En banc CA9 finds a systemic but unique violation of Posse Comitatus Act by NCIS does not require suppression

An en banc panel of the Ninth Circuit held November 4th that a “systemic” violation of the Posse Comitatus Act by an NCIS officer conducting a peer to peer child pornography internet sweep in essentially all of Washington state did not warrant suppression of evidence when defendant's computer was found with child pornography on it. United States v. Dreyer, 13-30077 (9th Cir. Nov. 4, 2015) (en banc) (original panel opinion, United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014)).

First, the court discussed the PCA for its common law and historical basis in the U.S. Statutorily, NCIS, staffed with civilian employees, was subject to the direction of the Secretary of the Navy. DoD directives included most all civilian employees, and clearly civilian criminal investigators.

Second, the court considered the nature of the violation of the PCA and concluded that, despite the systemic violation, it was also unique and unlikely to recur, the government vowing to do better with its officers being trained after this issue arose. Therefore, the exclusionary rule should not be applied. Despite it being systemic, this is case is one of a kind. Thus, there would be no future deterrence.

The exclusionary rule is certainly available for violations of constitutional rights, but the Supreme Court has approved of using the rule to remedy statutory violations only in rare circumstances. See Miller v. United States, 357 U.S. 301, 313-14, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) (requiring suppression of evidence uncovered in search incident to unlawful arrest); McNabb v. United States, 318 U.S. 332, 344-45, 63 S. Ct. 608, 87 L. Ed. 819 (1943) (invoking suppression for violation of statutory right intended to ward against "all the evil implications of secret interrogation," a concern rooted in the Fifth Amendment). Apart from the Fourth and Fifth Amendment concerns regarding unlawful searches and interrogations, the Supreme Court has not specifically identified "statutory violations that enforce constitutional norms," nor has it described the degree of constitutional nexus required to invoke suppression for a statutory violation. See, e.g., Sanchez-Llamas, 548 U.S. at 348 ("The few cases in which we have suppressed evidence for statutory violations ... arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests."). The PCA does have constitutional underpinnings, however, and we know of no controlling precedent precluding application of the exclusionary rule for a violation of the PCA or § 375 in a case in which exclusion is otherwise warranted. See, e.g., United States v. Roberts, 779 F.2d 565, 568 (9th Cir. 1986), superseded by statute on other grounds as recognized in Khan, 35 F.3d at 432 n.7.