United States v. Dreyer

The Posse Comitatus Act’s prohibitions against the use of the military to directly assist civil law enforcement activities applies to the Naval Criminal Investigative Service and its civilian agents.

Special agent, Steve Logan, of the Naval Criminal Investigative Service (“NCIS”), conducted an investigation of online child pornography. Logan used software that searched the state of Washington without regard to whether the search was of a civilian or military service member’s computer. Logan discovered a civilian, Michael Dreyer, had shared pornography files. Following receipt of the subpoenaed identifying information, the NCIS provided it to the local police department, which led to charges against Dreyer for distributing and possessing child pornography. The Posse Comitatus Act (“PCA”) prohibits the use of the military to conduct civilian law enforcement activities. The district court held Logan’s actions did not violate the PCA. A three-judge panel reversed and remanded. A majority of the panel voted to rehear the case, en banc. On re-hearing, the Ninth Circuit affirmed the district court’s denial of the suppression motion, and remanded to the panel for consideration of the remaining issues. The Court reaffirmed its holding in United States v. Chon that NCIS and its civilian agents are subject to PCA-like restrictions, prohibiting direct assistance to civilian law enforcement. The Court determined that Logan’s actions “pervaded the actions of civilian law enforcement,” prohibited by the PCA. The Court held that PCA-like restrictions allow for an exception when the activity is undertaken for the primary purpose of furthering military or foreign affairs, regardless of incidental benefits to civilian authorities. However, the Court found Logan’s investigation was too broad to fall under the exception. Notwithstanding, the Court held that the violations of the PCA in this case, while systemic, were the result of institutional confusion. Although Logan’s acts constituted a PCA violation, suppression was not required because the facts of the case did not show a need to deter future violations. AFFIRMED in Part and REMANDED in Part.