Sunday, November 08, 2015

Case o' The Week: Higher and Dreyer - No Suppression for Illegal Search - Dreyer and Posse Comitatus Act searches

  Dreyer will serve eighteen years in a federal prison, convicted for evidence seized from an unlawful search.
  (Though he can take solace in the Ninth’s holding that the search was illegal, and the government’s cross-its-heart promise not to do it again.)
 United States v. Dreyer, 2015 WL 6736531 (9th Cir. Nov. 4, 2015) (en banc), decision available here.

Players: En banc decision by Judge Christen. Concurrences by Judges Berzon, Owens and Silverman. 

Hard-fought appeal by former WD Wa. AFPD, current ND Cal CJA Attorney Erik Levin.  

Facts: A Naval Criminal Investigative agent used software that trolls networks to identify child porn by hash values. Id. The agent searched a peer-to-peer network for the entire state of Washington. Id. He had a hit on files at an IP address that ultimately proved to belong to Dreyer. Id. When the agent learned Dreyer had no military affiliation, he passed the case file onto local cops -- they executed a search warrant and found child porn. Id. at *2. 

Dreyer was charged in federal court and moved to suppress, arguing that the initial search violated the Posse Comitatus Act (“PCA”). The PCA prohibits the use of the military to conduct civilian law enforcement activities. Id. The district court denied the motion and Dreyer was convicted after trial. Id. 

A three-judge panel reversed and remanded, and the case went en banc.

Issue(s): “This case requires us to decide whether a Naval Criminal Investigative Service agent’s involvement in civilian law enforcement constitutes a violation of the Posse Comitatus Act, and if so, whether that violation warrants excluding evidence obtained as a result of the involvement.” Id. at *1.

Held:We have no trouble concluding that the facts giving rise to the criminal charges in this case present clear violations of a congressional directive prohibiting the use of the military in civilian law enforcement. We decline to compel suppression because the facts of this case do not demonstrate that suppression is needed to deter future violations. We affirm the district court's denial of Dreyer's motion to suppress.” Id.

Of Note: Judge Christen characterizes the government’s understanding of the PCA’s limitations as “entirely incorrect.” Id. at *8 -*9. At no point in all of the extensive briefing did the government argue that suppression is not appropriate for a PCA violation – until a supplemental brief. Id. at *9.

Waiver by the government of this appellate argument, and victory for Dreyer?

Sadly, no: the Court exercises its discretion to excuse the government’s waiver of the argument, id. at *9, and declines to suppress “until a need to deter future violations is demonstrated.” Id. at *10.

Judge Berzon – author of the original panel decision reversing the denial of the suppression motion – now concurs with the en banc court. Id. at *12 (Berzon, C.J., concurring). Judge Berzon stresses, however, that suppression could be an appropriate remedy for a PCA violation “[i]f . . . the same or closely similar violations were to occur.” Id. at *14. 

Small solace for Dreyer, who is now serving a 216 month term in federal prison, after an illegal search.

How to Use: A threshold issue was whether the Naval Criminal Investigative Service (“NCIS”) is an agency subject to the limitations of the PCA. Id. at *4-*6. The Court rejects the government’s attempt to avoid the act by characterizing the NCSIS as a civilian law enforcement agency. Id. at *5. So, while the final outcome is disappointing, Dreyer is a useful re-enforcement of the bulwark between military investigations and civilian criminal investigations and prosecutions.

And remember Judge Berzon’s concurrence – a similar violation could trigger the exclusion remedy. (Maybe. Judge Owens, Joined by Judges Silverman and Callahan question whether the suppression remedy would ever lie for a PCA violation. Id. at *14 (Owens, C.J., concurring)). 
For Further Reading: The Posse Comitatus Act has a complicated and ugly history. The Act was originally adopted in 1878, to prevent Union troops from enforcing Restoration laws (such as patrolling polling places). See article here.

It was modified after Hurricane Katrina (the PCA allegedly hampered the military's disaster response), then reverted to its original text, and then was revised again during the Obama administration to exclude al-Qaeda and the Taliban. See article here

Image of (TV’s) NCIS from

Image of the Posse Comitatus Act from 

Steven Kalar, Federal Public Defender ND Cal. Website at


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