Wednesday, October 29, 2014

The NCIS, Child Pornography and the Posse Comitatus Act

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 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.

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.

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. 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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