«
»

Back in August, I wrote a long post about the Ninth Circuit’s very dubious computer search and seizure decision in United States v. Payton, 573 F.3d 859 (9th Cir. 2009). I speculated about the possibility the opinion might be revised or overturned en banc, but I wrote that post a week before the en banc Ninth Circuit handed down its nutty computer search and seizure decision in United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009) (en banc) (“CDT“). I’m trying to figure out whatever happened to Payton, especially after CDT.

Last I recall hearing, the Payton panel had sua sponte asked the government whether it wanted to seek rehearing in Payton. Does anyone know how DOJ responded? I would imagine DOJ was in a very tricky position. Sure, you want rehearing because the original panel goofed. But after CDT, who on earth knows what could happen en banc? You never know if the panel is asking because they sense they got it wrong or because they want a fresh canvas to paint CDT Part II. Anyway, I figure someone among our readership must know what (if anything) happened with Payton. Off-blog and off-the-record responses welcome.

Categories: Comprehensive Drug Testing    

    7 Comments

    1. Dave N. says:

      I checked via Pacer. Here are the appropriate docket entries, starting with #24:

      09/21/2009 24 Filed order (WILLIAM C. CANBY, KIM MCLANE WARDLAW and RICHARD MILLS) The parties shall file, within twenty-one (21) days from the date of this order, simultaneous briefs setting forth their respective positions on whether this case should be heard en banc. The briefs shall not exceed fifteen (15) pages in length unless they comply with Fed. R. App. P. 32(a)(7)(B) and (C). Parties who are registered for ECF should file the supplemental brief electronically without submission of paper copies. Parties who are not registered ECF filers should submit the original supplemental brief plus fifty (50) paper copies. [7067898] (SC)

      10/07/2009 25 Filed (ECF) Appellee USA Motion to extend time to file petition for rehearing until 11/12/2009 at 05:00 pm. Date of service: 10/07/2009. [7088163] (BWE)

      10/13/2009 26 Submitted (ECF) Suppemental brief for review. Submitted by Appellant Michael Clay Payton. Date of service: 09/21/2009. [7093651]–[COURT UPDATE: Corrected docket text, change filing category. 10/14/2009 by MA] (EVK)

      10/14/2009 27 Filed order (WILLIAM C. CANBY, KIM MCLANE WARDLAW and RICHARD MILLS) The appellee’s motion for an extension of time to file a petition for rehearing and petition for rehearing en banc is DENIED. On July 31, 2009, the appellee’s motion for an extension of time to petition for rehearing or rehearing en banc was granted and time was extended to September 3, 2009. No petition or additional motion for a further extension of time was filed by that deadline. This court sua sponte extends the time for the parties to file their simultaneous briefs setting forth their respective positions on whether this case should be heard en banc. The simultaneous briefs shall be filed within twenty-one (21) days of the date of filing of this order. [7094833] (SC)

      10/15/2009 28 Filed Appellant Michael Clay Payton (Informal: No) supplemental brief of 10 pages. Served on 10/13/2009. [7096920] (GV)

      11/04/2009 29 Filed (ECF) Appellee USA response to Court order dated 09/21/2009. Date of service: 11/04/2009. [7119650] (BWE)

      I also looked at the Government’s response on Pacer, and here is the relevant section:

      THE UNITED STATES’ RESPONSE TO THE COURT’S
      SEPTEMBER 21, 2009 ORDER

      The United States does not request en banc review of the panel’s published decision. This does not mean, though, that the United States agrees with the decision.

      In the United States’ view, the panel’s decision is contrary to two principles of controlling Supreme Court and Ninth Circuit case law. First, the Supreme Court has long rejected claims that warrants should include a description by the court of how they are to be executed. See Dalia v. United States, 441 U.S. 238, 254-58 (1979). Instead, it has stated that “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant – subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.’” Dalia, 441 U.S. at 257.(Italics in original). The panel’s decision, however, removes searches of computers from the above axiom by stating that “judges issuing warrants may place conditions on the manner and extent of the searches [relating to] computers.” Payton, 573 F.3d at 864.

      Second, the panel’s decision disregards the similarly long-standing rule that “[a] container that may conceal the object of a search authorized by a warrant may be opened immediately; the individual’s interest in privacy must give way to the magistrate’s official determination of probable cause.” United States v. Ross, 456 U.S. 798, 823 (1982). The panel decision, to the contrary, not only suggests that warrants should contain protocol provisions authorizing computer searches, but it also suggests that it is proper for magistrates, at times, to limit such searches. Payton, 573 F.3d at 864 (“[w]e believe that it is important to preserve the option of imposing such conditions [regarding the extent a computer can be searched] when they are deemed warranted by judicial officers authorizing the search of computers.”). Accordingly, the panel decision is also inconsistent with the clear language of the Supreme Court in Ross.

      Despite the panel’s Payton decision, the United States nevertheless believes that it will have minimal impact with respect to law enforcement’s ability to investigate criminal activity. The United States believes that its criminal investigators’ unexpectedly finding computers during searches authorized by warrants have been, and will continue to be, the exception rather than the rule. In addition, when a computer not explicitly addressed in a warrant is located, a fair reading of Payton in conjunction with United States v. Giberson, 527 F.3d 882 (9th Cir. 2008) will enable law enforcement to nevertheless, in some circumstances, seize the computer pending application for a roll-over warrant to thereafter search it. Accordingly, the decision’s impact on law enforcement is expected to be minimal.

      In addition, in light of the Court’s recent en banc decision in United States v. Comprehensive Drug Testing, 519 F.3d 989 (9th Cir. August 26, 2009), which was issued after the Payton decision, the United States believes it is unlikely that it would prevail before an en banc court in Payton, which involved a search warrant with no search protocols contemplated by Comprehensive Drug Testing. Furthermore, even if the United States did prevail on the narrower issue in Payton, it would not be consequential in light of Comprehensive Drug Testing.

      Finally, even if the decision’s impact on law enforcement is greater than anticipated, the United States believes that other cases may be better suited to allow for further analysis of the issues it addresses.

      Dated: November 4, 2009

      LAWRENCE G. BROWN
      United States Attorney
      By: /s/ Brian W. Enos
      Brian W. Enos
      Assistant U.S. Attorney

      January 3, 2010, 7:17 pm

    2. Jay says:

      If the panel was simply afraid it had gotten it wrong, why wouldn’t it ask the government if it wanted panel rehearing rather than rehearing en banc?

      January 3, 2010, 10:09 pm

    3. Orin Kerr says:

      Thanks, Dave N! I’ll post more about this soon.

      January 3, 2010, 10:57 pm

    4. Dave N. says:

      I realize I should also have noted that the government’s pleading also informed the court that Payton had been allowed to withdraw his conditional guilty plea and that the government had subsequently dismissed the charges against him.

      As a result, it is clear that the government will not seek certiorari.

      January 4, 2010, 1:32 am

    5. ex parte animal says:

      Academics don’t know how to use Pacer?

      I’m not even a litigator… … …

      January 4, 2010, 6:40 am

    6. The Volokh Conspiracy » Blog Archive » New Case on Computer Searches and Plain View: United States v. Kim says:

      [...] decision reminds me of United States v. Payton, the recent Ninth Circuit case in which the Ninth Circuit suppressed evidence found in a computer [...]

      January 8, 2010, 1:19 pm

    7. The Volokh Conspiracy » Blog Archive » United States v. Payton Update says:

      [...] weeks ago, I wrote a post seeking updates on United States v. Payton, a Ninth Circuit computer search and seizure decision [...]

      January 18, 2010, 1:18 pm