W.D.Ky.: Posse Comitatus Act not violated, but, even if it was, exclusionary rule would not apply

NCIS child exploitation investigator working the internet had defendant to send child pornography pictures to her. Once it was determined that the defendant was not in the military, the investigation was turned over to local police. This did not violate the Posse Comitatus Act, 18 U.S.C. § 1385. Even if it did, the exclusionary rule would not apply. United States v. Holloway, 2011 U.S. Dist. LEXIS 8160 (W.D. Ky. January 27, 2011):

The sexual exploitation of children is prohibited under the UCMJ. See United States v. Allen, 53 M.J. 402, 407 (C.A.A.F. 2000). Special Agent Lepovetsky’s under cover investigation was an attempt to stop the sexual exploitation of children as prohibited by the UCMJ. As such, her investigation falls under the independent military purpose exception. Once Special Agent Lepovetsky was able to confirm that “Consul_211” was not a member of the military, she immediately turned the investigation over to the appropriate civil law enforcement department, the Kentucky Internet Crimes Against Children Task Force. Special Agent Lepovetsky was not personally involved with obtaining the search warrant to search Defendant’s home, the search of the home itself, the seizure of any evidence, the analysis of any evidence seized, or the arrest of Defendant. Special Agent Lepovetsky’s assistance in Defendant’s case was only incidental. Defendant was not subjected to the regulatory, prescriptive, or compulsory use of military power. In situations such as this, the PCA is not violated by such assistance. See e.g. Hitchcock, 286 F.3d at 1070 (finding NCIS and CID agents’ participation in the investigation, arrest, search, seizure, and interrogation of a civilian defendant was not a violation of the PCA where an independent military purpose existed); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990) (finding no violation of the PCA where NIS agents shared information with local police about drug activity, aided in surveillance, and made the undercover buy).

Even had there been a violation of the PCA, the exclusion of the evidence would not be appropriate under the circumstances of this case. “As a general matter, the exclusionary rule is [*8] not a remedy for violations of the PCA.” United States v. Al-Talib, 55 F.3d 923 (4th Cir. 1995) (citing United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987)); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979). Absent widespread and repeated violations of the PCA and its related regulations, a majority of courts have refused to apply the exclusionary rule. Hayes, 921 F.2d at 104 (collecting cases).