BALCO Investigation Lingers in US Courts
The United States government announced that it will not ask the Supreme Court to review a September decision by the Ninth Circuit Court of Appeals, which ordered the government to return information relating to over 100 MLB players who had apparently tested positive for banned substances including steroids.
In 2002, the government began investigating BALCO, which it suspected of providing steroids to MLB players. That year, MLB and the players’ union agreed to conduct random drug testing, with the caveat that the results were to remain anonymous and confidential. The purpose of the drug testing was to evaluate the extent of banned substance usage among MLB players - if testing determined that more than 5% of players were using banned substances, MLB would continue testing the following season.
During the investigation, the government obtained evidence that 10 players had tested positive, and secured a grand jury subpoena for all records at the testing facility, CDT. CDT and the players’ union filed a motion to quash the subpoena (which prevents the information from being turned over until a court has the opportunity to rule on the legality and parameters of the subpoena), and the government then obtained a warrant to seize records pertaining only to those 10 players.
Instead, the government went far beyond the scope of the warrant, and removed an entire electronic file in CDT’s possession which contained information on approximately 100 MLB players and other athletes. The government argued that the data could not be segregated at CDT’s facility. Further, since the data on the other athletes was in “plain view,” the government contended that the documentation was appropriately seized and could be used against those athletes. The “plain view doctrine” permits law enforcement officers to seize evidence that is within the officer’s “plain view” while that officer is lawfully present. For example, if an officer has a warrant to search your bedroom for a certain item, and observes drugs on a table in the hallway, that evidence can be seized and used against you, but the officer cannot look through drawers in the hallway, unless the warrant authorizes same or the officer otherwise has probable cause to look there.
The Court of Appeals held that, if it accepted the government’s proposition, then everything the government chooses to seize will automatically come into plain view when searching for evidence electronically. The government also failed to have computer personnel conduct the initial review and segregate the materials that were not the subject of the warrant. The effect of this decision is that the evidence obtained by the government cannot be used against any of the athletes except for those ten MLB players, as it was unlawfully obtained and would be excluded. There are some exceptions (the evidence can still be used to impeach the athlete’s testimony, if the athlete chooses to testify), none of which appear to apply here. Instead, the government will have to uncover additional evidence unrelated to what it discovered at CDT.
My name is Christopher Fusco. I am the managing partner of Callahan & Fusco, LLC with offices in New York, New Jersey, and Pennsylvania.