By Alan J. French and Ryan M. Rodenberg
The so-called “Steroid Era” in Major League Baseball (“MLB”) has left an indelible footprint on the sport. Over the course of the past decade, MLB and its players have appeared before Congress on multiple occasions and been compelled to deal with possible government oversight in connection with the league’s doping protocol. While these events have brought a negative stigma to the game, baseball has finally won an important legal battle against the government.
In a case of apparent first impression, the Ninth Circuit Court of Appeals recently decided a multi-pronged dispute that dealt with the Fourth Amendment’s “search and seizure” language in the context of baseball’s drug testing program. In December 2010, lawyers for the United States decided not to appeal the September 2010 en banc ruling in United States v. Comprehensive Drug Testing, et al., effectively ending a five-plus year legal struggle and affording a major victory for new Major League Baseball Players Association (“MLBPA”) executive director Michael Weiner. The unsigned per curiam majority opinion summarized its scope as follows:
“Th[is] case is about a federal investigation into steroid use by professional baseball players. More generally, however, it’s about the procedures and safeguards that federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information” (p. 13941).
In addition to the per curiam controlling opinion, Chief Judge Kozinski filed a concurrence that was joined by four other judges. Judge Bea and Judge Callahan both filed separate opinions that partially concurred and partially dissented. Judge Ikuta filed a dissent that was joined by one other. In this short essay, our focus will be on the per curiam opinion and the Kozinski concurrence, as the latter breaks new ground in explaining how the Fourth Amendment is (and should be) construed in the digital age.
In order to understand the entire case, background is needed on the events leading up to the litigation at hand. In 2003, MLBPA made a drug testing deal with MLB during their collective bargaining agreement negotiations. The deal set in place a plan to commence a survey to understand the extent to which steroids and other performance-enhancing drugs (“PEDs”) had infiltrated the game. Approximately 1,200 players would be randomly selected to partake in the survey. MLBPA was assured that a third party would test the results, and these results would remain confidential prior to destruction. The company that was to compile the results was Comprehensive Drug Testing (“CDT”), while Quest Diagnostics was retained to perform the tests to determine whether the players had used PEDs. The only purpose of the test was to discover if 5% or more of the tested players were using PEDs. Possible player discipline was not involved.
During this time, the government was investigating the Bay Area Lab Cooperative (“BALCO”), and stumbled upon ten names which had tested positive for steroids during CDT’s survey. However, the federal government’s investigators desired to obtain all test results. MLBPA and CDT tried to reach an agreement with the government, but when negations finally broke down, the two organizations filed a motion to quash the government’s subpoena. The same day MLBPA and CDT filed such quashels, the government was issued two warrants to obtain data from CDT and Quest Diagnostics from a different judge in another jurisdiction.
The investigators sought these warrants to obtain the names of those they believed had tested positive for steroids. While the magistrate judge allowed the initial warrant, he mandated that the computers from the research labs had to be searched by individuals who specialize in the recovery of evidence from computers. Investigators had to determine whether or not the evidence of the ten individuals could be withdrawn from the computers without having to take all of the computers away from the labs. The warrant also stated that only the ten individuals that the government had probable cause to investigate could have their records taken from the labs. Despite the magistrate judge’s clear instructions on how the warrant should have been handled, all of the computers were taken away from the labs and the investigators, not the computer specialists, searched the computers. This resulted in the government investigators becoming aware of hundreds of positive drug tests, not merely the ten people initially the subject of the warrant.
Three different district court judges (in three different jurisdictions) ruled on separate aspects of the case. First, Judge Cooper of the Central District of California agreed with MLBPA and CDT and ordered the samples and test results returned. Second, plaintiff CDT’s motion requiring the return of samples taken from Quest Diagnostics in Nevada was granted by Judge Mahan of the District of Nevada. Third, Judge Illston of the Northern District of California ordered that the government’s most recent subpoenas be quashed. Despite three adverse rulings at the district court level, the federal government appealed to the Ninth Circuit in a later-consolidated case.
In ruling against the government, the Ninth Circuit highlighted the findings of the district judges. For example, the per curiam opinion quoted Judge Cooper’s conclusion that “[t]he government demonstrated a callous disregard for the rights of those persons whose records were seized and searched outside the warrant” (p. 13948). Similarly, the opinion cited Judge Mahan’s determination that “[t]he government callously disregarded the affected players’ constitutional rights” (p. 13949). In sum, the Ninth Circuit found that “[t]he government had no such independent basis to retain the test results of other than the ten players specified in the warrant… [t]his was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause” (p. 13950-52).
The Kozinski concurrence provides five-fold “guidance” on the “plain view” doctrine in electronic era Fourth Amendment jurisprudence. First, according to Kozinski, the government should waive reliance on the plain view doctrine in e-evidence cases. Second, electronic data should be segregated and/or redacted by specialized personnel or independent third parties. Third, warrants and subpoenas should outline the risks of information destruction and prior attempts to seize such information. Fourth, only case agents should see the information pertaining to that which they had probable cause to search. Fifth, the government should be required to destroy or return all evidence that does not specifically pertain to the initial warrants.
The court’s decision has at least two implications. One of the first cases it could influence is another sports-related case – the upcoming perjury trial for Barry Bonds. Much of the evidence against Bonds has been in danger of being thrown out of court for various reasons. One of the most important remaining pieces of evidence against Bonds is a supposedly positive urine test that was seized during the government’s searches at Quest Diagnostics and CDT. Bonds may cite this case as precedent mandating that such evidence be deemed inadmissible. Another implication is the effect this case will have on the seizure of digital evidence moving forward. The Kozinski concurrence outlines guidelines to be implemented. However, as a mere concurrence, the opinion is not binding on future evidentiary rulings. It is only advisory. Whether other courts follow such guidelines is yet to be determined.
Alan J. French is a Sports Management and English major at Florida State University. Ryan M. Rodenberg is an assistant professor of sports law analytics at Florida State University. 2011 © French and Rodenberg.
