CAAF will hear oral argument in United States v. Kelly, No. 12-0524/AR, on Tuesday, February 26, 2013, at 9:30 a.m, at the University of Arizona, James E. Rogers College of Law, Tucson, Arizona, on the following issues:

I. Whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States.
II. Whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not “certain” or “absolutely clear” that it would be returned to the wounded-warrior Appellant.
III. Whether the examination of the contents of Appellant’s computer was an unlawful inspection under M.R.E. 313(b).

When a young man goes to war in the 21st century, he takes with him the accessories of modern life, including a laptop computer. And if he is injured, as the Appellant in Kelly was when his four-vehicle convoy struck a roadside bomb in Iraq in April, 2007, his personal effects are inventoried. An Army policy in effect at the time required that the effects of a dead or missing soldier be sent to the Joint Personnel Effects Depot (“JPED”) to be screened for classified material or any other material “that may cause embarrassment or
added sorrow if forwarded to an eligible recipient.” And while this Appellant was not dead or missing, his effects were sent to the JPED, and his personal computer was examined. The computer was first searched for classified material, with negative results. It was then searched for “gore, porn, and inappropriate,” and child and adult pornography was discovered, leading to charges of an orders violation (because possession of otherwise-lawful pornography was prohibited in Iraq) and of possession of child pornography.

At trial, the Appellant unsuccessfully moved to suppress the evidence discovered on his computer. He then entered conditional pleas of guilty of violating a general order and possession of child pornography, in violation of Articles 92 and 134. He also entered unconditional pleas of guilty of attempted larceny, larceny, and fraudulent claims, in violation of Articles 80, 121, and 132 (based on acts that occurred while he was pending trial on the pornography offenses). A military judge sitting as a general court-martial convicted the Appellant pursuant to his pleas, and sentenced him to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. The Convening Authority reduced the confinement to 17 months.

The Army CCA reviewed the case and affirmed the military judge’s denial of the motion to suppress, finding that the examination of the Appellant’s computer by JPED was a valid inventory pursuant to M.R.E. 313(c). In particular, the ACCA noted:

We reject appellant’s argument that in this particular case the inventory, which included a secondary search for pornographic material, was unreasonable because it was not conducted for any legitimate government purpose. Appellant argues that because the government knew the personal effects were going back to the appellant, there was no reason to conduct a search in order to remove items that might cause sorrow or embarrassment to the recipient. Under our review, however, we do not find in the record that the government knew for certain that the personal effects, including the laptop computer, would be going directly to appellant, thus avoiding the question of whether or not the appellant could be embarrassed by his own possessions. Although there is some evidence that the government was rushing the case in order to get the effects back to appellant, we do not find that it was clear that the personal effects would be going to him directly or to him through a [person eligible to receive effects]. The test used to assess the conduct of the inventory is whether it was reasonable under all the circumstances, and we concur with the military judge in this case that the inventory was conducted reasonably. In fact, only if it was absolutely clear that personal effects would be going directly to appellant could we get to an issue over whether the secondary search might not have been reasonable. It is doubtful, however, that this scenario could ever occur unless an injured soldier actually appeared at the doors of the JPED, and that is not the case here.

United States v. Kelly, No. 20090809, slip op. at 5 (A.Ct.Crim.App. Mar. 27, 2012) (internal citation omitted) (unpublished). CAAF granted review of the first two issues in September, 2012, and then specified the third issue on February 4, 2013.

The Appellant’s brief on the granted issues takes 21 pages to get to what I think is the central theme:

a. The inventory process was invoked as a pretext to ferret out possible evidence of a crime

The government could not conduct an “inventory” search for classified information or pornography on a wounded soldier’s computer without it being a pretext to discover evidence of a crime. Due to applicable statutes, regulations, and punitive orders that applied to SSG Kelly at the time government agents searched his computer, any “inventory” to discover classified information or any form of pornography amounts to government action seeking evidence of a crime. These acts remove this type of search from the inventory exception of Mil. R. Evid. 313(c).

As noted above, even if the government had a legitimate purpose in searching SSG Kelly’s computer for classified information, that purpose disappeared once agents discovered there was no classified information on it. The reason for the second search, to prevent sorrow or embarrassment to a PERE, did not exist in this case. Any invocation of an inventory was nothing more than a pretext to conduct a search for possible evidence of a crime. “In most cases the inventory will not uncover any matter relevant to a criminal prosecution. This circumstance alone tends to the conclusion that it was not designed as a subterfuge for a search without probable cause.” Kazmierczak, 16 U.S.C.M.A. at 600, 37 C.M.R. at 220. However, due to the applicability of GO#l and AR 380-5, any government search of SSG Kelly’s computer for pornography or classified information that found such files would constitute direct evidence of crime.

App. First Br. at 21-22. The Government’s response begins with a discussion of inventory searches in general, particularly police inventories of impounded vehicles (Gov’t First Br. at 14-15) and of an arrestee’s person and possessions upon arrival at the stationhouse (Gov’t First Br. at 15-16). The Government then invokes the Government’s “interest in avoiding further sorrow and embarrassment to whoever receives the personal effects,” which it claims is “reasonable and legitimate.” Id. at 20. It argues that “examining the contents of a computer is comparable to pursuing another’s mail or examining the contents of a closed suitcase.” Id. at 23. And it concludes that “The Army has a reasonable interest in alleviating any further suffering or embarrassment for appellant, his family, and his loved ones. An inventory that sanitizes those materials, pursuant to a standard operating procedure, is reasonable in this case.” Id. at 25. The Government also argues that the searches were “the functional equivalent of a boarder search.” Id. at 28.

The Government’s response also addresses, in part, the Appellant’s argument that any search for classified material or pornography was necessarily a search for evidence, since the Appellant was still alive and his possession of either category of material would have constituted a crime. “Appellant was never suspected of any criminal activity until the child pornography was found on his computer; this inventory was not a subterfuge. Appellant was not singled out for a more thorough evaluation, and no person expected to find child pornography or any other contraband.” Gov’t First Br. at 24. But this argument doesn’t explain how a search for pornography (possession of which constituted a crime), or other images (i.e., pictures of enemy remains, also constituting a crime), or a search for things that might be “embarrassing” (without an understanding of what might be embarrassing in a particular case), isn’t necessarily a search for evidence when the owner of the property is alive and subject to prosecution for any discoveries.

Moreover, it’s a particularly bad argument when the search itself is as likely to cause embarrassment as it is to prevent it; consider the possibility of the JPED’s discovery of naked pictures of a serviceman’s wife, known to the wife to exist on her husband’s personal computer (because she sent them to him), and her subsequent discovery that the pictures disappeared after her husband’s combat death. She can only wonder who saw the pictures, and what they did with them. Or consider a sex toy, sent to a servicemember by his or her spouse, but not returned because it was discovered by JPED examiners sifting through the deceased’s personal effects. It’s enough to make me wonder if the military employs a rule like that discussed in the movie Fight Club: “it’s [Army] policy never to imply ownership in the event of a dildo. We have to use the indefinite article, a dildo, never your [husband’s] dildo.”

There’s also the possibility of the reverse scenario: JPED discovering items it doesn’t believe are embarrassing (tobacco products, for example), and forwarding those items to a next-of-kin (who is dismayed to learn that the deceased had lied about quitting tobacco). Such hypotheticals betray the subjective, ad hoc nature of the process at issue in this case.

CAAF’s specified issue creates a totally different avenue of approach. Because the Appellant entered conditional pleas (in part), if he prevails on the suppression issue he will be permitted to withdraw those pleas, pursuant to R.C.M. 910(a)(2). However, the trial judge and the CCA considered the suppression issue in the context of an inventory, a point highlight in the Appellant’s second brief: “the Government forfeited the argument that the search of [the Appellant’s] computer was an inspection because it failed to argue this before the military judge and the Army court.” App. Second Br. at 1-2. The rules of forfeiture and waiver are certainly familiar to the defense bar, and The Supreme Court recently restated that they also apply to the Government. United States v. Jones, 132 S.Ct 945, 954 (2012) (“The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because ‘officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.’ . . . We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. . . . We consider the argument forfeited.”). The Appellant asks CAAF to “refrain from answering the Specified Issue.” App. Second Br. at 1.

The Appellant also argues that the search was not a valid inspection because it was not ordered by a commander with authorization over the property, nor was it intended to ensure the military fitness, security, or readiness of a unit. Id at 2. Considering the Government’s candid admissions that the search was intended to avoid embarrassment, calling it a valid inspection seems like a stretch. But the Government reaches, noting that the all-Army activities message that established this process states that “[personal effects] collection, inventory, safeguarding, and disposition is a command responsibility.” (Gov’t Second Br. at 4) (emphasis added in brief). Repeatedly, the Government insists that the Appellant’s command was not on “auto-pilot” when it inventoried the Appellant’s effects and forwarded them to JPED (though it provides no explanation how the command could have done anything but what it did). The Government also makes the laughably-subjective that “As a matter of military fitness, Soldiers need not be distracted or worried that their family members will receive embarrassing PE if that Soldier is medically evacuated or killed.” Id. at 7. As illustrated above, this all depends on what is found (and certainly in this case, the Appellant and his family have suffered far greater embarrassment than they would have had the search not occurred).

The Army’s position (and the way it handles personal effects) stretches the bounds of inspections and inventories in a number of ways, and there doesn’t seem to be any reason to limit this technique combat situations. A servicemember injured in training, or while on liberty, leaves a similar trail of personal effects and creates a similar motivation to conduct such a warrant/suspicion-less search. My guess is that if CAAF will endorse this procedure – and I suspect that it will not –  it will do so only under very fact-specific circumstances. For this reason, I predict a tough oral argument for the Government.

Case Links:
ACCA opinion
Appellant’s first brief (granted issues)
Appellee’s (Government) first brief (granted issues)
Appellant’s second brief (specified issue)
Appellee’s (Government) second brief (specified issue)
Blog post: Argument preview

One Response to “Argument Preview: United States v. Kelly, No. 12-0524/AR”

  1. Tami says:

    There are a LOT of Soldiers who experienced this same problem.  JPED searching thru computers in an arbitrary and capricious manner.  Some categories of Soldiers, they never scanned their computers.  Some Soldiers, they scanned computers 3-5 times for “classified information.”  Some cases, scanning for child porn was at the behest of CID, with instructions to ignore “regular porn” because CID wasn’t interested in that.