CAAF: Inventory of injured soldier’s computer content violated the Fourth Amendment

Defendant was injured by an IED while serving in the Army in Iraq, and he was medically evacuated from Iraq. His property was inventoried pursuant to Army regulation. His computer was subject to inventory for things “gore, inappropriate, or porn” and for classified material before the computer was returned to him, and child pornography was found. The Court of Appeals for the Armed Forces held that the inventory of the computer violated the Fourth Amendment and M.R.E. 313(c). United States v. Kelly, 72 M.J. 237 (C.A. A.F. 2013):

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 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.

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. 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).

. . .

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 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 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 P[ersonal] E[ffects], 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.