Wednesday, August 26, 2009

Government Deliberately Overreached To Unconstitutionally Seize Major League Baseball Steroid Tests

The Ninth Circuit released its opinion today relating to the governments seizure of Major League Baseball's steroid tests. The en banc decision can be found here. Chief Judge Alex Kozinski wrote the majority decision; Judge Callahan wrote an opinion concurring in part and dissenting in part and which Judge Ikuta joined; Judge Bea wrote an opinion concurring in part and dissenting in part; Judge Ikuta wrote a dissent which Judge Callahan joined.

Quoting the decision, the ABA Journal states in an article that can be found here that it was "'an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause,' they seized positive test results for 100 players in a 2004 raid." An article in the New York Times can be found here, CNN here, Reuters here, and the San Francisco Chronicle here. The Major League Baseball Players Association was pleased with the decision [see here]. However, David Ortiz, whose name was leaked as a steroid user as a result of the unconstitutional search, was not consoled [see here].

The court made a number of interesting points.

The court agreed with the opinion from the district court that stated "[t]he government callously disregarded the affected players’ constitutional rights.”..."We affirm Judge Mahan on an alternative ground as well: When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof."

As to the government's strategy of moving from district court to district court without disclosing to each court the actions in the other district court, the Ninth Circuit stated: "In doing so, we emphasize that, while the government is free to pursue warrants, subpoenas and other investigatory tools, and may do so in whichever judicial district is appropriate in light of the location of the information sought, it must fully disclose to each judicial officer prior efforts in other judicial fora to obtain the same or related information, and what those efforts have achieved. This is no more than we require of, for example, a prisoner seeking to file a second or successive habeas petition. More than one of the judges involved in this case below commented that they felt misled or manipulated by the government’s apparent strategy of moving from district to district and judicial officer to judicial officer in pursuit of the same information, and without fully disclosing its efforts elsewhere. The cause of justice will best be served if such judicial reactions to the government’s conduct can be avoided in the future.

As to the general purpose of the opinion, the court stated: "Throughout, we take the opportunity to guide our district and magistrate judges in the proper administration of search warrants and grand jury subpoenas for electronically stored information, so as to strike a proper balance between the government’s legitimate interest in law enforcement and the people’s right to privacy and property in their papers and effects, as guaranteed by the Fourth Amendment."

Regarding the seizure of electronically stored information: "We accept the reality that such over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion" and which the court summarized in its conclusion."


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