Feds Want Rehearing of MLB Drug List Ruling

News Item-- SAN FRANCISCO Tuesday, November 24, 2009 (AP) —  Federal officials are asking for a rehearing of an appeals court decision that said the government illegally seized a list of Major League Baseball players who tested positive for steroids.

Officials say their investigations have been hampered by the ruling, which established new rules for digital searches.

In a court filing Tuesday, the government asked the 27 judges of the 9th U.S. Court of Appeals to reconsider the case.

A panel of 11 9th Circuit judges ruled in August that investigators trampled on protections against unreasonable searches and seizures when they seized the list of 104 players who tested positive in the 2003 season. The investigators were armed with warrants for only the test results of 10 players.
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I hope the feds lose this appeal and you should, too, even if you never watch baseball. They had warrants for ten sets of results and that is all they should have gotten. Those were the results relative to the investigation they were conducting. If they later found evidence indicating that they needed to get results from other players, they could have gone back to a judge for an additional warrant. Grabbing 104 results when they had warrants for 10 is clearly overreaching.

The feds had no excuse for overreaching here. One wonders why they needed as many as ten results, except for the possibility that they wanted a pool of players some of whom they could pressure to rat out the drug designers at the BALCO lab. This was a run-of-the-mill drug investigation, not a terrorism case with lives in imminent danger. The only reason they didn’t get another warrant is that they think they it’s a pain in the butt.

Let’s put aside the controversial issues of whether we should even care if an athlete takes performance enhancing drugs, or whether all drugs should be legalized for adults. Let’s talk about the fact that the players took the tests after having been assured by MLB that they were just a survey and that the results would be kept secret and there would be no punishment for a positive test. The players had an expectation of privacy in the results. Expectation of privacy is what judges look for in deciding whether a search and seizure is unreasonable. 

Frankly, I think it is too loosey-goosey a standard, as judges these days seem to take a dim view of your expectation of privacy, and anonymity, which is an aspect of privacy, the minute you set foot outside you house. I don’t like my expectation of privacy left to the subjective criteria of a judge who might be an exhibitionist,  or one of those “if you have nothing to hide, you shouldn’t mind the government taking a peek” kinds of fools. Nevertheless, the players met the expectation-of-privacy standard in this case. The privacy of the results was the carrot that MLB extended to get the players union to agree to the testing.

A fed victory here will be another blow to the Fourth Amendment. And blows to the Fourth Amendment are pretty close to beating a dead horse as it is. Their interest in conducting a drug investigation is not as important as our right to keep to keep the feds out of our business. The warrant requirement of the Fourth Amendment is our constitutional protection against government fishing expeditions. We should not give is up in the name of the so-called War on Drugs.

They who would give up an essential liberty for temporary security, deserve neither liberty or security.
– Benjamin Franklin