After a jury convicted Michael Dreyer of “one count of
distributing child pornography . . . in violation of 18 U.S. Code §2252(a)(2) and (b)(1), and one count of possessing child pornography .
. . in violation of 18 U.S. Code § 2252(a)(4)(B) and (b)(2)” and
“sentenced to 216 months of incarceration and lifetime supervised release”, he
appealed. U.S. v. Dreyer, 767 F.3d 826 (U.S. Court of Appeals for the 9th Circuit 2014). On appeal, he argued that the U.S. District Court Judge erred in
denying his motion to suppress certain evidence. U.S. v.
Dreyer, supra.
Dreyer’s motion to suppress was based on certain aspects of
the investigation that led to his being charged with two counts of violating 18
U.S. Code § 2252:
In late 2010, [Naval Criminal Investigation Service] Special Agent Steve Logan began investigating the
distribution of child pornography online. Several months later, from his office
in Georgia, 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.
Logan found a computer using the
Internet Protocol (IP) address 67.160.77.21 sharing several files identified by
RoundUp as child pornography. He downloaded three of the files, two
images and a video, from that computer. After viewing the files, Logan
concluded that they were child pornography.
. . . Logan made a request for an
administrative subpoena for the name and address associated at the time of the
downloads with the IP address. He submitted his request to NCIS's
representative at the National Center for Missing and Exploited Children, which
turned the request over to the Federal Bureau of Investigation. The FBI sent an
administrative subpoena to Comcast. Comcast responded by providing Dreyer's
name and address in Algona, Washington.
After receiving that information, Logan
checked a Department of Defense (DoD) database to determine if Dreyer had a
military affiliation. He found Dreyer had no current military affiliation.
Logan wrote a report summarizing his investigation and forwarded it
and the supporting material to the NCIS office in the state of Washington. That
office then turned the information over to Officer James Schrimpsher of the
Algona Police Department.
Schrimpsher verified that Dreyer lived
in Algona based on property and utility records. Because Schrimpsher had never
worked on any case involving internet crimes or child pornography, he contacted
the Internet Crimes Against Children Task Force for assistance and was referred
to Detective Ian Polhemus of the Seattle Police Department. Polhemus reviewed
some of the information in the NCIS report, and provided Schrimpsher with a
sample of a search warrant affidavit.
Subsequently, Schrimpsher sought, and
was issued, a search warrant by a state court judge. Schrimpsher,
along with several other officers, including Polhemus, Detective Timothy Luckie
of the Seattle Police Department, and Sergeant Lee Gaskill of the Algona Police
Department, executed the search warrant. At Dreyer's residence, Luckie
conducted an on-site `preview’ search of a desktop computer he found in the
house. He identified some images as possible child pornography
and directed the Algona officers to seize the computer.
Months later, United States Department
of Homeland Security Special Agent Cao Triet Huynh applied for a warrant to
search the electronic media seized from Dreyer's home. Huynh based his
application on the media found by Logan and Luckie, as well as incriminating
statements Dreyer made during the car ride. A federal magistrate judge issued a
search warrant. The resulting forensic examination of Dreyer's computer
revealed many videos and images of child pornography.
U.S. v. Dreyer, supra.
Dreyer was, as noted above, charged with violating 18 U.S.
Code § 2252, after which he “moved to suppress the evidence seized during the
July 6, 2011 search, as well as the evidence found during the later federal
search of the computer.” U.S. v. Dreyer,
supra. In moving to suppress, Dreyer
argued “that, as an NCIS agent, Logan had no lawful authority to investigate
civilian crime.” U.S. v. Dreyer,
supra. The prosecution filed a response to his motion, the U.S. District
Court Judge held a hearing on the matter and “orally denied his motion to
suppress.” U.S. v. Dreyer, supra.
On appeal, Dreyer again argued that “the fruits of the NCIS
investigation into his online file sharing should have been suppressed because
military enforcement of civilian laws is prohibited.” U.S. v. Dreyer, supra. The
Court of Appeals began its analysis of his argument by explaining that the
Posse Comitatus Act (PCA), 18 U.S. Code § 1385,
`prohibits Army and Air Force military
personnel from participating in civilian law enforcement activities.’ U.S.
v. Chon, 210 F.3d 990 (U.S. Court of Appeals for the 9th Circuit 2000). .
. . Congress has directed `[t]he Secretary of Defense [to] prescribe such regulations
as may be necessary’ to prevent `direct participation by a member of the Army,
Navy, Air Force, or Marine Corps’ in civilian law enforcement activities unless
otherwise authorized by law. 10 U.S. Code § 375. . . .
We have previously recognized that, `[a]lthough
the PCA does not directly reference the Navy,’ `PCA-like restrictions’ apply to
the Navy as a matter of Department of Defense (DoD) and Naval policy. U.S.
v. Chon, supra. . . . Specifically,
DoD policy states that its `guidance on the Posse Comitatus Act . . . is
applicable to the Department of the Navy and the Marine Corps as a matter of
DoD policy, with such exceptions as may be provided by the Secretary of the
Navy on a case-by-case basis.’ DoDDirective (DoDD) 5525.5 Enclosure 4 E4.3 (Jan. 15, 1986). `[T]he
Secretary of the Navy, using nearly identical language, has adopted this
policy.’ U.S. v. Chon, supra.
. . .
U.S. v. Dreyer, supra.
The Court of Appeals went on to explain that “the
government” argued that
even though PCA-like restrictions apply
to the Navy, they do not apply to civilian NCIS agents. Chon rejected
the same argument. There, as here, the government argued that `§ 375 does
not apply to the NCIS because most of its agents are civilians,’ and `it is
headed by a civilian director with a civilian chain of command.’ . . . The
government based its first argument on provisions in DoD and Naval policies
that exempt four categories of people from PCA-like
restrictions: (1)
members of reserve components when not on active duty; (2) members of the
National Guard when not in the Federal Service; (3) civilian employees of DoD
unless under the direct command and control of a military officer; and (4)
military service members when off duty and in a private capacity.
Chon interpreted `these
exemptions to mean the PCA and PCA-like restrictions function to proscribe use
of the strength and authority of the military rather than use of the private force
of the individuals who make up the institution’ U.S. v. Chon, supra. `In
other words, while DoD personnel may participate in civilian law enforcement
activities in their private capacities, they may not do so under the auspices
of the military.’ U.S. v. Chon, supra. . . . Chon held
that the PCA-like restrictions do apply to `civilian NCIS agents’ who `represented
and furthered the interests of the Navy,’ and were not distinguishable by the
civilians who might interact with them from members of the military. U.S.
v. Chon, supra. . . .
Chon also rejected the government's
second contention, `that the NCIS should be exempt from PCA-like restrictions
because it is headed by a civilian director with a civilian chain of command.’ U.S. v. Chon, supra. The court reasoned
that `the NCIS Director has a direct reporting relationship to the Chief of the
Naval Operations, a military officer,’ and so `[d]espite a civilian Director,
the NCIS continues to be a unit of, and accountable to, the Navy.’ U.S. v. Chon, supra. The government
argues that Chon's reasoning has been undermined, because the
`reporting relationship’ between the NCIS director and the Chief of Naval
Operations `was eliminated in 2005’ when the Secretary of the Navy issued
Instruction 5430.107.
The government is incorrect. . . .
[T]he change in NCIS's policies regarding its command structure did not
undermine this portion of Chon's reasoning. . . .
[T]he government's assertion that there
is a meaningful difference between civilian and other employees of the Navy for
the purposes of the PCA-like restrictions is unsound. The DoD policies have
consistently proclaimed that they set forth `restrictions on participation of
DoD personnel in civilian law enforcement activities.’ . . . They do not limit
their reach to non-civilian personnel only. And any contention to the contrary
is belied by the abundantly clear expressions in the most recent regulations
and policy instructions. Both state that they `[a]ppl[y] to civilian employees
of the DoD Components,’ and their restrictions on direct participation in
civilian law enforcement `apply to all actions of DoD personnel worldwide,’
with `DoD personnel’ defined to include `Federal military officers and enlisted
personnel and civilian employees of the Department of Defense.’ 32 C.F.R.
§§ 182.2(e), 182.3, 182.4(c). . . . Accordingly, we re-affirm Chon's
holding that NCIS agents are bound by PCA-like restrictions on direct
assistance to civilian law enforcement.
U.S. v. Dreyer, supra. The Court of Appeals therefore “re-affirm[ed]
Chon's holding that NCIS agents are bound by PCA-like restrictions on
direct assistance to civilian law enforcement.” U.S. v. Dreyer, supra.
It then took up the issue raised by Dreyer’s motion to
suppress, explaining that
[w]e have `set forth three tests for
determining whether military involvement in civilian law enforcement
constitutes permissible indirect assistance: ”‘[1] The involvement must not
constitute the exercise of regulatory, proscriptive, or compulsory military
power, [2] must not amount to direct active involvement in the execution of the
laws, and [3] must not pervade the activities of civilian authorities.”’ U.S. v. Hitchcock, 286 F.3d 1064 (U.S.
Court of Appeals for the 9th Circuit 2002) (quoting U.S. v. Khan, 35 F.3d 426 (U.S. Court of
Appeals for the 9th Circuit 1994). `If any one of these tests
is met, the assistance is not indirect.’
U.S. v. Khan, supra.
U.S. v. Dreyer, supra.
The Court of Appeals then found that Agent Logan’s RoundUp
surveillance of
all computers in Washington amounted to
impermissible direct active involvement in civilian enforcement of the child
pornography laws, not permissible indirect assistance. He acted as an
investigator, an activity specifically prohibited as direct assistance. . . .
Also, Logan engaged in his
investigation not in any support capacity to civilian law enforcement, but
rather as an independent actor who initiated and carried out this activity. His
actions thus were not `incidental’ to the overall investigation into Dreyer, or
limited to backup support. . . . The results of his investigation
served as the primary basis for the state search warrant. Schrimpsher conducted
no significant additional investigation before procuring the warrant -- he only
verified that Dreyer lived at the address he was given and that the
descriptions that Logan provided of the files seemed to describe child
pornography. Without Logan's identification of Dreyer, his computer, and the
child pornography on his computer, there would have been no search and no
prosecution.
Accordingly, Logan's actions amounted
to direct assistance to civilian law enforcement. The government nonetheless
argues that [his] investigation was proper because it falls into the
`independent military purpose’ exception to the prohibition on direct
assistance.
U.S. v. Dreyer, supra.
The court goes on to note that the polices and regulations
create an exception to
`the general prohibition on direct
involvement where’ there is `an independent military purpose,’ that is, `where
the military participation is undertaken “for the primary purpose of furthering
a military or foreign affairs function of the United States, regardless of
incidental benefits to civilian authorities.”’ U.S. v. Hitchcock, supra (quoting DoD Directive 5525.5, Enclosure
4, E4.1.2.1). Such military activities include `[i]nvestigations and other
actions related to enforcement of the Uniform Code of Military Justice.’ DoD
Directive 5525.5, Enclosure 4, E.4.1.2.1.1.
The Uniform Code of Military Justice
prohibits distribution of child pornography by a member of the armed
forces. It has assimilated the elements of the federal child pornography
statute through Article 134, its general provision that prohibits `all conduct
of a nature to bring discredit upon the armed forces.’ 10 U.S. Code § 934.
. . . In 2011, the President issued Executive Order 13593, adding to the
Manual for Courts Martial a specific Article 134 provision for child
pornography. Investigation by military law enforcement officers of possession
and distribution of child pornography by military personnel is therefore
proper.
U.S. v. Dreyer, supra.
The Court of Appeals found that Logan’s search was not
“reasonably focused” on
carrying out such a legitimate military
investigation. NCIS is authorized to investigate criminal operations
that `significantly affect the naval establishment.’ SECNAVINST 5430.107(3)(c),
7(b)(2). Logan understood he did not have the authority to search any location, but had to limit his
searches to areas where there was `a Department of Navy interest.’ Yet, Logan's
search did not meet the required limitation. He surveyed the entire
state of Washington for computers sharing child pornography. His
initial search was not limited to United States military or government
computers, and, as the government acknowledged, Logan had no idea whether
the computers searched belonged to someone with any `affiliation with the
military at all.’ Instead, it was his `standard practice to monitor all computers
in a geographic area,’ here, every computer in the state of
Washington.
Logan's further investigation into
Dreyer's specific computer and identity also was not reasonably limited to
searching for crimes that `significantly affect the naval establishment.’
SECNAVINST 5430.107(3)(c), 7(b)(2). Logan testified that RoundUp displays the
geographic location of the IP address `within a 25– to 30–mile radius.’ The
screen shot for Logan's search shows that RoundUp identified the geographic
location for Dreyer's IP address as Federal Way, Washington. Logan did not
report at the evidentiary hearing on the suppression motion or at trial that he
chose to pursue that IP address based on this geographic identification.
Logan did write in his administrative
subpoena request that the `Suspect IP was identified in area of large DOD and
USN saturation indicating likelihood of USN/DOD suspect.’ But the record
contains no evidence establishing any meaningful military `saturation’ of the
area at issue. Although the government represents that Federal Way, Washington
is located within thirty miles of several military installations, it also is .
. . near both Seattle and Tacoma, as well as much of the surrounding
metropolitan areas. The three-thousand-square-mile area circling
Federal Way -- the approximate area of a circle with a thirty-mile radius -- encompasses
much of the state's civilian population. That Logan ended his investigation
once he confirmed Dreyer had no current military affiliation is of no matter;
his overly broad investigation until that point had already exceeded the scope
of his authority.
The government's position that the
military may monitor and search all computers
in a state even though it has no reason to believe that the computer's owner
has a military affiliation would render the PCA's restrictions entirely
meaningless. To accept that position would mean that NCIS agents could, for
example, routinely stop suspected drunk drivers in downtown Seattle on the
off-chance that a driver is a member of the military, and then turn over all
information collected about civilians to the Seattle Police Department for
prosecution.
U.S. v. Dreyer, supra
(emphasis in the original).
The court went on to explain that the “government’s
position” that the military can
search the entire civilian
population of a state is also inconsistent with a basic principle
underlying the PCA and the related statutes and regulations, `a traditional and
strong resistance of Americans to any military intrusion into civilian affairs.’ Lairdv. Tatum, 408 U.S. 1 (1972). The PCA was originally enacted on the
understandings that `[t]he great beauty of our system of government is that it
is to be governed by the people,’ and that if we use the `military power . . . to discharge those duties that belong to civil
officers and to the citizens,’ we `have given up the character of [our]
Government; it is no longer a government for liberty; it is no longer a
government founded in the consent of the people; it has become a government of
force.’ 7 Cong. Rec. 4247 (1878) (remarks of Sen. Benjamin Hill).
Consistent with those fundamental
premises, DoD policy warns against an expansive reading such as the one
espoused by the government here: Directive 5525.5 specifically notes that the
independent military purpose exception `must be used with caution, and does not
include actions taken for the primary purpose of aiding civilian law
enforcement officials or otherwise serving as a subterfuge to avoid the
restrictions of’ the PCA. DoDD 5525.5, Enclosure 4, E.4.1.2.1.
The lack of any reasonable connection
between the military and the crimes Logan was investigating separates this case
from those in which we have applied the independent military purpose exception.
In U.S. v. Hitchcock . . . the defendant `sold LSD to Lake, a U.S.
Marine, who was . . . selling LSD to other military personnel’ on his
base. . . . NCIS agents participated in the investigation ` to determine
whether [the defendant] had sold drugs to other military personnel besides
Lake.’ . . . U.S. v. Hitchcock, supra.
Hitchcock held the independent military purpose exception applicable
because the military participation was justified to `determin[e] the extent to
which [the defendant's] LSD was being used and distributed on the military
base’ in violation of the Uniform Code of Military Justice, and to help `”maintain
law and order on a military installation.”’ U.S. v. Hitchcock, supra (quoting DoDD 5525.5, Enclosure 4,
E4.1.2.1.3). And U.S. v. Chon, supra applied the exception
where NCIS agents were investigating the theft of military equipment from a
Naval facility, and so were acting with `the independent military purpose of
recovering military equipment.’ U.S. v.
Chon, supra.
Thus, we hold Agent Logan's broad
investigation into sharing of child pornography by anyone within
the state of Washington, not just those on a military base or with a reasonable
likelihood of a Navy affiliation, violated the regulations and policies
proscribing direct military enforcement of civilian laws.
U.S. v. Dreyer, supra.
The Court of Appeals then took up the issue of whether the
violation required the suppression of evidence, as Dreyer argued. U.S. v.
Dreyer, supra. After reviewing the
facts, it held that
we have here
abundant evidence that the violation at issue has occurred repeatedly and
frequently, and that the government believes that its conduct is permissible,
despite prior cautions by our court and others that military personnel,
including NCIS agents, may not enforce the civilian laws. Accordingly, we find
that the district court erred in denying Dreyer's motion to suppress.
U.S. v. Dreyer, supra.
The Court of Appeals therefore reversed
the District Court Judge’s denial of Dreyer’s motion to suppress and remanded
the case for further proceedings. U.S. v. Dreyer, supra. The news story you can find here provides a
few more details of the case.
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