigh its substantial social

costs.

Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal alterations, quotation marks, and citations omitted) (citing United

States v. Leon, 468 U.S. 897, 907 (1984), and Calandra, 414

U.S. at 348, among others); see also Herring v. United States,

129 S. Ct. 695, 700 (2009) (“We have repeatedly rejected the

argument that exclusion is a necessary consequence of a

Fourth Amendment violation.” (citing cases)). 

Since Mapp v. Ohio, 367 U.S. 643 (1961), the Court has

adopted numerous exceptions to the exclusionary rule, such as

the “good faith” exception first enunciated in Leon. Most significant for this case, the Court has held that even illegally

seized evidence may be used for a variety of purposes. See

Calandra, 414 U.S. at 351-52 (holding that the exclusionary

rule does not apply to grand jury proceedings); see also

United States v. Havens, 446 U.S. 620, 627-28 (1980) (holding that evidence obtained in violation of the Fourth Amendment can be used to impeach a defendant’s testimony at trial);

Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (holding that

evidence obtained in violation of one person’s Fourth Amend13990 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ment rights can be used against another person whose Fourth

Amendment rights were not violated by the search or seizure).

Accordingly, under the Supreme Court’s precedents, remedies

for Fourth Amendment violations must be carefully tailored

to fit both the underlying violation and the government’s

legitimate competing interests in using the illegally seized

evidence. See Grimes, 82 F.3d at 291 (“Because the government may now use illegally obtained evidence in a variety of

situations, it should be permitted to retain copies of such evidence absent extreme circumstances not apparent from this

record.”); see also In re Search of Law Office, 341 F.3d 404,

412 (5th Cir. 2003) (noting that changes in the Court’s exclusionary rule jurisprudence cast doubt on earlier opinions holding that victims of an unlawful search had right to obtain

return of all copies of documents). 

The majority acknowledges that a court’s suppression

power is “limited by the exclusionary rule,” but contends that

Payner and Calandra are inapt because they involved “the

suppression, not the return, of seized materials,” and in this

case “no motion to suppress . . . is before us.” Maj. op. at

13953. But the majority appears to misunderstand the Nevada

district court’s order. In conducting its search of the Quest

facility, the government seized urine specimens and made

copies of information maintained on Quest’s computers. The

first part of the district court’s order directs the government

to “return to moving party MLBPA . . . all materials seized

from Quest . . . other than materials relating to the ten baseball players named in the original April 8 warrant.” This part

of the order applies only to the urine samples, the only physical materials seized from Quest.2

 The second part of the

2

It is uncertain whether even this part of the order constitutes an order

for return of property, rather than a suppression order, given that the

MLBPA’s property interest in the urine samples is unclear. Unless “the

property in question is no longer needed for evidentiary purposes,” the

“movant bears the burden of proving . . . that he or she is entitled to lawful

possession of the property.” United States v. Martinson, 809 F.2d 1364,

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13991
court’s order requires the government to “segregate, seal, and

make no further direct or indirect use of, all notes, summaries,

and other records of information seized from Quest on April

8 and May 6 relating to testing of persons other than the ten

baseball players named in the April 8 warrant.”

3

 This part of

the order applies to the copies the government made of

Quest’s computer files. Whether we use the label “sequestration,” as the majority does, maj. op. at 13956, or some other

term like “divestiture” or “expungement,” the substance of

this part of the order is the same: it required the government

to refrain from using information about the players, not to

return their property. A motion for return of property is a remedy for a party “aggrieved by a deprivation of its property.”

In re Search of Kitty’s East, 905 F.2d 1367, 1375 (10th Cir.

1990) (emphasis added). Here, the Players Association is not

“aggrieved by the deprivation” of its property, maj. op. at

13954; it is aggrieved by the government’s possession of

inculpatory evidence.

1369 (9th Cir. 1987); accord Fed. R. Crim. P. 41, Notes of Advisory Committee on 1989 amendments (“The amended rule recognizes that reasonable accommodations might protect both the law enforcement interests of

the United States and the property rights of property owners and holders.”). I am aware of no court which has held that bodily fluids voluntarily

given away, and held in possession by a third party, are owned by the

donee. Nor does the standard of lawful possession, as opposed to ownership, resolve the matter. Quest had the urine samples, not the MLBPA, and

at oral argument the MLBPA’s attorney admitted that no contractual property interest in the samples was granted by the laboratory. Finally, the

Nevada district court’s order instructed the government to surrender the

urine samples to a third-party laboratory, not return them to the MLBPA

or Quest. The majority’s reliance on the players’ “privacy interests” in the

urine samples, maj. op. at 13954, as opposed to their property interests,

simply highlights the fact that the majority is affirming a suppression

order. 

3The majority’s statement that the “uses the government may make of

the Quest evidence during a criminal proceeding must be decided in the

context of such a proceeding,” maj. op. at 13954, is inconsistent with the

language of the order, which by its terms precludes the government from

making any “further direct or indirect use” of the Quest information. 

13992 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Moreover, a successful motion for the return of property

does not prevent the government from continuing to use information derived from the property or from later using the property as evidence. See Fed. R. Crim. P. 41(g) (if a court grants

a motion for return of property, it may “impose reasonable

conditions to protect access to the property and its use in later

proceedings”). As we have explained: 

If a district court determines that property has been

illegally seized, the proper question in deciding the

merits of a 41(e) motion is not whether the officers

acted in good faith, but whether returning the illegally seized documents would be ‘reasonable under

all of the circumstances.’ If the government’s investigatory and prosecutorial interests can be served by

retaining copies of the documents, it is unreasonable

for the government to refuse to return original documents to the owner.

J.B. Manning Corp. v. United States, 86 F.3d 926, 928 (9th

Cir. 1996) (quoting Ramsden, 2 F.3d at 326-27) (internal citation and alteration omitted). Accordingly, even in ordering a

return of the urine samples, the district court should have

imposed “reasonable conditions,” such as allowing the government to keep part of the samples while returning the rest

to Quest or the players, in order to “protect access to the property and its use in later proceedings.” Fed. R. Crim. P. 41(g).

Nothing else would have been necessary, since Quest retained

the original records (the government took copies) and Quest

never owned the government’s notes in the first place.

Instead, the district court’s order denies the government use

of evidence which, at least according to the majority and the

district court, was obtained in violation of the Fourth Amendment. The district court’s “sequestration” remedy differs from

a typical suppression remedy only because it is broader; it categorically prohibited the government from using the seized

evidence for any purpose, despite the Supreme Court’s clear

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13993
instruction that suppression must be tailored to a specific purpose. See Calandra, 414 U.S. at 348 (“[T]he exclusionary rule

has never been interpreted to proscribe the use of illegally

seized evidence in all proceedings or against all persons.”).

Thus the essence of the majority’s position is that the district

court’s “sequestration” remedy is not subject to the Supreme

Court’s rule against broad and categorical suppression remedies so long as it is labeled an order for “return of property.”

Like the district court, the majority cites no precedent for

such a “sequestration” remedy. Ramsden, quoting the Advisory Committee notes to the 1989 amendments to Rule 41,

merely left open the possibility that, “in some circumstances

. . . equitable considerations might justify an order requiring

the government to return or destroy all copies of records it has

seized.” 2 F.3d at 327 (alteration omitted). As Judge Callahan’s dissent points out, Ramsden did not decide this question; although we determined the government acted with

“callous disregard for Ramsden’s constitutional rights,” we

concluded that the government was justified in “copying the

documents and turning them over to British authorities” while

returning the originals to Ramsden so that he could run his

business. Id. Ramsden’s dicta must bow to Supreme Court

precedent. Thus although I acknowledge that Ramsden did not

rule out the possibility of a “sequestration” remedy, I conclude that the Supreme Court’s recent exclusionary rule jurisprudence prevents us from expanding the district courts’

suppression authority so broadly. 

In this case, assuming the government’s seizure of evidence

of criminal wrongdoing violated the Fourth Amendment

rights of the parties, Supreme Court precedent may support an

order precluding the government from using such evidence in

subsequent criminal proceedings against the players. But

ordering the government to forget that a large number of individuals have engaged in criminal behavior runs directly contrary to the Supreme Court’s modern Fourth Amendment

jurisprudence and fails to consider the “substantial social

13994 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
cost” of the exclusionary rule. Leon, 468 U.S. at 907. At the

very least, preventing the government from using any evidence derived from the search of Quest’s facilities cannot be

reconciled with Calandra, which would allow the use of illegally seized evidence in future grand jury proceedings. See

414 U.S. at 351-52. 

By affirming the Nevada district court’s order, whatever

the label, the majority ignores the Supreme Court’s direction

that there is no such thing as a categorical suppression remedy. For this reason, as well as the reasons expressed in Judge

Callahan’s dissent, I respectfully dissent. 

UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13995