Army CCA: Roommate’s search of computer was accidental and private search, but later warrantless search was invalid; nevertheless, inevitable discovery lets it in

Defendant was serving in the Army in Iraq during Operation Iraqi Freedom and was stationed at a forward base. He lived in a rucksack with a roommate. His roommate got on his computer to look for a movie to download and watch, but he found child pornography telling their superiors what he found. That was a private search, but a second “unauthorized” search wasn’t and was unreasonable. Nevertheless, the inevitable discovery doctrine saves the search. United States v. Spiess, 2012 CCA LEXIS 371 (Army Ct. Crim. App. September 28, 2012):

Although the initial discovery of appellant’s child pornography was not in violation of the Fourth Amendment, we conclude that the subsequent, unauthorized search of appellant’s external hard drive was unlawful. See Mil. R. Evid. 313-315. Sergeant First Class DH’s direction and participation in SPC JC’s subsequent search of appellant’s external hard drive amounted to a government intrusion into appellant’s reasonable expectation of privacy. The military judge’s findings of fact with regard to the 23 February 2009 search engaged in by SPC JC and SFC DH are supported by the record and as such are not clearly erroneous. However, in applying the law to these facts, the military judge erroneously concluded that SFC DH’s involvement did not transform what was previously a private search by SPC JC into a governmental intrusion. In this respect, the military judge’s application of the law to the facts was clearly erroneous.

On appeal, the government urges us to consider United States v. Daniels (Daniels II), 60 M.J. 69 (C.A.A.F. 2004), in support of the military judge’s finding of a private, non-governmental intrusion. The Daniels case turned on whether a government official encouraged, endorsed, or participated in a third party’s search such that the third party became an agent for the government official. The government correctly notes the applicability of Daniels to the instant case, but a review of Daniels reveals that it does not support the government’s argument of private action.

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3. Inevitable Discovery Exception to the Exclusionary Rule

Although SPC JC’s and SFC DH’s unauthorized search violated the Fourth Amendment, we nonetheless conclude appellant was not prejudiced by the military judge’s ruling to the contrary. We hold that the child pornography found on appellant’s external hard drive pursuant to the unlawful search would have been inevitably discovered and was therefore admissible against appellant at his court-martial.

As previously noted, SPC JC’s actions on 22 February 2009 were private in nature and thus did not trigger Fourth Amendment protections for any of the information discovered during that search. Thus, the evidence discovered by SPC JC in his private capacity could have been lawfully used to support a search authorization-assuming it established probable cause-which, in turn, could have led to the lawful search and seizure of appellant’s hard drive. However, absent probable cause to believe appellant’s computer contained child pornography, “there could be no application of the doctrine of inevitable discovery in this case.” Dease, 71 M.J. at 121-22 (citations omitted).