Military vehicles line Pennsylvania Avenue near the U.S. Capitol building in Washington, D.C., 16 January 2021. The National Guard conducted authorized security, communication, and logistical missions in support of Federal and district authorities leading up to and through the 59th Presidential Inauguration. (Credit: SSG Devlin Drew)
Practice Notes
A Modernizing Posse Comitatus Doctrine
What Has Changed, What Change Is to Come, and Why Should We Care?
By Major Jeremiah J. Cioffi
Imagine that the head of an understaffed civilian law enforcement agency from the city just outside your active-duty installation approaches the garrison commander—whom you advise—and requests that the agency and the installation’s military police work together to fight crime in the local city. The garrison commander loves the idea and asks you if this partnership would violate the Posse Comitatus Act (PCA). You accurately advise him that the partnership must be narrowly tailored to exclude military police engagement in direct law enforcement activities that are impermissible under the governing statutes and regulations. Well done!
The next week, the same agency head calls your commander and tells him that a local civilian man murdered his civilian wife at their off-installation residence during a domestic dispute, that his civilian police force is spread thin this week with the county fair detail, and that he needs the installation’s military police to conduct the arrest and analyze the crime scene. The commander turns to you—the expert—and says that there is no way he is going to abandon the community in its time of need. Can the commander authorize the military police to conduct the arrest and analyze the crime scene? Thankfully, you remember information from an article that you skimmed recently, and you provide timely and accurate legal advice.
The PCA garnered significant attention during President Donald Trump’s tenure in the White House as a result of his use—and threatened use—of Federal and National Guard forces.1 Politicians and civil society organizations have since sought to highlight the PCA’s weaknesses in hopes of influencing congressional action to amend the PCA.2 Legal professionals and scholars have also recently given attention to the PCA not just due to President Trump’s domestic use of military forces; the Ninth Circuit Court of Appeals’ 20143
and 20154 decisions in United States v. Dreyer renewed discussions of the PCA in legal circles and implicated a new judicial approach to the PCA.5
This article provides a basic overview of the PCA’s framework—including its statutory, regulatory, and judicial underpinnings—and highlights how it has changed and modernized in recent years. Its goal is to provide judge advocates (JAs) with an understanding of the PCA’s framework. This article proceeds in three parts: 1) statutory and regulatory background, 2) PCA in the courts, and 3) lessons and warnings for JAs in the wake of a modernizing PCA.
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Statutory and Regulatory Background
The PCA has changed in recent years: the military updated its PCA guidance in 2019 and Congress modified the PCA itself in 2021.6 This section highlights the PCA’s statutory and regulatory history and discusses recent changes in these areas.
The term “posse comitatus” is—unsurprisingly—a Latin one.7 It means “power of the county” and refers to the concept of sheriffs calling civilians to service to prevent civil disorder.8 During Reconstruction after the Civil War, President Ulysses S. Grant used Federal troops to suppress the Ku Klux Klan and to guard polling stations in the southern states.9 Southern politicians felt that this use of Federal troops was governmental overreach and urged Congress to curb this use of Federal troops.10 This resulted in Congress passing the original PCA and President Rutherford B. Hayes signing it into law in 1878.11 The original PCA prohibited the use of the U.S. Army as a “posse comitatus” or to otherwise execute the law.12 It made a violation of the PCA punishable by a fine, two years in prison, or both.13
There were no significant changes to the PCA until 1956, when Congress amended it to include a prohibition against using the Air Force as a “posse comitatus” or to otherwise execute the laws of the United States.14 The 1956 amendment did not include the addition of the Navy or Marine Corps.15 The Navy and Marine Corps were conspicuously absent from relevant legislation for nearly another quarter century until 1981, when Congress passed 10 U.S.C. § 375 to address their participation in civilian law enforcement activities.16 This law required the Secretary of Defense to issue regulations prohibiting the Army, Navy, Air Force, and Marine Corps from directly participating in civilian law enforcement activities.17
Congress passed thirteen additional sections between 1981 and 2015 to
better define the PCA.18 These sections explicitly addressed circumstances under which the covered military departments could or could not provide assistance to civilian law enforcement, and are known in case law as “posse comitatus-like” restrictions.19 Notably, Congress did not extend the PCA’s criminal penalties to the Navy and Marine Corps under the posse comitatus-like restrictions.20
The 2022 National Defense Authorization Act significantly modernized the
PCA by extending it—and its criminal penalties—to the Navy, Marine
Corps, and the Space Force.21
With the statutory framework in place in 1981, the Department of Defense (DoD) implemented regulations in 1982.22
The most recent iteration of regulations is DoD Instruction (DoDI)
3025.21, implemented in 2013.23 It was last updated in 2019.24 In addition to affirming that the Army, Air Force, Navy, and Marine Corps may not directly participate in civilian law enforcement activities, it explains what is considered impermissible assistance to civilian law enforcement activities.25 Note that DoDI 3025.21 has not been updated since Congress passed the 2022 National Defense Authorization Act, and as of this writing does not include the Space Force.26
There are two main categories of assistance to civilian law enforcement personnel for JAs to be aware of, as enacted into law by Congress and implemented by DoDI 3025.21: direct assistance and indirect assistance.27
Under DoDI 3025.21, military personnel are prohibited from providing direct assistance—including, but not limited to, searches, seizures, arrests, and use of force—to civilian law enforcement personnel unless the assistance is provided in accordance with one of the six situations discussed in the DoDI.28 The first situation is when the primary purpose of the assistance is in furtherance of “a DoD or foreign affairs function” (known as the “military purpose doctrine” throughout the rest of this article).29 Department of Defense Instruction 3025.21 includes a non-exhaustive list of activities that are permissible if done in accordance with the military purpose doctrine, including: investigations related to enforcing the Uniform Code of Military Justice; “investigations and other actions related to a commander’s . . . authority to maintain law and order”; and actions taken for the protection of DoD personnel, equipment, or classified information.30
The other five situations contemplated in DoDI 3025.21 in which direct
assistance is permissible are: during audits and investigations
conducted in accordance with the Inspector General Act of 1978, if
authorized by the President to address civil disturbances, in
extraordinary emergency circumstances when prior authorization by the
President is impossible and local authorities are unable to control the
situation, if expressly authorized by statute, or in certain domestic
search and rescue situations.31 Direct assistance is not permissible if done outside of these situations.32
Under DoDI 3025.21, military personnel may provide indirect assistance to civilian law enforcement if providing such assistance would not compromise military readiness.33 The enumerated types of indirect assistance authorized in DoDI 3025.21 include: the use of personnel to operate or maintain equipment, if the use of civilian personnel would be unfeasible or impractical; the provision of expert advice; the provision of training to Federal, state, and local civilian law enforcement officials, as long as the training is not large-scale or elaborate DoD training; the use of DoD equipment and facilities, and; the use of information collected during DoD operations.34
There are two main categories of assistance to civilian law enforcement personnel for JAs to be aware of, as enacted into law by Congress and implemented by DoDI 3025.21: direct assistance and indirect assistance.
Judicial Background
This section provides a survey of relevant court cases that have shaped the PCA, focusing primarily on the Ninth Circuit’s two Dreyer decisions, which have ignited debate around the PCA and could drive its modernization.35
After falling into relative obscurity, the PCA gained renewed attention in 1973 when the military became involved in a civil disturbance in Wounded Knee, South Dakota.36 Demonstrators seized control of the Pine Ridge Indian Reservation in protest of poor treatment of American Indians.37 Three different court cases in three different Federal district courts adjudicated claims arising from the disturbance: the District Court of Nebraska in United States v. Jaramillo,38 the District Court of South Dakota in United States v. Red Feather,39 and the District Court of North Dakota in United States v. McArthur.40 Each court articulated a different test for determining when a PCA violation has occurred.41
In Jaramillo, the United States District Court for the District of Nebraska took an expansive view of the PCA and determined the test for a PCA violation to be whether the “use of any part of the Army or Air Force . . . pervaded the activities” of civilian law enforcement.42 In Red Feather, the United States District Court for the District of South Dakota articulated a more restrictive approach to the PCA, determining that the PCA prohibited only “active military involvement.”43 Passive military involvement fell outside the purview of the PCA.44 In McArthur, the United States District Court for the District of North Dakota took a middle road between Jaramillo and Red Feather, concluding that the test is whether the military personnel “subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature.”45 Courts still apply these three tests in some form or fashion.46 This series of cases led Congress to pass 10 U.S.C. §§ 271-84 (originally §§371-84), which attempted to reconcile these different outcomes by expressly identifying what activities are considered impermissible direct assistance.47
These cases and 10 U.S.C. §§ 271–84 have provided courts with—admittedly imperfect—guidelines for identifying a PCA violation. The more controversial topic that remains for courts is determining an appropriate remedy for a PCA violation. While the PCA itself subjects offenders to prison time and a fine,48
courts have never convicted any offender under this punitive
language.49 Instead of following this explicit statutory provision, courts have instead focused on whether the evidence gathered as a result of the PCA violation should be suppressed pursuant to the exclusionary rule.50 Thus, any discussion of PCA violation remedies necessarily includes a discussion of the exclusionary rule.
The exclusionary rule is an evidentiary principle aimed at “prevent[ing] the government from using most evidence gathered in violation of the United States Constitution” by suppressing said evidence.51 No Federal courts have invoked the exclusionary rule to suppress evidence resulting from a PCA violation, but several have left the possibility open.52 Most recently and controversially, the Ninth Circuit invoked the exclusionary rule in Dreyer only to immediately reverse it in an en banc rehearing, but it did not rule out the possibility of using the exclusionary rule for future PCA violations.53 Since the Ninth Circuit decided this case en banc, there has been renewed discussion outside the Circuit about the possibility of applying the exclusionary rule to the PCA.54
Prior to the Dreyer decisions, the Supreme Court limited the scope of the exclusionary rule, indicating that it is only appropriate in cases of clear constitutional violations, which would appear on its face to rule out the use of the rule to remedy statutory provisions such as the PCA.55
However, the Supreme Court has not explicitly eliminated the possibility
of invoking the exclusionary rule in the case of PCA violations,56
and there are both courts and scholars who argue that the PCA implicates
the Constitution.57 One such court is the Ninth Circuit.58
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United States v. Dreyer
In Dreyer, a Georgia-based Naval Criminal Investigative Service (NCIS) civilian agent named Steve Logan initiated a criminal investigation into the distribution of child pornography on the internet using an investigative software tool called “RoundUp.”59 In 2011, NCIS agents assigned to Washington State asked Logan to investigate computer-based child pornography sharing in their assigned area.60 Logan used RoundUp to search a peer-to-peer file-sharing network called “Gnutella.”61 He based his search on geographical parameters in which a large number of DoD personnel resided, but technological constraints would not allow him to exclude non-DoD-related machines.62
(Credit: tolikoffphotography - stock.adobe.com)
Logan used the software to detect a computer that had shared several child pornography files.63 He then contacted the National Center for Missing and Exploited Children and requested a subpoena to determine the name of the computer user and its specific location.64 When listing a reason for the subpoena, Logan wrote “Suspect IP was identified in area of large DoD and [U.S. Navy] saturation indicating likelihood of [U.S. Navy/DoD] suspect.”65 The National Center for Missing and Exploited Children sent the request to the FBI who, in turn, issued an administrative subpoena to Comcast.66 Comcast identified the user as Michael Dreyer of Algona, Washington.67 Logan performed a background check and determined that Dreyer had no military affiliation, and as a result, NCIS had no jurisdiction.68
At that point, Logan sent a report to the NCIS agents in Washington
State, who provided the relevant documents to the Algona Police
Department.69
Algona Police obtained a search warrant and searched Dreyer’s house based on Logan’s information.70 While at the residence, they examined Dreyer’s computer and identified child pornography.71 A Department of Homeland Security agent then obtained a Federal search warrant for Dreyer’s computer.72 The agent conducted the search in accordance with the warrant and identified twenty-one videos and over 1,300 child pornography images on Dreyer’s devices.73 Dreyer was charged with possessing and distributing child pornography.74 Dreyer moved to suppress the evidence, claiming that Logan’s search violated the PCA.75 The District Court denied Dreyer’s motion, and he was convicted of both charges and sentenced to 216 months in jail and lifetime supervised release.76 He then filed a timely appeal.77
Writing the opinion for a divided three-judge panel of the Ninth Circuit Court of Appeals, Judge Marsha Berzon determined that Logan violated the PCA-like restrictions on the Navy,78 that the District Court erred in denying Dreyer’s motion, and that the evidence should have been suppressed.79
Citing Ninth Circuit precedent, Judge Berzon reasoned that sufficient
evidence existed to conclude that the military’s violations justified
suppression.80
A majority of the Ninth Circuit judges voted to rehear the case.81 An en banc panel consisting of eleven judges, including Judge Berzon, reheard the case.82 The Court affirmed the three-judge panel’s decision in part and remanded it in part, holding that the facts of the case did not demonstrate a need to suppress the results of the investigation.83
The Court left open the possibility that the exclusionary rule could
apply in the PCA context.84 The Court reasoned that “the exclusionary rule is certainly available for violations of constitutional rights, . . . [t]he PCA does have constitutional underpinnings, . . . and we know of no controlling precedent precluding application of the exclusionary rule for a violation of the PCA or § 375 in a case in which exclusion is otherwise warranted.”85 As a result, the Ninth Circuit—and others—could utilize Dreyer to justify the use of the exclusionary rule in a future PCA violation and could ultimately prompt the Supreme Court to address the use of the exclusionary rule in said context.
If a U.S. Army Criminal Investigation Division special agent drafts a subpoena and uses a justification like that used by Logan in Dreyer, then the JA needs to recognize this and help shape the agent’s request.
Judge Advocate Considerations
The PCA is not just relevant to JAs who advise military law enforcement personnel; the PCA applies to the entire military at all levels of command.86 Thus, any JA who advises commanders should be familiar with it. When confronted with a PCA question, a JA must first determine whether the action falls under 1) the military purpose doctrine (the most common scenario) or 2) one of the other exceptions enumerated in DoDI 3025.21.87 For example, the military purpose doctrine allows military law enforcement personnel to conduct joint investigations off installations assuming the facts bear out the military purpose.88 But, does the military purpose doctrine cover the garrison commander when he wants to send installation military police off-post to arrest a civilian and conduct a crime scene evaluation because the local police are stretched too thin? Given these facts, this would clearly violate the Posse Comitatus Act; there is no military purpose as that term is defined in the DoDI and none of the other exceptions apply.
When a JA determines that the military purpose doctrine applies and has identified that purpose, they must then develop facts to strengthen the nexus between the purpose and the action. Judge advocates should then make clear that activity participants must be able to articulate the military purpose, which should be the first thing that comes to their minds when they are explaining their activities. This mindset accomplishes two things: first, it helps weed out situations not covered by the PCA, and second, it instills a good-faith basis in those conducting the activity. The latter could theoretically help participants with a defense if they ever find themselves in court over a PCA violation, which, as this article contemplates, could be more likely as the PCA modernizes.
Judge advocates should keep Dreyer in their minds when advising on any issue involving cyberactivity. With ever-increasing cyber capabilities, it will become easier for military investigative personnel to fall into the same trap as NCIS Agent Logan by searching too broadly and too widely in available databases.89 For military justice practitioners, this will arise when they work with law enforcement on criminal investigations. If a U.S. Army Criminal Investigation Division special agent drafts a subpoena and uses a justification like that used by Logan in Dreyer, then the JA needs to recognize this and help shape the agent’s request. While a judge or magistrate will likely identify this mistake, it is far better to correct it before it reaches the bench.
A JA is also responsible for advising commanders of the risks associated with their contemplated actions, and there are risks associated with PCA violations. Judge advocates need to articulate the possibility of evidence suppression and criminal penalties in the case of a potential PCA violation. While these are unlikely in the current framework, they could gain teeth in the future as the PCA continues to receive scrutiny and evolve.
Conclusion
The PCA is likely to remain in the spotlight. From Dreyer to the President’s domestic use of the National Guard, to the 2022 National Defense Authorization Act’s inclusion of the Navy, Marine Corps, and Space Force into the PCA, the PCA has and will continue to change.90
As court precedent and congressional action continue to modernize the
PCA to address contemporary problems, JAs should stay aware of the
changes and should advise commanders on risks, including evidence
suppression and potential criminal violations.
TAL
MAJ Jeremiah Cioffi is a national security law attorney for the Department of the Army Criminal Investigation Division at Quantico, Virginia.
Notes
1. See, e.g., Thomas Udall & James McGovern, Trump and Barr Used a Loophole to Deploy the National Guard to U.S.
Cities. It’s Time to Close It., NBC: Think (Aug. 7, 2020, 4:30 AM), https://www.nbcnews.com/think/opinion/trump-barr-used-loophole-deploy-national-guard-u-s-cities-ncna1236034?msclkid=52c6689ec0b011ec859a9bbd35f489df; Cole Blum & Soren Dayton, The National Guard at Lafayette Square and the January 6th Attempted
Insurrection: Fixes for the FY2022 NDAA, Just Sec. (Aug. 31, 2021), https://www.justsecurity.org/78053/the-national-guard-at-lafayette-square-and-the-january-6th-attempted-insurrection-fixes-for-the-fy2022-ndaa/?msclkid=c71e270ec0ae11ec867b18cb89294622.
2. See, e.g., Udall & McGovern, supra note 1; Coalition Letter Urges Congressional Leadership to Retain Reforms to
the National Guard and Posse Comitatus Act, Brennan Ctr. for Just. (Dec. 6, 2021), https://www.brennancenter.org/our-work/research-reports/coalition-letter-urges-congressional-leadership-retain-reforms-national?msclkid=1a0b1d65c0b111eca934fbc44dbb4f3e.
3. United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014).
4. United States v. Dreyer, 804 F.3d 1266 (9th Cir. 2015) (en banc).
5. See, e.g., Anthony Ghiotto, Defending Against the Military: The Posse Comitatus Act’s
Exclusionary Rule, 11 Harv. Nat’l Sec. J. 359 (2020); Lieutenant Colonel Patrick Walsh & Paul Sullivan, The Posse Comitatus Act and the Fourth Amendment’s Exclusionary
Rule, 8 Am. U. Nat’l Sec. L. Brief 3 (2018).
6. U.S. Dep’t of Def., Instr. 3025.21, Defense Support of Civilian Law
Enforcement Agencies
(27 Feb. 2013) (C1, 8 Feb. 2019) [hereinafter DoDI 3025.21]; National
Defense Authorization Act for the Fiscal Year 2022, Pub. L. No. 117-81,
§ 1045, 135 Stat. 1541, 1904-05 (2021) [hereinafter NDAA 2022].
7. United States v. Hartley, 796 F.2d 112, 114, n.3 (5th Cir. 1986).
8. Id.
9. See, e.g., Matt Matthews, The Posse Comitatus Act and the United States Army: A
Historical Perspective
27-30 (2006).
10. See, e.g., id. at 30–34.
11. Id. at 32–33; An Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June Thirtieth, Eighteen Hundred and Seventy-Nine, and for Other Purposes, ch. 263, § 15, 20 Stat. 145, 152 (1879) (current version at 18 U.S.C. § 1385).
12. Matthews, supra note 9, at 32–33.
13. Ch. 263, § 15, 20 Stat. 145, 152 (1879) (“[A]ny person wilfully [sic] violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.”).
14. Act of August 10, 1956, ch. 1041, §18(a), 70A Stat. 626 18 U.S.C. § 1385 (1956) (updating the original PCA to include the Air Force).
15. Id.
16. Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, §905(a)(1), 95 Stat. 1099, 1116 (1981) (codified as amended in 10 U.S.C. § 375 and renumbered to 10 U.S.C. § 275).
17. Id.; see United States v. Dreyer, 767 F.3d 826, 835–36 (9th Cir. 2014).
18. 10 U.S.C. §§ 371–84. Note that these were renumbered to 10 U.S.C. §§ 271–84 in 2016.
19. See, e.g., 767 F.3d at 836.
20. Ninth Circuit Senior Judge Andrew Kleinfeld noted this conspicuous absence in his concurrence to the original Ninth Circuit Opinion in Dreyer, stating that “[i]f the military chooses to become a national police force to detect civilians committing civilian crimes, the Navy would be the branch to use, because the criminal penalty does not apply to Navy personnel.” United States v. Dreyer, 767 F.3d at 838 (Kleinfeld, A., concurring).
21. National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 1045, 135 Stat. 1541, 1904–05 (2021).
22. Matthews, supra note 9, at 44.
23. DoDI 3025.21, supra note 6, at 1.
24. DoDI 3025.21, supra note 6, at 1.
25. DoDI 3025.21, supra note 6, encl. 3.
26. See DoDI 3025.21, supra note 6, encl. 3.
27. See DoDI 3025.21, supra note 6, encl. 3, paras. 1(b)-(g).
28. DoDI 3025.21, supra note 6, encl. 3, para. 1(c).
29. DoDI 3025.21, supra note 6, encl. 3, para. 1(b)(1).
30. DoDI 3025.21, supra note 6, encl. 3, para. 1(b)(1)(a)-(f).
31. DoDI 3025.21, supra note 6, encl. 3, para. 1(b)(2)-(6).
32. See DoDI 3025.21, supra note 6, encl. 3, para. 1(c)(1).
33. See DoDI 3025.21, supra note 6, encl. 3, para. 1(d)-(g).
34. DoDI 3025.21, supra note 6, encl. 3, para. 1(d)-(g).
35. See, e.g., Ghiotto, supra note 5; Walsh & Sullivan, supra note 5.
36. Matthews, supra note 9, at 41.
37. Matthews, supra note 9, at 41.
38. United States v. Jaramillo, 380 F. Supp. 1375 (D. Neb. 1974).
39. United States v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975).
40. United States v. McArthur, 419 F. Supp. 186 (D.N.D. 1975).
41. McArthur, 419 F. Supp. at 194; Red Feather, 392 F. Supp. at 923; Jaramillo, 380 F. Supp. at 1379.
42. Jaramillo, 380 F. Supp. at 1379 (“If there was ‘use’ of ‘any part of the Army or the Air Force’ to ‘execute the laws’ and if that use pervaded the activities of the United States marshals and the Federal Bureau of Investigation agents, the marshals and the agents cannot be said to have been ‘lawfully engaged’ in the ‘lawful performance’ of their official duties.” (quoting 10 U.S.C. 1385 and 18 U.S.C. § 231(a)(3))).
43. Red Feather, 392 F. Supp. at 923 (“From the clear intent of Congress, this Court concludes that 18 U.S.C. § 1385 may be violated only through the direct active use of troops for the purpose of executing the laws and 18 U.S.C. § 1385 is not violated by the use of Army or Air Force materiels, supplies, or equipment of any type or kind in execution of the law.”).
44. Red Feather, 392 F. Supp. at 924 (“Congress did not intend to make unlawful the involvement of federal troops in a passive role in civilian law enforcement activities.”).
45. McArthur, 419 F. Supp. at 194 (“So, here, the standard I apply is this: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively?”).
46. See, e.g., United States v. Yunis, 681 F. Supp. 891, 892 (D.D.C. 1988) (analyzing the facts of the case against each of the three tests to determine if a violation occurred).
47. See supra notes 16-18 and accompanying text; Jennifer K. Elsea, Cong. Rsch. Serv., R42669, The Posse Comitatus Act
and Related Matters: A Sketch 2 (2018).
48. 18 U.S.C. § 1385.
49. Walsh & Sullivan, supra note 5, at 17.
50. See, e.g., United States v. Dreyer, 804 F.3d 1266, 1278–81 (9th Cir. 2015) (en banc).
51. Exclusionary Rule, Legal Info. Inst.: Cornell L. Sch., https://www.law.cornell.edu/wex/exclusionary_rule?msclkid=836a98d3c17711ecbb0145293f1a9aad (last visited Mar. 21, 2023).
52. Walsh & Sullivan, supra note 5, at 34–35.
53. Dreyer, 804 F.3d at 1278–81.
54. See,
e.g., Walsh & Sullivan, supra note 5; Mystica Alexander & William Wiggins, A Domestic Consequence of the Government Spying on Its Citizens: The
Guilty Go Free, 81 Brooklyn L. Rev. 627 (2016).
55. Walsh & Sullivan, supra note 5, at 31–35 (explaining the arc of Supreme Court cases that limited the use of the exclusionary rule).
56. Dreyer, 804 F.3d at 1279 (“[W]e know of no controlling precedent precluding application of the exclusionary rule for a violation of the PCA or § 375 in a case in which exclusion is otherwise warranted.”).
57. E.g., id.; Ghiotto, supra note 5, at 411 (“However, both federal and state courts have recognized that, even in the context of the exclusionary rule’s more limited scope under the Supreme Court’s current construction, a violation of the PCA can trigger the rule as a remedy to PCA violations.”).
58. Dreyer, 804 F.3d at 1279 (“[W]e know of no controlling precedent precluding application of the exclusionary rule for a violation of the PCA or § 375 in a case in which exclusion is otherwise warranted.”).
59. Id. at 1270.
60. Id.
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Id.
67. Id. at 1270–71.
68. Id. at 1271.
69. Id.
70. Id.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. United States v. Dreyer, 767 F.3d 826, 835 (9th Cir. 2014) (“[W]e hold that Agent Logan’s broad investigation into sharing of child pornography by anyone within the state of Washington, not just those on a military base or with a reasonable likelihood of a Navy affiliation, violated the regulations and policies proscribing direct military enforcement of civilian laws.”).
79. Id. at 837 (“[W]e reverse the district court’s denial of Dreyer’s motion to suppress, and we remand to the district court for further proceedings consistent with this opinion.”).
80. Id. at 835–36.
81. United States v. Dreyer, 804 F.3d 1266, 1271 (9th Cir. 2015) (en banc).
82. Id. at 1268.
83. Id.
84. Id. at 1279.
85. Id. at 1278–9.
86. See 18 U.S.C. § 1385.
87. See supra notes 30-34 and accompanying text.
88. See DoDI 3025.21, supra note 9, encl. 3, paras. 1(b)(1)(a)-(c), 1(b)(2).
89. See United States v. Dreyer, 804 F.3d 1266, 1270 (9th Cir. 2015) (en banc).