United States v. Michael Dreyer

BACKGROUND

In late 2010, NCIS Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Agent Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network.

Agent Logan found a computer using the Internet Protocol (IP) address 67.160.77.21 sharing several files

1 Dreyer challenges the admission of evidence related to RoundUp, arguing it did not meet the requirements for the admission of expert testimony established by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Because we conclude that suppression was warranted for other reasons, we do not reach this issue.

UNITED STATES V. DREYER

identified by RoundUp as child pornography. He downloaded three of the files, two images and a video, from that computer. After viewing the files, Agent Logan concluded that they were child pornography.

Thereafter, Agent Logan made a request for an administrative subpoena for the name and address associated at the…

concurring in part and dissenting in part:

Before today, “not a single federal court” had applied the exclusionary rule to violations of the Posse Comitatus Act (PCA), 18 U.S.C. § 1385 , and its implementing regulations. 1 United States v. *839 Vick, 842 F.Supp.2d 891, 894 (E.D.Va. 2012). That is no accident. As we have observed, the exclusionary rule is an “extraordinary remedy,” United States v. Roberts, 779 F.2d 565, 568 (9th Cir.1986), and the Supreme Court has counseled that it is only to be used as a “last resort,” Hudson v. Michigan, 547 U.S. 586, 591 , 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006). Yet, in a breathtaking assertion of judicial power, today’s majority invokes this disfavored remedy for the benefit of a convicted child pornographer. It does so without any demonstrated need to deter future violations of the PCA and without any consideration of the “substantial social costs” associated with the exclusionary rule. United States v. Leon, 468 U.S. 897, 907 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). Like my colleagues, I conclude that Agent Logan violated the PCA, and I concur in Parts I and II of the majority opinion. But I respectfully dissent from the majority’s…

concurring:

I join fully in the majority opinion. I write separately to address applicability of the exclusionary rule to this case. We all agree that the Navy conduct in this case violated the Posse Comitatus policy provisions, though not the criminal Posse Comi-tatus statute.

Were we suggesting something like application of the exclusionary rule to all Posse Comitatus violations, then application of the exclusionary rule would be inappropriate. And if there were any reason to think that the violation in this case were a fluke, it would be inappropriate. This case, though, amounts to the military acting as a national police force to investigate civilian law violations by civilians.

Generally, the exclusionary rule does not apply to Posse Comitatus violations, in the absence of “widespread and repeated violations” demonstrating a need to deter future violations. 1 In this case, unfortunately, that is just what we have. The Navy did not just peek into Dreyer’s home computer. It peeked into every computer in the State of Washington using the peer-to-peer file sharing program, “Gnutella.” That is more “widespread” than any military investigation of civilians in any case that has…

Opinion by Judge BERZON.

Concurrence by Judge KLEINFELD.

Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

OPINION

A special agent of the Naval Criminal Investigative Service (NCIS) launched an investigation for online criminal activity by anyone in the state of Washington, whether connected with the military or not. The agent found evidence of a crime committed by a civilian in the state and turned it over to civilian law enforcement officials. The civilian, Michael Dreyer, was prosecuted, convicted, and sentenced to eighteen years in prison. We hold that the NCIS agent’s investigation constituted improper military enforcement of civilian laws and that the evidence collected as a result of that investigation should have been suppressed.

BACKGROUND

In late 2010, NCIS Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Agent Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known *828 child pornography on the Gnutella file-sharing network.

Agent Logan found a computer using the Internet Protocol (IP) address…