Case o' The Week: Ninth Listens to Doubting Thomas, Comprehensive Drug Testing Goes En Banc

Too infrequently can we post good news in this blog. Today we do: Justice Thomas's dissent must have caught someone's eye, because United States v. Comprehensive Drug Testing went en banc on Friday the 30th. See order here.

Players: Judge Sidney Thomas, with a dissent that sparked an en banc call.

Facts: As part of the ND Cal USAO’s office on-going fascination with steroids in baseball, way back in 2002 the feds started issuing subpoenas for various records. United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th Cir. 2008) (decision now en banc). One of these subpoenas was to drug testing companies for test results for all Major League Baseball players. Id. at 1090. The feds also obtain warrants for search of computer equipment. Id. at 1092. The fifth search warrant was for seizure of all electronic data regarding drug testing, specimens, athlete identification numbers, and drug test results. Id. at 1093 & n.20. Subpoenas and warrants were quashed in three jurisdictions: the government took a consolidated appeal.

Issue(s): (Among dozens in this 60+ page Judge O’Scannlain opinion)” “We must decide whether the United States may retain evidence it seized from Major League Baseball’s drug testing administrator, and enforce an additional subpoena, as part of an ongoing grand jury investigation into illegal steroid use by professional athletes.” Id. at 1090.

Held: “The record, illuminated by caselaw, illustrates that the subpoenas to CDT and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the Northern District of California quashing the May 6 supboenas is reversed.” Id. at 1116. (But, opinion thankfully went en banc on September 30, 2008!)

Of Note: Judge Thomas begins his remarkable dissent to the panel's decision by quoting “one of the three extremely able district court judges who rejected the government’s argument . . . ‘What happened to the Fourth Amendment? Was it repealed somehow?” Id. at 1116-17 (Thomas, J., dissenting).

As Judge Thomas correctly explains, “the majority invents a new justification for approving the seizures. It holds that the boilerplate terms of a computer search warrant justify both the seizure of massive amounts of confidential medication information about persons not suspected of any criminal activity and the subsequent warrantless search of the information.” Id. at 1117. The dissent warns that the “consequences of this decision are profound,” fearing the “unprecedented easy access” of the government to “confidential medical and other private information about citizens who are under no suspicion of having been involved in criminal activity.” Id. at 1117.

Maybe not surprisingly, we find Judge Thomas’s reasoning persuasive – and thankfully, so do enough Ninth Circuit judges to trigger an en banc call. As we’ve noted before, Judge Thomas is one of the most savvy jurors in the Ninth – maybe in the country – on the interplay between the Fourth Amendment and technology. His dissent in Kelly identified exactly the dangers of using old Fourth Amendment analogies when addressing searches of modern technologies (and he worked in a Monty Python plug in while he was at it). See blog on United States v. Kelley, March 1, 2007, at http://circuit9.blogspot.com/2007_03_01_archive.html

How to Use: Who knows? Cross your fingers for a hard-fought en banc battle, and anticipate much amicus interest (Electronic Frontier Foundation?)

For Further Reading: Comprehensive Drug Testing is one of the handful of lead cases on the evolving (or devolving) intersection of technology and the Fourth Amendment. For a very thoughtful article on the decision that will hopefully soon be reversed, see Aaron Seiji Lowenstein, Search and Seizure on Steroids: United States v. Comprehensive Drug Testing and Its Consequences for Private Information Stored on Commercial Electronic Databases, http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=aaron_lowenstein


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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