“[T]he scenario presented by this case is both extreme and unusual”: An NCIS officer conducted a statewide investigation of P2P computers with child pornography on them and reported defendant. NCIS investigators are civilian but answer to the Secretary of the Navy, and, thus, the Posse Comitatus Act applies to it. DoD already interprets other civilian employees to be governed by service regulations. “At best, the record demonstrates a poor understanding of the restrictions imposed on NCIS’s involvement in civilian law enforcement. Authorization of the program described in [Agent] Logan’s testimony was apparently based on an entirely incorrect understanding of the PCA-like restrictions that apply to NCIS.” The error was systemic, the law wasn’t clear and now it is, and the court declines to suppress the evidence because statutory violations seldom support the exclusionary rule. United States v. Dreyer, 2015 U.S. App. LEXIS 19226 (9th Cir. Nov. 4, 2015) (en banc). original panel opinion, United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014).
[Three comments: (1) Note that some concurring judges did not believe violation of the Posse Comitatus Act was even subject to the exclusionary rule. (2) The discussion of the Posse Comitatus Act in this case is interesting but not quoted below. (3) Query: If there is no reasonable expectation of privacy in a P2P computer, why reach this issue at all? Apparently because the court had to resolve the PCA issue without regard to what the Fourth Amendment requires or doesn’t require.]
B. The facts of this case do not demonstrate that suppression is needed to deter future violations.
“Suppression of evidence … has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). Courts do not invoke the exclusionary rule absent compelling circumstances:
The exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large. We have therefore been cautious against expanding it, and have repeatedly emphasized that the rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.
Id. (alterations and citations omitted); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 347, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006) (“[T]he exclusionary rule is not a remedy we apply lightly.”). One of the concurrences cites Davis v. United States, 131 S. Ct. 2419, 2427, 180 L. Ed. 2d 285 (2011), in support of its suggestion that the Supreme Court has, in recent years, made more stringent the test for invoking the exclusionary rule. But Davis is entirely consistent with Hudson and Sanchez-Llamas, and we recognize that all three cases reflect the Supreme Court’s recent direction that the rule is a remedy of last resort that is warranted only when “the deterrence benefits . outweigh [the] heavy costs.” Id. at 2427.
In its recent decisions, the Supreme Court has not held that suppression is never available for certain violations; rather, it explained that the exclusionary rule is applied “primarily to deter constitutional violations” and violations of statutes that enforce constitutional norms. Sanchez-Llamas, 548 U.S. at 348 (emphasis added); see also United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982) (“There must be an exceptional reason, typically the protection of a constitutional right, to invoke the exclusionary rule.”). Notably, Dreyer does not argue that NCIS violated his Fourth Amendment rights.
The exclusionary rule is certainly available for violations of constitutional rights, but the Supreme Court has approved of using the rule to remedy statutory violations only in rare circumstances. See Miller v. United States, 357 U.S. 301, 313-14, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) (requiring suppression of evidence uncovered in search incident to unlawful arrest); McNabb v. United States, 318 U.S. 332, 344-45, 63 S. Ct. 608, 87 L. Ed. 819 (1943) (invoking suppression for violation of statutory right intended to ward against “all the evil implications of secret interrogation,” a concern rooted in the Fifth Amendment). Apart from the Fourth and Fifth Amendment concerns regarding unlawful searches and interrogations, the Supreme Court has not specifically identified “statutory violations that enforce constitutional norms,” nor has it described the degree of constitutional nexus required to invoke suppression for a statutory violation. See, e.g., Sanchez-Llamas, 548 U.S. at 348 (“The few cases in which we have suppressed evidence for statutory violations … arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests.”). The PCA does have constitutional underpinnings, however, and we know of no controlling precedent precluding application of the exclusionary rule for a violation of the PCA or § 375 in a case in which exclusion is otherwise warranted. See, e.g., United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986), superseded by statute on other grounds as recognized in Khan, 35 F.3d at 432 n.7.
Chon squarely held that PCA-like restrictions adopted pursuant to § 375 apply to NCIS, but we have not addressed whether the exclusionary rule is the appropriate remedy for this type of violation since our decision in Roberts. Roberts concerned a joint effort between the Navy and the Coast Guard to enforce drug smuggling laws. 779 F.2d at 566. Coast Guard personnel aboard a Navy frigate noticed a sailboat, announced their intention to board it, and dispatched a Coast Guard team on a Navy boarding boat with a Navy crew. Id. Once aboard the sailboat, the Coast Guard discovered bales of marijuana. Id. The sailboat crew members argued that the marijuana should be suppressed because the Navy’s involvement in the operation violated the PCA. Id. at 566-67.
We concluded that the Navy violated 10 U.S.C. § 374, which “generally requires that [Navy] equipment be used only ‘for monitoring and communicating the movement of air and sea traffic,'” id. at 567 (quoting 10 U.S.C. § 374(b)), and that the Navy violated the “general policy” against “direct assistance to the Coast Guard” under the PCA, id. at 567-68. We declined to compel suppression in Roberts because “the Navy’s violation [of PCA-like restrictions] was unintentional and in good faith[,] … the clear costs of applying an exclusionary rule [we]re not countervailed by any discernible benefits,” and invoking the rule was inappropriate until there was a showing of “widespread and repeated violations” and a need for the remedy. Id. at 568 (quoting United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979)). Roberts is entirely consistent with the Supreme Court’s instruction that the exclusionary rule should be applied “only where its remedial objectives are thought most efficaciously served—that is, where its deterrence benefits outweigh its substantial social costs.” See Hudson, 547 U.S. at 591 (citations omitted). We affirm our holding in Roberts that “an exclusionary rule should not be applied to violations of 10 U.S.C. §§ 371-378 until a need to deter future violations is demonstrated.” 779 F.2d at 568.
RoundUp, file sharing, and related search technology did not exist when Roberts was decided. Although precedent from several of our sister circuits mirrors the Roberts rule that suppression may be appropriate for “widespread and repeated violations” of PCA-like restrictions, those courts either have not considered the use of similar search technology in the context of the PCA, or they have not encountered violations that are so “widespread and repeated” that they demonstrate the need for deterrence. See, e.g., United States v. Johnson, 410 F.3d 137, 149 (4th Cir. 2005); Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990); United States v. Bacon, 851 F.2d 1312, 1313-14 (11th Cir. 1988) (per curiam); Wolffs, 594 F.2d at 85; United States v. Walden, 490 F.2d 372, 377 (4th Cir. 1974).
The facts of this case are troubling and unprecedented in our case law, but they also point to institutional confusion and show that NCIS misunderstood the scope of its authority. Logan testified there were no limitations on his authority, but he also testified that NCIS agents “are charged with and mandated to conduct any criminal investigations as it relates to the Department of the Navy or its assets, its facilities or its personnel, to include areas in close proximity to the Department of Navy facilities.” (Emphasis added.)
Further, contrary to Logan’s testimony that his investigative operation was approved by “NCIS headquarters” and that his supervisors took no actions to curb his activities after a three-judge panel of our court issued its decision, the Government represented at oral argument that the military is already in the process of changing its practices and limiting its participation in civilian law enforcement to conform to PCA-like restrictions. In its supplemental briefing and at oral argument, the Government strenuously argued that “th[is] [c]ourt’s finding of a violation is more than sufficient to deter NCIS agents from engaging in any future investigative efforts of this type.” Moreover, after Logan’s investigation of Dreyer, DoD adopted new regulations that acknowledge the applicability of PCA-like restrictions to the Navy and to NCIS. See 32 C.F.R. pt. 182.
NCIS must conform its investigatory practices to the law, but we are persuaded that the Government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so. Unlike cases in which courts compel suppression to correct violations committed by law enforcement agencies, see, e.g., United States v. Sears, 411 F.3d 1124, 1125 (9th Cir. 2005) (affirming suppression of evidence seized by local law enforcement agents pursuant to unreviewed portions of search warrant), this case arises from violations that took place under the purview of the military, which is unique in its command structure and its relationship to the other branches of government. Invoking the exclusionary rule in this case would do little to redress an ongoing investigative operation that appears to be the product of institutional error somewhere in the military’s command structure, rather than intentional disregard of a statutory constraint. See Hudson, 547 U.S. at 593 (noting exclusion may not be justified when “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained”); United States v. Payner, 447 U.S. 727, 733 n.5, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980) (“We cannot assume that similar lawless conduct, if brought to the attention of responsible officials, would not be dealt with appropriately.”).
To be clear, we do not suggest that the exclusionary rule might be inapplicable for a constitutional violation merely because government actors who committed the violation do not understand the legal prohibition. In the more common Fourth or Fifth Amendment context, institutional confusion or ignorance is not a ground for refusing to exclude evidence. See, e.g., United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir. 1992) (“Fundamental errors … that result in clear constitutional violations … require suppression, unless the officers can show objective good faith reliance ….” (citing Fed. R. Crim. P. 41; United States v. Freitas, 856 F.2d 1425, 1433 (9th Cir. 1988); United States v. Luk, 859 F.2d 667, 671 (9th Cir. 1988)). As explained, the scenario presented by this case is both extreme and unusual.
The military is best suited to correct this systemic violation, and it has initiated steps to do so. Therefore, on this record and at this juncture, we conclude that the facts of this case do not demonstrate “a need to deter future violations” by suppressing the results of Logan’s investigation. See Roberts, 779 F.2d at 568. We affirm the district court’s order denying Dreyer’s motion to suppress.
