On September 13, the Ninth Circuit issued its fourth (and final) opinion in United States v. Comprehensive Drug Testing, an en banc opinion issued per curiam.  The opinion tackles the applicability of the plain view doctrine to digital evidence, the Government’s obligation to segregate and return non-responsive electronic data, Federal Rule of Criminal Procedure 41(g)’s applicability when a motion is made by a party against whom no criminal charges are pending, and the appropriateness of using a subpoena to obtain the same information previously sought pursuant to a search warrant but ordered returned pursuant to Rule 41(g).

THE FACTS

The Government was investigating steroid use in professional baseball.  It had probable cause to believe that ten players had been using steroids.  Quest Diagnostics, Inc. and Comprehensive Drug Testing, Inc. (“CDT”) housed the players’ urine samples and drug-testing records, along with every other baseball player’s records.  The Government issued subpoenas to Quest and CDT, seeking all baseball players’ records, but Quest and CDT resisted.  Hoping that Quest and CDT would comply with a narrower subpoena, the Government issued new subpoenas covering only the records of the players for whom it had probable cause to search and seize.  When Quest and CDT threatened to move to quash that subpoena, the Government requested warrants to search the third-party businesses for the ten players’ records.  As the warrants authorized, the Government made copies of certain computer files called the “Tracey Directory” to analyze off-site.

As the Government case agent searched the Tracey Directory, incriminating evidence about other baseball players came into his “plain view” and, on the basis of this new information, the Government sought and obtained additional warrants to seize information relating to the other baseball players who had tested positive for steroids.  The Major League Baseball Players Association ("Players Association") and CDT filed motions pursuant to Rule 41(g), seeking the return of any information seized not relating to the ten players for whom the Government originally had probable cause.  When the threat of filing these motions was made, the Government obtained subpoenas seeking the same information.

THE PLAIN VIEW DOCTRINE

The Government argued that it should be allowed to retain the digital information unrelated to the ten players because it was in “plain view.”  As Judge Bea explained, for Government officials to be able to rely on plain view, evidence of the illegality must be “immediately apparent.” 

In the September 13 opinion, the Ninth Circuit warned against the Government’s reliance on the plain view doctrine in digital evidence cases.  First, in this particular case, the data about the other ball players was not immediately apparent.  The case agent had to scroll through the Tracey Directory in order to find the incriminating results of the steroid tests.  Second, the Ninth Circuit explained why the plain view doctrine should not apply in digital evidence cases:  because nobody can know what a computer file contains until that file is opened—because the file may be encrypted, have a misleading file name, or any number of other reasons—that file will necessarily have to be opened and its contents will come into “plain view.”  Under this theory, all computer files that Government agents seize would be fair game.  This would provide a powerful incentive to Government agents to seize more in order to uncover evidence of other crimes.  The Ninth Circuit frowned on this use of the plain view doctrine.

SEGREGATION OF RESPONSIVE AND NON-RESPONSIVE DATA

The court also reprimanded the Government for failing to comply with the warrant’s protocols, which had specified that computer personnel should review and segregate the responsive from the non-responsive materials.  Although the computer forensic analyst had determined that the Tracey Directory could not be searched and segregated on-site, after copying the directory, the analyst simply turned over the copy to the case agent.  The Government agents in this case admitted that they took the Tracey Directory to “peruse it to see if there was anything above and beyond that which was authorized for seizure in the initial warrant.”  The Ninth Circuit disagreed with the Government’s tactics, finding this an “obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable case.” 

FEDERAL RULE OF CRIMINAL PROCEDURE 41(g)

Rule 41(g) authorizes district courts to return illegally seized evidence.  In this case, CDT and the Players Association sought the return of the records.  The Ninth Circuit held that CDT and the Players Association were proper parties to bring the motion because the seizure impaired their property and privacy interests.  The court also warned that where the Government “comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof.”

SUBPOENAS AND SEARCH WARRANTS

The last piece of advice from the Ninth Circuit’s per curiam opinion is this:  Although the Government may conduct its investigations using a variety of techniques, including both search warrants and subpoenas, where the Government has unlawfully seized evidence pursuant to a search warrant, a district court may correctly determine that a subpoena covering that same information is unreasonable or oppressive.  The Ninth Circuit advised the Government that, in the future, “it must fully disclose to each judicial officer prior efforts in other judicial fora to obtain the same or related information, and what those efforts have achieved.” 

GUIDANCE TO DISTRICT COURTS

In the Ninth Circuit’s original en banc opinion, the court had outlined five requirements for magistrate judges issuing warrants for digital evidence.  These five requirements became suggestions in the final en banc decision with the support of only five of the eleven en banc judges:

1. In cases involving digital evidence, the Government must waive reliance on the plain view doctrine.
   
   
2. Specialized personnel or independent third parties must review the commingled digital evidence; these persons must be walled off from the investigators and may not disclose to the investigators evidence of other crimes contained in the commingled electronic files.
   
   
3. When obtaining warrants and subpoenas, the Government must disclose the risk of destruction of information in that particular case—rather than generalized risks in digital evidence cases—as well as any prior efforts to obtain that information from other judges.
   
   
4. The Government must use a search protocol designed to uncover only information for which it has probable cause.
   
   
5. The Government must return or destroy any non-responsive data. 

CONCLUDING REMARKS

In Comprehensive Drug Testing, the Ninth Circuit recognized the dangers inherent in digital searches.  The heart of the matter, expressed by the majority, is this: 

            We recognize the reality that over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records.  This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.  The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. 

When the Government agents come knocking with search warrants seeking electronic data, not all is lost, at least in courts of the Ninth Circuit.  Although the warrant may authorize the agents to make copies of electronic files and remove computers and hardware from the premises, the Government cannot peruse these digital files in order to find evidence of other crimes.  Comprehensive Drug Testing provides solid authority to require the Government to segregate responsive and non-responsive data and standing for you to assert a Rule 41(g) motion for the return of seized property.

© 2010 Perkins Coie LLP