Case o' The Week: One Shy - Search Guidelines Fall in C.D.T.

"[W]hat ever happened to the Fourth Amendment? Was it . . . repealed somehow?" United States v. Comprehensive Drug Testing, Inc., 2010 WL 352947 (9th Cir. Sept. 13, 2010) (Ord. amend. op. and denying rehearing en banc). at *13, order and amended opinion available here.

The other shoe finally drops on Justice's petition for super en banc, and everyone wins, and loses, a little.

Players: Judges Graber (below left), Wardlaw (left), and Berzon (right), who concurred in the original en banc decision’s list of restrictions for computer searches, and then pulled back from those guidelines in response to DOJ’s petition for “super” rehearing en banc.

(Had one of these judges remained with the original majority, the guidelines now moved to the concurrence would have remained the majority opinion).

Facts: The government shopped jurisdictions, dodged limitations in search warrants, and searched thousands of drug urine-test records without a warrant under a dubious “plain view” theory. Id. at *1-*3. Three different district judges ordered the return of property (the records), some accused the government of “manipulation and misrepresentation.” Id. at *2; see more details here.

Over Judge Thomas’s vigorous and persuasive dissent, a Ninth three-judge panel reversed the district courts and upheld the searches.

In August of ‘09, an en banc panel lead by C.J. Kozinski issued a remarkable decision reversing the panel and setting forth guidelines for future computer searches. C.D.T., 2009 WL 2605378 (9th Cir. 2009) (en banc). Rome was unamused; then-Solicitor General Kagan sought “super” rehearing en banc (an unprecedented full-court rehearing). See blog describing petition here.

Issue(s): For all practical purposes, the real issue on the petition for super rehearing en banc was whether the Ninth would stand by the “prophylactic” guidelines for computer searches crafted by Chief Judge Kozinski.

Held: The Ninth blinked.

Judge Kozinski’s guidelines were moved from the majority en banc decision to a separate concurrence, and four judges joined the Chief's concurrence. Id. at *14.

As noted above, three judges withdrew from that part of the original en banc majority opinion, making Judge Kozinski’s guidelines one vote short of a majority decision. (A vestige of this switch is in the majority decision, when C.J. Kozinski refers to “updating” the old Tamura decision – but those updates are now relegated to a concurrence). Id. at *13.

Of Note: The C.D.T. computer-search guidelines – whether in a concurrence or not – are the next Fourth Amendment battlefield, and merit a strong defense from the Defense. Note that the tech-savvy judge who sparked this whole brouhaha, Judge Thomas, wasn’t drawn on this en banc panel. Judges Pregerson and Reinhardt also weren’t on this panel. Different times, and a slightly different panel, may vindicate Judge Kozinski’s approach.

Moreover, the Reluctant Trio – Judges Wardlaw, Berzon, and Graber – never say that these guidelines are wrong. If they were presented with these questions as controlling issues instead of prophylactic guidelines in a future case, they well could back the approach as well.

In sum, the principles controlling computer searches articulated by Chief Judge Kozinski still should be litigated as reasonable limitations on computer searches.

How to Use: While it is disappointing to lose the Kozinski guidelines as law, this still remains a great decision. Here are two gems in particular. First, the majority still endorses this wonderful proposition: “When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, is 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.” Id. at *10 (emphasis added). This is, albeit, in the context of a Rule 41 return of property, but it is a concept ripe for import into a Fourth Amendment analysis.

Second, the majority prospectively orders the government to disclose previous attempts to obtain evidence when it goes to other jurisdictions for search warrants or subpoenas. Id. at *11. That concept will be of particular use in multi-district investigations, such as big fraud, gang, or wiretap cases.

For Further Reading: For a much more-skeptical view of C.D.T. see Orin Kerr’s collection of posts at the Volokh Conspiracy, available here.


Image of the US Department of Justice from http://commons.wikimedia.org/wiki/File:Usdepartmentofjustice.jpg. Image of Judge Kim Wardlaw from http://law.pepperdine.edu/judicial-clerkship-institute/images/faculty/wardlaw.jpg . Image of Judge Berzon from http://www.thenewspaper.com/rlc/pix/mberzon.jpg . Image of Judge Graber from http://www.id.uscourts.gov/DistConf08/Photos/slidesTrudy%20Fouser%20Judge%20Graber%20&%20Judge%20Dale.html



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

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