US Government in the Wrong Over BALCO Seizures

Nov 6, 2009

By Steven Stamps
The Ninth Circuit en banc has held that the US Government was in the wrong to seize drug test records for hundreds of individuals without probable cause.
The federal government has been investigating the Bay Area Cooperative (BALCO) since 2002 on suspicion of providing steroids to professional baseball players. In 2002, Major League Baseball (MLB) began drug testing its players for banned substances. The players were assured that the results would be anonymous and confidential. The results would only be used to determine if future testing was needed. During their BALCO investigation, the government learned of ten Major League Baseball players that tested positive in MLB’s testing program. With this information, the government obtained a subpoena from a grand jury seeking all “drug testing records and specimens” from Comprehensive Drug Testing, Inc. (CDT), the company that administered the drug testing program. CDT and the MLB Players Association moved to quash this subpoena. On the same day that the motion to quash was filed, the government obtained a warrant to search CDT’s Long Beach facilities. This warrant was limited to the records of the ten players as to whom the government had probable cause. The government disregarded this limitation, seizing and reviewing the records of hundreds of MLB players and other non-players. The government also obtained a warrant and seized the urine samples from the drug testing program.
CDT and the Players Association filed a motion in the Central District of California for the return of the property seized from their Long Beach facility. Judge Cooper ordered the government to return the property mainly due to the government’s failure to comply with the specified procedures. A motion was also filed in the District of Nevada for return of the urine samples. Judge Mahan ordered the government to return all samples except those of the ten players under investigation. Finally, CDT and the players filed a motion in the Northern District of California to quash the latest round of subpoenas. These subpoenas were quashed by Judge Illston. All three decisions were appealed by the government.
The Ninth Circuit en banc upheld all three of the district court decisions. The court upheld Judge Cooper’s order on the basis that the government’s appeal was untimely. Chief Judge Kozinski mentioned that the warrant’s procedures were designed to ensure that data beyond the scope of the warrant would not fall into the hands of the investigating agents and that the government blatantly disregarded these procedures. The court affirmed Jude Mahan’s order by finding that he did not abuse his discretion by ordering the return of the seized items and that
“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. When the district court determines that the government has obtained the evidence through intentional wrongdoing-rather than through a technical or good faith mistake-it should order return of the property without the need for balancing that is applicable in the more ordinary case.”
Judge Illston quashed the government’s final round of subpoenas under Federal Rule of Criminal Procedure 17(c) which allows quashal if compliance would be “unreasonable or oppressive.” Kozinski writes that determining whether this standard is met is at the district judge’s discretion and will only be reversed if the discretion is abused. The court found that the difficult to meet standard could not be met in this case and affirmed the quashal order.
Finally, the Ninth Circuit set out rules for magistrates to follow when the government wishes to obtain a warrant for an electronic medium.
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.
2. Segregation and redaction must be done by either specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.
United States of America v. Comprehensive Drug Testing, INC., et al.; 9th Cir.; Nos. 05-10067, 05-15006, 05-55354; 8/26/09


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