UNITED STATES COURT OF APPEALS FOR THE NINTH …

1 FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITUNITED STATES OF AMERICA,Plaintiff-Appellee, ALLAN DREYER, :12-cr-00119-MJP-1 OPINIONA ppeal from the UNITED STATES District Courtfor the Western District of WashingtonMarsha J. Pechman, Chief District Judge, PresidingArgued and SubmittedMay 16, 2014 Seattle, WashingtonFiled September 12, 2014 Before: Diarmuid F. O Scannlain, Andrew J. Kleinfeld,and Marsha S. Berzon, Circuit by Judge Berzon;Concurrence by Judge Kleinfeld;Partial Concurrence and Partial Dissent by JudgeO ScannlainUNITED STATES V. DREYER2 SUMMARY*Criminal LawThe panel reversed the district COURT s denial of asuppression motion, and remanded for further proceedings, ina case in which the defendant was convicted of one count ofdistributing child pornography and one count of possessingchild pornography, and remanded for further special agent of the Naval Criminal InvestigativeService launched an investigation for online criminal activityby anyone in the state of Washington, whether connectedwith the military or not.

2 The agent found evidence of a crimecommitted by the defendant, a civilian, in the state and turnedit over to civilian law enforcement officials. The panel reaffirmed that NCIS agents are bound byPosse Comitatus Act-like restrictions on direct assistance tocivilian law enforcement, and held that the agent s broadinvestigation into sharing of child pornography by anyonewithin the state of Washington, not just those on a militarybase or with a reasonable likelihood of a Navy affiliation,violated the regulations and policies proscribing directmilitary enforcement of civilian panel held that the exclusionary rule should beapplied, and that the district COURT erred in denying thedefendant s motion to suppress.

3 Because there is abundantevidence that the violation at issue has occurred repeatedly * This summary constitutes no part of the opinion of the COURT . It hasbeen prepared by COURT staff for the convenience of the STATES V. DREYER3and frequently, and that the government believes that itsconduct is permissible, despite prior cautions by this courtand others that military personnel, including NCIS agents,may not enforce the civilian , Judge Kleinfeld wrote separately to addressapplicability of the exclusionary rule to this case, whichamounts to the military acting as a national police force toinvestigate civilian law violations by in part and dissenting in part, JudgeO Scannlain concluded that the agent violated the PosseComitatus Act, but dissented from the majority s applicationof the exclusionary B.

4 Levin (argued), Law Office of Erik B. Levin,Berkeley, California, for Ellsworth (argued), Assistant UNITED STATES Attorney,and Jenny A. Durkan, UNITED STATES Attorney, WesternDistrict of Washington, Seattle, Washington, for STATES V. DREYER4 OPINIONBERZON, Circuit Judge:A special agent of the Naval Criminal InvestigativeService (NCIS) launched an investigation for online criminalactivity by anyone in the state of Washington, whetherconnected with the military or not. The agent found evidenceof a crime committed by a civilian in the state and turned itover to civilian law enforcement officials. The civilian,Michael Dreyer, was prosecuted, convicted, and sentenced toeighteen years in prison.

5 We hold that the NCIS agent sinvestigation constituted improper military enforcement ofcivilian laws and that the evidence collected as a result of thatinvestigation should have been late 2010, NCIS special Agent Steve Logan beganinvestigating the distribution of child pornography online. Several months later, from his office in Georgia, AgentLogan used a software program, RoundUp, to search for anycomputers located in Washington state sharing known childpornography on the Gnutella file-sharing Logan found a computer using the InternetProtocol (IP) address sharing several files 1 Dreyer challenges the admission of evidence related to RoundUp,arguing it did not meet the requirements for the admission of experttestimony established by Federal Rule of Evidence 702 and Daubert Dow Pharmaceuticals, Inc.

6 , 509 579 (1993). Because weconclude that suppression was warranted for other reasons, we do notreach this STATES V. DREYER5identified by RoundUp as child Hedownloaded three of the files, two images and a video, fromthat computer. After viewing the files, Agent Loganconcluded that they were child , Agent Logan made a request for anadministrative subpoena for the name and address associatedat the time of the downloads with the IP address. Hesubmitted his request to NCIS s representative at the NationalCenter for Missing and Exploited Children, which turned therequest over to the Federal Bureau of Investigation (FBI).

7 The FBI sent an administrative subpoena to Comcast. Comcast responded by providing Dreyer s name and addressin Algona, receiving that information, Agent Logan checked aDepartment of Defense (DoD) database to determine ifDreyer had a military affiliation. He found that Dreyer hadno current military Agent Logan then wrote areport summarizing his investigation and forwarded it and thesupporting material to the NCIS office in the state ofWashington. That office then turned the information over toOfficer James Schrimpsher of the Algona Police Schrimpsher verified that Dreyer lived in Algonabased on property and utility records.

8 Because OfficerSchrimpsher had never worked on any case involving internet 2 RoundUp identified such files by comparing the SHA-1 hash values of files being offered for download unique identifiers that do not changewhen a file name is altered with values already known to be associatedwith child pornography. 3 Dreyer had previously been a member of the Air STATES V. DREYER6crimes or child pornography, he contacted the Internet CrimesAgainst Children Task Force for assistance and was referredto Detective Ian Polhemus of the Seattle Police Department. Detective Polhemus reviewed some of the information in theNCIS report, and provided Officer Schrimpsher with asample of a search warrant , Officer Schrimpsher sought, and wasissued, a search warrant by a state COURT OfficerSchrimpsher, along with several other officers, includingDetective Polhemus, Detective Timothy Luckie of the SeattlePolice Department, and Sergeant Lee Gaskill of the AlgonaPolice Department, executed the search warrant.

9 At Dreyer sresidence, Detective Luckie conducted an on-site preview search of a desktop computer he found in the Heidentified some images as possible child pornography anddirected the Algona officers to seize the later, UNITED STATES Department of HomelandSecurity special Agent Cao Triet Huynh applied for a warrantto search the electronic media seized from Dreyer s home. 4 Officer Schrimpsher prepared the search warrant application. OfficerSchrimpsher testified that he attached Agent Logan s report andsupporting material to his affidavit. In drafting the affidavit, he copiedand pasted large sections of Detective Polhemus s sample.

10 As a result,Officer Schrimpsher made a number of false representations in raises a Franks issue regarding the falsities in the affidavit. As we hold suppression was required on other grounds, we do not addressthis issue. 5 We do not address Dreyer s contention that the on-site search of hiscomputer exceeded the scope of the state warrant, as we conclude thatsuppression is appropriate for a different STATES V. DREYER7 Huynh based his application on the media found by AgentLogan and Detective Luckie, as well as incriminatingstatements Dreyer made during the car ride. A federalmagistrate judge issued a search warrant. The resultingforensic examination of Dreyer s computer revealed manyvideos and images of child was charged with one count of distributing childpornography on April 14, 2011 in violation of 18 2252(a)(2) and (b)(1), and one count of possessing childpornography on July 6, 2011 in violation of 18 2252(a)(4)(B) and (b)(2).