Believing therefore that two companies hired to do the testing, Comprehensive Drug Testing (CDT) and Quest, must have testing records, subpoenas were issued to both. Both companies filed motions to quash the subpoenas. Upon discovering that motions to quash were pending, the Government sought and obtained search warrants for CDT's Long Beach office and Quest's Los Vegas office. Eventually, during the month of April, 2004, a total of five separate search warrants were obtained and executed. The warrants authorized the seizure of drug testing records and specimens for ten named Balco-connected players, as well as innumerable other manuals, booklets, etc. The warrants further authorized the search of computer equipment, computer storage devices, and, where an on-site search would be impracticable, seizure of either a copy of all data or the computer equipment itself. If seizure of all data or equipment was determined to be necessary, appropriately trained personnel would be tasked with reviewing the data, retaining the evidence authorized by the warrant and designating the remainder for return.
The first two warrants were executed beginning on the morning of April 8, 2004. At CDT's office, the employees were uncooperative, requiring agents to spend a considerable amount of time checking records, files. and computers. Information discovered during this search led to the obtaining of other warrants and the seizure of considerably more records and files than pertained to the originally listed ten ballplayers.
The Los Vegas Quest office was searched at the same time with more files seized.
Several weeks later, the Players Association filed motions in federal court for the return of the seized records. Meanwhile, with all the new information recovered from the already-seized files connecting many other baseball players to the use of steroids, two new search warrants were obtained and executed, resulted in more records being seized. The Players Association filed another motion for the return of these files as well. In August, a federal district court judge in Nevada granted the Players Association's motion and ordered the return of all records other than those related to the first 10 ballplayers. In so ruling, the judge was very critical of the Government callously disregard(ing) the affected players constitutional rights. A second judge in California made a similar ruling, rejecting the government's argument that "plain view" allowed for the seizure of records not listed in the search warrant. Both courts further criticized the searching agents failure to follow the procedures as set forth in United States v. Tamura (9th Cir. 1982) 694 F.2nd 591, which would have restricted the agents unnecessary rummaging around the companies computer files.
While these two motions were pending, a grand jury issued more subpoenas asking for the records relating to the alleged steroid use by more than 100 other MLB players. Also, new search warrants were sought for CDT's records, alleging that the earlier warrants did not provide all the information that was needed for the investigation. In a motion on these issues, a third judge found that the Government's conduct was unreasonable and constituted harassment. This judge quashed all the subpoenas and ordered the return of all the records seized by the search warrants. The government appealed all three rulings.
The Ninth Circuit Court of Appeal initially affirmed in part and reversed in part, holding that the seizure of records that were intermingled with those listed in the warrant was lawful. (See United States v. Comprehensive Drug Testing, Inc. (9th Cir. 2008) 513 F.3rd 1085.) However, the Ninth Circuit voted to rehear the issues by the court en banc (i.e., an 11-judge panel).
Ruling. The Ninth Circuit Court of Appeal, on rehearing en banc (by a 6-to-2 vote, with 3 justices concurring and dissenting in part), upheld the rulings of the first two district court trial judges and dismissed the appeal of the third judge's ruling as filed untimely. The Court first incorporated the statement of facts from the 9th Circuit.s prior three-judge ruling at 513 F.3rd 1085. In upholding the lower court judges. conclusions and agreeing with their respective criticisms of the procedures used by the searching agents, the Court noted that the searchers failed to follow specific restrictions contained in the warrants that were intended to protect the rights of third parties (e.g., other baseball players) who were not targets of the original warrant. The Court also agreed with the lower court judges in their criticism of the searching agents for not following the dictates of United States v. Tamura. Specifically, Tamura disapproved of the wholesale seizure of records even though hand-searching them at the scene might be too time consuming, suggesting procedures to be used to help protect the privacy of third parties. In such a situation, Tamura suggested that in the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, . . . the Government [should] seal . . . and hold . . . the documents pending approval by a magistrate of a further search.. The Ninth Circuit agreed with the trial judges that the agents in this case ignored both Tamura and the Government.s own self-imposed restrictions contained in the warrant. Specifically, the warrants (and Tamura) provided that should the information be intermingled with other files (as it was), the seized documents should be screened and segregated by qualified computer personnel before the officers involved in the investigation were allowed to review the materials. The agents here failed to do this. Instead, the case agent himself (instead of .qualified computer personnel.) went through the materials, finding in .plain sight. indications of steroid use by baseball players other than the ten who were originally targeted. This new information became the subject of the follow-up warrants and subpoenas. Ignoring the suggested Tamura procedures resulted in the violation of the privacy rights of numerous other baseball players. The Court here recognized that locating specific records in a suspect.s (or, as in this case, in a third party.s) computers, without unnecessarily looking through the private information of other persons for whom there is no probable cause, is indeed a daunting task. The Ninth Circuit justices therefore felt duty-bound to suggest the following .guidance. for judges who review and approve search warrants, to be taken into account before approving warrants whenever it.s necessary to examine computer files, or when a search for evidence might result in the seizure of a computer: