9th Circuit: Child porn evidence doesn't have to be tossed, though NCIS violated federal law
An en banc federal appeals court has ruled that U.S. Navy investigators violated federal law when they provided evidence in a civilian child pornography case, though the decision won’t benefit the defendant.
The San Francisco-based 9th U.S. Circuit Court of Appeals declined to toss the evidence against Michael Dreyer of Algona, Washington, saying it wasn’t needed to deter possible future violations, report the Associated Press, Trial Insider and the Seattle Times. How Appealing notes the coverage and links to the Nov. 4 opinion (PDF).
An agent with the Naval Criminal Investigative Service had used a software program called RoundUp to search for computers in Washington state sharing child porn. The software detected a computer sharing files identified as child pornography, and the agent made out an administrative subpoena for the Internet user associated with the Internet Protocol address, which led to Dreyer. The NCIS turned the case over to local police.
Dreyer was convicted and sentenced to 18 years in prison. A 9th Circuit panel had tossed the evidence in a September 2014 opinion.
Th en banc court said the evidence sharing violated the Posse Comitatus Act, but concluded “the government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so.”
Dreyer’s lawyer, Erik Levin, of Berkeley, Calif., criticized the decision in an interview with the Seattle Times. “The 9th Circuit decided the fox was best suited to guard the henhouse,” he said.
