Post details: Without rehearing, Comprehensive Drug Testing is going to SCOTUS

11/29/09

Permalink 11:28:45 am, by fourth, 871 words, 396 views   English (US)
Categories: General

Without rehearing, Comprehensive Drug Testing is going to SCOTUS

In the Ninth Circuit's controversial, from the government's standpoint, Comprehensive Drug Testing case, the Solicitor General's petition for real en banc rehearing is here and here. Anybody who is interested in computer search cases will find it quite interesting.

See news stories and blog postings here.

• Wired: Obama Wants Computer Privacy Ruling Overturned. [Not Obama, Obama's DOJ.]

• New American: Fourth Amendment Under Seige (Again)

• AP on Findlaw: Feds seek rehearing of baseball drug list ruling.

• Orin Kerr on Volokh Conspiracy: After quoting the Solicitor General's introduction,

A few quick thoughts:

1) I don’t think I have ever seen a brief signed by the SG, Deputy SG, AAG, DAAG, and all of the United States Attorneys in a Circuit. If you’re presently a DOJ official and your name isn’t on the brief, you are probably feeling left out. [When the SG calls, you sign on.]

2) I thought the brief was excellent on the whole, although, as you might guess given my previous writing, I was not entirely persuaded by the harms of eliminating plain view for digital evidence. For example, in the case mentioned on pages 6–7 involving the men who had filmed themselves raping a child, the warrant could just be drafted broadly enough to include any images of child pornography and any evidence of unlawful child sex offenses. That way, evidence of other victims would be included within the scope of the warrant and there would be no need to rely on “plain view.” But that’s a quibble; I thought the brief was well done.

3) Given that all the parties to the case agree that the “guidance” sections were unnecessary, the sensible course would be for the Ninth Circuit to amend the opinion and take the “guidance” sections out. That is, keep the sections that were briefed and responded to the case, and take out the stuff with all the prospective rules beyond this case. Do that and everybody goes home happy, without the time and effort of going super-en-banc or the prospect of Supreme Court reversal. That seems like the sensible course to me, at least.

I discern that this petition was largely written by Deputy Solicitor General Dreeben, and it is well written, as always. It is written like a cert petition.

I agree with Mr. Kerr that part of the brief is a "the sky is falling" argument, and the example the government gives, the reference to the child sexual abusers, is over the top. I just cannot believe that the government did not press forward with that search warrant because it is so easily alleged in the affidavit and shown in the warrant exactly what they wanted. If I were a cynic, I would say that the government manipulated these facts just to create for itself an argument that did not have to exist, almost like they planned to use the example in Washington for a petition for rehearing. Never in the history of the Fourth Amendment has a federal agent been so allegedly solicitous of the rights of an accused. They had the state officers willing to assist, so they create a strawman argument. [Update: A blogger Sunday night referred to this strawman as a "Bush-era argument."]

Nevertheless, this case has "cert granted" written all over it if the government asks.

First, SCOTUS has never considered a computer search case, although plenty have tried. The government, however, has never been the petitioner, because it almost always wins or can live with the result it got below. It's been 33 years since Andreson v. Maryland, 427 U.S. 463, 478-84 (1976), and the scope of records searches and plain view within the records searches. Personal computers did not exist in wide use when Andresen was decided, and business computers were large and bulky and were not the vast repositories of personal information that they have become in the last 30 years.

Second, how will the good faith exception enter into a CDT-type particularity problem? The good faith exception usually does not save the part of the search that became a "general search." What about the scope of plain view in a hard drive on a computer? I can see changes potentially coming, and they are not for the benefit of the citizen. What if the Court decides that the good faith exception should be modified like the exclusionary rule? to which I turn:

Third, how will the new impetus to gut the exclusionary rule, per Hudson and Herring, play into this? The search warrant was good as far as it goes; so what happens when more is found? Should the exclusionary rule be applied when the search warrant was well-intentioned and limited but more was found? This situation does not fit the "logic" of Hudson, but that does not mean that everything cannot change, as will the "logic," with a few strokes of the Chief Justice's pen.

I hope that the Ninth Circuit just strikes, as Kerr suggests, the prophylactic rule the Ninth Circuit created, because that is the primary target of the government's petition for full rehearing as a violation of the Art. III "case or controversy" requirement. Then, the case is no longer cert-worthy, and we don't have to worry about what will happen if SCOTUS gets it.

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