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Thursday, December 28, 2006
Ninth Circuit Ruling Isn't Just About Steroids in Baseball

The Ninth Circuit's ruling, as discussed by Howard Wasserman earlier today, has broad implications regarding the ability of the government to seize evidence in all criminal investigations that go beyond just a few baseball players alleged to have taken steroids. While the opinion is 115 pages long, here are some of the pertinent facts taken directly from the opinion:
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data” (designated “computer personnel”) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel” would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.

2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT’s sports drug testing programs. This directory, labeled by its original compiler as the “Tracey” directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst—here the advice of Computer Investigative Specialist Agent Joseph Abboud—agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.

3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

Violations of due process and Fourth Amendment privacy rights get me fired up fairly easily, and this case deals with the latter. Simply, by allowing investigators to use the initial warrant as a basis for gathering gobbs of incriminating information with respect to non-targeted individuals, the investigators, in effect, were able to use a generalized search warrant to obtain evidence without probable cause. The court used the difficulty of retrieving and separating electronic data as an excuse to allow federal investigators full discretion to not only retrieve private and confidential information about thousands of individuals that are not even the subject of the warrant and for which there is no probable cause, but to also determine when there is "intermingling" such that an on-site search would be impracticable. This puts way too much discretion in the hands of federal investigators. Even further, the court didn't place any limitations on the government's use of incriminating evidence obtained with respect to non-targeted individuals.

This decision can't be the right result. What happened to the requirement of "particularized" search warrants? This decision has nothing to do with whether baseball should have a stricter steroid policy or no policy, nor whether all steroid users in baseball should be ousted. This ruling affects every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers (hospital records, employment records, etc.). Isn't the more logical and reasonable approach to have a magistrate review and segregate the intermingled electronic data BEFORE allowing the government to seize and review it? --especially in circumstances when the evidence is not in jeopardy of being destroyed. That is the only way to ensure a proper balance between the government's criminal investigatory efforts and the privacy rights of non-targeted individuals.


Two points:

1) Why is the evidence related to other players not seizable under the plain-view doctrine? The court didn't reach this question because it found the evidence seizable under the terms of the warrant, slip op. at 19818 n.39, but surely evidence of a positive drug test found while legally on the "premises" searching for evidence covered by a warrant should be seizable, should it not?

2. Why do the players have standing to contest the search and seizure? The majority brushes cursorily holds that they do, slip op. at 19801, but it is not obvious to me why that is the case.

Anonymous Anonymous -- 12/28/2006 8:43 PM  


I'm glad you raised the plain view doctrine. Interestingly, the government relied on that doctrine at the district court level and lost, and the reason the govt. lost is because the doctrine is simply not applicable. And I believe the reason the 9th Cir. didn't address the question at all is because the court knows that if it justified the seizure on plain view, it wouldn't stand a chance of being upheld on appeal. So instead, the court is upholding the seizure on the grounds that the initial warrant covered all of the computer files and data on non-targets because "it's difficult and impracticable to segregate". But that, by definition, means that any incriminating evidence on non-targeted individuals is not in plain view! If the govt. must take it off site in order to parse through it all, and do further searches in order to piece it all together, how can that possibly be in plain view?

But hypothetically speaking, even if there was evidence of positive test results linked to the names of non-targeted individuals in plain view on site, there is an assumption here that the medical records on these non-targets in and of themselves constitute "incriminating" evidence that would allow the govt. to seize it. Does a positive test result give the govt. probable cause that a crime has been committed? Maybe it's a false positive, or maybe the positive test is the result of taking a legal steroid.

Bottom line is that the reason this seizure is so egregious is because the govt., at the time of the search, KNOWS it is seizing confidential records on thousands of individuals for which it KNOWS it has no probable cause. If the govt. is correct that all of the electronic data is impracticable to segregate on site (because it is disputed whether that was even the case), there is no reason why the govt., in this situation, can't put the records under seal with the court and have a magistrate oversee the segregation process to ensure confidentiality and privacy of the non-targets. Can you tell me why that wouldn't be the right thing to do? Such a procedure would not prejudice the govt. because it allows the govt. to obtain the evidence on targets for which it has probable cause, but would also preserve the Fourth Amend. privacy rights of the non-targets.

Regarding the standing issue, I don't see why there should be a concern. The affected players all have identical interests. What would be the point in requiring each individual to bring a separate suit?

Blogger Rick Karcher -- 12/29/2006 7:29 AM  

Thanks for the reply.

1) I'm unconvinced by your argument against plain view. The government took the evidence off-site because it was too time-consuming to search on-site. But it's clear that the government could have waded through those files on site file by file. Assuming that's correct, then as the government went through the Tracey directory file by file, each file would be in "plain view." To take a non-digital example, imagine the police are looking for certain paper records in a giant warehouse. They cannot be sure where in that warehouse those papers are, so they leaf through each page. As they're leafing through each page, that page is seizable under the plain view doctrine, is it not?

2) I think you're putting too high a burden on what qualifies as seizable evidence under the plain view doctrine. There only needs to be probable cause to suspect that you've discovered evidence of a crime. Under the circumstances, a positive drug test, even given the possible meanings you've described, would qualify as probable cause.

3) I agree with you that "best practices" would be to have a magistrate go through the material first and I believe the AG's manual recommends this procedure. The difficult question is whether this procedure is required by the Fourth Amendment. Surely the Constitution does not require that "best practices" be used in all cases. Though you make a good point; with the increased use of electronic databases, the plain view doctrine as I've described it seems to give the government carte blanche to go through any electronic record it wants.

4) I should have been clearer on my standing point. I completely agree that the players association has standing of the individual players have standing. But why do the individual players have standing? For example, if the police illegally search Person X's house but happen to find evidence that incriminates Person Y, then Person Y cannot suppress the evidence, correct? How is that different than this situation? (There may very well be good reasons and precedent to distinguish this case, but the majority didn't cite to anything and I'm not a Fourth Amendment buff.)

Anonymous Anonymous -- 12/29/2006 9:44 AM  


Thanks for the great comments. I do see your point on number 2), but I do think it's a secondary argument that's worth discussion.

The real issue pertains to what you said in number 1). In this case, the lab personnel informed the investigators that the electronic data was fairly easily segregable, but the investigators didn't believe them. The 9th Cir. held that the govt. has full discretion to make that determination despite whether it was actually segregable and despite what the lab had told the investigators. To me, that's where the court is wrong because it gives the govt. unfettered discretion. Why not let the magistrate make the determination?

As you said, the govt. took all the files off-site because it was too time consuming. There's no such thing as the "too time consuming" exception to the Fourth Amendment. In your example, if those in charge of storing the records at the warehouse had told investigators that the two boxes on the shelf are the records that pertain to the targets, then no, the investigators would not be able to look through the other boxes. And if there are records pertaining to the targets that are intermingled in the other boxes along with the records of non-targets, then those in charge of keeping the records can give the govt. those records (and if the govt. doesn't trust the keeper of the records or the keeper says I have no idea how to segregate them, then a magistrate can do it). The way I understand this case is that the govt. was only able to link individual names of the non-targets to positive test results because it had access to and was able to extensively "search" off-site multiple files that didn't even contain any evidence whatsoever pertaining to the targets. So in other words, the govt. not only seized "intermingled" evidence that they said could not be segregated, but they also seized evidence that was not even intermingled! -- But that's the danger if the courts give the govt. that much discretion to make the determination.

One issue that I haven't discussed is why there is even a need for a warrant involving test results. Typically, medical records are obtained via subpoena because there isn't the urgency like there is with drugs in a house, which allows objections to be heard through motions to quash, etc. Why is this situation so compelling that it requires a raid on the computers?

Blogger Rick Karcher -- 12/29/2006 11:02 AM  

This is destined for an en banc rehearing. The rule set out by the majority is truly scary. Suppose that the government has a warrant for someone's phone records. Because the inidividuals records at the phone company are contained in a database and "intermingled", the government under the majority rule can search ALL OF THE RECORDS in the database for evidence of criminality and the evidence will be admissible, although it has no probable cause, particularized reasonable suspicion, or any suspicion at all for anyone other than the original person. (This rule allows the entire illegal NSA telephone surveillance, for example, to be used as admissible evidence as long as you can get a warrant for one phone call in the entire database.)

Rick, as to the warrant v subpoena issue, the dissent goes into great detail about the lengths the government went to avoid having its subpoena quashed, including shopping the warrant to magistrates in the Northern, Central, and Eastern Districts, not telling the various courts about the MLBPA's pending motion to quash, outright lying to opposing counsel about various agreements, etc. etc.

Anonymous ABP -- 12/29/2006 2:06 PM  

Wow. Great, great comments. I'm not a lawyer, or in law school, but I downloaded the entire document, and, while most of it was a bit dense; the dissents and opinions were illuminating, as was the exchange I highlighted on my website where the Judge seems incredulous that the government (was it Novitzky?) didn't wait for due process.

Here's a question for you legal beagles:

How can the government get away with so many apparently shady moves? Don't the judges involved have the ability to either censure them for their actions? What about the defense attorneys? How come they haven't filed a motion to do so?

Is that just a layman's ignorance? There appeared to be multiple instances where the government appeared to be caught with it's proverbial hand in the cookie jar. Nothing appeared to happen because of this. Why?

Anonymous John J Perricone -- 12/29/2006 4:15 PM  

Forgive my ignorance and naivety, but if a decision to have the magistrate supervise the segregation was clearly the right move, why didn't the court rule that way?

Anonymous Jeff -- 12/30/2006 1:26 AM  


I don't know how to answer your question, other than to say that I think the court made the wrong decision. Just because a court makes a decision, doesn't mean it's the right one.


You raise some interesting questions. From what I gather from the opinion, the govt. issued subpoenas and there were outstanding motions to quash them. The govt. also sought and obtained search warrants. The problem is that the govt. abused its discretion and authority in seizing information on site that went beyond the initial search warrant. When that happens, affected individuals can assert Fourth Amend. violation claims after the fact by attacking the validity of the warrant or the seizure of the evidence. The Ninth Cir. said the warrant was valid even though there were pending motions to quash the subpoenas, and that the seizure was valid because of the impracticability (according to the govt.) of segregating the data on site. If the court held the opposite way, then all of the evidence pertaining to the non-targets would be suppressed and could not be used as a basis for probable cause in further investigatory efforts against them. I think the court made the wrong decision, what can you do?


You raise some good examples as to how this ruling, if upheld, would have such an expansive impact. The more I think about it, I don't understand why electronic data poses such a unique "intermingling" problem that the court had to make an exception here. It's really just another way of saying that the search is inconvenient, time consuming, etc., which has no bearing on the Fourth Amendment. Furthermore, the concept of intermingling can apply in many other contexts besides just electronic data, and if this opinion could be used as precedent in those situations, it's definitely scary as you say.

Blogger Rick Karcher -- 12/30/2006 8:03 AM  

From your last reply I think I've identified the crux of our disagreement: how much should the government have to defer to searched persons who identify relevant materials when executing a search warrant? In your view, once the lab offered to identify the relevant files, the government, as a matter of the Fourth Amendment, must take their word for it, or have a magistrate go through the records first.

I think the first suggestion is untenable. The difference between a search warrant and a subpoena is that a search warrant allows the government to search without relying on the good faith of the other party to produce relevant the evidence sought. But I think you're second point has real merit. In these circumstances, it may well have been "reasonable" to require a magistrate to review the records first, without first requiring the players to make a motion to that effect. There must be some line drawn here, with the threat to privacy interests properly weighed. I need to see some other cases on this issue to see how other fact patterns shake out. Needless to say, reasonable minds can disagree on a given case and you've made a strong argument for your view.

I'm still curious about the standing issue though.

Anonymous Anonymous -- 12/30/2006 10:31 AM  

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