A federal appeals court threw out the child pornography conviction and 18-year prison sentence of a Washington man saying a Navy investigator overstepped the limits on military enforcement of civilian laws, in effect acting “as a national police force”.
The 9th U.S. Circuit Court of Appeals 2-1 decision Friday is the first to exclude evidence as a remedy for violation of the Posse Comitatus law, which prohibits the military for acting as a national police force.
The Posse Comitatus Act (PCA) was passed in 1879, in response to post-Civil War reconstruction. It prohibited military occupation of former Confederate States and limited the power of the federal government to enforce state laws.
The ruling overturns the conviction and sentence of Michael Dreyer.
In 2010, the Naval Criminal Investigative Service (NCIS) agent Steve Logan, launched an investigation using high powered military software to search “all computers in Washington state,” whether connected with the military or not, seeking evidence of child pornography distribution online.
He found evidence, through software called RoundUp, that showed child pornography shared through the Gnutella file-sharing network.
Among the files he tracked were images allegedly from Dreyer’s computer. Logan got the name and address associated with the computer through an administrative subpoena and when he found no link to the military, he turned the information over to the Algona, Wash. Police department.
In 2011, Dreyer was charged with possessing and distributing child pornography.
The defense sought, but lost its request, to have Logan’s searches suppressed arguing he had no authority to investigate civilian crime.
A jury convicted Dreyer after a four-day trial and he was sentenced to 18 years in prison.
The PCA prohibits the direct military involvement in civilian law enforcement, including the use of military personnel for surveillance or pursuit of individuals or as undercover agents, informants or investigators, wrote Judge Marsha Berzon for the majority.
“Logan’s actions amounted to direct assistance to civilian law enforcement,” she wrote.
She compared it to allowing NICS agents to routinely stop suspected drunk drivers in downtown Seattle “on the off-chance that a driver is a member of the military” then turn over the information on civilians to Seattle police.
Suppression
Once the violation of the PCA was determined the panel had to decide the appropriate remedy for Dreyer and punishment for government violation of the law.
The majority held that the evidence found by Logan had to be suppressed and could not be used against Dreyer.
“The extraordinary nature of the surveillance here demonstrates a need to deter future violations,”Berzon wrote. “So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on the, and then to turn over the information to civilian law enforcement when no military connection exists,” she said.
The government’s argument that the military may monitor for criminal activity all the computers anywhere in any state with a military base, “demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society,” she said.
Judge Andrew Kleinfeld joined Berzon saying the NCIS action amounted to the “military acting as a national police force to investigate civilian law violations by civilians.”
He noted that he found no other case applying the exclusionary rule to PCA violations, but also that they found no violations “so massive.”
In dissent, Judge Diarmuid O’Scannlain decried the ruling as a “breathtaking assertion of judicial power” and should not have been used to overturn the conviction of someone convicted of possessing child pornography.
A jury convicted him and the “evidence of guilt is overwhelming,” he wrote.
But he said it will likely result in “a convicted child pornographer being released from prison.”
Case: U.S. v. Dreyer, No. 13-30077
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