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.
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