FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 05-10067
v. D.C. No.
COMPREHENSIVE DRUG TESTING, INC., MISC-04-234-SI
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
MAJOR LEAGUE BASEBALL PLAYERS
ASSOCIATION,
Petitioner-Appellee, No. 05-15006
v. D.C. No.
CV-04-00707-JCM
UNITED STATES OF AMERICA,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
13933
13934 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
IN RE: SEARCH WARRANTS
EXECUTED ON APRIL 8, 2004 AT
CDT, INC.,
In Re, No. 05-55354
D.C. No.
SEAL 1, CV-04-02887-FMC
Plaintiff-Appellant, ORDER AND
OPINION
v.
SEAL 2,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
December 18, 2008—Pasadena, California
Filed September 13, 2010
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
Susan P. Graber, Kim McLane Wardlaw, W. Fletcher,
Richard A. Paez, Marsha S. Berzon, Consuelo M. Callahan,
Carlos T. Bea, Milan D. Smith, Jr. and Sandra S. Ikuta,
Circuit Judges.
Per Curiam Opinion;
Concurrence by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Bea;
Partial Concurrence and Partial Dissent by Judge Callahan;
Dissent by Judge Ikuta
13940 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
COUNSEL
Argued by Joseph Douglas Wilson, Assistant United States
Attorney, San Francisco, California, who was joined on the
briefs by Erika R. Frick, Assistant United States Attorney,
San Francisco, California, for the United States.
Argued by Elliot R. Peters, Keker & Van Nest LLP, San Fran-
cisco, California, who was joined on the briefs by David J.
Silbert, Keker & Van Nest LLP, San Francisco, California,
and Ethan Atticus Balogh, Coleman & Balogh LLP, San
Francisco, California, for the Major League Baseball Players
Association.
David P. Bancroft, Sideman & Bancroft LLP, San Francisco,
California, and Jeffrey C. Hallam Sideman & Bancroft LLP,
San Francisco, California, for Comprehensive Drug Testing,
Inc.
Peter Buscemi, Morgan, Lewis & Bockius LLP, Washington,
DC, for amicus curiae Chamber of Commerce of the United
States.
ORDER
The revised opinion filed concurrently herewith shall con-
stitute the final action of the court. No petitions for rehearing
will be considered.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13941
OPINION
PER CURIAM:
This 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 sub-
poenas for electronically stored information.
Facts
The complex facts underlying this case are well summed up
in the panel’s opinion and dissent, and we refer the interested
reader there for additional information. United States v. Com-
prehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008).
We reiterate here only the key facts.
In 2002, the federal government commenced an investiga-
tion into the Bay Area Lab Cooperative (Balco), which it sus-
pected of providing steroids to professional baseball players.
That year, the Major League Baseball Players Association
(the Players) also entered into a collective bargaining agree-
ment with Major League Baseball providing for suspicionless
drug testing of all players. Urine samples were to be collected
during the first year of the agreement and each sample was to
be tested for banned substances. The players were assured that
the results would remain anonymous and confidential; the
purpose of the testing was solely to determine whether more
than five percent of players tested positive, in which case
there would be additional testing in future seasons.
Comprehensive Drug Testing, Inc. (CDT), an independent
business, administered the program and collected the speci-
mens from the players; the actual tests were performed by
Quest Diagnostics, Inc., a laboratory. CDT maintained the list
of players and their respective test results; Quest kept the
actual specimens on which the tests were conducted.
13942 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
During the Balco investigation, federal authorities learned
of ten players who had tested positive in the CDT program.
The government secured a grand jury subpoena in the North-
ern District of California seeking all “drug testing records and
specimens” pertaining to Major League Baseball in CDT’s
possession. CDT and the Players tried to negotiate a compli-
ance agreement with the government but, when negotiations
failed, moved to quash the subpoena.
The day that the motion to quash was filed, the government
obtained a warrant in the Central District of California autho-
rizing the search of CDT’s facilities in Long Beach. Unlike
the subpoena, the warrant was limited to the records of the ten
players as to whom the government had probable cause.
When the warrant was executed, however, the government
seized and promptly reviewed the drug testing records for
hundreds of players in Major League Baseball (and a great
many other people).
The government also obtained a warrant from the District
of Nevada for the urine samples on which the drug tests had
been performed. These were kept at Quest’s facilities in Las
Vegas. Subsequently, the government obtained additional
warrants for records at CDT’s facilities in Long Beach and
Quest’s lab in Las Vegas. Finally, the government served
CDT and Quest with new subpoenas in the Northern District
of California, demanding production of the same records it
had just seized.
CDT and the Players moved in the Central District of Cali-
fornia, pursuant to Federal Rule of Criminal Procedure 41(g),
for return of the property seized there. Judge Cooper found
that the government had failed to comply with the procedures
specified in the warrant and, on that basis and others, ordered
the property returned. We will refer to this as the Cooper
Order.
CDT and the Players subsequently moved in the District of
Nevada, pursuant to Federal Rule of Criminal Procedure
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13943
41(g), for return of the property seized under the warrants
issued by that court. The matter came before Judge Mahan,
who granted the motion and ordered the government to return
the property it had seized, with the exception of materials per-
taining to the ten identified baseball players. We will refer to
this as the Mahan Order.
CDT and the Players finally moved in the Northern District
of California, pursuant to Federal Rule of Criminal Procedure
17(c), to quash the latest round of subpoenas and the matter
was heard by Judge Illston. (The original subpoena, and the
motion to quash it that was filed in 2003, aren’t before us.) In
an oral ruling, Judge Illston quashed the subpoenas. We will
refer to this as the Illston Quashal. See Bryan A. Garner, A
Dictionary of Modern American Legal Usage 725 (2d ed.
1995).
All three judges below expressed grave dissatisfaction with
the government’s handling of the investigation, some going so
far as to accuse the government of manipulation and misrep-
resentation. The government nevertheless appealed all three
orders and a divided panel of our court reversed the Mahan
Order and the Illston Quashal, but (unanimously) found that
the appeal from the Cooper Order was untimely. Upon a vote
of eligible judges, we took the case en banc. As luck would
have it, none of the three judges on the original panel was
drawn for this en banc court. Nevertheless, we rely heavily on
their work in resolving the case now before us.
Discussion
For reasons that will become apparent, we don’t consider
the three orders chronologically. Rather, we consider the Coo-
per Order first, the Mahan Order next and the Illston Quashal
last.
1. The Cooper Order
[1] The three-judge panel unanimously held that the gov-
ernment’s appeal from the Cooper Order was untimely. Com-
13944 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
prehensive Drug Testing, 513 F.3d at 1096-1101, 1128. We
agree with the panel and adopt its analysis of the issue, seeing
no reason to burden the pages of the Federal Reporter by re-
doing the work the panel already performed so well. On that
basis, we dismiss the government’s appeal in No. 05-55354.
[2] This does not end our discussion of the Cooper Order,
however, because it has substantial consequences for the
remaining two cases before us. As Judge Thomas pointed out
in his panel dissent, once the Cooper Order became final, the
government became bound by the factual determinations and
issues resolved against it in that order. Comprehensive Drug
Testing, 513 F.3d at 1130. Specifically, Judge Cooper found
that the government failed to comply with the conditions of
the warrant designed to segregate information as to which the
government had probable cause from that which was swept up
only because the government didn’t have the time or facilities
to segregate it at the time and place of the seizure. Cooper
Order at 4. Relatedly, Judge Cooper determined that the gov-
ernment failed to comply with the procedures outlined in our
venerable precedent, United States v. Tamura, 694 F.2d 591
(9th Cir. 1982), which are designed to serve much the same
purpose as the procedures outlined in the warrant. Finally,
Judge Cooper concluded that the government’s actions dis-
played a callous disregard for the rights of third parties, viz.,
those players as to whom the government did not already have
probable cause and who could suffer dire personal and profes-
sional consequences from a disclosure of their test results.
The affidavit supporting the first search warrant, the one
that sought the drug testing records of the ten suspected base-
ball players, contains an extensive introduction that precedes
any information specific to this case. The introduction seeks
to justify a broad seizure of computer records from CDT by
explaining the generic hazards of retrieving data that are
stored electronically. In essence, the government explains,
computer files can be disguised in any number of ingenious
ways, the simplest of which is to give files a misleading name
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13945
(pesto.recipe in lieu of blackmail.photos) or a false extension
(.doc in lieu of .jpg or .gz). In addition, the data might be
erased or hidden; there might be booby traps that “destroy or
alter data if certain procedures are not scrupulously fol-
lowed,” Warrant Affidavit at 3; certain files and programs
might not be accessible at all without the proper software,
which may not be available on the computer that is being
searched; there may simply be too much information to be
examined at the site; or data might be encrypted or com-
pressed, requiring passwords, keycards or other external
devices to retrieve. Id. at 4. The government also represented
that “[s]earching computer systems requires the use of pre-
cise, scientific procedures which are designed to maintain the
integrity of the evidence.”
By reciting these hazards, the government made a strong
case for off-site examination and segregation of the evidence
seized. The government sought the authority to seize consid-
erably more data than that for which it had probable cause,
including various computers or computer hard drives and
related storage media, and to have the information examined
and segregated in a “controlled environment, such as a law
enforcement laboratory.” While the government did not point
to any specific dangers associated with CDT, which is after
all a legitimate business not suspected of any wrongdoing, it
nevertheless made a strong generic case that the data in ques-
tion could not be thoroughly examined or segregated on the
spot.
Not surprisingly, the magistrate judge was persuaded by
this showing and granted broad authority for seizure of data,
including the right to remove pretty much any computer
equipment found at CDT’s Long Beach facility, along with
any data storage devices, manuals, logs or related materials.
The warrant also authorized government agents to examine all
the data contained in the computer equipment and storage
devices, and to attempt to recover or restore hidden or erased
data. The magistrate judge, however, wisely made such broad
13946 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
seizure subject to certain procedural safeguards, roughly
based on our Tamura opinion. Thus, the government was first
required to examine the computer equipment and storage
devices at CDT to determine whether information pertaining
to the ten identified players “c[ould] be searched on-site in a
reasonable amount of time and without jeopardizing the abil-
ity to preserve the data.”
The warrant also contained significant restrictions on how
the seized data were to be handled. These procedures were
designed to ensure that data beyond the scope of the warrant
would not fall into the hands of the investigating agents. Thus,
the initial review and segregation of the data was not to be
conducted by the investigating case agents but by “law
enforcement personnel trained in searching and seizing com-
puter data (‘computer personnel’),” whose job it would be to
determine whether the data could be segregated on-site. These
computer personnel—not the case agents—were specifically
authorized to examine all the data on location to determine
how much had to be seized to ensure the integrity of the
search. Moreover, if the computer personnel determined that
the data did not “fall within any of the items to be seized pur-
suant to this warrant or is not otherwise legally seized,” the
government was to return those items “within a reasonable
period of time not to exceed 60 days from the date of the sei-
zure unless further authorization [was] obtained from the
Court.” Subject to these representations and assurances, Mag-
istrate Judge Johnson authorized the seizure.
A word about Tamura is in order, and this seems as good
a place as any for it. Tamura, decided in 1982, just preceded
the dawn of the information age, and all of the records there
were on paper. The government was authorized to seize evi-
dence of certain payments received by Tamura from among
the records of Marubeni, his employer. To identify the materi-
als pertaining to the payments involved a three step proce-
dure: Examining computer printouts to identify a transaction;
locating the voucher that pertained to that payment; and find-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13947
ing the check that corresponded to the voucher. Tamura, 694
F.2d at 594-95. The government agents soon realized that this
process would take a long time unless they got help from the
Marubeni employees who were present. The employees, how-
ever, steadfastly refused, so the agents seized several boxes
and dozens of file drawers to be sorted out in their offices at
their leisure.
We disapproved the wholesale seizure of the documents
and particularly the government’s failure to return the materi-
als that were not the object of the search once they had been
segregated. Id. at 596-97. However, we saw no reason to sup-
press the properly seized materials just because the govern-
ment had taken more than authorized by the warrant. For the
future, though, we suggested that “[i]n the comparatively rare
instances where documents are so intermingled that they can-
not feasibly be sorted on site, . . . the Government [should]
seal[ ] and hold[ ] the documents pending approval by a mag-
istrate of a further search, in accordance with the procedures
set forth in the American Law Institute’s Model Code of Pre-
Arraignment Procedure.” Id. at 595-96. “If the need for trans-
porting the documents is known to the officers prior to the
search,” we continued, “they may apply for specific authori-
zation for large-scale removal of material, which should be
granted by the magistrate issuing the warrant only where on-
site sorting is infeasible and no other practical alterative
exists.” Id. at 596.
No doubt in response to this suggestion in Tamura, the
government here did seek advance authorization for sorting
and segregating the seized materials off-site. But, as Judge
Cooper found, “[o]nce the items were seized, the requirement
of the Warrant that any seized items not covered by the war-
rant be first screened and segregated by computer personnel
was completely ignored.” Brushing aside an offer by on-site
CDT personnel to provide all information pertaining to the ten
identified baseball players, the government copied from
CDT’s computer what the parties have called the “Tracey
13948 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Directory” which contained, in Judge Cooper’s words, “infor-
mation and test results involving hundreds of other baseball
players and athletes engaged in other professional sports.”
Counsel for CDT, contacted by phone, pleaded in vain that
“all material not pertaining to the specific items listed in the
warrant be reviewed and redacted by a Magistrate or Special
Master before it was seen by the Government.” Instead, the
case agent “himself reviewed the seized computer data and
used what he learned to obtain the subsequent search warrants
issued in Northern California, Southern California, and
Nevada.” Judge Cooper also found that, in conducting the sei-
zure in the manner it did, “[t]he Government demonstrated a
callous disregard for the rights of those persons whose records
were seized and searched outside the warrant.”
[3] As previously noted, the government failed to timely
appeal the Cooper Order and is therefore bound by its factual
determinations and legal rulings. The government also failed
to appeal another ruling, by Judge Illston, that ordered return
of the Tracey directory and all copies thereof. We will call
this the Illston Order. It held unlawful the government’s fail-
ure to segregate data covered by the warrant from data not
covered by it simply because both types were intermingled in
the Tracey directory. In reaching this conclusion, Judge Ills-
ton necessarily rejected the argument about the scope of the
warrant the government made before Judge Mahan. The Ills-
ton Order therefore has preclusive effect on the core legal
questions resolved in the Mahan Order, viz., the government’s
failure to segregate intermingled data, as required by Tamura.
[4] Issue preclusion attaches when, as here, “the first and
second action involve application of the same principles of
law to an historic fact setting that was complete by the time
of the first adjudication.” Steen v. John Hancock Mut. Life
Ins. Co., 106 F.3d 904, 913 n.5 (9th Cir. 1997) (quoting 18
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 4425 (West Supp. 1996)).
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13949
The determinations in the Cooper and Illston Orders are sig-
nificant because orders the government does appeal contain
similar findings as to the government’s conduct. The govern-
ment cannot contest those rulings if it is bound by the identi-
cal rulings in the Cooper and Illston Orders.
2. The Mahan Order
[5] Like Judges Cooper and Illston, Judge Mahan deter-
mined that “[t]he government callously disregarded the
affected players’ constitutional rights.” Judge Mahan also
concluded that the government “unreasonab[ly] . . . refuse[d]
to follow the procedures set forth in United States v. Tamura
. . . upon learning that drug-testing records for the ten athletes
named in the original April 8 warrants executed at Quest and
at [CDT] were intermingled with records for other athletes not
named in those warrants.” We can and do uphold these find-
ings based on the preclusive effect of the Cooper and Illston
Orders. However, because the matter is important, and to
avoid any quibble about the proper scope of preclusion, we
also dispose of the government’s contrary arguments.
A. Compliance with Tamura
The government argues that it did comply with the proce-
dures articulated in Tamura, but was not required to return
any data it found showing steroid use by other baseball play-
ers because that evidence was in plain view once government
agents examined the Tracey Directory. Officers may lawfully
seize evidence of a crime that is in plain view, the government
argues, and thus it had no obligation under Tamura to return
that property. The warrant even contemplated this eventuality,
says the government, when it excluded from the obligation to
return property any that was “otherwise legally seized.”
[6] Putting aside the fact that Judges Cooper and Illston,
whose courts issued the warrants and whose orders are now
final, rejected this argument, it is at any rate too clever by
13950 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
half. The point of the Tamura procedures is to maintain the
privacy of materials that are intermingled with seizable mate-
rials, and to avoid turning a limited search for particular infor-
mation into a general search of office file systems and
computer databases. If the government can’t be sure whether
data may be concealed, compressed, erased or booby-trapped
without carefully examining the contents of every file—and
we have no cavil with this general proposition—then every-
thing the government chooses to seize will, under this theory,
automatically come into plain view. Since the government
agents ultimately decide how much to actually take, this will
create a powerful incentive for them to seize more rather than
less: Why stop at the list of all baseball players when you can
seize the entire Tracey Directory? Why just that directory and
not the entire hard drive? Why just this computer and not the
one in the next room and the next room after that? Can’t find
the computer? Seize the Zip disks under the bed in the room
where the computer once might have been. See United States
v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take
everything back to the lab, have a good look around and see
what we might stumble upon.
[7] This would make a mockery of Tamura and render the
carefully crafted safeguards in the Central District warrant a
nullity. All three judges below rejected this construction, and
with good reason. One phrase in the warrant cannot be read
as eviscerating the other parts, which would be the result if
the “otherwise legally seized” language were read to permit
the government to keep anything one of its agents happened
to see while performing a forensic analysis of a hard drive.
The phrase is more plausibly construed as referring to any
evidence that the government is entitled to retain entirely
independent of this seizure. The government had no such
independent basis to retain the test results of other than the ten
players specified in the warrant.
B. Initial Review by Computer Personnel
[8] The government also failed to comply with another
important procedure specified in the warrant, namely that
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13951
“computer personnel” conduct the initial review of the seized
data and segregate materials not the object of the warrant for
return to their owner. As noted, Judge Cooper found that these
procedures were completely ignored; rather, the case agent
immediately rooted out information pertaining to all profes-
sional baseball players and used it to generate additional war-
rants and subpoenas to advance the investigation. Judge
Illston found the same. The record reflects no forensic lab
analysis, no defusing of booby traps, no decryption, no crack-
ing of passwords and certainly no effort by a dedicated com-
puter specialist to separate data for which the government had
probable cause from everything else in the Tracey Directory.
Instead, as soon as the Tracey Directory was extracted from
the CDT computers, the case agent assumed control over it,
examined the list of all professional baseball players and
extracted the names of those who had tested positive for ste-
roids. See Comprehensive Drug Testing, 513 F.3d at 1134-35
(Thomas, J., dissenting). Indeed, the government admitted at
the hearing before Judge Mahan that “the idea behind taking
[the copy of the Tracey Directory] was to take it and later on
briefly peruse it to see if there was anything above and
beyond that which was authorized for seizure in the initial
warrant.” The government agents obviously were counting on
the search to bring constitutionally protected data into the
plain view of the investigating agents.
But it was wholly unnecessary for the case agent to view
any data for which the government did not already have prob-
able cause because there was an agent at the scene who was
specially trained in computer forensics. This agent did make
an initial determination that the CDT computer containing the
Tracey Directory could not be searched and segregated on-
site, and that it would be safe to copy the Tracey Directory,
rather than seizing the entire hard drive or computer. After
that copy was made, however, it was turned over to the case
agent, and the specialist did nothing further to segregate the
target data from that which was swept up simply because it
was nearby or commingled. The sequence of events supports
13952 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
the suspicion that representations in the warrant about the
necessity for broad authority to seize materials were designed
to give the government access to the full list of professional
baseball players and their confidential drug testing records.
The government argues that it didn’t violate the warrant
protocol because the warrant didn’t specify that only com-
puter personnel could examine the seized files, and the case
agent was therefore entitled to view them alongside the com-
puter specialist. This, once again, is sophistry. It would make
no sense to represent that computer personnel would be used
to segregate data if investigatory personnel were also going to
access all the data seized. What would be the point? The gov-
ernment doesn’t need instruction from the court as to what
kind of employees to use to serve its own purposes; the repre-
sentation in the warrant that computer personnel would be
used to examine and segregate the data was obviously
designed to reassure the issuing magistrate that the govern-
ment wouldn’t sweep up large quantities of data in the hope
of dredging up information it could not otherwise lawfully
seize. Judge Cooper found that the government utterly failed
to follow the warrant’s protocol. Judge Illston also found that
the government’s seizure, in callous disregard of the Fourth
Amendment, reached information clearly not covered by a
warrant. These findings are binding on the government, but
simple common sense leads to precisely the same conclusion:
This was an obvious case of deliberate overreaching by the
government in an effort to seize data as to which it lacked
probable cause.
C. Federal Rule of Criminal Procedure 41(g)
[9] Judge Mahan cured this overreaching by ordering the
government to return the illegally seized data. We have long
held that Rule 41(g) empowers district courts to do just that.
Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993). Though
styled as a motion under a Federal Rule of Criminal Proce-
dure, when the motion is made by a party against whom no
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13953
criminal charges have been brought, such a motion is in fact
a petition that the district court invoke its civil equitable juris-
diction. Id. at 324. We agree with the panel that the district
court in this case did not abuse its discretion in choosing to
exercise that jurisdiction. Comprehensive Drug Testing, 513
F.3d at 1104.
The government argues that Rule 41(g) is inapplicable
because it is not designed to be used as a suppression motion.
But CDT and the Players Association are not seeking to have
evidence suppressed, as they are not criminal defendants.
Rather, by forcing the government to return property that it
had not properly seized, CDT is preserving the integrity of its
business and the Players Association is protecting the privacy
and economic well-being of its members, which could easily
be impaired if the government were to release the test results
swept up in the dragnet.
Judge Ikuta’s dissent overlooks the crucial distinction
between a motion to suppress and a motion for return of prop-
erty: The former is limited by the exclusionary rule, the latter
is not. In United States v. Calandra, 414 U.S. 338, 348 n.6
(1974), and United States v. Payner, 447 U.S. 727, 728, 735-
36 & n.7 (1980), the Court addressed the suppression, not the
return, of seized materials—a detail perhaps obscured because
the version of Rule 41 then in existence addressed motions to
suppress and motions to return in the same subsection. Lest
there be any doubt that these are only suppression cases, note
that Calandra used the availability of a motion to return,
among other remedies, as a reason the exclusionary rule need
not apply to grand jury proceedings. See 414 U.S. at 354 n.10.
Payner, which never mentions Rule 41 or a motion to return,
simply held that “the supervisory power does not authorize a
federal court to suppress otherwise admissible evidence on the
ground that it was seized unlawfully from a third party not
before the court.” 447 U.S. at 735. This rule has no relevance
here because no motion to suppress, whether based on Rule
41(h) or the supervisory power, is before us.
13954 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
That Rule 41(g) is broader than the exclusionary rule can
no longer be in doubt in light of the 1989 amendments which
explicitly authorize a motion to return property on behalf of
any “person aggrieved by an unlawful search and seizure of
property or by the deprivation of property.” Fed. R. Crim. P.
41(g) (emphasis added). This language was designed to
expand the rule’s coverage to include property lawfully
seized. See id. advisory committee notes. It goes without say-
ing that lawfully seized evidence may not be suppressed.
The return of seized property under Rule 41(g) and the
exclusionary rule serve fundamentally different purposes.
Suppression helps ensure that law enforcement personnel
adhere to constitutional norms by denying them, and the gov-
ernment they serve, the benefit of property that is unlawfully
seized. Rule 41(g) is concerned with those whose property or
privacy interests are impaired by the seizure. Suppression
applies only to criminal defendants whereas the class of those
aggrieved can be, as this case illustrates, much broader.
Most importantly, judicially-imposed restrictions on the
scope of the exclusionary rule—itself a judicially-created
remedy—are not applicable to orders for return of property
which derive their authority from the Federal Rules of Crimi-
nal Procedure and their enabling legislation. This is not, in
any event, a question properly presented in the case now
before us: What uses the government may make of the Quest
evidence during a criminal proceeding must be decided in the
context of such a proceeding, when and if criminal charges
are brought against any of the players.
Under Ramsden, the district court is required to balance
four discretionary factors to determine whether to allow the
government to retain the property, order it returned or (as hap-
pened in Ramsden) craft a compromise solution that seeks to
accommodate the interests of all parties. The Players Associa-
tion is (1) plainly aggrieved by the deprivation, Fed. R. Crim.
P. Rule 41(g), and (2) likely to suffer irreparable injury if it’s
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13955
not returned. And as the three judge panel recognized, the
government has conceded (3) the lack of an adequate remedy
at law. Comprehensive Drug Testing, 513 F.3d at 1103.
[10] Judge Ikuta is thus mistaken when she suggests that
the Players Association is not entitled to bring the 41(g)
motion because it lacks a property interest in the urine sam-
ples and other bodily fluids. Ikuta dissent at 13391-92 n.2.
The rule nowhere speaks of an ownership interest; rather, by
its plain terms, it authorizes anyone aggrieved by a depriva-
tion of property to seek its return. Here, the Players Associa-
tion is aggrieved by the seizure as the removal of the
specimens and documents breaches its negotiated agreement
for confidentiality, violates its members’ privacy interests and
interferes with the operation of its business. Cf. NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 458-60 (1958). In
any event, we are again bound by the preclusive effect of the
Illston and Cooper orders.
The only Ramsden factor fairly in dispute is (4) whether the
government showed a callous disregard for the rights of third
parties. Judge Mahan concluded that it did—as did every
other district judge who examined the question. There is
ample evidence to support this determination, even if the gov-
ernment were not bound by that same finding in the Cooper
and Illston Orders. As a factual finding, we review such a
determination only for clear error. SEC v. Coldicutt, 258 F.3d
939, 941 (9th Cir. 2001). We find none here.
[11] Contrary to our dissenting colleagues’ view of the
matter, Ikuta dissent at 13391-95, Rule 41(g) does indeed
contemplate that district judges may order the return of the
originals, as well as any copies, of seized evidence: “In some
circumstances, however, equitable considerations might jus-
tify an order requiring the government to return or destroy all
copies of records that it has seized.” Fed. R. Crim. P. 41 advi-
sory committee notes (1989 amendments). What circum-
stances merit this remedy is left to the discretion of the district
13956 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
court in the first instance, and our review of this issue is lim-
ited by the Illston Order’s preclusive effect.
[12] Apart from preclusion, however, we cannot see how
Judge Mahan abused his discretion by concluding that “equi-
table considerations” required sequestration and the return of
copies. The risk to the players associated with disclosure, and
with that the ability of the Players Association to obtain vol-
untary compliance with drug testing from its members in the
future, is very high. Indeed, some players appear to have
already suffered this very harm as a result of the govern-
ment’s seizure. See, e.g., Michael S. Schmidt, Ortiz and
Ramirez Said to Be on 2003 Doping List, N.Y. Times, July
31, 2009, at A1; Michael S. Schmidt, Sosa Is Said to Have
Tested Positive in 2003, N.Y. Times, June 17, 2009, at B11;
Michael S. Schmidt, Rodriguez Said to Test Positive in 2003,
N.Y. Times, February 8, 2009, at A1. Judge Mahan certainly
did not abuse his broad discretion in balancing these equities.
[13] We affirm Judge Mahan on an alternative ground as
well: When, as here, the government comes into possession of
evidence by circumventing or willfully disregarding limita-
tions 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 evi-
dence 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.
3. The Illston Quashal
Judge Illston quashed the government’s final subpoena
under Federal Rule of Criminal Procedure 17(c), which autho-
rizes quashal if compliance would be “unreasonable or
oppressive.” Determining whether this standard is met is com-
mitted to the district judge’s discretion, and we will reverse
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13957
only if that discretion has been abused. In re Grand Jury Pro-
ceedings, 13 F.3d 1293, 1295 (9th Cir. 1994) (per curiam).
Judge Illston quashed the subpoena after both the Cooper
and Mahan Orders. Judge Illston described the subpoena as
“served after the government had obtained evidence . . .
which has been determined now to have been illegally
seized.” Under the circumstances, Judge Illston regarded the
subpoena as an unreasonable “insurance policy”—having
seized materials unlawfully, the government then subpoenaed
the very same materials in an attempt to moot any future pro-
ceedings for a return of property. Cf. J.B. Manning Corp. v.
United States, 86 F.3d 926 (9th Cir. 1996).
[14] It isn’t per se unreasonable to conduct an investigation
using both search warrants and subpoenas. E.g., In re Grand
Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 851-55
(9th Cir. 1991). But the presence of substantial government
misconduct and unlawful seizure of evidence (which was
absent from In re Grand Jury Subpoenas) is quite properly
taken into account when determining whether a subpoena is
unreasonable. Moreover, Judge Illston found that the govern-
ment’s entire course of conduct had been intended to prevent
the Players Association and CDT from litigating the legality
of the original subpoenas. This, too, is a valid consideration
in evaluating quashal.
[15] For us to reverse a decision as an abuse of discretion,
we must have “a definite and firm conviction that the district
court committed a clear error of judgment in the conclusion
it reached.” Coldicutt, 258 F.3d at 941. That standard—
difficult to meet under any circumstances—cannot possibly
be satisfied here, in light of Judge Cooper’s preclusive find-
ings and Judge Mahan’s well-reasoned order. We therefore
affirm the Illston Quashal. In doing so, we emphasize that,
while the government is free to pursue warrants, subpoenas
and other investigatory tools, and may do so in whichever
judicial district is appropriate in light of the location of the
13958 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
information sought, it must fully disclose to each judicial offi-
cer prior efforts in other judicial fora to obtain the same or
related information, and what those efforts have achieved.
This is no more than we require of, for example, a prisoner
seeking to file a second or successive habeas petition.
More than one of the judges involved in this case below
commented that they felt misled or manipulated by the gov-
ernment’s apparent strategy of moving from district to district
and judicial officer to judicial officer in pursuit of the same
information, and without fully disclosing its efforts elsewhere.
The cause of justice will best be served if such judicial reac-
tions to the government’s conduct can be avoided in the
future.
Concluding Thoughts
This case well illustrates both the challenges faced by mod-
ern law enforcement in retrieving information it needs to pur-
sue and prosecute wrongdoers, and the threat to the privacy
of innocent parties from a vigorous criminal investigation. At
the time of Tamura, most individuals and enterprises kept
records in their file cabinets or similar physical facilities.
Today, the same kind of data is usually stored electronically,
often far from the premises. Electronic storage facilities inter-
mingle data, making them difficult to retrieve without a thor-
ough understanding of the filing and classification systems
used—something that can often only be determined by closely
analyzing the data in a controlled environment. Tamura
involved a few dozen boxes and was considered a broad sei-
zure; but even inexpensive electronic storage media today can
store the equivalent of millions of pages of information.
Wrongdoers and their collaborators have obvious incen-
tives to make data difficult to find, but parties involved in
lawful activities may also encrypt or compress data for
entirely legitimate reasons: protection of privacy, preservation
of privileged communications, warding off industrial espio-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13959
nage or preventing general mischief such as identity theft.
Law enforcement today thus has a far more difficult, exacting
and sensitive task in pursuing evidence of criminal activities
than even in the relatively recent past. The legitimate need to
scoop up large quantities of data, and sift through it carefully
for concealed or disguised pieces of evidence, is one we’ve
often recognized. See, e.g., United States v. Hill, 459 F.3d 966
(9th Cir. 2006).
This pressing need of law enforcement for broad authoriza-
tion to examine electronic records, so persuasively demon-
strated in the introduction to the original warrant in this case,
see pp. 13944-45 supra, creates a serious risk that every war-
rant for electronic information will become, in effect, a gen-
eral warrant, rendering the Fourth Amendment irrelevant. The
problem can be stated very simply: There is no way to be sure
exactly what an electronic file contains without somehow
examining its contents—either by opening it and looking,
using specialized forensic software, keyword searching or
some other such technique. But electronic files are generally
found on media that also contain thousands or millions of
other files among which the sought-after data may be stored
or concealed. By necessity, government efforts to locate par-
ticular files will require examining a great many other files to
exclude the possibility that the sought-after data are concealed
there.
Once a file is examined, however, the government may
claim (as it did in this case) that its contents are in plain view
and, if incriminating, the government can keep it. Authoriza-
tion to search some computer files therefore automatically
becomes authorization to search all files in the same sub-
directory, and all files in an enveloping directory, a neighbor-
ing hard drive, a nearby computer or nearby storage media.
Where computers are not near each other, but are connected
electronically, the original search might justify examining
files in computers many miles away, on a theory that incrimi-
13960 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
nating electronic data could have been shuttled and concealed
there.
The advent of fast, cheap networking has made it possible
to store information at remote third-party locations, where it
is intermingled with that of other users. For example, many
people no longer keep their email primarily on their personal
computer, and instead use a web-based email provider, which
stores their messages along with billions of messages from
and to millions of other people. Similar services exist for pho-
tographs, slide shows, computer code and many other types of
data. As a result, people now have personal data that are
stored with that of innumerable strangers. Seizure of, for
example, Google’s email servers to look for a few incriminat-
ing messages could jeopardize the privacy of millions.
It’s no answer to suggest, as did the majority of the three-
judge panel, that people can avoid these hazards by not stor-
ing their data electronically. To begin with, the choice about
how information is stored is often made by someone other
than the individuals whose privacy would be invaded by the
search. Most people have no idea whether their doctor, lawyer
or accountant maintains records in paper or electronic format,
whether they are stored on the premises or on a server farm
in Rancho Cucamonga, whether they are commingled with
those of many other professionals or kept entirely separate.
Here, for example, the Tracey Directory contained a huge
number of drug testing records, not only of the ten players for
whom the government had probable cause but hundreds of
other professional baseball players, thirteen other sports orga-
nizations, three unrelated sporting competitions, and a non-
sports business entity—thousands of files in all, reflecting the
test results of an unknown number of people, most having no
relationship to professional baseball except that they had the
bad luck of having their test results stored on the same com-
puter as the baseball players.
Second, there are very important benefits to storing data
electronically. Being able to back up the data and avoid the
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13961
loss by fire, flood or earthquake is one of them. Ease of access
from remote locations while traveling is another. The ability
to swiftly share the data among professionals, such as sending
MRIs for examination by a cancer specialist half-way around
the world, can mean the difference between death and a full
recovery. Electronic storage and transmission of data is no
longer a peculiarity or a luxury of the very rich; it’s a way of
life. Government intrusions into large private databases thus
have the potential to expose exceedingly sensitive information
about countless individuals not implicated in any criminal
activity, who might not even know that the information about
them has been seized and thus can do nothing to protect their
privacy.
It is not surprising, then, that all three of the district judges
below were severely troubled by the government’s conduct in
this case. Judge Mahan, for example, asked “what ever hap-
pened to the Fourth Amendment? Was it . . . repealed some-
how?” Judge Cooper referred to “the image of quickly and
skillfully moving the cup so no one can find the pea.” And
Judge Illston regarded the government’s tactics as “unreason-
able” and found that they constituted “harassment.” Judge
Thomas, too, in his panel dissent, expressed frustration with
the government’s conduct and position, calling it a “breath-
taking expansion of the ‘plain view’ doctrine, which clearly
has no application to intermingled private electronic data.”
Comprehensive Drug Testing, 513 F.3d at 1117.
Everyone’s interests are best served if there are clear rules
to follow that strike a fair balance between the legitimate
needs of law enforcement and the right of individuals and
enterprises to the privacy that is at the heart of the Fourth
Amendment. Tamura has provided a workable framework for
almost three decades, and might well have sufficed in this
case had its teachings been followed. We have updated
Tamura to apply to the daunting realities of electronic
searches.
13962 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
We recognize the reality that over-seizing is an inherent
part of the electronic search process and proceed on the
assumption that, when it comes to the seizure of electronic
records, this will be far more common than in the days of
paper records. This calls for greater vigilance on the part of
judicial officers in striking the right balance between the gov-
ernment’s interest in law enforcement and the right of individ-
uals to be free from unreasonable searches and seizures. The
process of segregating electronic data that is seizable from
that which is not must not become a vehicle for the govern-
ment to gain access to data which it has no probable cause to
collect.
***
The appeal in No. 05-55354 (the Cooper Order) is dis-
missed as untimely.
The judgments in Nos. 05-15006 (the Mahan Order) and
05-10067 (the Illston Quashal) are affirmed.
Chief Judge KOZINSKI, with whom Judges KLEINFELD,
W. FLETCHER, PAEZ and M. SMITH join, concurring:
The opinion correctly disposes of the Fourth Amendment
issues in this case, so I join it in full. I write separately
because these issues are important and likely often to arise
again. It would therefore be useful to provide guidance about
how to deal with searches of electronically stored data in the
future so that the public, the government and the courts of our
circuit can be confident such searches and seizures are con-
ducted lawfully. The guidance below offers the government a
safe harbor, while protecting the people’s right to privacy and
property in their papers and effects. District and magistrate
judges must exercise their independent judgment in every
case, but heeding this guidance will significantly increase the
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13963
likelihood that the searches and seizures of electronic storage
that they authorize will be deemed reasonable and lawful.
***
When the government wishes to obtain a warrant to exam-
ine a computer hard drive or electronic storage medium to
search for certain incriminating files, or when a search for
evidence could result in the seizure of a computer, see, e.g.,
United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), mag-
istrate judges should insist that the government forswear reli-
ance on the plain view doctrine. They should also require the
government to forswear reliance on any similar doctrine that
would allow retention of data obtained only because the gov-
ernment was required to segregate seizable from non-seizable
data. This will ensure that future searches of electronic
records do not “make a mockery of Tamura”—indeed, the
Fourth Amendment—by turning all warrants for digital data
into general warrants. Maj. op. at 13950. If the government
doesn’t consent to such a waiver, the magistrate judge should
order that the seizable and non-seizable data be separated by
an independent third party under the supervision of the court,
or deny the warrant altogether.
In addition, while it’s perfectly appropriate for a warrant
application to acquaint the issuing judicial officer with the
theoretical risks of concealment and destruction of evidence,
the government should also fairly disclose the actual degree
of such risks in the case presented to the judicial officer. In
this case, for example, the warrant application presented to
Judge Johnson discussed the numerous theoretical risks that
the data might be destroyed, but failed to mention that Com-
prehensive Drug Testing had agreed to keep the data intact
until its motion to quash the subpoena could be ruled on by
the Northern California district court, and that the United
States Attorney’s Office had accepted this representation.
This omission created the false impression that, unless the
data were seized at once, it would be lost. Comprehensive
13964 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Drug Testing, 513 F.3d at 1132 (Thomas, J., dissenting). Such
pledges of data retention are obviously highly relevant in
determining whether a warrant is needed at all and, if so, what
its scope should be. If the government believes such pledges
to be unreliable, it may say so and explain why. But omitting
such highly relevant information altogether is inconsistent
with the government’s duty of candor in presenting a warrant
application. A lack of candor in this or any other aspect of the
warrant application must bear heavily against the government
in the calculus of any subsequent motion to return or suppress
the seized data.
The process of sorting, segregating, decoding and other-
wise separating seizable data (as defined by the warrant) from
all other data should also be designed to achieve that purpose
and that purpose only. Thus, if the government is allowed to
seize information pertaining to ten names, the search protocol
should be designed to discover data pertaining to those names
only, not to others, and not those pertaining to other illegality.
For example, the government has sophisticated hashing tools
at its disposal that allow the identification of well-known ille-
gal files (such as child pornography) without actually opening
the files themselves. These and similar search tools should not
be used without specific authorization in the warrant, and
such permission should only be given if there is probable
cause to believe that such files can be found on the electronic
medium to be seized.
To that end, the warrant application should normally
include, or the issuing judicial officer should insert, a protocol
for preventing agents involved in the investigation from
examining or retaining any data other than that for which
probable cause is shown. The procedure might involve, as in
this case, a requirement that the segregation be done by spe-
cially trained computer personnel who are not involved in the
investigation. In that case, it should be made clear that only
those personnel may examine and segregate the data. The
government should also agree that such computer personnel
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13965
will not communicate any information they learn during the
segregation process absent further approval of the court.
At the discretion of the issuing judicial officer, and depend-
ing on the nature and sensitivity of the privacy interests
involved, the computer personnel in question may be govern-
ment employees or independent third parties not affiliated
with the government. In a case such as this one, where the
party subject to the warrant is not suspected of any crime, and
where the privacy interests of numerous other parties who are
not under suspicion of criminal wrongdoing are implicated by
the search, the presumption should be that the segregation of
the data will be conducted by an independent third party
selected by the court. That third party should be prohibited
from communicating any information learned during the
search other than that covered by the warrant.
Once the data has been segregated (and, if necessary,
redacted), the government agents involved in the investigation
should be allowed to examine only the information covered
by the terms of the warrant. Absent further judicial authoriza-
tion, any remaining copies should be destroyed or, at least so
long as they may be lawfully possessed by the party from
whom they were seized, returned along with the actual physi-
cal medium that may have been seized (such as a hard drive
or computer). The government should not retain copies of
such returned data unless it obtains specific judicial authoriza-
tion to do so.
Also, within a time specified in the warrant, which should
be as soon as practicable, the government should provide the
issuing officer with a return disclosing precisely what it has
obtained as a consequence of the search, and what it has
returned to the party from whom it was seized. The return
should include a sworn certificate that the government has
destroyed or returned all copies of data that it’s not entitled
to keep. If the government believes it’s entitled to retain data
as to which no probable cause was shown in the original war-
13966 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
rant, it may seek a new warrant or justify the warrantless sei-
zure by some means other than plain view.
This guidance can be summed up as follows:
1. Magistrate judges should insist that the government
waive reliance upon the plain view doctrine in digital evi-
dence cases. Pp. 13962-63 supra; see maj. op. at 13949-50.
2. Segregation and redaction of electronic data must be
done either by specialized personnel or an independent third
party. Pp. 13964-65 supra; see maj. op. at 13945-48,
13950-52. If the segregation is to be done by government
computer personnel, the government must agree in the war-
rant 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. Pp. 13963-64 supra; see
maj. op. at 13944-45, 13957-58.
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. Pp. 13964-65 supra; see maj. op. at 13950-52.
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. P. 13965 supra; see maj. op. at 13952-56.
***
This guidance is hardly revolutionary. It’s essentially
Tamura’s solution to the problem of necessary over-seizing of
evidence. Just as Tamura has served as a guidepost for dec-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13967
ades, the procedures outlined above should prove a useful tool
for the future. Nothing any appellate court could say, how-
ever, would substitute for the sound judgment that magistrate
judges must and, I am confident will, exercise in striking this
delicate balance.
BEA, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s result, based on its analysis of
the issues presented in this case, as applied to this case only.1
The government failed to follow either the procedures of
United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), or
those outlined in the approved warrant, which would have
required the government to conduct its search of the seized
intermingled computer files by using computer technicians
not case investigators.
Further, I would affirm the Cooper, Mahan, and Illston
orders because the seized names at issue were not in “plain
view” when seized. The plain view doctrine requires evidence
of illegality to be “immediately apparent” to the searching
investigator. Horton v. California, 496 U.S. 128, 139-140
(1990). Here, the portion of the spreadsheet (located within
the “Tracey” directory) that contained the drug testing results,
contained both the names of the ten ballplayers who were the
subjects of the warrant and the names of many other ballplay-
ers, the records of whom the government did not have proba-
ble cause to search and seize. The spreadsheet did not,
however, initially display on the agent’s computer screen the
results of steroid testing as to the other ballplayers. To see the
spreadsheet column containing the results of the tests of the
1
I agree, however, with Judge Callahan and Judge Ikuta that the later-
filed Cooper Order does not have preclusive effect on the earlier-filed
Mahan Order. That said, the majority reaches the correct result in this case
even if the Cooper order is not given preclusive effect.
13968 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
other ballplayers, the agent had to scroll to his right on the
spreadsheet, onto another screen. However, once he scrolled
to the right, the agent could see not only the testing results for
the targeted ten, but also the results for all of the other ball-
players whose results were listed on the spreadsheet.
A valid “plain view” seizure of items that are truly “imme-
diately apparent” would have required the agent to display
only the testing results for the ballplayers for whom he had a
warrant, and seize only evidence of additional illegality if
such evidence is “immediately apparent” as part of the segre-
gated results for those ballplayers. For instance, the agent
could have selected the spreadsheet rows for the ten ballplay-
ers for whom he had a warrant, then copied and pasted those
rows into a blank spreadsheet.2 If he had done so, he would
2
The record reveals the spreadsheet was in Microsoft Excel format.
Agent Novitsky viewed the spreadsheet on or about April 8, 2004. By that
time, Microsoft Excel was the most widely used spreadsheet application
available for Microsoft Windows and Mac OS X operating systems. See
http://en.wikipedia.org/wiki/Microsoft_Excel. Microsoft Excel became
commercially available in 1985, and currently sells for $229 retail. See
http://office.microsoft.com/en-us/excel/FX102464391033.aspx.
In Microsoft Excel, to avoid scrolling to the right and viewing the
results column for all of the ballplayers instead of just for the targeted ten,
all Agent Novitsky had to do was the following: While depressing and
holding the Control key, he would click on the numbers on the left side
of the spreadsheet that corresponded to the rows that contain the names of
the targeted ballplayers. The rows containing those ballplayers’ names
would become highlighted. Novitsky would then release the Control key.
He would next go to the top of the screen, click on the “Edit” menu, and
choose “Copy.” Then, he would click on the “File” menu at the top of the
screen, and choose “New Blank Workbook.” When the new blank spread-
sheet appeared on the screen, he would click on the “Edit” menu in the
new blank spreadsheet and choose “Paste.” The rows of the ten targeted
ballplayers selected in the original spreadsheet and only those rows—
would appear in the new spreadsheet. Novitsky would then scroll to the
right in the new blank spreadsheet and would see only the test results for
the targeted ballplayers for whom he had probable cause to search and
seize.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13969
have seen only those drug testing results for which he had a
warrant.
However, as the government conceded at oral argument
before Judge Mahan, rather than limiting the scope of his
search in any way, or seizing only that evidence of illegality
“immediately apparent” on the first screen he called up, Agent
Novitsky intentionally and volitionally scrolled right on the
spreadsheet, without first having segregated only the respon-
sive data, “to see if there was anything above and beyond that
which was authorized for seizure in the initial warrant.” This
demonstrates the seized evidence of illegality was not “imme-
diately apparent” or in “plain view.”
Thus, I agree with the majority and vote to affirm the dis-
trict courts’ orders. I write separately, however, because the
majority’s opinion goes beyond the current case or contro-
versy in two respects.
I.
The majority affirms the Mahan Order finding Judge
Mahan did not abuse his discretion in deciding the evidence
seized by the government must be sequestered and returned
because the balance of the equities favored Comprehensive
Drug Testing. With that portion of the opinion, I concur. The
majority holds further, as an alternative ground on which to
affirm Judge Mahan’s order, that the fact that the government
deliberately disregarded the terms of the search warrant when
it executed its search compelled Judge Mahan to order the
sequestration and return of the evidence. Majority Op. at
13956. I cannot concur with that alternative ground because
it is unnecessary to the majority’s decision; our court should
affirm only on the ground Judge Mahan correctly balanced
the equities.
Furthermore, the rule that the government’s deliberate dis-
regard of the terms of a search warrant is by itself sufficient
13970 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
to order the return of evidence is unnecessarily broad. Under
Ramsden v. United States, whether the government acted in
willful disregard of the limits of a search warrant is just one
factor in a four factor analysis. 2 F.3d 322, 325 (9th Cir.
1993). The majority transforms that one factor of the balanc-
ing test into a dispositive issue. See Majority Op. at 13956-57.
The Ramsden factors have been sufficient to govern motions
for the return of property for nearly two decades and the
majority does not explain the rationale for modifying that rule
in this case.
There may be cases where the government did show willful
disregard of the terms of the search warrant, but the motion
for the return of evidence should nonetheless be denied. For
example, when a movant cannot prove he will be irreparably
harmed if the seized property is not returned—the second ele-
ment of the Ramsden inquiry—then it seems the district court
should not return the evidence merely because the govern-
ment obtained the evidence through intentional wrongdoing.
An example would be images of child pornography, which is
always “contraband,” possession of which is criminal. See
United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999).
Instead, the district court should balance the equities to deter-
mine whether sequestration and return of the evidence is nec-
essary, based on the specific facts of the case presented.
II.
The majority affirms because Judge Illston did not abuse
her discretion in quashing the subpoenas sought by the gov-
ernment after the Cooper and Mahan Orders were filed. I
agree and would affirm on that ground as well.
The majority then holds that whenever the government
seeks a subpoena, it “must fully disclose to each judicial offi-
cer prior efforts in other judicial fora to obtain the same or
related information, and what those efforts have achieved.”
Majority Op. at 13958. Although I imagine such disclosure is
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13971
generally a good practice for the government to follow, I do
not see why such a practice should have the force of law. If
it is good policy, its adoption should be decided by Congress
or the Executive as the policy-making branches of our gov-
ernment. This new requirement is simply not necessary to the
decision.
The majority supports this new requirement by stating:
“This is no more than we require of, for example, a prisoner
seeking to file a second or successive habeas petition.” Id.
This analogy to habeas petitions does not hold up to scrutiny.
Congress enacted the requirement that habeas petitioners dis-
close their prior petitions so the burden on the courts of exces-
sive petitions would be lightened. See 28 U.S.C.
§ 2244(b)(3)(A) (Revision Notes and Legislative Reports,
1948 Acts). Here, the majority imposes a similar requirement
to protect owners of property and defendants in criminal
cases, not to improve judicial efficiency.
III.
Finally, I do not join Chief Judge Kozinski’s concurrence
because it is advisory and unnecessary to the current case and
controversy. It would be nice to give magistrates clear “guid-
ance” when possible. But that is true in all cases, and yet we
still approach that goal by issuing rulings on the cases and
controversies properly before us, and nothing more.
CALLAHAN, Circuit Judge, with whom IKUTA, Circuit
Judge, joins, concurring in part and dissenting in part from the
en banc panel’s per curiam opinion:
I initially express my concerns with the proposed guide-
lines for searches of electronically stored data that are set
forth in the Chief Judge’s concurring opinion. The concur-
rence is not joined by a majority of the en banc panel and
13972 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
accordingly the suggested guidelines are not Ninth Circuit
law. Nonetheless, although they are only suggestions, there
are sound reasons for declining to follow them. In Section B
of this dissent, I reiterate my objections to the majority’s
opinion as set forth in my concurring and dissenting opinion
to Chief Judge Kozinski’s initial opinion for the majority of
the en banc panel. United States v. Comprehensive Drug Test-
ing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc).
A.
As noted in my dissent from our initial en banc opinion, the
breadth of the proposed guidelines for future digital evidence
cases raises several serious concerns. Although I appreciate
the desire to set forth a new framework with respect to
searches of commingled electronic data, I remain wary of this
prophylactic approach. The prescriptions go significantly
beyond what is necessary to resolve this case.
Furthermore, the proffered “guidelines” are troubling
because they are over-broad, unreasonably restrictive of how
law enforcement personnel carry out their work, and unsup-
ported by citations to legal authority. For example, the con-
curring opinion does not explain why it is now appropriate to
grant heightened Fourth Amendment protections in the con-
text of searches of computers based on the nature of the tech-
nology involved when we have previously cautioned just the
opposite. See United Sates v. Giberson, 527 F.3d 882, 887-88
(9th Cir. 2008) (declining to impose heightened Fourth
Amendment protections in computer search cases as a result
of a computer’s ability to store large amounts of potentially
intermingled information, and stating that such heightened
protections must be “based on a principle that is not
technology-specific”).
The concurring opinion also fails to acknowledge that its
proffered guidance conflicts with the amendments to Federal
Rule of Criminal Procedure 41(f)(1)(B), effective December
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13973
1, 2009. For instance, Rule 41(f)(1)(B) now states that in
cases where an officer is seizing or copying electronically
stored information, “[t]he officer may retain a copy of the
electronically stored information that was seized or copied.”
This provision directly contradicts the suggestion that “[t]he
government should not retain copies of such returned data.”
Conc. Op. at 13965. Similarly, Rule 41(f)(1)(B) now provides
that “[i]n a case involving the seizure of electronic storage
media or the seizure or copying of electronically stored infor-
mation, the inventory may be limited to describing the physi-
cal storage media that were seized or copied.” The concurring
opinion, however, suggests that “the government should pro-
vide the issuing officer with a return disclosing precisely what
it has obtained as a consequence of the search, and what it has
returned to the party from whom it was seized.” Conc. Op. at
13965. Presumably these suggestions are superseded by the
detailed amendments to Rule 41, which provide comprehen-
sive guidance in this area.
In addition, the suggested protocols essentially jettison the
plain view doctrine in digital evidence cases, urging that mag-
istrate judges “insist that the government waive reliance upon
the plain view doctrine in digital evidence cases.”1 Conc. Op.
at 13963. This is put forth without explaining why the
Supreme Court’s case law or our case law dictates or even
suggests that the plain view doctrine should be entirely aban-
doned in digital evidence cases. Instead of tailoring its analy-
sis of the plain view doctrine to the facts of this case, the
concurring opinion takes the bold, and unnecessary step of
casting that doctrine aside. The more prudent course would be
to allow the contours of the plain view doctrine to develop
incrementally through the normal course of fact-based case
1
Although the suggestion is framed in terms of what a magistrate
“should insist,” the practical effect of this proposal — were it to be
adopted as law — would be to prescribe a mandatory procedure. The cre-
ation of a “safe harbor” (Conc. Op. at 13962), implicitly warns judges and
lawyers of the perils of any other approach.
13974 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
adjudication. A measured approach based on the facts of a
particular case is especially warranted in the case of
computer-related technology, which is constantly and quickly
evolving.
Moreover, the concurring opinion offers no legal authority
for its proposal requiring the segregation of computer data by
specialized personnel or an independent third party. See Conc.
Op. at 13964-65, 13966. Also, the proposed ex ante restriction
on law enforcement investigations raises practical, cost-
related concerns. With respect to using an in-house computer
specialist to segregate data, the suggestion essentially would
require that law enforcement agencies keep a “walled-off,”
non-investigatory computer specialist on staff for use in
searches of digital evidence. To comply, an agency would
have to expand its personnel, likely at a significant cost, to
include both computer specialists who could segregate data
and forensic computer specialists who could assist in the sub-
sequent investigation. The alternative would be to use an
independent third party consultant, which no doubt carries its
own significant expense. Both of these options would force
law enforcement agencies to incur great expense, perhaps a
crushing expense for a smaller police department that already
faces tremendous budget pressures.
In sum, although the suggestions are well-intentioned, they
certainly are not legally compelled and their adoption would
create more problems than it would solve. Certainly the Chief
Judge and my colleagues who have joined his concurring
opinion may express their opinions on future protocols; how-
ever, their suggestions should not be confused with the en
banc court’s opinion which, although I dissent from it, is
properly confined to the issues required to decide the appeal.
B.
I agree with the majority that the government’s appeal from
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13975
the Cooper Order2 was untimely and that the appeal in case
number 05-55354 should be dismissed. I disagree, however,
with the majority’s conclusion that the findings stated in the
Cooper Order or the Illston Order have dispositive preclusive
effect with respect to this court’s review of the Mahan Order.
Setting aside the Cooper Order and the Illston Order, I would
reverse the Mahan Order on the merits. In addition, I would
vacate and remand the Illston Quashal. Accordingly, I
respectfully dissent, in part, from the per curiam opinion.
I.
The majority holds that with respect to this court’s review
of the findings and conclusions stated in the Mahan Order, the
government is bound by the factual and legal determinations
contained in the Cooper Order and the Illston Order. P.C. Op.
at 13948. Based on the collateral estoppel or issue preclusive
effect of these orders, the majority upholds Judge Mahan’s
findings that “ ‘[t]he government callously disregarded the
affected players’ constitutional rights,” and that it “unrea-
sonab[ly] . . . refuse[d] to follow the procedures set forth in
United States v. Tamura . . . upon learning that drug-testing
records for the ten athletes named in the original April 8 war-
rants executed at Quest and at [Comprehensive Drug Testing
(“CDT”)] were intermingled with records for other athletes
not named in those warrants.’ ” Id. at 13949 (internal quota-
tion marks omitted, alterations in original). Neither the Coo-
per Order nor the Illston Order has preclusive effect over our
review of the Mahan Order, and I address each order in turn.
I disagree that the Cooper Order has preclusive effect with
respect to the Mahan Order. The problem is a temporal
one—the Cooper Order, entered October 1, 2004, does not
have preclusive effect over this court’s review of the Mahan
2
For ease of reference, I adopt the majority’s definition conventions as
to the orders referred to in the majority opinion: the Cooper Order, the
Mahan Order, the Illston Order, and the Illston Quashal.
13976 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Order because it was entered after the Mahan Order, which
was entered September 7, 2004.
The single case that the majority relies on for its application
of the issue preclusion doctrine, Steen v. John Hancock
Mutual Life Insurance Co., addressed whether issues decided
in an earlier decision had a preclusive effect in a subsequent
decision. See 106 F.3d 904, 908-09 (9th Cir. 1997). Steen
does not support the proposition that a later-in-time order has
a retroactive preclusive effect on an earlier one.3 Although
this case presents a peculiar backdrop for the application of
the issue preclusion doctrine, our decision in Nationwide
Mutual Insurance Company v. Liberatore, 408 F.3d 1158 (9th
Cir. 2005), is instructive. Liberatore was a member of the
U.S. Navy who was traveling on orders and picked up his
friend, Ivey, for a social evening during his trip. Liberatore
drank and drove, causing a traffic accident in which Ivey suf-
fered serious injuries. The accident resulted in two lawsuits:
(1) Ivey’s negligence action against Liberatore, the rental car
company, and the United States; and (2) a declaratory relief
action by Nationwide, Liberatore’s insurance company,
against Liberatore, the United States, the rental car company,
and Ivey. In Ivey’s negligence lawsuit, the government moved
for summary judgment on the grounds that Liberatore was not
acting within the scope of his employment and thus there was
no waiver of sovereign immunity under the Federal Tort
Claims Act. In Nationwide’s lawsuit, Nationwide moved for
summary judgment on the grounds that insurance coverage
did not exist because Liberatore was acting within the scope
of his employment and thus the government had indemnifica-
tion responsibility; the government also filed a motion to dis-
3
The language from Steen cited by the majority discusses the circum-
stances under which issue preclusion extends to principles of law. For
example, a legal principle applied in an earlier action may have a preclu-
sive effect in a later action if the factual scenario in the earlier and later
action are the same. Steen, 106 F.3d at 913 & n.5. Steen does not support
the proposition that a decision in a later action has a preclusive effect on
an earlier action.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13977
miss for lack of subject matter jurisdiction. The central
question in both lawsuits was the scope of Liberatore’s
employment. See id. at 1160-61.
The district court granted the government’s motion for
summary judgment in Ivey’s negligence action, and that order
was not appealed. On the same day, and through a separate
order, the district court denied the government’s motion to
dismiss and denied Nationwide’s motion for summary judg-
ment. On appeal in the Nationwide action, the government
argued that Nationwide was bound by the decision in the Ivey
action that Liberatore was not acting within the scope of his
employment duties at the time of the accident, which was
contrary to the position taken by Nationwide in its lawsuit.
We rejected this attempted application of the issue preclusion
doctrine, stating that “[a]lthough a district court judgment car-
ries preclusive effect going forward, it cannot operate to bar
direct review of an extant judgment.” Liberatore, 408 F.3d at
1162 (citing Orion Tire Corp. v. Goodyear Tire & Rubber
Co., 268 F.3d 1133, 1136 (9th Cir. 2001) (holding that appeal
could not be barred by claim preclusion based on a judgment
that post-dated the judgment on appeal)). We thus held that
Nationwide was not precluded from arguing on appeal in the
Nationwide case that Liberatore acted within the scope of
employment, and we decided that issue on the merits. Id.
(stating that “a decision entered coincident with the judgment
on appeal, just as a judgment entered after the judgment on
appeal, ‘can scarcely constitute a bar to the instant action’ ”
(citation omitted)).
Here, the majority’s use of the later-decided Cooper Order
to preclude or limit review of the earlier-decided Mahan
Order is contrary to our well-reasoned opinions in Liberatore
and Orion Tire.4 Therefore, I would review the Mahan Order
without giving issue preclusive effect to the Cooper Order.
4
The Second Circuit has held that an issue decided in a later-in-time,
non-appealed action can have issue preclusive effect on the prior decision
13978 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
Although the majority’s analysis of the Illston Order does
not suffer from the temporal flaw presented by the Cooper
Order, its reliance on the preclusive effect of the Illston Order
is also questionable. First, the Illston Order dealt with the
April 30, 2004 warrant that the government presented to
Judge Lloyd to search files in the government’s possession,
not the April 7, 2004 warrants that sought to search CDT and
Quest Diagnostics, Inc. (“Quest”). This raises a concern about
the scope of preclusion in terms of what was actually decided
in the Illston Order. Second, the majority relies on the Illston
Order to uphold Judge Mahan’s finding that the government
refused to follow the procedures set forth in United States v.
Tamura, 694 F.2d 591, 596 (9th Cir. 1982). P.C. Op. at
13949. But Judge Illston did not make a clear finding regard-
ing the government’s adherence to Tamura. Finally, the
majority upholds Judge Mahan’s finding that “the government
callously disregarded the affected players’ constitutional
rights” based on the Illston Order. Id. However, whereas
Judge Illston’s “callous disregard” finding was almost entirely
premised on the government’s issuing subpoenas and seeking
search warrants in different district courts, Judge Mahan’s
finding appears to be premised on the government’s adher-
ence to the Tamura procedures. At a minimum, the use of a
tool as powerful as issue preclusion in the context of such dis-
parities is unwise, especially where Judge Mahan did not rule
on the preclusive effect of the Illston Order. Accordingly, I
would review the Mahan Order without reliance on the Illston
Order.
II.
Regarding the Mahan Order, I agree with the three-judge
panel majority’s thorough analysis and conclusions that (1)
that is on appeal. See Grieve v. Tamerin, 269 F.3d 149, 153-54 (2d Cir.
2001) (“The effect of the Southern District’s final judgment was no differ-
ent simply because the Eastern District action was the first to be ruled on
at the district court level.”). However, we have not adopted this variation
of the issue preclusion doctrine and should not do so sub silentio.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13979
the district court properly exercised its equitable jurisdiction
under Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993);
(2) the government did not display a callous disregard for the
constitutional rights of others in conducting its seizure of the
materials from CDT, which gave rise to Judge Mahan’s deci-
sion and order to return the materials seized from Quest; and
(3) that it was not reasonable under all the circumstances for
the district court to order the return of the subject property
under Federal Rule of Criminal Procedure 41(g). See United
States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085,
1103-13 (9th Cir. 2008). I do not restate those points here, but
write to highlight aspects of my disagreement with the per
curiam opinion’s resolution of the Mahan Order.
Judge Mahan’s decision with respect to the return of mate-
rials seized from Quest in Las Vegas, Nevada, on April 8,
2004 was premised on his view that these materials were poi-
sonous fruit which acquired their taint as a result of the gov-
ernment’s seizure of intermingled materials from CDT in
Long Beach, California. The majority here does not appear to
take issue with the government’s physical seizure and
removal of the intermingled materials from CDT, including a
copy of the “Tracey directory.” Consistent with our recom-
mendation in Tamura, the government, anticipating that it
might encounter intermingled relevant and non-relevant evi-
dence in its search of CDT’s computers and that an on-site
search might not be feasible, crafted its April 7, 2004 warrant
to provide for seizure and removal of such intermingled evi-
dence for offsite review. See 694 F.2d at 596 (“If the need for
transporting documents is known to the officers prior to the
search, they may apply for specific authorization for large-
scale removal of material . . . .”). Our subsequent decisions in
the computer context have approved of the seizing of units
that contain information authorized for seizure and informa-
tion not described in the warrant where an on-site search is
infeasible. See Giberson, 527 F.3d at 889-90 (holding that sei-
zure of suspect’s computer was justified, despite the potential
for intermingling of relevant and non-relevant material, based
13980 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
on the officers’ reasonable belief that items enumerated in the
search warrant could be found therein); United States v. Hill,
459 F.3d 966, 975-76 (9th Cir. 2006) (stating that wholesale
seizure of materials is permissible where affidavit in support
of warrant provides a reasonable explanation for why such a
seizure is necessary); United States v. Adjani, 452 F.3d 1140
(9th Cir. 2006) (finding permissible the removal for off-site
search of a suspect’s computer along with the computer of a
woman living with the suspect who was not identified in the
warrant).
Apart from the government’s arguments related to the plain
view doctrine, I interpret the majority’s primary concern to be
Agent Novitsky’s search of the Tracey directory after it was
removed from CDT’s premises.5 See P.C. Op. 13951-52. The
majority focuses on statements made by Assistant United
States Attorney Nedrow at the hearing before Judge Mahan
that the idea behind taking the Tracey directory was to pro-
vide Agent Novitsky with an opportunity to “briefly peruse it
to see if there was anything above and beyond that which was
authorized for seizure in the initial warrant.”6 P.C. Op. at
5
I do not address here the government’s argument that the plain view
doctrine independently justified its search of the materials seized from
CDT. I share some of the majority’s concerns regarding broad application
of the plain view doctrine to the search of computer data in this case.
However, there are other contexts where application of the plain view doc-
trine might be more appropriate. See, e.g., United States v. Wong, 334 F.3d
831, 838 (9th Cir. 2003) (applying plain view doctrine to discovery of
child pornography in the context of a valid search of a computer for evi-
dence related to a murder investigation). Accordingly, as discussed below,
I cannot subscribe to the generalized requirement set forth in Chief Judge
Kozinski’s “concurring opinion” that the government foreswear reliance
on the plain view doctrine in digital evidence cases or that magistrate
judges insist on such a waiver by the government. Conc. Op. at 13966.
6
Nedrow stated:
The agents, which [sic] some cooperation, limited cooperation
from CDT, had identified a set — a subdirectory on an employ-
ee’s computer named Tracy [sic], and this was the drug testing
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13981
13951. Although Nedrow’s language is troubling on its face,
Agent Novitsky acted with the reasonable purpose of learning
the location of the relevant material in the Tracey directory.
Upon encountering other potentially incriminating material in
the Tracey directory, he sought a subsequent warrant. We
have previously found this approach acceptable. See Giber-
son, 527 F.3d at 889-90 (holding that the district court prop-
erly denied the motion to suppress evidence of child
pornography found on a copied computer hard drive during a
search for evidence of the production of false identification
cards pursuant to a valid warrant); Adjani, 452 F.3d at 1151
(“There is no rule . . . that evidence turned up while officers
are rightfully searching a location under a properly issued
warrant must be excluded simply because the evidence found
may support charges for a related crime (or against a suspect)
not expressly contemplated in the warrant.”). Therefore, the
majority’s determination that the government’s actions in this
case were inconsistent with Tamura is inconsistent with our
case law.
subdirectory with thousands of files, thousands of files on it. And
the agents identified it, and they knew some of those files were
going to have information definitely authorized for seizure under
the Judge Johnson [April 7, 2004] warrant, but they also, frankly,
had no ability to say that with respect to every file. Of course not.
It’s ridiculous, it’s too large.
So the idea behind taking that was to take it and later briefly
peruse it to see if there was anything above and beyond that
which was authorized for seizure in the initial warrant. And that’s
what Agent Nivitsky [sic] did, and that’s why Agent Nivitsky
[sic] went to Judge Lloyd in San Francisco, because after perus-
ing it he found some documents that contained information for
the players in the case and some lists that contained that informa-
tion, the ten players, but he also saw other things on there. And
he said, okay, there are other things on here that show positive
drug tests and that’s of interest and as a plain view matter, based
on the experience in the case, I know that constitutes possible
criminal activity on its face but what I’m going to do is I’m going
to get Judge Lloyd’s authorization to seize all these other items.
13982 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
In addition, the majority reads the warrant to state that the
computer specialist, and only the computer specialist, was
permitted to conduct the initial review of the commingled evi-
dence seized from CDT. From this premise, the majority con-
cludes that Agent Novitsky’s involvement in that initial
review of the seized materials constituted “deliberate over-
reaching.” See P.C. Op. at 13952. But, as the majority of the
three-judge panel stated, the warrant did not expressly limit
the initial review to the computer specialist. Comprehensive
Drug Testing, 513 F.3d at 1111. It provided that the computer
specialist would be involved in the determination of whether
on-site review of the computer files was feasible and in the
segregation process. It did not, however, by its terms exclude
other case agents. The majority calls reliance on the lack of
any explicit exclusion in the warrant “sophistry,” arguing that
“the representation in the warrant that computer personnel
would be used to examine and segregate the data was obvi-
ously designed to reassure the issuing magistrate that the gov-
ernment wouldn’t sweep up large quantities of data in the
hope of dredging up information it could not otherwise law-
fully seize.” P.C. Op. at 13952. However, that is an inference
drawn by the majority and is but one of several reasonable infer-
ences.7 The record does not indicate precisely why that lan-
guage was included in the warrant. The computer specialist
may have been included to facilitate the search and segrega-
tion efforts, to ensure that data would not be destroyed, to
assist in the navigation through the computer files, or to
uncover any mislabeled or hidden files. These purposes do not
necessarily require exclusion of all other case agents.
Even assuming some overreaching by the government, I
would conclude that the return of the property pursuant to
Rule 41(g) is not necessarily the appropriate relief in this
case. The Advisory Committee Notes to the 1989 Amend-
ments to Rule 41 state that “reasonableness under all of the
7
Interestingly, the newly minted search protocols set forth in Chief
Judge Kozinski’s “concurring opinion” make clear that only persons not
involved in the investigation may examine and segregate the data.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13983
circumstances must be the test when a person seeks to obtain
the return of property.” See also Ramsden, 2 F.3d at 326.
These notes further state that “[i]f the United States has a
need for the property in an investigation or prosecution, its
retention of the property generally is reasonable.” Fed. R.
Crim. P. 41, Advisory Committee Notes to 1989 Amendments
(referring to then-existing Rule 41(e)). In Ramsden, we stated
that “[t]he United States’ retention of the property generally
is reasonable if it has a need for the property in an investiga-
tion or prosecution.” 2 F.3d at 326; see also United States v.
Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (“Generally, a Rule
41(e) motion is properly denied ‘if . . . the government’s need
for the property as evidence continues.’ ” (quoting United
States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)). The gov-
ernment stated in its briefs and at oral argument that it has a
continuing need for the seized property in connection with its
ongoing investigation into the distribution of illegal steroids
in professional baseball. Judge Mahan’s order did not address
this government need. At a minimum, a remand is warranted
to develop this issue in the district court in the first instance.
Furthermore, I would find that the government’s conduct in
this case is not sufficiently egregious, in light of our case law,
to warrant an order that the government return the seized
property without retaining copies for its investigatory purposes.8
Our decision in Ramsden, 2 F.3d 322, is illustrative. There,
deputy U.S. marshals executed a provisional arrest warrant for
Ramsden at his hotel room. The marshals asked Ramsden to
8
The Advisory Committee Notes to Rule 41 state that the rule “avoids
an all or nothing approach whereby the government must either return
records and make no copies or keep originals notwithstanding the hardship
to the owner.” Fed. R. Crim. P. 41, Advisory Committee Notes to 1989
Amendments. Although these notes state that there may be some circum-
stance under which “equitable considerations might justify an order
requiring the government to return or destroy all copies of records that it
has seized,” they further state that the rule, as amended in 1989, “contem-
plates judicial action that will respect both possessory and law enforce-
ment interests.” Id.
13984 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
enter the hallway and then arrested him. When the marshals
accompanied Ramsden back into the hotel room to retrieve
some clothes, the marshals seized documents contained in a
closed briefcase. They made this warrantless seizure despite
having the opportunity to obtain a search warrant and con-
ceded before the district court “that the search and seizure
violated Ramsden’s Fourth Amendment rights.” Id. at 325.
We held that the district court properly invoked its equitable
jurisdiction under then-numbered Rule 41(e) and upheld the
district court’s conclusion that the marshals had demonstrated
a callous disregard for Ramsden’s constitutional rights. Id. at
325-27. Although we affirmed the district court’s order that
the government return the original documents to prevent
Ramsden from suffering harm to his business, we allowed the
government, in what the majority here calls a “compromise
solution,” to retain a copy of the documents for ongoing
investigative purposes. See id. at 327; see also P.C. Op. at
13954-55.
Assuming that the government overreached in this case, its
conduct was not as egregious as the marshals’ conduct in
Ramsden, where the government was permitted to retain a
copy of the documents ordered to be returned. Unlike the war-
rantless search conducted in Ramsden, the government sought
and received valid search warrants in this case, but then argu-
ably erred in its execution of the warrants. Under these cir-
cumstances, Ramsden counsels a compromise solution as
contemplated by Rule 41(g). Accordingly, I disagree with the
majority’s decision to affirm the Mahan Order.
III.
Finally, I would vacate and remand the Illston Quashal.
Judge Illston quashed the two subpoenas served on Quest and
CDT on the grounds that their issuance constituted harass-
ment and abuse of the grand jury process and was unreason-
able under Federal Rule of Criminal Procedure 17(c). In
essence, she stated two reasons for quashing the subpoenas:
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13985
(1) the subpoenas “served as an unreasonable insurance poli-
cy” for materials that the government had already seized
through the use of search warrants; and (2) the government
impermissibly executed a series of search warrants in three
different districts once it learned that CDT would move to
quash the January and March subpoenas, which was a “tacti-
cal decision” designed to prevent Judge White from ruling on
the earlier-served subpoenas. Judge Illston stated that the gov-
ernment’s tactical decision was unreasonable and constituted
harassment.
Judge Illston’s decision was based, in part, on the legal
error that the government may not simultaneously seek the
same information through grand jury subpoenas and search
warrants. The majority agrees that this is legal error. See P.C.
Op. at 13957 (“It isn’t per se unreasonable to conduct an
investigation using both search warrants and subpoenas.”).
Our case law allows the simultaneous use of warrants and
subpoenas in light of the substantial differences between these
devices, e.g., the differing levels of intrusion on a person’s
privacy, the ability and manner of challenging each device.
See In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926
F.2d 847, 854-55 (9th Cir. 1991) (upholding the validity of
grand jury subpoenas served at the same time as “functionally
equivalent” search warrants, where officers allegedly sought
to enforce the subpoenas through immediate seizure of the
materials at issue). Accordingly, Judge Illston’s conclusion
that the subpoenas were unreasonable is infected by her mis-
apprehension that the law did not provide for the simulta-
neous use of warrants and subpoenas.
This legal error also underlies Judge Illston’s determination
that the government made an unreasonable tactical decision to
pursue search warrants in different districts in an attempt to
“prevent” Judge White from ruling on earlier-issued subpoenas.9
9
As noted in the original panel majority’s opinion, Judge Illston made
no finding that the subpoenas were “oppressive.” Comprehensive Drug
Testing, 513 F.3d at 1114 n.52.
13986 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
But, as the preceding discussion indicates, the government
was entitled to seek parallel search warrants and subpoenas,
and the use of those devices is judged by different standards.
Therefore, as the three-judge panel majority concluded, the
government could have sought the search warrants notwith-
standing the motion to quash the subpoenas pending before
Judge White, and even if Judge White had quashed the sub-
poenas. See Comprehensive, 513 F.3d at 1114-15.
In addition, Judge Illston gleaned the government’s intent
behind the issuance of the subpoenas—in her view to harass
CDT and Quest—based on its contemporaneous seeking of a
series of search warrants. The hearing transcript indicates that
Judge Illston was focused on the government’s motivations
and placed the burden on the government to provide “a sub-
stantial explanation” for both executing search warrants and
issuing subpoenas, implying that doing so gave rise to a pre-
sumption of bad faith. From the existing record, it is difficult
to discern the government’s actual motive behind issuing the
May 6th subpoenas. In any event, as indicated, the govern-
ment was not obligated to provide an explanation for its deci-
sion to use two types of investigatory tools at its disposal.
Finally, the prejudice to the government from Judge Ills-
ton’s misconception of the law may be seen in her failure to
analyze the propriety of the subpoenas under the correct legal
standard. A district court may quash or modify a subpoena “if
compliance would be unreasonable or oppressive.” Fed. R.
Crim. P. 17(c)(2) (emphasis added); see also United States v.
Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005). For example,
a district court may quash a subpoena when compliance
would destroy a valid privilege, see Bergeson, 425 F.3d at
1225, when the subpoena seeks material that is outside of the
scope of a legitimate grand jury investigation, see In re Grand
Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 854, or
when the subpoena would compel a person to incriminate
himself or would violate a legitimate privacy interest of the
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13987
person served. See United States v. Calandra, 414 U.S. 338,
346 (1974).
Here, Judge Illston focused on the contemporaneous use of
subpoenas and search warrants, which is not improper, and
the government’s related conduct,10 but did not identify what
aspect of the subpoenas would render compliance “unreason-
able or oppressive.”11 She did not, for example, base her deci-
sion on a finding that the subpoenas exceeded the legitimate
scope of the grand jury’s investigation or that compliance
would violate some valid privilege. Judge Illston’s reasons for
quashing the subpoenas were infected by the erroneous view
that the government is not entitled to employ parallel warrants
and subpoenas. As a result, the Illston Quashal should be
vacated and remanded for an explanation that is not based on
that premise.
IV.
I disagree with the majority’s conclusion that the Cooper
Order and the Illston Order are entitled to issue preclusive
effect in connection with our review of the Mahan Order. On
the merits of the Mahan Order, I would reverse Judge
Mahan’s decision because the government acted reasonably in
searching the Tracey directory. Even assuming that the gov-
ernment overreached, the district court’s order for the whole-
sale return of property failed to account for the government’s
10
In the context of a charge of harassment, the Third Circuit has held
that the repeated service of grand jury subpoenas on an individual does not
constitute harassment that justifies quashing a subpoena. See In re Grand
Jury Matter, 802 F.2d 96, 102 (3d Cir. 1986) (citing In re Grand Jury
Applicants, C. Schmidt & Sons, Inc., 619 F.2d 1022, 1028-29 (3d Cir.
1980)); cf. United States v. Bell, 902 F.2d 563, 566 (7th Cir. 1990) (hold-
ing that grand jury witness could not refuse to testify on the grounds that
the government allegedly already had the answers to the questions to be
asked of the witness).
11
Indeed, Quest complied with the subpoena served on it. See Compre-
hensive Drug Testing, 513 F.3d at 1094.
13988 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
ongoing need for the information, a valid consideration when
evaluating a motion under Rule 41(g). Finally, because Judge
Illston appears to have misapprehended the propriety of the
government using both warrants and subpoenas, I would
vacate the Illston Quashal and remand for further explanation
or proceedings. Accordingly, I respectfully dissent.
IKUTA, Circuit Judge, with whom Circuit Judge
CALLAHAN joins, dissenting:
I agree with Judge Callahan’s dissenting opinion, and I join
it in full. I write separately to underline Judge Callahan’s con-
cern that “the return of property pursuant to Rule 41(g) is not
necessarily the appropriate relief in this case.” Dissent at
13982. Even if the government had violated the plaintiffs’
Fourth Amendment rights, the remedy for the alleged viola-
tion imposed by the Nevada district court (Judge Mahan), and
upheld by the majority, is both unprecedented and in conflict
with the past several decades of the Supreme Court’s Fourth
Amendment jurisprudence. Although a party can seek the
return of property under Rule 41(g), and the exclusionary rule
may prevent illegally seized evidence from being used for
particular purposes during criminal proceedings, ordering the
government to expunge all the information it obtained from a
search or seizure of property is inconsistent with the limited
scope of the modern exclusionary rule. But that is just what
the district court’s order did: it directed the government not
only to return the property seized during its search of Quest’s
facilities, but to destroy all traces of information derived from
that search. I therefore dissent from the majority’s affirmance
of this order.
Because there is no criminal proceeding pending against
the plaintiffs in this case, we analyze their motion for return
of property as an equitable analog to a motion under Rule 41(g).1
1
Federal Rule of Criminal Procedure 41(g), which was previously codi-
fied at Rule 41(e), states as follows:
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13989
See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993)
(recognizing that “district courts have the power to entertain
motions to return property seized by the government when
there are no criminal proceedings pending against the
movant”). Such pre-indictment Rule 41 motions “are treated
as civil equitable proceedings,” id., arising under the courts’
“supervisory jurisdiction.” Richey v. Smith, 515 F.2d 1239,
1245 (5th Cir. 1975). The Supreme Court has explained that
a court’s authority to suppress evidence, whether under the
court’s supervisory jurisdiction or under those provisions of
the federal rules of criminal procedure expressly providing for
suppression, is limited by the scope of the exclusionary rule.
See United States v. Payner, 447 U.S. 727, 735-36 (1980)
(holding that a federal court could not exercise its equitable
supervisory powers to suppress evidence in circumstances
where the exclusionary rule did not allow such suppression);
United States v. Calandra, 414 U.S. 338, 348 n.6 (1974)
(holding that a motion for the return of property “does not
constitute a statutory expansion of the exclusionary rule”); see
also Grimes v. Comm’r, 82 F.3d 286, 290 (9th Cir. 1996)
(holding that Rule 41 does not provide movants “any protec-
tion beyond that provided by the exclusionary rule”). Accord-
ingly, courts must follow the Supreme Court’s exclusionary
rule jurisprudence when fashioning suppression remedies
under Rule 41(g) or its equitable counterpart.
Over the past few decades, the Supreme Court has refined
the rules governing suppression of evidence due to the gov-
ernment’s Fourth Amendment violations and made clear that
Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property’s return. The motion must be filed in
the district where the property was seized. The court must receive
evidence on any factual issue necessary to decide the motion. If
it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access
to the property and its use in later proceedings.
13990 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
suppression is a circumstance-specific remedy. As the Court
has recently explained:
Suppression of evidence . . . has always been our last
resort, not our first impulse. The exclusionary rule
generates substantial social costs, which sometimes
include setting the guilty free and the dangerous at
large. We have therefore been cautious against
expanding it, and have repeatedly emphasized that
the rule’s costly toll upon truth-seeking and law
enforcement objectives presents a high obstacle for
those urging its application. We have rejected indis-
criminate application of the rule, and have held it to
be applicable only where its remedial objectives are
thought most efficaciously served—that is, where its
deterrence benefits outweigh its substantial social
costs.
Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal alter-
ations, quotation marks, and citations omitted) (citing United
States v. Leon, 468 U.S. 897, 907 (1984), and Calandra, 414
U.S. at 348, among others); see also Herring v. United States,
129 S. Ct. 695, 700 (2009) (“We have repeatedly rejected the
argument that exclusion is a necessary consequence of a
Fourth Amendment violation.” (citing cases)).
Since Mapp v. Ohio, 367 U.S. 643 (1961), the Court has
adopted numerous exceptions to the exclusionary rule, such as
the “good faith” exception first enunciated in Leon. Most sig-
nificant for this case, the Court has held that even illegally
seized evidence may be used for a variety of purposes. See
Calandra, 414 U.S. at 351-52 (holding that the exclusionary
rule does not apply to grand jury proceedings); see also
United States v. Havens, 446 U.S. 620, 627-28 (1980) (hold-
ing that evidence obtained in violation of the Fourth Amend-
ment can be used to impeach a defendant’s testimony at trial);
Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (holding that
evidence obtained in violation of one person’s Fourth Amend-
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13991
ment rights can be used against another person whose Fourth
Amendment rights were not violated by the search or seizure).
Accordingly, under the Supreme Court’s precedents, remedies
for Fourth Amendment violations must be carefully tailored
to fit both the underlying violation and the government’s
legitimate competing interests in using the illegally seized
evidence. See Grimes, 82 F.3d at 291 (“Because the govern-
ment may now use illegally obtained evidence in a variety of
situations, it should be permitted to retain copies of such evi-
dence absent extreme circumstances not apparent from this
record.”); see also In re Search of Law Office, 341 F.3d 404,
412 (5th Cir. 2003) (noting that changes in the Court’s exclu-
sionary rule jurisprudence cast doubt on earlier opinions hold-
ing that victims of an unlawful search had right to obtain
return of all copies of documents).
The majority acknowledges that a court’s suppression
power is “limited by the exclusionary rule,” but contends that
Payner and Calandra are inapt because they involved “the
suppression, not the return, of seized materials,” and in this
case “no motion to suppress . . . is before us.” Maj. op. at
13953. But the majority appears to misunderstand the Nevada
district court’s order. In conducting its search of the Quest
facility, the government seized urine specimens and made
copies of information maintained on Quest’s computers. The
first part of the district court’s order directs the government
to “return to moving party MLBPA . . . all materials seized
from Quest . . . other than materials relating to the ten base-
ball players named in the original April 8 warrant.” This part
of the order applies only to the urine samples, the only physi-
cal materials seized from Quest.2 The second part of the
2
It is uncertain whether even this part of the order constitutes an order
for return of property, rather than a suppression order, given that the
MLBPA’s property interest in the urine samples is unclear. Unless “the
property in question is no longer needed for evidentiary purposes,” the
“movant bears the burden of proving . . . that he or she is entitled to lawful
possession of the property.” United States v. Martinson, 809 F.2d 1364,
13992 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
court’s order requires the government to “segregate, seal, and
make no further direct or indirect use of, all notes, summaries,
and other records of information seized from Quest on April
8 and May 6 relating to testing of persons other than the ten
baseball players named in the April 8 warrant.”3 This part of
the order applies to the copies the government made of
Quest’s computer files. Whether we use the label “sequestra-
tion,” as the majority does, maj. op. at 13956, or some other
term like “divestiture” or “expungement,” the substance of
this part of the order is the same: it required the government
to refrain from using information about the players, not to
return their property. A motion for return of property is a rem-
edy for a party “aggrieved by a deprivation of its property.”
In re Search of Kitty’s East, 905 F.2d 1367, 1375 (10th Cir.
1990) (emphasis added). Here, the Players Association is not
“aggrieved by the deprivation” of its property, maj. op. at
13954; it is aggrieved by the government’s possession of
inculpatory evidence.
1369 (9th Cir. 1987); accord Fed. R. Crim. P. 41, Notes of Advisory Com-
mittee on 1989 amendments (“The amended rule recognizes that reason-
able accommodations might protect both the law enforcement interests of
the United States and the property rights of property owners and hold-
ers.”). I am aware of no court which has held that bodily fluids voluntarily
given away, and held in possession by a third party, are owned by the
donee. Nor does the standard of lawful possession, as opposed to owner-
ship, resolve the matter. Quest had the urine samples, not the MLBPA, and
at oral argument the MLBPA’s attorney admitted that no contractual prop-
erty interest in the samples was granted by the laboratory. Finally, the
Nevada district court’s order instructed the government to surrender the
urine samples to a third-party laboratory, not return them to the MLBPA
or Quest. The majority’s reliance on the players’ “privacy interests” in the
urine samples, maj. op. at 13954, as opposed to their property interests,
simply highlights the fact that the majority is affirming a suppression
order.
3
The majority’s statement that the “uses the government may make of
the Quest evidence during a criminal proceeding must be decided in the
context of such a proceeding,” maj. op. at 13954, is inconsistent with the
language of the order, which by its terms precludes the government from
making any “further direct or indirect use” of the Quest information.
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13993
Moreover, a successful motion for the return of property
does not prevent the government from continuing to use infor-
mation derived from the property or from later using the prop-
erty as evidence. See Fed. R. Crim. P. 41(g) (if a court grants
a motion for return of property, it may “impose reasonable
conditions to protect access to the property and its use in later
proceedings”). As we have explained:
If a district court determines that property has been
illegally seized, the proper question in deciding the
merits of a 41(e) motion is not whether the officers
acted in good faith, but whether returning the ille-
gally seized documents would be ‘reasonable under
all of the circumstances.’ If the government’s inves-
tigatory and prosecutorial interests can be served by
retaining copies of the documents, it is unreasonable
for the government to refuse to return original docu-
ments to the owner.
J.B. Manning Corp. v. United States, 86 F.3d 926, 928 (9th
Cir. 1996) (quoting Ramsden, 2 F.3d at 326-27) (internal cita-
tion and alteration omitted). Accordingly, even in ordering a
return of the urine samples, the district court should have
imposed “reasonable conditions,” such as allowing the gov-
ernment to keep part of the samples while returning the rest
to Quest or the players, in order to “protect access to the prop-
erty and its use in later proceedings.” Fed. R. Crim. P. 41(g).
Nothing else would have been necessary, since Quest retained
the original records (the government took copies) and Quest
never owned the government’s notes in the first place.
Instead, the district court’s order denies the government use
of evidence which, at least according to the majority and the
district court, was obtained in violation of the Fourth Amend-
ment. The district court’s “sequestration” remedy differs from
a typical suppression remedy only because it is broader; it cat-
egorically prohibited the government from using the seized
evidence for any purpose, despite the Supreme Court’s clear
13994 UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC.
instruction that suppression must be tailored to a specific pur-
pose. See Calandra, 414 U.S. at 348 (“[T]he exclusionary rule
has never been interpreted to proscribe the use of illegally
seized evidence in all proceedings or against all persons.”).
Thus the essence of the majority’s position is that the district
court’s “sequestration” remedy is not subject to the Supreme
Court’s rule against broad and categorical suppression reme-
dies so long as it is labeled an order for “return of property.”
Like the district court, the majority cites no precedent for
such a “sequestration” remedy. Ramsden, quoting the Advi-
sory Committee notes to the 1989 amendments to Rule 41,
merely left open the possibility that, “in some circumstances
. . . equitable considerations might justify an order requiring
the government to return or destroy all copies of records it has
seized.” 2 F.3d at 327 (alteration omitted). As Judge Calla-
han’s dissent points out, Ramsden did not decide this ques-
tion; although we determined the government acted with
“callous disregard for Ramsden’s constitutional rights,” we
concluded that the government was justified in “copying the
documents and turning them over to British authorities” while
returning the originals to Ramsden so that he could run his
business. Id. Ramsden’s dicta must bow to Supreme Court
precedent. Thus although I acknowledge that Ramsden did not
rule out the possibility of a “sequestration” remedy, I con-
clude that the Supreme Court’s recent exclusionary rule juris-
prudence prevents us from expanding the district courts’
suppression authority so broadly.
In this case, assuming the government’s seizure of evidence
of criminal wrongdoing violated the Fourth Amendment
rights of the parties, Supreme Court precedent may support an
order precluding the government from using such evidence in
subsequent criminal proceedings against the players. But
ordering the government to forget that a large number of indi-
viduals have engaged in criminal behavior runs directly con-
trary to the Supreme Court’s modern Fourth Amendment
jurisprudence and fails to consider the “substantial social
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 13995
cost” of the exclusionary rule. Leon, 468 U.S. at 907. At the
very least, preventing the government from using any evi-
dence derived from the search of Quest’s facilities cannot be
reconciled with Calandra, which would allow the use of ille-
gally seized evidence in future grand jury proceedings. See
414 U.S. at 351-52.
By affirming the Nevada district court’s order, whatever
the label, the majority ignores the Supreme Court’s direction
that there is no such thing as a categorical suppression rem-
edy. For this reason, as well as the reasons expressed in Judge
Callahan’s dissent, I respectfully dissent.