Feds want all justices to hear case

SAN FRANCISCO -- Solicitor General Elena Kagan asked for an unprecedented reconsideration of an appeals court ruling that government agents illegally seized drug-testing samples and records of baseball players who allegedly tested positive for steroids in 2003.

Kagan and 22 lawyers from the Justice Department and U.S. Attorney's offices asked the 9th U.S. Court of Appeals to have all 27 of its judges rehear the long-running case that involves the results of 104 players the government says tested positive during baseball's 2003 survey.

Although the names of the players in dispute are under seal and were to remain confidential, the identities of four have been leaked to the media: Alex Rodriguez, Manny Ramirez, David Ortiz and Sammy Sosa.

The government's brief, filed Monday, didn't address the original facts central to the case but rather new rules for computer searches that were contained in August's decision by Chief Judge Alex Kozinski.

"In some districts, computer searches have ground to a complete halt," the government wrote. "Many United States Attorney's Offices have been chilled from seeking any new warrants to search computers."

A "limited en banc" panel of 9th Circuit judges voted 9-2 in August that investigators trampled on protections against unreasonable searches when they seized the records and samples of 104 players. Prosecutors initially obtained warrants for only the test results of 10 players as part of the Bay Area Laboratory Co-Operative investigation.

Kozinski's majority opinion contained a major change in Fourth Amendment law, ruling that federal magistrates should insist the government waive reliance on the "plain view doctrine" in computer evidence searches. That doctrine allows prosecutors who obtained search warrants to use evidence of other crimes they come upon during the original search.

Kozinski also said specialized computer personnel or third parties should segregate evidence taken during computer searches and that evidence not originally targeted cannot be disclosed to government agents. He also said the government must return or destroy any non-targeted evidence that it seized.

The government said the decision conflicted with Supreme Court decisions and federal rules of criminal procedure that go into effect next month. Prosecutors cited an example in the state of Washington.

"Federal agents received information from their counterparts in San Diego that two individuals had filmed themselves raping a 4-year-old girl and traded the images via the Internet," they wrote. "The agents did not obtain a warrant to search the suspects' computers, however, because of concerns that any evidence discovered about other potential victims could not be disclosed by the filter team. The agents therefore referred the case to state authorities."

In a brief submitted Tuesday, lawyers for the Major League Baseball Players Association said the central finding of the decision should not be reviewed, but they took no opinion on the new rules.

"Those guidelines are unnecessary to the resolution of the issues presented in this case," they wrote.

Since 1980, the 9th Circuit has convened "limited en banc" panels, usually 11 judges, because of its large size and has never had all its judges hear a case.

"The broad issues unnecessarily addressed in the en banc panel's opinion are of surpassing importance and compel that extraordinary action," the government wrote.

University of Pittsburgh School of Law professor Arthur D. Hellman, an expert on the 9th Circuit, expects the court to rehear the case.

"The fact that the Solicitor General added her name sends a very clear signal that this is a very important case for the United States," Hellman said. "This is a mess that the 9th Circuit should clear up."

Any decision by the 9th Circuit could later be taken for review by the Supreme Court.

The government seized the samples and records from Comprehensive Drug Testing Inc. and Quest Diagnostics Inc. in April 2004. The players' association went to court, asking that the records and samples be returned and that subpoenas be quashed, and three District Judges ruled for the union.

When the case originally reached the 9th Circuit, a panel voted 2-1 for the government in 2006. The "limited en banc" panel overturned that decision.

"The decision significantly affects the manner in which searches of electronically stored information may be conducted," Chief Magistrate Judge Karen Stromborn of Tacoma, Wash. wrote in an Oct. 1 letter to prosecutors telling them to adhere to the new computer search guidelines.