The Posse Comitatus Act is an 1878 federal law that prohibits the military from doing domestic law enforcement. The act doesn’t come up that much and defendants seldom actually win because of it. That’s why I was surprised to see the Ninth Circuit Court of Appeals decision in United States v. Dreyer. The court found a Posse Comitatus violation and tossed out the child pornography that sent Michael Dreyer to prison for 18 years.
The Court summarizes the case as follows:
A special agent of the Naval Criminal Investigative Service (NCIS) launched an investigation for online criminal activity by anyone in the state of Washington, whether connected with the military or not. The agent found evidence of a crime committed by a civilian in the state and turned it over to civilian law enforcement officials. The civilian, Michael Dreyer, was prosecuted, convicted, and sentenced to eighteen years in prison. We hold that the NCIS agent’s investigation constituted improper military enforcement of civilian laws and that the evidence collected as a result of that investigation should have been suppressed.
The Justices had relatively little trouble finding a Posse Comitatus Act (PCA) violation. That act provides:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Traditionally, illegally obtained evidence is suppressed or excluded from trial. In this case, suppressing the child pornography meant freeing a man who clearly did possess and distribute that material. The majority reasoned that the violation here was widespread and pervasive and that suppression, though not always appropriate, was required to deter further violations:
The government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military. Such an expansive reading of the military’s role in the enforcement of the civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society.
Justice Diarmuid O’Scannlain filed a partial dissent. He agreed that the PCA was violated but felt that suppression was not warranted. He noted that no federal court has ever suppressed evidence because of a PCA violation and felt the costs of doing so in this case were too high. He instead would have allowed the evidence, illegally obtained though it was, to be used against Mr. Dreyer. O’Scannlain even suggested in a footnote that suppression might never be an appropriate remedy for PCA violations. Check out page 32 of the opinion for that.
The case is not over. Since only a three judge panel heard the case, the government could petition for a rehearing before all the Justices. The case could even end up before the Supreme Court. It’s anyone’s guess what might happen there but, as many have observed, their recent opinions may demonstrate a reluctance to suppress illegally obtained evidence.
What about the PCA, police and military equipment?
Before anyone flies off the handle, It’s worth noting that the PCA does not prevent all military involvement in domestic law enforcement. Police training, equipment, and other support is OK. As the court says:
The regulations and policies implementing the PCA …“generally prohibit ‘direct’ military involvement in civilian law enforcement activities but permit ‘indirect’ assistance such as the transfer of information obtained during the normal course of military operations or other actions that ‘do not subject civilians to [the] use [of] military power that is regulatory, prescriptive, or compulsory.’ Prohibited direct assistance includes “[u]se of military personnel for surveillance or pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.