U.S. Navy criminal investigators violated the 1878 Posse Comitatus Act, which bans the military providing direct assistance to law enforcement, in a Washington state investigation of online sharing of child pornography.
A unanimous 11-judge 9th U.S. Circuit Court of Appeals held the Naval Criminal Investigative Service (NCIS) improperly shared with local police the names of civilians swept up in an investigation of the entire state for computers sharing child porn.
The decision Wednesday was a Pyrrhic victory for Michael A. Dreyer, who was convicted of a single count of distributing child porn and one count of possessing it. Although the NCIS passing of information to local police violated the Posse Comitatus law the appeals court found, in its discretion, that it was unnecessary to suppress the evidence gathered against Dreyer as a deterrent to potential future violations.
“We have no trouble concluding that the facts giving rise to the criminal charges in this case present clear violations of a congressional directive prohibiting the use of the military in civilian law enforcement,” wrote Judge Morgan Christen.
She added that the court would “decline to compel suppression because the facts of this case do not demonstrate that suppression is needed to deter future violations.”
In 2010, an NCIS agent, working as a civilian employee stationed in Brunswick, Georgia, initiated a criminal inquiry with two other agents of distribution of child porn on the internet.
The specialized software allowed the agents to use a database of known child pornography files to note the presence of such files on a specific computer through unique file identifiers. When the files are passed around by individuals uploading images, through peer-to-peer file-sharing networks, the agents could identify the computers.
In 2011, NCIS agents in Washington state asked to investigate computers in the state sharing child pornography. The legal problem was that the searches were not limited to military sites or military users. The agents cast a wide net across the entire state, knowing the sweep would include many devices with no ties to the military and thus outside their jurisdiction, the court said.
The sweep snared Dreyer and although the agents learned in a background check that Dreyer had no link to the military, the information was passed along to the Algona Police Department.
Police, using a warrant, searched Dreyer’s computer and found the pornography, the court said. Dreyer was convicted after a four-day jury trial and sentenced to 18 years in prison. He challenged the military involvement in his case as a violation of the Posse Comitatus Act.
Christen said, “The facts of this case are troubling and unprecedented in our case law, but they also point to institutional confusion and show that NCIS misunderstood the scope of its authority.” But she said the panel was persuaded the government should have the opportunity to “self-correct” before the court resorts to exclusion of evidence.
She said the military is best suited to correct the systemic violation “and it has initiated steps to do so.”
Dreyer’s conviction and sentence stand.
Case: U.S. v. Dreyer, No. 13-30077