Posted by Orin Kerr:
Oral Argument in *United States v. Comprehensive Drug Testing*::
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1229839775
I blogged a week or so ago about the Ninth Circuit's pending en banc
decision in United States v. Comprehensive Drug Testing, a computer
search-and-seizure case arising from the investigation into steroid
use in baseball. The Court held its oral argument on Thursday, and it
is available for downloading [1]here (10mb download).
The judges on the en banc panel were Kozinski, Kleinfeld, Graber,
Wardlaw, W. Fletcher, Paez, Berzon, Callahan, Bea, M. Smith, and
Ikuta. I found it a little hard to get a sense of where the court was
going because I could only recognize a few of the judges by their
voices. A few panelists expressed strong views, but without knowing
who they were it was hard to know if those views were likely
associated with outcome-determinative votes.
Anyway, here are a few general thoughts about the argument:
1) The issue of whether Rule 41 was the right vehicle for this sort
of relief received some attention, but my sense was that most of the
judges weren't particularly interested in it. If the en banc court
ends up reaching the merits and allows this use of Rule 41, the Ninth
Circuit may create a novel sort of pre-indictment suppression remedy
that may be the most important development of this case. As a
practical matter, only rich defendants would be likely to benefit from
such a development: Most searches occur before the right to counsel
has attached, so pre-indictment challenges would only tend to be
brought by defendants wealthy enough to hire sharp lawyers who would
know what to do. But this would still be a very interesting and
important development, albeit one that might be short-lived if the
Supreme Court wanted to take a look.
2) At argument, the United States tried to circumvent a lot of the
difficult questions raised on the merits by arguing that the common
denominator of computer searches was one virtual file, rather than
specific information revealed to the government. Because the evidence
in dispute here was on one file, counsel argued, there were no issues
of plain view. I considered this argument in my article on computer
searches, and ended up rejecting it: I concluded that files are just
virtual constructs, and it's arbitrary to base a rule on them.
Instead, the common denominator of a computer search should be the
information exposed. If a government agent sees part of a file and has
to scroll down to the bottom of the file to see the rest, that
scrolling amounts to an additional Fourth Amendment search. See pages
554-57 of [2]this article for the argument.
3) Peters, counsel for the Players' Association, offered what I
thought was a highly unrealistic sense of how the government can know
when they have the needed evidence responsive to a warrant. If I
understood him correctly, Peters suggested at argument that when the
company came forward with a piece of paper during the execution of the
warrant that the company said was the needed test results, that the
government should have stopped searching and presumed the company's
truthfulness and accuracy. Peters reasoned that it looked like in
hindsight that the company was being truthful and accurate, and the
government should have recognized that. And at the very least, a very
minimalist key word search would have done the job. But knowing
something ex post is not the same as knowing it ex ante. I think it's
a bad idea to have a Fourth Amendment rule that says that you have to
rely on that sort of representation or narrow search, as it would
leave the government in the dark about whether there was a larger
picture on the computer that casts doubt on what the government agents
think they learned.
A rule requiring that reliance could also create interesting
evidentiary hurdles for the prosecution if charges are brought.
Imagine you are counsel for a defendant charged with doping, and your
client is being charged largely on the basis of evidence that an
employee claimed were the relevant test results. The jury won't know
that the government relied on the paper to avoid a Fourth Amendment
violation. As a defense attorney, you're going to slam the government
for relying on the employee with the piece of paper. The real records
are on the computer, you would argue, and the government never even
checked the computer! How can your client be convicted on the basis of
purported evidence when the government never even confirmed that it
was the real thing?
4) Finally, if the Ninth Circuit ends up ruling against the
government, the next important issue will become how the court's new
standard interacts with the Fourth Amendment's particularity
requirement. The warrants here were facially valid, and the challenge
is to their execution. But if the court concludes that the warrants
were executed improperly, the government will respond by drafting
their warrants more broadly so that their execution is more in line
with their facial validity. That will put the new doctrinal pressure
on the particularity requirement for computer searches, which courts
have so far not enforced very strictly. It will be interesting to see
if that might change.
References
1.
http://www.ca9.uscourts.gov/ca9/media.nsf/526d390090f67d8488256e1a006323db?OpenView&Count=200&ExpandView
2. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
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