Government May Retain Intermingled Evidence Seized from MLB Drug Testing Labs

As part of its ongoing investigation into the Bay Area Lab Cooperative (“Balco”) and its alleged distribution of steroids to professional baseball athletes, the federal government obtained grand jury subpoenas and search warrants for two drug testing laboratories, Comprehensive Drug Testing, Inc. (“CDT”) and Quest Diagnostics (“Quest”). Although the facts are complex, this case generally concerns the investigation of steroid use by ten Major League Baseball (“MLB”) players that resulted in the seizure of intermingled evidence which included drug-testing records of players other than the ten named in the search warrants. Objecting to the overbreadth of the search, the Major League Baseball Players Association (“Players Association”) successfully filed two motions for the return of seized evidence relating to these other players, and one motion to quash a subpoena. Upon appeal, the Ninth Circuit Court of Appeals held that the intermingled evidence was legally seized and the government did not have to return this evidence. Thus, the Court held that the district court judges erred in granting the motions for return of evidence and the motion to quash, and subsequently reversed all three orders.

Initial warrants in the investigation authorized seizing test results and records for ten named MLB players, but the information was intermingled with test results for other players not named in the search warrant. Government agents ultimately copied an entire file directory, called the Tracey directory, for off-site analysis. In addition to the Tracey directory, which contained all the computer files for CDT’s sports drug testing programs, the agents also took lists of all MLB players tested in 2003 as well as positive test results for eight of the named players, mixed among results for twenty-six other players. This information led to a broader search at Quest for information related to all players who tested positive. In response, the Player’s Association filed Fed. R. Crim. P. 41(g) motions to order the return of all evidence unrelated to the ten named players.

In determining whether the intermingled evidence had to be returned, the Court of Appeals considered whether the Government displayed a “callous disregard for the constitutional rights” of the laboratories and players in seizing this evidence. See Ramsden v.United States, 2 F.3d 322 (9th Cir. 1999). To address this, the Court relied on its opinion in United States v. Beusch, 596 F.2d 871, 877 (9th Cir. 1979) which concluded that no Fourth Amendment violation occurs when agents seize “single files and single ledgers” which “though theoretically separable, in fact constitute one volume or file folder.” The Court also cited its opinion in United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982), which condemned the “wholesale seizure” of unrelated files “for later detailed examination of records not described in the warrant.” However, the majority opinion considered the evidence in this case to be intermingled files more like those in Beusch, and thus legally seized. Although the dissent argued that the Tracey directory and its unrelated files constituted wholesale seizure as forbidden by Tamura, the majority concluded that in the computer context, as long as a database or directory includes some relevant files and cannot be separated onsite, the Government is entitled to retain the data.

The dissent contended that the majority underestimated the importance of privacy by ignoring the procedural safeguards outlined in Tamura. The Tamura court recognized that separation of files and data is sometimes infeasible and therefore suggested standards for remaining within Fourth Amendment bounds. These standards include sealing and holding intermingled documents pending magistrate approval, a procedure that has been part of the court’s precedent for nearly a quarter of a century. Tamura, 694 F.2d at 595-96. In this case, the majority dismissed the Tamura procedures as dicta and held that the government could keep and search intermingled data pursuant to Beusch. Only upon objection by the aggrieved party must the Government seal the evidence and present it to a neutral magistrate. Thus, the majority’s opinion supplants the Tamura safeguards by authorizing the Government to search intermingled data before a magistrate has authorized the search.

Given that the Government seized and retained the intermingled evidence legally, the majority found that the Government did not show a callous disregard for Constitutional rights. Thus, the motions for return of the seized property were in error, and all three orders were reversed. Because the Player’s Association had raised proper objections, the two Fed. R. Crim. P. 41(g) cases were also remanded for magistrate review of the intermingled evidence.

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