Search Mistake Won’t Affect Kiddie Porn Proof

SAN FRANCISCO (CN) - "Troubling" violations committed by Navy investigators are not grounds for suppressing evidence that resulted in a civilian's child porn conviction, the en banc Ninth Circuit ruled Wednesday.

Navy Criminal Investigative Service (NCIS) agent Steve Logan ran a 2010 criminal investigation of online child pornography distribution using a program called RoundUp, which could not isolate its search to military service members. The search therefore encompassed all computers in Washington State, according to court records.

The investigation turned up images and videos depicting child pornography shared from the computer of civil Michael Dreyer. Logan turned Dreyer's information over to the police, and he was convicted of one count of distributing child pornography and one count of possessing it. Dreyer was sentenced to 18 years in prison with lifetime supervised release.

During trial, Dreyer moved to suppress the evidence seized, claiming that Logan's search violated the Posse Comitatus Act (PCA), which generally prohibits the military from interfering in civilian law enforcement. A Western Washington district court denied his motion.

A divided three-judge panel of the Ninth Circuit reversed the court's decision in September 2014, finding that Logan violated the PCA and the judge should have suppressed the evidence. But it decided to rehear the case en banc "to reconsider the important issues it presents," according to Wednesday's 42-page opinion.

Writing for the San Francisco-based appeals court, Judge Morgan Christen said that the PCA applies to the NCIS because the service reports directly to the Navy.

She also ruled that Logan's conduct did not constitute "permissible indirect assistance," as the government argued, because his active investigation was "expressly prohibited as direct assistance" by the statute.

"Here, Logan set RoundUp to cast a net across the entire state of Washington, knowing the sweep would include countless devices that had no ties to the military," Christen wrote. "The investigation in this case was not reasonably tied to military bases, military facilities, military personnel, or military equipment."

Since Logan's investigation would "inevitably encompass mostly civilian-owned computers," the investigation did not have an independent military purpose, Christen said. (Emphasis in original.)

However, the judge noted that Logan's violations "likely resulted from institutional confusion about the scope and contours of the PCA and PCA-like restrictions," since the investigation at issue was "not an isolated incident," according to the ruling.

"The investigation in Dreyer's case resulted from an investigative technique that NCIS did not consider to be out of bounds," Christen wrote.

The judge said that authorization of Roundup was likely based on an "incorrect understanding of the PCA-like restrictions that apply to NCIS." She called the case's facts "troubling and unprecedented."

But despite these violations, a suppression of evidence against Dreyer is not appropriate because it is not needed to deter future PCA violations, the ruling states.

"Invoking the exclusionary rule in this case would do little to redress an ongoing investigative operation that appears to be the product of institutional error somewhere in the military's command structure, rather than intentional disregard of a statutory constraint," she said.

Christen added that "the military is best suited to correct this systemic violation, and it has initiated steps to do so."

In a separate concurrence, Judge Barry Silverman wrote that he is "at a loss to understand what NCIS Agent Steve Logan did wrong here" because, when he "discovered that he had stumbled upon a civilian sharing child pornography, he dropped the investigation like a hot potato and did nothing more than turn over his findings to civilian authorities."

The Ninth Circuit upheld the lower court's denial of Dreyer's motion to suppress, and remanded the case to a three-judge panel for consideration of remaining issues.

Neither side immediately responded to requests for comment Wednesday.

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