I blogged a week or so ago about the Ninth Circuit's pending en banc decision in United States v. Comprehensive Drug Testing, a computer search-and-seizure case arising from the investigation into steroid use in baseball. The Court held its oral argument on Thursday, and the audio is available for downloading here.

  The judges on the en banc panel were Kozinski, Kleinfeld, Graber, Wardlaw, W. Fletcher, Paez, Berzon, Callahan, Bea, M. Smith, and Ikuta. I found it a little hard to get a sense of where the court was going because I could only recognize a few of the judges by their voices. A few panelists expressed strong views, but without knowing who they were it was hard to know if those views were likely associated with outcome-determinative votes.

  Anyway, here are a few general thoughts about the argument:

  1) The issue of whether Rule 41 was the right vehicle for this sort of relief received some attention, but my sense was that most of the judges weren't particularly interested in it. If the en banc court ends up reaching the merits and allows this use of Rule 41, the Ninth Circuit may create a novel sort of pre-indictment suppression remedy that may be the most important development of this case. As a practical matter, only rich defendants would be likely to benefit from such a development: Most searches occur before the right to counsel has attached, so pre-indictment challenges would only tend to be brought by suspects wealthy enough to hire sharp lawyers who would know what to do. But this is still an issue very much worth watching.

  2) At argument, the United States tried to circumvent a lot of the difficult questions raised on the merits by arguing that the common denominator of computer searches was one virtual file, rather than specific information revealed to the government. Because the evidence in dispute here was on one file, counsel argued, there were no issues of plain view. I considered this argument in my article on computer searches, and I ended up rejecting it: I concluded that files are just virtual constructs, and it's arbitrary to base a rule on them. Instead, the common denominator of a computer search should be the information exposed. If a government agent sees part of a file and has to scroll down to the bottom of the file to see the rest, that scrolling amounts to an additional Fourth Amendment search. See pages 554-57 of this article for the argument.

  3) Peters, counsel for the Players' Association, offered what I thought was a highly unrealistic sense of how the government can know when they have the needed evidence responsive to a warrant. If I understood him correctly, Peters suggested at argument that when the company came forward with a piece of paper during the execution of the warrant that the company said was the needed test results, the government should have stopped searching and presumed the company's truthfulness and accuracy. Peters reasoned that it looked like in hindsight that the company was being truthful and accurate, and the government should have recognized that. And at the very least, a very minimalist key word search would have done the job. But knowing something ex post is not the same as knowing it ex ante. I think it's a bad idea to have a Fourth Amendment rule that says that you have to rely on that sort of representation or narrow search when executing a warrant, as it would leave the government in the dark about whether there was a larger picture on the computer that casts doubt on what the government agents think they learned.

  A rule requiring that reliance could also create interesting evidentiary hurdles for the prosecution if charges are brought. Imagine you are counsel for a defendant charged with doping, and your client is being charged largely on the basis of evidence that an employee claimed were the relevant test results. The jury won't know that the government relied on the paper to avoid a Fourth Amendment violation. As a defense attorney, you're going to slam the government for relying on the employee with the piece of paper. The real records are on the computer, you would argue, and the government never even checked the computer! How can your client be convicted on the basis of purported evidence when the government never even confirmed that it was the real thing?

  4) Finally, if the Ninth Circuit ends up ruling against the government, the next important issue will become how the court's new standard interacts with the Fourth Amendment's particularity requirement. The warrants here were facially valid, and the challenge is to their execution. But if the court concludes that the warrants were executed improperly, the government will respond by drafting their warrants more broadly so that their execution is more in line with their facial validity. That will put the new doctrinal pressure on the particularity requirement for computer searches, which courts have so far not enforced very strictly. It will be interesting to see if that might change.