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 Major League Baseball (MLB) players who allegedly tested positive for steroids in 2003.
Kagan and 22 lawyers from the Justice Department and US Attorney’s offices asked the 9th US 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 MLB’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 on 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.
In a brief submitted on 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.
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