United States v. Kelly

UNITED STATES, Appellee
v.
Bruce L. KELLY, Staff Sergeant
U.S. Army, Appellant
No. 12-0524
Crim. App. No. 20090809
United States Court of Appeals for the Armed Forces
Argued February 26, 2013
Decided May 23, 2013
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and COX, S.J., joined.
Counsel
For Appellant: Captain Ian M. Guy (argued); Colonel Patricia A.
Ham, Lieutenant Colonel Jonathan F. Potter, and Major Jacob D.
Bashore (on brief).
For Appellee: Captain Sean Fitzgibbon (argued); Lieutenant
Colonel Amber J. Roach, Major Catherine L. Brantley, and Captain
Edward J. Whitford (on brief).
Amicus Curiae for Appellant: Michelle L. Behan (law student)
(argued); David C. Potts (law student), Matthew W. Randle (law
student), and Paul D. Bennett, Esq. (supervising attorney) (on
brief) -- for the University of Arizona James E. Rogers College
of Law.
Military Judge: Andrew Glass
This opinion is subject to revision before final publication.
United States v. Kelly, No. 12-0524/AR
Judge ERDMANN delivered the opinion of the court.
A military judge sitting as a general court-martial
convicted Staff Sergeant (SSgt) Bruce L. Kelly, pursuant to his
conditional pleas, of disobeying a general order and possession
of child pornography, in violation of Articles 92 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934
(2006). The military judge also convicted Kelly, pursuant to
his unconditional pleas, of attempted larceny, larceny, and
fraudulent claims, in violation of Articles 80, 121, and 132,
UCMJ, 10 U.S.C. §§ 880, 921, 932 (2006). The military judge
sentenced Kelly to confinement for eighteen months, reduction to
E-1, and a bad-conduct discharge. The convening authority
approved confinement for seventeen months, reduction to E-1, the
bad-conduct discharge, and waived automatic forfeitures for six
months. The United States Army Court of Criminal Appeals (CCA)
affirmed the findings and sentence. United States v. Kelly, No.
ARMY 20090809 (A. Ct. Crim. App. Mar. 27, 2012). 1
“The Fourth Amendment of the Constitution protects
individuals, including servicemembers, against unreasonable
searches and seizures.” United States v. Long, 64 M.J. 57, 61
(C.A.A.F. 2006). Official intrusions into areas where there is
1
We heard oral argument in this case at the University of
Arizona James E. Rogers College of Law as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
United States v. Kelly, No. 12-0524/AR
a reasonable expectation of privacy “require search
authorization supported by probable cause, unless they are
otherwise lawful under the Military Rules of Evidence (M.R.E.)
or the Constitution of the United States as applied to members
of the armed forces.” Id. We granted review of this case to
determine whether the search of Kelly’s personal computer was a
valid inventory or inspection under M.R.E. 313(b) or (c). 2 We
hold that the search was not a valid inventory or inspection and
therefore reverse the decision of the CCA.
2
We granted review of 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.
United States v. Kelly, 71 M.J. 403, 403-404 (C.A.A.F. 2012)
(order granting review). On February 4, 2013, we specified the
following issue:
Whether the examination of the contents of
Appellant’s computer was an unlawful inspection under
M.R.E. 313(b).
United States v. Kelly, 72 M.J. 82 (C.A.A.F. 2013) (order
specifying issue).
3
United States v. Kelly, No. 12-0524/AR
I. Factual Background
While serving in Iraq, Kelly was wounded when his vehicle
hit an improvised explosive device. Because of his injuries,
Kelly was medically evacuated out of Iraq. On April 30, 2007,
two days after Kelly was injured, a summary court-martial
officer (SCMO) was appointed and tasked with inventorying
Kelly’s personal belongings. The inventory included two laptops
-- Kelly’s personal laptop and a second laptop which belonged to
the Army. Once the inventory was complete, the SCMO sent
Kelly’s personal effects (PE) to Mortuary Affairs at Camp
Stryker in Iraq. Mortuary Affairs, in turn, sent Kelly’s PE to
the Joint Personal Effects Depot (JPED) at Aberdeen Proving
Grounds, Maryland.
When Kelly’s personal laptop arrived at JPED, it was given
to SSgt RM, a computer examiner, for analysis. At the time of
Kelly’s injury, JPED carried out its review of his PE pursuant
to Dep’t of the Army, Reg. 638-2, Deceased Personnel, Care and
Disposition of Remains and Disposition of Personal Effects para.
20-6 (Dec. 22, 2000) (AR 638-2). SSgt RM was told that it was a
“rush case” because the laptop belonged to a wounded soldier who
wanted his PE back. SSgt RM first searched the laptop for
classified material, pursuant to AR 638-2, para. 20-6, which
provides:
All documents and any sealed material in the PE will
be reviewed to ensure proper safeguarding of military
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United States v. Kelly, No. 12-0524/AR
information. Classified material and material
warranting classification will be withdrawn and
submitted to the intelligence officer for review and
proper disposition. Material suitable for release
will be returned by the intelligence officer for
disposition as PE.
No classified material was found on the laptop.
According to SSgt RM’s sworn statement, after the search
for classified material, “the next step was to search for Videos
which we the Media Center check for the following categories:
Gore, Innappropriate [sic], and Porn.” This search was based on
AR 638-2, para. 20-14.a., which provides:
Inappropriate items that may cause embarrassment or
added sorrow if forwarded to the recipient will be
withdrawn and destroyed. Categories include, but are
not limited to, items that are mutilated, burned,
bloodstained, damaged beyond repair, obnoxious,
obscene, or unsanitary. Correspondence (opened mail),
papers, photographs, video tapes, and so forth must be
screened for suitability. . . . Unsuitable items will
be removed and destroyed.
The search for “gore,” “inappropriate,” and “porn,” yielded a
folder labeled “Porn videos and porn pictures.” At that point,
SSgt RM discovered what he believed was child pornography. He
notified his supervisor who confirmed that the videos contained
child pornography.
The noncommissioned officer in charge (NCOIC) of JPED
explained that if child pornography is discovered during the
search of a laptop, JPED protocol called for the following
procedures:
5
United States v. Kelly, No. 12-0524/AR
As soon as one of the examiner[s] find suspected child
pornography and the Soldier is wounded we notify CID.
If the owner of the computer was killed in action we
sanitaze [sic] the hard drive before turning [sic] the
property to the family. If it happens to be adult
pornography we just sanitize the computer and send it
to the family or the owner. The reason we search
computer [sic] is to ensure there is no classified
material within the hard drive that can later
compromise the mission.
In accordance with this protocol, Kelly’s computer was sent to
Aberdeen Proving Grounds Criminal Investigation Division Command
Office (CID). On June 28, 2007, a CID Special Agent submitted
an affidavit to a military magistrate for a search authorization
for Kelly’s personal computer. The basis for the search
authorization was the child pornography discovered as a result
of the initial search conducted by JPED. The magistrate
authorized the search and CID located the images of child
pornography on Kelly’s computer.
II. Procedural Background
At his court-martial, Kelly filed a motion to suppress the
evidence of child pornography obtained from his computer. Kelly
argued that he had a reasonable, subjective expectation of
privacy in his personal computer; the Government had no
legitimate interest in reviewing wounded and killed soldiers’ PE
for pornography; and the “good faith” exception to the Fourth
Amendment exclusionary rule was not applicable. During
arguments on the motion, defense counsel also argued that the
Government’s basis for the search, AR 638-2, was not applicable
6
United States v. Kelly, No. 12-0524/AR
to Kelly because he was wounded, not deceased or missing. AR
638-2 specifically provides that it does not apply to “[t]he PE
of soldiers who are patients in medical treatment facilities and
not deceased.” AR 638-2, para. 17-1.b.(7).
The Government opposed the motion arguing AR 638-2 was
modified by ALARACT 139/2006 to include wounded soldiers as well
as deceased or missing soldiers. 3 Due to this modification, the
Government argued that AR 638-2 was applicable to Kelly’s
circumstances and that SSgt RM’s search was a lawful inventory
under M.R.E. 313(c). Alternately, the Government suggested that
the inspection was a lawful search under M.R.E. 314(k), the
“catch-all provision.” 4
In denying the Motion to Suppress, the military judge held:
Prior to July 2007, the JPED processed the [PE] for
Service Members who were killed or missing in action.
. . . In July 2006, these[] procedures were modified
by ALARACT Message 139/2006, Policies and Procedures
for the Handling of Personal Effects (PE) and
Government Property, DTG 210236Z Jul 06. This message
modified the processing of PE to include individuals
who were medically evacuated from the CENTCOM theater
3
Dep’t of the Army, All Army Activities Message 139/2006,
Policies and Procedures for the Handling of Personal Effects
(PE) and Government Property (July 2006) (ALARACT). ALARACT was
an electronic message, dated July 2006, entitled, “POLICIES AND
PROCEDURES FOR THE HANDLING OF PERSONAL EFFECTS (PE) AND
GOVERNMENT PROPERTY.” The purpose of the message was to
“provide guidance for processing personal effects (PE) and
Government property from the CENTCOM theater of operations for
soldiers . . . who are killed in action (KIA), missing in action
(MIA), or medically evacuated.”
4
At no point in the proceedings has the Government challenged
Kelly’s reasonable, subjective expectation of privacy in his
personal computer.
7
United States v. Kelly, No. 12-0524/AR
of operations. The message incorporated its
provisions into AR 638-2, Joint Publication 4-06, and
several other publications.
Emphasis added. The military judge cited M.R.E. 313(c) and held
that “the search of the computer was an attempt to accomplish
[the] reasonable government purpose and was conducted in a
reasonable manner.” After the denial of the defense’s motion to
suppress the evidence seized from the laptop, Kelly entered
conditional guilty pleas to possession of child pornography and
wrongfully possessing pornography in violation of a lawful
general order.
On appeal to the CCA, Kelly challenged the military judge’s
ruling on the motion to suppress. The lower court accepted the
military judge’s findings of fact and conclusions of law, but
noted:
The discrepancy we have with the military judge’s
legal conclusion is in his finding that the ALARACT
incorporated its provisions in [AR] 638-2 . . . and
several other publications. This is an error because
there is a separate regulatory restriction against
disseminating policy and procedure revisions by
electronic message. Moreover, it is questionable
whether an Army message would have authority to change
a Joint publication.
Kelly, No. ARMY 20090809, slip op. at 3.
In a related footnote, the CCA elaborated:
See Army Reg. 25-30, The Army Publishing Program
[hereinafter AR 25-30], para. 2-3 (27 March 2006): “An
electronic message will not be used to disseminate new
or revised [Department of the Army], agency, or
command policy or procedures. Electronic messages may
be used to notify commands and agencies of impending
8
United States v. Kelly, No. 12-0524/AR
new policy and procedures, changes, or revisions when
it is immediately necessary to maintain national
security, ensure the safety or well being of the
soldiers, or to avoid legal action against the
[Department of Defense].” See also AR 25-30, para.
3-5, and Dep’t of Army, Pam. 25-40, Army Publishing:
Action Officer Guide, para. 12-5 (7 November 2006).
Id. at 3 n.5. Although noting these procedural inconsistencies,
the CCA found them to be “inconsequential” because the military
judge “applied the law correctly in his separate finding, that
the ALARACT defined the SCMO’s duties as consistent with AR 638-
2.” Id. at 3. The CCA held that the ALARACT “plainly
authorized inventories of the [PE] of medically evacuated
soldiers.” Id. at 4. The CCA rationalized that although AR
638-2 was “technically only for processing the personal effects
of deceased and missing soldiers,” there was “no prohibition” on
mandating those same procedures for PE of wounded soldiers
because “in the context of the type of injuries commonly
sustained in the current deployed environments” including,
“traumatic brain injuries and loss of limbs,” victims may be
“unconscious and require lengthy hospital stays and
rehabilitation.” Id. The CCA found the inventory was lawful as
it was conducted reasonably and its primary purpose was
administrative. Id.9
United States v. Kelly, No. 12-0524/AR
III. Discussion
a. Arguments on Appeal
Before this court Kelly argues that the Government violated
his Fourth Amendment rights when it searched his personal laptop
without a lawful search authorization or a recognized exception.
Kelly urges the court to reject the Government’s assertion that
the search was a legitimate inventory. Kelly contends that the
Government’s justification for searching his computer was AR
638-2, which is only applicable to deceased and missing
soldiers. Further, Kelly argues that the military judge and the
CCA erred when they found the Government had a legitimate
interest in searching the personal effects of wounded soldiers
to protect others from embarrassing material. Finally, Kelly
argues that JPED’s actions were not ordered by his commander in
order to ensure the military fitness or readiness of the unit
and thus do not amount to an inspection under M.R.E. 313(b).
The Government urges us to affirm the CCA, arguing that the
military judge correctly applied M.R.E. 313(c) when he found
that JPED’s search was conducted to accomplish an administrative
purpose, rather than discover illegal activity. Additionally,
the Government argues that JPED’s process “fits comfortably
within the common understanding of an inventory.” The inventory
of Kelly’s computer, the Government contends, was in line with
the Government’s interest in avoiding the release of classified
10
United States v. Kelly, No. 12-0524/AR
information and preventing additional sorrow or embarrassment.
Regarding the specified issue, the Government argues that JPED’s
actions amount to a lawful inspection under M.R.E. 313(b) based
on the rationale set forth in AR 638-2.
b. Law
“We review a military judge’s decision to suppress or admit
evidence for an abuse of discretion.” United States v. Miller,
66 M.J. 306, 307 (C.A.A.F. 2008) (citations omitted). “A
military judge abuses his discretion when his findings of fact
are clearly erroneous, the court’s decision is influenced by an
erroneous view of the law, or the military judge’s decision on
the issue at hand is outside the range of choices reasonably
arising from the applicable facts and the law.” Id. (citations
omitted).
“The Fourth Amendment provides in relevant part that the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” United States v. Jones, 132 S. Ct. 945,
949 (2012) (internal quotation marks omitted). However, “[t]he
Fourth Amendment does not protect against all searches.” United
States v. Michael, 66 M.J. 78, 80 (C.A.A.F. 2008). “Rather, it
proscribes only unreasonable searches. ‘The ultimate standard
set forth in the Fourth Amendment is reasonableness.’” Id.(quoting Cady v. Dombrowski, 413 U.S. 433, 439 (1973)).
11
United States v. Kelly, No. 12-0524/AR
“Official intrusions into protected areas in the military
require search authorization supported by probable cause, unless
they are otherwise lawful under the Military Rules of Evidence
(M.R.E.) or the Constitution of the United States as applied to
members of the armed forces.” Long, 64 M.J. at 61. Pursuant to
M.R.E. 313(a), “[e]vidence obtained from inspections and
inventories in the armed forces conducted in accordance with
this rule is admissible at trial when relevant and not otherwise
inadmissible under these rules.”
1. Applicability of AR 638-2
The Summary of AR 638-2 provides “[t]his regulation
prescribes policies for the care and disposition of remains of
deceased personnel for whom the Army is responsible (part I,
chaps 1-16) and for the disposition of personal effects of
deceased and missing personnel (part II, chaps 17-20).” AR 638-
2, at i. As discussed supra, Chapter 17 explicitly states that
AR 638-2 does not apply to “soldiers who are patients in medical
treatment facilities and not deceased.” AR 638-2, para. 17-
1.b.(7).
Before this court, the Government has abandoned its
original position that the ALARACT “modified” AR 638-2, instead
arguing that the CCA “reasonably interpreted its regulations and
this Court should adopt that interpretation.” The Government
12
United States v. Kelly, No. 12-0524/AR
goes on to suggest that “it is reasonable to apply [AR 638-2] to
living, wounded Soldiers.”
The suggestion that the Army could informally alter AR 638-
2 by reference to the ALARACT is clearly incorrect. The
ALARACT, to the extent that it is intelligible at all, did not
amend the Army procedures and no one who was otherwise
authorized to impose such procedures by directive or order did
so. The method adopted by the Army to apply the provisions of
AR 638-2 to wounded or medically evacuated soldiers through the
ALARACT violated the Army’s own procedure for adopting or
amending an Army regulation. See Dep’t of the Army, Reg. 25-30,
Information Management: Publishing and Printing, The Army
Publishing Program paras. 2-3.a.(2), 3-5. (Mar. 27, 2006) (“An
electronic message will not be used to disseminate new or
revised [Dep’t of the Army], agency, or command policy or
procedures.”).
Equally flawed is the CCA’s implicit conclusion that, while
the Army could not amend the regulation through an electronic
message, it could effectively achieve the same result by
independently mandating the use of the procedures found in AR
638-2 for processing PE of deceased and missing soldiers to the
PE of wounded and medically evacuated soldiers. Not only was
the manner of the attempted amendment improper, the application
13
United States v. Kelly, No. 12-0524/AR
of AR 638-2 to wounded soldiers directly conflicts with the
existing provisions of the regulation.
Further, while the Army’s attempt to apply AR 638-2 to
wounded soldiers was procedurally flawed and internally
inconsistent, it also generally conflicts with the provisions of
AR 40-400, Medical Services, Patient Administration, that
provides guidance on the processing of PE for wounded soldiers
who are admitted for treatment in medical facilities. 5
Irrespective of the Army’s noncompliance with its own
procedural requirements, the military judge’s ruling on the
admission of the evidence relied on the inventory exception set
forth in M.R.E. 313(c), and the Government argues that JPED’s
search of Kelly’s laptop can be classified as either an
5
Paragraph 4-4 of AR 40-400 states that “[w]hen a patient is
admitted, his or her personal effects will be inventoried
immediately and Government-owned weapons and other organization
equipment will be returned to the patient’s assigned unit . . .
.” Dep’t of the Army, Reg. 40-400, Medical Services, Patient
Administration para. 4-4. (Oct. 23, 2006) (AR 40-400). AR 40-
400, paragraph 4-5, entitled “Personal effects,” provides that:
Patient clothing and baggage will be secured based
upon patient needs. . . . When clothing and effects
are accepted in the baggage room, an original and two
copies of DA Form 4160 will be prepared. The
patient’s personal property, other than money or
valuables, will be inventoried and listed on all
copies of DA Form 4160. . . . Upon discharge, the
patient and the clerk will sign the spaces on the
reverse of the original copy of DA Form 4160 which is
then dated and filed. . . . If a patient dies,
absents him or herself without leave, deserts, or
otherwise unaccountably departs from the hospital, his
or her effects will be provided to the [SCMO] as
prescribed by AR 638-2.
14
United States v. Kelly, No. 12-0524/AR
inventory or an inspection. Thus, we will we review the
Government’s actions under traditional criteria applicable to
inventories and inspections under M.R.E. 313.
2. JPED’s Search as an Inventory under M.R.E. 313(c)
“The justification for conducting an inventory is that it
is necessary to protect the property rights of the person and
protect the government against false claims that property, which
it has seized, has been damaged, lost, or destroyed.” 1 Stephen
A. Saltzburg et. al., Military Rules of Evidence Manual §
313.02[3][b] (7th ed. 2011) (citing Florida v. Wells, 495 U.S. 1(1990); Colorado v. Bertine, 479 U.S. 367 (1987)). 6 “[A]n
inventory search must not be a ruse for a general rummaging in
order to discover incriminating evidence.” Wells, 495 U.S.
at 4.
M.R.E. 313(c) addresses inventories and provides:
Unlawful weapons, contraband, or other evidence of
crime discovered in the process of an inventory, the
primary purpose of which is administrative in nature,
may be seized. Inventories shall be conducted in a
reasonable fashion. . . . An examination made for the
primary purpose of obtaining evidence for use in a
trial by court-martial or in other disciplinary
proceedings is not an inventory within the meaning of
this rule.
6
We note that these justifications, originally set forth in
South Dakota v. Opperman, 428 U.S. 364, 369 (1976), were not
intended to be exclusive, particularly in other contexts.
Regardless, under no circumstances may an inventory be a ruse
for general rummaging. See Wells, 495 U.S. at 4.
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United States v. Kelly, No. 12-0524/AR
This court has upheld inventories conducted “in accordance
with service regulations and customs, which provides some
assurance that the inventory is not a mere pretext for a
prosecutorial motive.” United States v. Jasper, 20 M.J. 112,
114 (C.M.A. 1985). “[I]t is not an unreasonable search to
conduct a shakedown of [an] individual’s effects to determine
his readiness to carry out his military duties.” United States
v. Kazmierczak, 16 C.M.A. 594, 600, 37 C.M.R. 214, 220 (1967)
(internal quotation marks omitted). An “obvious and legitimate
reason for [the inventory exception] is manifest in the nature
of the military unit.” Id. (noting the impact an absent member
has on a unit and the need for inventorying the personal effects
of an absent member).
It appears that the initial inventory of Kelly’s belongings
in Iraq by the SCMO was a proper inventory. The SCMO secured
Kelly’s PE and properly made an accounting of Kelly’s
belongings. The SCMO’s sworn statement indicates that he
inventoried Kelly’s belongings and “personally ensured” that
they were dropped at the Mortuary and he was given a memo that
served as a “hand receipt” which was eventually provided to CID.
However, JPED’s search for “gore,” “inappropriate,” or
“porn” does not fall within M.R.E. 313(c)’s inventory exception. 7
7
As it is not part of the granted issues, we do not address the
propriety of JPED’s initial search of Kelly’s computer for
classified information.
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United States v. Kelly, No. 12-0524/AR
While “inventories pursuant to standard police procedures are
reasonable . . . the relevant test is . . . the reasonableness
of the seizure under all the circumstances.” South Dakota v.
Opperman, 428 U.S. at 372-73. In order to determine whether a
search is reasonable, we must “balance its intrusion . . .
against its promotion of legitimate governmental interests.”
Illinois v. Lafayette, 462 U.S. 640, 644 (1983) (quoting
Delaware v. Prouse, 440 U.S. 648, 654 (1979) (internal quotation
marks omitted)). “The test of reasonableness cannot be fixed by
per se rules; each case must be decided on its own facts.”
Opperman, 428 U.S. at 373 (citation omitted).
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. The search was not
conducted to ascertain Kelly’s “readiness to carry out his
military duties.” See Kazmierczak, 16 C.M.A. at 600, 37 C.M.R.
at 220. SSgt RM testified that his review of the laptop was a
“rush job” because Kelly, who was medically evacuated out of
Iraq, “wanted his PE back.” Thus, there was no concern over
Kelly’s ability to carry out his military duties and his PE was
to be returned directly to him. On balance, the government
intrusion into Kelly’s privacy interest in his computer was not
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United States v. Kelly, No. 12-0524/AR
outweighed by “legitimate governmental interests.” See
Lafayette, 462 U.S. at 644.
Further, JPED’s search under the auspices of AR 638-2 did
not produce anything resembling an inventory -- once the
articles were searched they were simply shipped out. This is in
conflict with the primary purpose of a traditional inventory.
See, e.g., Wells, 495 U.S. at 4 (“[t]he policy or practice
governing inventory searches should be designed to produce an
inventory.”) Indeed, even if AR 638-2 was applicable under the
circumstances, it does not classify the search for inappropriate
items as an inventory. The section of the regulation under
which SSgt RM conducted the search is titled “Destruction of PE”
and simply states that inappropriate items will be “withdrawn
and destroyed.” AR 638-2, para. 20-14.a. The search of Kelly’s
laptop for “gore,” “inappropriate,” and “porn,” was not an
inventory as proscribed by M.R.E. 313(c).
3. JPED’s Search as an Inspection under M.R.E. 313(b)
The Government also argues that the search of Kelly’s
laptop for “gore,” “inappropriate,” and “porn” was conducted
pursuant to a valid inspection under M.R.E. 313(b). “The
President . . . has authorized commanding officers to conduct
inspections of their units -- ‘as an incident of command’ --
when ‘the primary purpose . . . is to determine and to ensure
the security, military fitness, or good order and discipline of
18
United States v. Kelly, No. 12-0524/AR
the unit.’” United States v. Jackson, 48 M.J. 292, 293
(C.A.A.F. 1998) (quoting M.R.E. 313(b)). “With respect to the
expectations of privacy under the Fourth Amendment . . . during
a traditional military inspection, no serviceperson whose area
is subject to the inspection may reasonably expect any privacy
which will be protected from the inspection.” Id. at 294(internal quotation marks omitted). Like the inventory
exception addressed above, “the primary purpose of an inspection
cannot be to obtain evidence for use in a trial by court-
martial.” Id. (internal quotation marks omitted).
“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.” United States v. Ellis,
24 M.J. 370, 372 (C.M.A. 1987). 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.” See
Jackson, 48 M.J. at 293 (internal quotation marks omitted). The
19
United States v. Kelly, No. 12-0524/AR
rationale for the search, per AR 638-2, was to avoid
embarrassment or added sorrow to the recipient. As in our
analysis of the inventory exception, this rationale also fails
with respect to the inspection analysis. Kelly was the ultimate
recipient of his PE, and SSgt RM was aware of the fact when he
conducted the search. The search of Kelly’s laptop was not
permissible under the inspection exception to the Fourth
Amendment’s protection against unreasonable searches.
4. Summary
JPED’s search of Kelly’s computer does not fall within the
exceptions to the Fourth Amendment set forth in M.R.E. 313 for
inventories or inspections. We therefore hold 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.
Decision
The decision of the United States Army Court of Criminal
Appeals as to the findings of Charges I and II and their
specifications and the sentence is reversed. The findings as to
Charges I and II and their specifications are set aside and
dismissed. The decision of the CCA as to Additional Charges I
and II and their specifications is affirmed. The case is
20
United States v. Kelly, No. 12-0524/AR
returned to the Judge Advocate General of the Army for remand to
the CCA for sentence reassessment or, if necessary, a sentence
rehearing may be ordered.
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