Friday, August 28, 2009

Case o' The Week: Eating Crow, Comprehensive Drug Testing En Banc Decision

On more than one occasion, we've bemoaned the irony that the Ninth Circuit is home to the most technologically-advanced industries (and arguably, users) in the world, yet its digital search law is bogged down in old and inapposite analogies to briefcases and filing cabinets. See, e.g., blog on Giberson here.

This week, we happily eat crow. In what will be a leading Fourth Amendment decision for the Information Age, Chief Judge Kozinski persuasively explains why a search in a computer is different than a search in a briefcase and -- more importantly -- does something about it. United States v. Comprehensive Drug Testing,__ F.3d __, No. 05-10067, 2009 WL 2605378 (9th Cir. Aug. 31, 2009) (en banc), decision available here.

Players: En banc decision by Chief Judge Kozinski, dissents by Judge Ikuta and Judge Callahan.

Facts: In ‘02, the US Attorney’s Office for the N.D. of California began an investigation of “Balco,” a lab suspected of providing steroids to professional athletes. Id. at *1.

A separate company, “Comprehensive Drug Testing” (“CDT”) had been hired by Major League Baseball to test the urine of all professional baseball players for drugs. Id. The players had agreed to undergo these tests with the assurance that the results would remain anonymous and confidential. Id.

When the feds heard of ten players who had tested positive, they got a grand jury subpoena for all CDT testing records and specimens for all players. Id. CDT and the players moved to quash the subpoena.

On that same day the feds served a search warrant for records of the ten suspected players. Id. Though the warrant was for ten players’ records, the feds seized and reviewed computer records of hundreds of other players. Contrary to the search warrant requirements, the feds made little or no effort to segregate responsive data in the computer search from records of other drugs tests. Id. at *5. As one district judge later put it, the government demonstrated a “callous disregard for the rights of those persons whose records were seized and searched outside the warrant.” Id. at *5.

The feds then used information from this search in support of further subpoenas. Judge Illston, of the Northern District of California, quashed this latest round of subpoenas. Id. at *2.

A majority of a three-judge panel endorsed the search and subpoena, sparking a compelling dissent from Judge Thomas. The case went en banc. (Interestingly, none of the original three judges were on the en banc panel).

Issue(s): “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.

Held: “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.” Id. at *9.

Of Note: CDT will spark a dozen law review articles (and maybe a cert. petition); in this brief space we’ll touch on just a few of its key points. First, CJ Kozinski flatly rejects the government’s “plain view” trope – that theory which allows agents to rummage through computer files at will, because the data is in “plain view.” In future warrant applications, the Chief Judge warns, the government should “forswear reliance on the plain view doctrine.” Id. at *7. If law enforcement balks at such a waiver, the warrant should require initial review by an independent third party under supervision of the court. Id.

Next, the government should be honest. A lack of candor about offers to retain the data until a motion to quash can be heard “shall bear heavily against the government.”

Third, the government must limit computer searches to data identified in the warrant. For example, it can’t run a search for the “hash files” of known child porn while looking for urine testing records. Id. at *7.

Finally, the person segregating the seized data has to be either a government techie who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party (like a special master). Id. at *9. Where the search is of a third party’s computer not suspected of any crime (as in this case), “the presumption should be that the segregation will be conducted by . . . an independent third party selected by the court.” Id.

How to Use: The new search rules of CDT are recapped with great clarity at the end of the decision. Id. at *15. Simply stated, one must start with CDT for any computer, cell phone, or remote server search.

For Further Reading: The only downside of CDT is that is overshadows two great public defender victories this week. In Crickon v. Thomas, Steve “the Energizer Bunny” Sady won a habeas where the BOP gave no rationale explanation for excluding his client from its drug treatment program. 2009 WL 2591680 (9th Cir. Aug. 25, 2009). And in United States v. Gonzalez, Rebecca Pennell convinced the Ninth to put the brakes on Herring and the extension of the good faith exception to warrantless car stops. 2009 WL 2581738 (9th Cir. Aug. 24, 2009).

Congratulations to both Steve and Rebecca for big wins. Gonzalez, in particular, may turn out to be an important beachhead against the Herring invasion.

"Eating Crow" image from .

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


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Anonymous Anonymous said...

Here's the secret on passing drug tests. Don't do drugs.

Sunday, September 13, 2009 2:28:00 PM  
Anonymous Anonymous said...

notably absent is any support for the court's proposition that a magistrate judge can refuse a search warrant where there is probable cause.

Wednesday, October 07, 2009 10:35:00 AM  

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