Illegal Search by Military Investigator in Georgia Causes Reversal of Federal Criminal Case in Washington State

We handle lots of federal cases involving supposedly illegal activity over the Internet, which means some of our clients are far from our offices here in Atlanta. Because of that, we try to pay attention even when a federal criminal case is far away, such as the recent ruling by the Court of Appeals in California that invalidated a federal criminal conviction because of an illegal search. What really piqued my interest is that the case is yet another example of the trend where judges are becoming ever more suspicious of Internet-based surveillance techniques that lead to evidence of a crime. The Court was especially vexed because a military investigator in Georgia used the Navy’s vast resources basically to investigate a local crime in Washington State, which led to Michael Dreyer’s indictment and conviction in federal court. The opinion is here.

The federal Naval Investigator was working undercover from his office in lovely Brunswick, Ga. He signed on to a large file-sharing network sometimes used by traders in child pornography, using a special computer program called RoundUp. The agent then scanned computer activity by the network’s members in the state of Washington, regardless as to whether the computer was being used by anyone in military. Finding a computer that had child pornography, the agent downloaded some photos and forwarded the material to local investigators who then got search warrants which led to federal criminal charges against Mr. Dreyer.

The case is the most recent ruling in the sharp debate over how much the military’s formidable investigative powers can legally contribute to civilian law enforcement. Mr. Dreyer’s able defense team challenged the evidence found on his computer, arguing that the Naval Investigator violated the Nineteenth-Century “Posse Comitatus Act”, which limits the role of the military in local criminal investigations. The Court of appeals in San Francisco overturned Mr. Dreyer’s conviction, agreeing with the defense arguments. The Court noted that federal authorities had shown “a profound lack of regard for the important limitations on the role of the military in our civilian society.”

It seems as if the majority of the 2-1 Panel was really irked because the government attorneys had a rather high-handed view of how far the military can go in this modern world of cybersleuthing. The Court took the unusually strong step of excluding the computer evidence in any new trial of Mr. Dreyer. “The extraordinary nature of the surveillance here demonstrates a need to deter future violations.” The appeals court noted that it is rare to exclude evidence for violating the Posse Comitatus Act, but it said that it needed to send a strong message because of the military’s repeated violations and the government’s insistence it had done nothing wrong.

This case involves the relatively rare Posse Comitatus Act, and questions of whether violations of this law should result in the wholesale exclusion of evidence that was obtained in part through a violation of this statute. However, to me the bigger picture in this post-Edward Snowden world is that more and more judges are attuned to how our government might be more of a danger to personal freedom than the “criminals” under investigation. Stay tuned, this is but the latest issue in this ongoing saga.