Undue military involvement in civilian law enforcement—in violation of the Posse Comitatus Act—doesn't require suppression of evidence

|The Volokh Conspiracy |

Yesterday, an en banc decision by the U.S. Court of Appeals for the 9th Circuit reaffirmed that the Navy was improperly involved in civilian law enforcement, but concluded—contrary to an earlier, 2-to-1 panel decision—that this violation didn't justify suppressing evidence in a child pornography prosecution. A brief excerpt:

This case requires us to decide whether a Naval Criminal Investigative Service agent's involvement in civilian law enforcement constitutes a violation of the Posse Comitatus Act, and if so, whether that violation warrants excluding evidence obtained as a result of the involvement. 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. We decline to compel suppression because the facts of this case do not demonstrate that suppression is needed to deter future violations. We affirm the district court's denial of Dreyer's motion to suppress….

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….

NCIS must conform its investigatory practices to the law, but we are persuaded that the Government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so. Unlike cases in which courts compel suppression to correct violations committed by law enforcement agencies, this case arises from violations that took place under the purview of the military, which is unique in its command structure and its relationship to the other branches of government. Invoking the exclusionary rule in this case would do little to redress an ongoing investigative operation that appears to be the product of institutional error somewhere in the military's command structure, rather than intentional disregard of a statutory constraint….

The military is best suited to correct this systemic violation, and it has initiated steps to do so. Therefore, on this record and at this juncture, we conclude that the facts of this case do not demonstrate "a need to deter future violations" by suppressing the results of Logan's investigation.

Even Judge Marsha S. Berzon, who wrote the now-reversed panel opinion requiring suppression, was persuaded by the en banc majority opinion. Judge Barry G. Silverman, joined by Judge Consuelo M. Callahan, concluded that there was no violation here, so the issue of whether to suppress the evidence wouldn't even come up.