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Brooklyn Law Review

Abstract

In recent years, a seemingly endless stream of headlines have alerted people to the steady and relentless government encroachment on their civil liberties. Consider, for example, headlines such as “U.S. Directs Agents to Cover Up Program Used to Investigate Americans,” “DEA Admits to Keeping Secret Database of Phone Calls,” or “No Morsel Too Miniscule for All-Consuming N.S.A.” Of concern is not only the U.S. government’s collection of data on its citizens, but also how that information is aggregated, stored, and used. The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. While the drafters of the Fourth Amendment could not have foreseen the advent of contemporary electronic surveillance measures, it has been suggested that some forms of electronic surveillance come within the protection of the Amendment and trigger the requirement that such a search be reasonable. If the Fourteenth Amendment applies to electronic surveillance, then so does the exclusionary rule, which excludes evidence of guilt that has been obtained as a result of an unlawful search and seizure.

A question to consider when assessing the reach of the exclusionary rule is whether it can be used in response to the military’s unlawful surveillance of civilians. Such was the question at issue in the Ninth Circuit’s decision in United States v. Dreyer, a case involving the conviction of a child pornographer who was first brought to the attention of local authorities through information shared by the military. In September 2014, a three-judge panel of the Ninth Circuit found the military’s involvement in civilian affairs to be especially troubling, since such involvement is specifically curtailed by the Posse Comitatus Act, and the court ruled in favor of applying the exclusionary rule to suppress the evidence. Although the Ninth Circuit ultimately reversed in an en banc decision, the court’s initial ruling remains instructive for its application of the exclusionary rule in a situation of perceived military overreach, and that initial ruling remains the focus of this article as evidence of the need for Congress to provide clear guidance in this area.

It was the first federal appeals court case to invoke the exclusionary rule as a response to a PCA violation since the enactment of the PCA in 1878. Moreover, recent Supreme Court jurisprudence suggests that the exclusionary rule is losing favor. In light of this shift, an important question emerges: Was the Ninth’s Circuit’s ruling in Dreyer simply an anomaly, or was it the beginning of a trend of courts policing government overreach? This article argues that, in a post-9/11 society in which constitutional protections are increasingly uncertain, congressional action is necessary to ensure effective enforcement of the PCA. Dreyer indicates that in lieu of legislation clarifying the applicability of the PCA, the judiciary will be forced to assume the role of gatekeeper of individual liberties. It has been said that “[p]ower tends to corrupt and absolute power corrupts absolutely.” The Ninth Circuit’s stinging response to the government’s defense in Dreyer illustrates the court’s belief that the judiciary has a responsibility to curtail the government’s assertion of a broad set of surveillance powers over its citizens. Against the backdrop of an unprecedented amount of governmental spying on citizens and recent reports of covert sharing of information between the National Security Agency (NSA) and the Drug Enforcement Agency (DEA), the Ninth Circuit has made clear that absent self-restraint by government agents, it will step in to curtail abuses by rejecting evidence seized through government overreach.

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