Repeated and frequent NCIS snooping on civilians: evidence must be suppressed as a deterrent

U.S. Circuit Judge
Marsha S. Berzon

By divided vote, a panel of the United States Court of Appeals for the Ninth Circuit has held that a federal district judge in Washington State erred in refusing to suppress evidence obtained against a civilian as a result of systematic snooping by an agent of the Naval Criminal Investigative Service. The agent had used a computer scanning program to scan every computer in the state for child pornography. The panel held that the agent's conduct violated Executive Branch policy subjecting the Navy to the strictures of the Posse Comitatus Act. Suppression was required as a deterrent measure because NCIS's involvement in direct law enforcement was both repeated and frequent. O'Scannlain, J., dissented in part on the basis that NCIS's involvement had not been proven to be repeated and frequent. The decision in United States v. Dreyer, No. 13-30077 (9th Cir. Sept. 12, 2014) (Berzon, J.) (2-1 decision), can be found here.