                       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).

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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:




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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.

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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.

                                15
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



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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



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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



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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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