U.S. v. Kelly, 72 M.J. 237

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures
2. official intrusions into areas where there is a reasonable expectation of privacy require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces
3. 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; however, the Fourth Amendment does not protect against all searches; rather, it proscribes only unreasonable searches; the ultimate standard set forth in the Fourth Amendment is reasonableness

Military Justice Personnel: Military Judge: Discretion

1. 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

Core Criminal Law Subjects: Evidence: Balancing

1. in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures
2. 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; however, the Fourth Amendment does not protect against all searches; rather, it proscribes only unreasonable searches; the ultimate standard set forth in the Fourth Amendment is reasonableness
3. pursuant to MRE 313(a), evidence obtained from inspections and inventories in the armed forces conducted in accordance with that rule is admissible at trial when relevant and not otherwise inadmissible under the MREs
4. an All Army Activities (electronic) Message did not amend the Army regulation governing the disposition of the personal effects of deceased and missing personnel to apply to wounded and medically evacuated soldiers, and no one who was otherwise authorized to impose such an amendment by directive or order did so; the method adopted by the Army to apply the provisions of the Army regulation governing the disposition of the personal effects of deceased and missing personnel to wounded or medically evacuated soldiers through an electronic message violated the Army’s own procedure for adopting or amending an Army regulation
5. while the Army could not amend an Army regulation through an electronic message, it also could not effectively achieve the same result by independently mandating the use of the procedures found in the Army regulation governing the disposition of the personal effects of deceased and missing personnel to the personal effects of wounded and medically evacuated soldiers; not only was the manner of the attempted amendment improper, the application of that regulation to wounded soldiers directly conflicted with the existing provisions of the regulation, and it generally conflicted with the provisions of the Army regulation governing the processing of personal effects for wounded soldiers who are admitted for treatment in medical facilities
6. 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 the property, which it has seized, has been damaged, lost, or destroyed; an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence
7. MRE 313(c) addresses inventories and provides that 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 the rule
8. inventories are upheld when conducted in accordance with service regulations and customs, which provides some assurance that the inventory is not a mere pretext for a prosecutorial motive
9. it is not an unreasonable search to conduct a shakedown of an individual’s effects to determine his readiness to carry out his military duties; an obvious and legitimate reason for the inventory exception is manifest in the nature of the military unit
10. although the initial inventory of appellant’s belongings in Iraq by a summary court-martial officer following appellant’s medical evacuation appeared to be a proper inventory, the Joint Personal Effects Depot’s subsequent search for gore, inappropriate, or porn did not fall within MRE 313(c)’s inventory exception
11. while inventories pursuant to standard police procedures are reasonable, the relevant test is the reasonableness of the seizure under all the circumstances
12. in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts
13. 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
14. like the inventory exception to the Fourth Amendment’s protection against unreasonable searches, the primary purpose of an inspection cannot be to obtain evidence for use in a trial by court-martial
15. 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
16. the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation did not fall within MRE 313(c)’s inventory exception; the search amounted to a specific search for contraband; the search was not conducted to ascertain appellant’s readiness to carry out his military duties; on balance, the government intrusion into appellant’s privacy interest in his computer was not outweighed by legitimate governmental interests; further, the search 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; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure
17. the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation was not a valid inspection as prescribed by MRE 313(b); the search was not authorized as an inspection by anyone, let alone an officer with authority to order an inspection, and the primary purpose of the search did not determine or ensure the security, military fitness, or good order and discipline of the unit, but rather was to avoid embarrassment or added sorrow to the recipient; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. official intrusions into areas where there is a reasonable expectation of privacy require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces
2. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; 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
2. in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts