CAAF decided United States v. Kelly, No. 12-0524/AR, 72 M.J. 237 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that the search of the Appellant’s personal computer was neither a valid inventory nor an inspection under Military Rule of Evidence 313(b) or (c), reversing the Army CCA, setting aside the Appellant’s convictions (entered pursuant to his conditional pleas) for disobeying a general order and possession of child pornography, and remanding the case for a sentence reassessment or sentence rehearing.

Judge Erdmann writes for a unanimous court.

The Appellant was injured when his four-vehicle convoy struck a roadside bomb in Iraq in April, 2007, and 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.” 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), and its primary purpose was administrative. CAAF then granted review, and before CAAF the Appellant argued that “the inventory process was invoked as a pretext to ferret out possible evidence of a crime.” App. Br. at 21 (discussed here). CAAF agrees with the Appellant.

Analyzing the search under traditional criteria applicable to inventories and inspections under M.R.E. 313, Judge Erdmann finds that:

SSgt RM’s search of Kelly’s laptop for “gore,” “inappropriate,” and “porn” amounted to a specific search for contraband which, once discovered, was turned over to CID pursuant to JPED’s established protocols.

Slip op. at 17. He also notes that the search “did not produce anything resembling an inventory — once the articles were searched they were simply shipped out.” Slip op. at 18. As for an inspection, Judge Erdmann notes the absence of a critical feature of an inspection:

The reasonableness of an inspection is determined by whether the inspection is conducted in accordance with the commander’s inspection authorization, both as to the area to be inspected, and as to the specific purpose set forth by the commander for ordering the inspection. Under these guidelines, the search of Kelly’s computer cannot be classified as an inspection because JPED’s search for “gore” “inappropriate” and “porn” was not authorized as an inspection by anyone, let alone an officer with authority to order an inspection. And in this case, the primary purpose of the search for “gore,” “inappropriate,” and “porn” did not determine or ensure the security, military fitness, or good order and discipline of the unit.

Slip op. at 19 (citations and marks omitted). These deficiencies leave the search without a legal justification, and CAAF “therefore hold[s] that the search of Kelly’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure. The military judge abused his discretion when he denied Kelly’s motion to suppress the evidence found on his laptop, and the CCA erred in affirming that decision.” Slip op. at 20.

In my preview of this case, I remarked that:

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.

CAAF’s rejection of the Army’s practice of searching the electronic media of injured soldiers like the Appellant is a reminder that the military’s authority to search and seize is strictly circumscribed to the traditional bounds of the Fourth Amendment, with only limited uniquely-military exceptions that must be narrowly tailored.

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
CAAF argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: United States v. Kelly, No. 12-0524/AR”

  1. Tami says:

    There are multiple servicemembers who fell victim to these same procedures, challenged the searches at trial, but the evidence was not suppressed.  Under this opinion, the evidence would have been suppressed.  I had one such client whose sentence did not qualify for Article 66 review, and I don’t know if he appealed under Article 69.

  2. Contract Lawyer says:

    Anyone surprised by this decision?  
    I cannot believe my colleagues allowed this case to to this far.  Is ACCA just a tool to cover for TCs and MJs?  I am not saying it is, just asking.

  3. Tami says:

    I’m surprised it took this long.  JPED has been snooping through wounded Soldiers’ belongings for many years.  At the time I filed my motion to suppress, JPED had already gone thru belongings of over 9,000 wounded Soldiers.