The Major League Baseball steroid record search warrant case finally, 26 months after submission, comes out of the Ninth Circuit; all 112 pages of it; three consolidated appeals United States v. Comprehensive Drug Testing, 513 F.3d 1085 (9th Cir. 2008) (omitting some procedural arguments). The summary of the holding is from page 86:
VII
To summarize the resolution of these consolidated appeals:
1) We have no jurisdiction to address the legal foundation for the grant of the Rule 41(g) motion in the Central District of California, although we recognize that our authoritative interpretation of Tamura conflicts with the vision of Tamura upon which that order was based. The government cannot obtain redress for any alleged errors or impropriety in that order, where it failed to object in a timely manner. The government’s appeal of the grant of the Rule 41(g) motion is DISMISSED for lack of jurisdiction; the order of the Central District of California denying the government’s motion for reconsideration is AFFIRMED.
2) The government’s seizures at the Quest facility in Las Vegas were reasonable under the Fourth Amendment. The order of the District of Nevada granting the Rule 41(g) motion is REVERSED.
3) The record, illuminated by caselaw, reveals that the subpoenas to CDT and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the Northern District of California quashing the May 6 subpoenas is REVERSED.
There was a partial concurrence and a partial dissent from one judge.
First, the Players’ Association had standing to challenge the searches on behalf of its members.
Second, the standard for Players’ Association’s motion for return of property under Rule 41(g) is:
1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned; 3) whether the movant would be irreparably injured by denying return of the property; and 4) whether the movant has an adequate remedy at law for the redress of his grievance.
The second and fourth standards were treated as a given. The first was not met because there was probable cause, and the third was met, so:
Although we conclude that the district court erred in finding callous disregard of Fourth Amendment rights, the three other equitable jurisdiction factors weigh in favor of hearing the motions by the Players Association. See Ramsden, 2 F.3d at 326 (holding that where three of the four factors favored an exercise of equitable jurisdiction, the court had power to hear a Rule 41(g) motion). As such, we cannot say that Judge Mahan’s initial choice to hear the motion constituted an abuse of discretion.
Third, on a massive search of documents and computer files, the Tamura test is still followed and quite valid, despite its age, particularly in the computer age, that the government can take what reasonably appears to be covered by the warrant and search it elsewhere:
In the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute’s Model Code of Pre-Arraignment Procedure.fn45 Tamura, 694 F.2d at 595-96 (footnote omitted).
45. The Tamura court pointed to the American Law Institute’s Model Code of Pre-Arraignment Procedure as a guide that would help agents avoid constitutional violations in situations where intermingled documents needed to be seized but where the search warrant lacked a protocol for such seizures. 694 F.2d at 595-96. The Tamura court found that the agents had violated Fourth Amendment rights by making a “wholesale seizure,” rendering the post-search alternative approach to be advisory dicta. See id. at 595; see also United States v. Hill, 322 F. Supp. 2d 1081, 1090 (C.D. Cal. 2004) (noting that after the Tamura court “held that the government’s wholesale seizure of company documents was illegal because the agents intentionally seized materials they knew were not covered by the warrant … the Tamura court suggested, albeit in dicta, that [for such seizure of all records] a warrant would be appropriate” (emphasis added)).
It is true that Tamura‘s two methods of a pre-search protocol or post-search review were advised in dicta and represented pragmatic approaches rather than constitutional rules. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court in Michigan explained: “The Court declines to follow Tamura, at least in this case, because Tamura did not involve computer files and therefore did not consider the specific problems associated with conducting a search for computerized records.” United States v. Scott-Emuakpor, 2000 WL 288443, at *8 (W.D. Mich.). Although declining to apply Tamura’s pragmatic approach to computer searches, Judge Quist stated: “This is not to suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records.” Id. Another court, also referencing Tamura, noted that in the modern computer context a “‘suggestion’ by a panel of the Ninth Circuit in a 20-plus year old case is not persuasive.” United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D. Kan).
Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Precisely for this reason, we view Tamura as especially significant in the computer context.
Recently, we applied Tamura to uphold seizures of intermingled documents in the computer context. In United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006), investigating agents obtained a search warrant to seize evidence of the defendant Adjani’s extortion activities. Id. at 1142. The search warrant contained a detailed protocol for the seizure of intermingled evidence. Id. at 1149 (“The Adjani warrant ‘describe[d] in great[] detail the items one commonly expects to find on premises used for the criminal activities in question ….'” (alterations in original)). ….
. . .
In light of these concerns, we concluded [in another case] that it was “reasonable under the Fourth Amendment for the police to take all of [the defendant’s] computer storage media from his home (they did not find his computer) so they could conduct their search offsite in a police laboratory, rather than carrying out the search onsite and taking only whatever evidence of [targeted material] they might find.” Id. at 968. “[T]he warrant was not fatally defective in failing to require an onsite search and isolation of child pornography before removing storage media wholesale.” Id. at 975.
We then addressed whether the warrant was invalid because it lacked a specific protocol for seizures of electronic data. Although we made clear that a specific protocol was not mandatory, we stated that a “warrant[] authorizing blanket removal of all computer storage media for later examination,” must be premised upon an “affidavit giving a reasonable explanation … why a wholesale seizure is necessary.” Id. at 976 (citing Tamura, 694 F.2d at 595). “A warrant describing a category of items is not invalid if a more specific description is impossible,” id. at 973, as long as the affidavit explains why “the officers could not reasonably describe the objects of their search with more specificity,” id. at 976.
The court found Tamura complied with:
Furthermore, the record reveals that the government complied with the protocol in the warrant. Agent Abboud, a computer analyst, determined that on-site review would not be feasible in a reasonable amount of time. The agents then copied several intermingled documents, including the Tracey directory. They did not seize the actual computer, although the search warrant authorized full seizure of the hardware if computer analysts determined that neither on-site searching nor copying were feasible. The government thereby enabled CDT to continue its business operations.
Although the Players Association contends that the government behaved unreasonably by copying the entire Tracey directory, an analysis of the difficulty of segregating intermingled electronic data reveals the opposite.
. . .
“The government should not be required to trust the suspect’s self-labeling when executing a warrant.” Adjani, 452 F.3d at 1150. Agents had no duty to rely on CDT personnel to point out the files seizable under the warrant. Like most searched parties, CDT had an incentive to avoid giving over documents of which the government might be unaware and to read the search warrant as narrowly as possible. Moreover, the government had no reason to confine its search to “key words” such as the names of the baseball players. “Computer files are easy to disguise or rename, and were we to limit the warrant to such a specific search protocol, much evidence could escape discovery simply because of [the defendants’] labeling of the files.” Id. Such a limited search could easily have overlooked documents crucial to the investigation, such as the specimens at Quest, which were identified only by number. See supra pp. 1086-90.
We do not discern a violation of the Fourth Amendment’s requirements simply because the agents determined, upon the review and recommendation of a computer specialist, that certain intermingled files could not be feasibly sorted on-site. As we explained in Tamura, and reiterated in Adjani and Hill, the seizure of electronic evidence can entail complex sifting efforts. By obtaining from a neutral magistrate permission to seize intermingled documents under a specific protocol, the government respected privacy interests while pursuing the law enforcement. The agents’ ultimate decision to remove relevant data for off-site review stemmed not from disregard of privacy rights, but from sensitivity to the ongoing disruption caused by the search to CDT–an innocent third party in the underlying investigation.
. . .
The government’s seizures were neither unreasonable nor exceeded the four corners of the warrants. Our technologically advancing world combines in novel forms the kind of data that in a previous age might have been segregated. Parties are not immunized from law enforcement simply because they choose to store data in complex or integrated formats. We conclude that the district court abused its discretion by granting the Rule 41(g) motion based upon its contrary, and erroneous, view of the law.fn50
50. We do not hold that the government enjoys a right to “wholesale” seizure of evidence without judicial authorization; indeed, our decision stands for the opposite. See supra Section IV; see also Tamura, 694 F.2d at 594-96.
We do not doubt that a different case might present facts under which the seizure of intermingled documents would constitute an “unreasonable search[ ] and seizure[ ].” U.S. Const. amend. IV. But that case is not presented here.
