In the ongoing Major League Baseball steriod use investigation, the government served subpoenas for drug testing records. When it became obvious that the subpoenas would be challenged for overbreadth, it issued a narrower subpoena. Just as the production date arrived, the government sought search warrants from USMJs in California and Nevada for the same records. The MLB Player’s Association sought return of the records. Calling the challenge to the search warrant a “farrago of arguments,” the court held that the search warrants were valid. This is a wide ranging opinion that will have an affect on computer searches in general applying the overbroad records search case of United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), to computer searches. United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915 (9th Cir. December 27, 2006) (2-1 decision; free link at case name, in two volumes on court’s website). There are a substantial number of arguments, but this is the gist, starting with the conclusion:
The summary:
VII
We now summarize the resolution of these consolidated appeals. We conclude that the government’s seizures were reasonable under the Fourth Amendment, and that the district courts erred in ruling that Fed. R. Crim. P. 41(g) required return of all property and agent review notes unrelated to the ten expressly named Balco players.
At the same time, we recognize limits to the government’s right to retain evidence seized, even where a broad seizure is reasonable in order to avoid lengthy and intrusive on-site inspection. Our Fourth Amendment precedents explain that the government may retain single “ledgers” of intermingled evidence, but may not keep separate, unrelated evidence. A magistrate is in the best position to sort through the actual evidence and to determine those files that may be kept when aggrieved parties seek relief. Readily separable evidence unrelated to persons named in the search warrants must be returned. The Fed. R. Crim. P. 41(g) cases must be remanded to the District of Nevada and Central District of California to permit such review of the sealed documents by magistrates.
With regard to the May 6 subpoenas, which covered the same evidence as the contemporaneous search warrants, we conclude the order of the Northern District of California quashing the subpoenas was an abuse of discretion. The record, illuminated by caselaw, reveals that the subpoenas were not unreasonable and did not constitute harassment.
Therefore, the orders of the Central District of California, the District of Nevada, and the Northern District of California cannot stand. The three cases consolidated in this appeal are hereby
REVERSED in part and REMANDED in part.
The MLB Player’s Association had standing to challenge the search warrants on behalf of its members.
As to the use of a search warrant, there was no constitutional need to show that there would be a destruction of records before a search warrant could issue to a third party for evidence under Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). The government merely asserted that it was encountering a delay of the investigation. Also, the government did not misrepresent to the court below that a subpoena had been issued.
There was a seizure of intermingled records of some players who were outside the scope of the warrant, but this did not show bad faith. The government brought along a computer analyst to make sure at the scene that the seizure was as narrow as possible. Because another agent who was not a computer expert also viewed the records, this was not a constitutional violation.
The government also copied files on the drug testing company’s computer rather than continue to search it on site for the purpose of not disrupting the operations of or inconveniencing the company during the search. A key word search was not constitutionally required when the government searched the files.
In light of these considerations, we conclude that the government properly considered and respected the privacy interests, intrusiveness, and law enforcement needs posed by the searches in question by removing a copy of the Tracey [computer] directory (not the original) and taking only limited diskettes and documents containing relevant information. In seizing these files, the government did not show “callous disregard for the constitutional rights of the movant,” Ramsden, 2 F.3d at 325, but instead displayed attentiveness both to the warrant’s precautionary procedures and to the importance of avoiding unnecessary disruption of CDT’s business operations. For these reasons, we conclude that the first prong of the Ramsden analysis (the existence of “callous disregard”) weighs against invocation of the district court’s equitable jurisdiction over the Fed. R. Crim. P. 41(g) motions. The district courts’ conclusions to the contrary were based on faulty conclusions of law and unsupported assertions of fact. They cannot survive appellate review.
We turn now to the merits of the substantive rulings issued by Judge Cooper and Judge Mahan that ordered return of all property other than evidence directly related to the ten players named in the search warrants.
A
With respect to property taken during search warrants, Fed. R. Crim. P. 41(g) provides that a person who is deprived of property may move for its return. When such a motion is granted, the property in question must be returned to the moving party, but a court “may impose reasonable conditions to protect access to the property and its use in later proceedings.” Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee note explains that “reasonableness under all of the circumstances must be the test.” Fed. R. Crim. P. 41 advisory committee’s note.
We have repeatedly held that a Fed. R. Crim. P. 41(g) motion is properly denied if “the government’s need for the property as evidence continues.” United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (same). The advisory committee note explains: “If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable.” Fed. R. Crim. P. 41 advisory committee’s note.
It is when the government no longer needs the property as evidence that a presumption arises, giving the owner a right to have the property returned. Fitzen, 80 F.3d at 388. Here, the government already has provided copies of all documents seized, and it states that the remaining evidence is essential to its investigation and prosecution of the distribution of illegal steroids. This legitimate law enforcement purpose makes return of the intermingled evidence improper, as the files were seized legally under the search warrant and our precedent.
Moreover, even in cases where agents seized too much evidence, we have noted that return of property should follow only a particularly egregious violation: “The issue is whether the Government’s conduct was sufficiently reprehensible in this [*54] case to warrant this sanction.” Ramsden, 2 F.3d at 327. In Ramsden, we refused to impose this extreme sanction on police who had time to obtain a warrant but made no effort to do so and “simply chose not to comply with [their] obligations under the Fourth Amendment.” Id. at 325, 327.
Our governing precedent offers no support for a full return of the intermingled evidence. Indeed, both the Beusch and Tamura courts underscored the need for effective criminal law enforcement. Thus, the Beusch court resolved: “As long as an item appears, at the time of the search, to contain evidence reasonably related to the purposes of the search, there is no reason–absent some other Fourth Amendment violation–to suppress it.” 596 F.2d at 877. Even the Tamura court–which determined that the agents unambiguously flouted the limits of the search warrant–concluded: “[W]e cannot say, although we find it a close case, that the officers so abused the warrant’s authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed.” Tamura, 694 F.2d at 597.
In Tamura, the government did not seek to use evidence at trial that fell outside the scope of the warrant. Therefore, the court found return of the seized property inappropriate, even though some evidence had been unlawfully taken. In the cases before us today, the government has made clear that it desires to use only information related to the ten named Balco players and to other players who tested positive–and who therefore may have become targets of an expanded grand jury investigation–as a result of intermingled information we have determined was seized lawfully under the warrant. While we agree that some information still retained by the government, at least in duplicate, may fall outside the scope of the warrant, we do not believe a return of the lawfully seized intermingled evidence properly remedies that wrong.
Thus, the district courts erred in granting the Fed. R. Crim.P. 41(g) motions and ordering the government to return all evidence seized from CDT and Quest–and all related notes by agents who reviewed the evidence–that did not relate to the ten Balco players expressly named in the search warrants.
B
We are persuaded that the government’s seizure of intermingled evidence for off-site review was lawful and reasonable, and we view the two orders requiring return of all property related to players not specifically named as both unjustified and improper. However, the government has yet to comply with its duty of adequate off-site review. Tamura offered a suggested procedure for review by a neutral magistrate, and we conclude that such review is necessary to ensure that the seizure of intermingled computer records remains reasonable.
The Tamura court urged that off-site review be conducted by a magistrate, in order to avoid giving the task to a party with an interest in retaining too much. We cannot accept the government’s argument that it may retain all evidence simply because it assured the Players’ Association and CDT (without signs of bad faith) that it did not intend to use all the files. In the case of a lawful and reasonable seizure of intermingled computer records for off-site review, as at bar, our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof.
. . .
It is true that Tamura proposed a pragmatic approach, and not a constitutional rule. 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.” Scott-Emuakpor, 2000 WL 288443, at *8. 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 important in the computer context. Although indeed writing over two decades ago, the Tamura court appreciated the same dual–and sometimes conflicting–interests of minimizing the intrusiveness of searches and containing the breadth of seizures. The Tamura court stated that “large-scale removal of material” can be justified “where on-site sorting is infeasible and no other practical alternative exists,” Tamura, 694 F.2d at 596, but also advised that a magistrate should oversee the off-site review of documents. We conclude that upon a proper post-seizure motion by the aggrieved parties, the record should be sealed and reviewed by a magistrate–such as the one who originally issued the warrant. This procedure affords the necessary protection against unreasonable retention of property after a seizure of intermingled computer data.
. . .
We conclude that, while the government may seize intermingled data for off-site review to minimize intrusiveness of a computer search, it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site. The magistrate must adhere to our precedent in a balanced manner. In her review, the magistrate should apply our precedent, including Beusch, which permits the seizure of single ledgers or files with intermingled data. In the context of computer files, we believe that most seized material scan be pared down considerably, but that certain files–spreadsheets of only a few pages, for example–may be retained in whole.
Finally, the court considered the simultaneous issuance of subpoenas and search warrants and did not find it unreasonable.
V.
Finally, we consider the government’s appeal of Judge Illston’s order quashing the May 6 subpoenas, which sought drug testing records and specimens for all MLB players who tested positive for steroids.
Under Fed. R. Crim. P. 17(c)(2), a “court may quash . . . [a] subpoena if compliance would be unreasonable or oppressive.” The district court found that the May 2004 subpoenas constituted harassment and were unreasonable.
To support its finding, the district court pointed to United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). In American Honda, the government issued subpoenas that were “substantially identical” to one another but in different locations. Id. at 819. As a result, Honda was faced with producing the same documents repeatedly, and the court found this to be harassment. Id. at 819-20. American Honda, however, does not preclude the government from pursuing the same information through the contemporaneous issuance of subpoenas and applications for search warrants.
We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. There we upheld the validity of the subpoenas against the challenge that “the subpoenas were served at the same time as the search warrants and the federal agents attempted to ‘enforce’ the subpoenas through immediate seizure of the documents.” Id. at 854. Noting that the challenge to the subpoenas received no support in precedent, we clarified the differences between subpoenas and search warrants:
“Subpoenas are not search warrants. They involve different levels of intrusion on a person’s privacy. A search warrant allows the officer to enter the person’s premises, and to examine for himself the person’s belongings. The officer, pursuant to the warrant, determines what is seized.”
Id. By comparison:
“Service of a forthwith subpoena does not authorize an entry into a private residence. Furthermore, the person served determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance.”
Id. We concluded that “[t]hese differences are not eliminated by the fact that the search warrants and subpoenas were delivered at the same time” and observed that the complaining party had “failed to show that the papers that are described in the subpoenas are outside the scope of a legitimate investigation by the grand jury.” Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost a month to comply with the subpoenas. Id. at 854.
Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of search warrants to be unreasonable. The Players’ Association has not argued that the evidence sought by the subpoenas is “outside the scope of a legitimate investigation by the grand jury.” Id. at 855. The subpoenas were not returnable on the same day that the search warrants were executed. As in In re Grand Jury Subpoenas, the return dates on the subpoenas were over a month from the date on which the warrants were executed. The district court declared the May 6 subpoenas an “unreasonable insurance” policy, but it failed to recognize the different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth Amendment, unreasonable it was not.
