                         UNITED STATES, Appellee

                                         v.

      Joshua M. MICHAEL, Photographer’s Mate Airman Recruit
                       U.S. Navy, Appellant

                                  No. 07-6005
                        Crim. App. No. 200700120

       United States Court of Appeals for the Armed Forces

                        Argued November 14, 2007

                       Decided February 26, 2008

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and STUCKY, J., joined. RYAN, J., filed a separate
opinion concurring in part and in the result in which ERDMANN,
J., joined.


                                     Counsel

For Appellant: Lance B. Sigmon, Esq. (argued); Lieutenant W.
Scott Stoebner, JAGC, USN (on brief).

For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, (on brief); Lieutenant Commander
Paul D. Bunge, JAGC, USN.

Amicus Curiae for Appellant: Captain Timothy M. Cox and Captain
Anthony D. Ortiz for the United States Air Force Appellate
Defense Division (on brief).

Amicus Curiae for Appellee: Colonel Gerald R. Bruce and Major
Matthew S. Ward for the United States Air Force Appellate
Government Division (on brief).

Military Judges:    John A. Maksym and John D. Bauer



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Michael, No. 07-6005/NA


    Judge BAKER delivered the opinion of the Court.

    Appellant is currently on trial for allegedly receiving and

possessing child pornography in violation of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).

This is our review of the Government’s successful appeal to the

United States Navy-Marine Corps Court of Criminal Appeals of the

military judge’s ruling suppressing key evidence found on

Appellant’s computer.   United States v. Michael, No. NMCCA

200700120 (N-M. Ct. Crim. App. May 9, 2007).   Appellant’s

petition has been granted on the following issue alleging error

on the part of the lower court:

     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRONEOUSLY LIMITED THIS COURT’S HOLDING IN
     UNITED STATES V. CONKLIN, 63 M.J. 333 (C.A.A.F. 2006),
     BY FINDING THAT “IT APPEARS THE MILITARY JUDGE APPLIED
     AN ERRONEOUS STANDARD OF REASONABLENESS” IN
     SUPPRESSING THE SEARCH OF APPELLANT’S LAPTOP COMPUTER.1


1
  The following additional issue was initially specified by this
Court:

     WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO
     EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER
     EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867
     (a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF
     CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. §
     862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS
     COURT’S DECISION IN UNITED STATES v. TUCKER, 20 M.J.
     52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Our decision in United States v. Lopez de Victoria, __ M.J. __
(C.A.A.F. 2008), also decided today, resolved this issue in
favor of jurisdiction, thus rendering the issue in this case
moot.



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United States v. Michael, No. 07-6005/NA


                            BACKGROUND2

     At the time of the offenses, Appellant was a student at the

Defense Information School (DINFOS).      At 8:40 a.m. on March 29,

2006, a student found a laptop computer while cleaning the male

lavatory of the Navy student barracks.     The circumstances

indicated that it had been left there unintentionally.     The

laptop was closed, in the off mode, and had no outward markings

identifying the owner.   The student turned the laptop in to

Petty Officer First Class Goeth and Chief Petty Officer Campbell

who were military training instructors (MTI) on duty in the

Staff Duty Office of the barracks that morning.     Since there

were no apparent indicia of ownership on the outside of the

laptop, Goeth opened it and turned it on in an attempt to

identify the owner.   The laptop displayed a log-on icon and the

name “Josh.”   The computer was not password protected, so Goeth

clicked on the icon and displayed the desktop.     A “Control

Panel” icon was among the various icons on the desktop.     He

proceeded to the control panel and opened the “System

Properties” icon where he observed that the laptop was

registered to a person named “Josh.”      At this point, Goeth

consulted the roster of Navy students assigned to DINFOS living

in the barracks.   The roster showed three students assigned to

2
  The background factual matters are taken from the lower court’s
opinion and the military judge’s findings of fact and
conclusions of law of February 7, 2007, contained in the record.

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United States v. Michael, No. 07-6005/NA


the Navy barracks with the name “Josh.”    Appellant was one of

these three students.   Goeth was also aware that Appellant was

on restriction and was required to check in with the MTI duty

office every two hours.   Appellant had checked in forty minutes

before and was not due to check in again until 10:00 a.m.     Goeth

did not attempt to contact or locate any of the three students

named “Josh.”    Instead, he returned to the computer and

navigated to the “Recent Documents” section on the “Start” menu.

He testified that he did so assuming he would find recent school

work on the computer reflecting the owner’s last name.      When he

clicked the “Recent Documents” tab, it displayed a list of files

with names suggesting they might contain child pornography.3

Upon opening one of the files, Goeth’s suspicions were

confirmed.    He then immediately turned the laptop in to the

legal office.   Appellant was later determined to be the owner of

the laptop.

     At the hearing on the suppression motion, the military

judge heard the testimony of several witnesses including Goeth

and Campbell.   He then entered findings of fact and conclusions

of law.   Specifically at issue is the military judge’s

conclusion that “Goeth’s actions in opening the ‘Recent

Documents’ icon was avoidable, unnecessary, and, accordingly,

3
  Goeth described the files as “something to the effect of ‘9-
year old girl does something explicit with her father,’” and
“something along the lines of . . . ‘8-year old cum shot.’”

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United States v. Michael, No. 07-6005/NA


unreasonable.”   He explained his conclusion stating that:

“There were several other options that could have been done to

make going into a personal computer and the files on the

computer -- make that avoidable:       either finding the three

people named ‘Josh,’ or announcing that a computer was found, or

-- or any of those other options . . . .”      The Court of Criminal

Appeals disagreed with the military judge’s conclusion that the

search constituted an unreasonable intrusion because it was

“avoidable and unnecessary” in light of the less intrusive means

available to determine ownership.      Michael, No. NMCCA 200700120,

slip op. at 4.   It concluded that he had employed an erroneous

view of the law in suppressing the contents of the laptop and

reversed the trial ruling.   Id. at 5.

                             DISCUSSION

     “A military judge’s decision to admit or exclude evidence

is reviewed under an abuse of discretion standard.”      United

States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (citing

United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000),

overruled on other grounds by United States v. Inong, 58 M.J.

460, 464 (C.A.A.F. 2003)).   We apply this standard when

reviewing evidentiary rulings under Article 62, UCMJ, 10 U.S.C.

§ 862 (2000).    A military judge abuses his discretion if his

findings of fact are clearly erroneous or his conclusions of law




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United States v. Michael, No. 07-6005/NA


are incorrect.   United States v. Ayala, 43 M.J. 296, 298

(C.A.A.F. 1995).

     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.”

Cady v. Dombrowski, 413 U.S. 433, 439 (1973).   For the purposes

of military law a Fourth Amendment search is “a government

intrusion into an individual’s reasonable expectation of

privacy.”   United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F.

2004) (citations omitted); United States v. Jacobs, 31 M.J. 138,

143 (C.M.A. 1990) (requiring official or governmental action in

the conduct of a Fourth Amendment search); see also United

States v. Portt, 21 M.J. 333, 334 (C.M.A. 1986) (distinguishing

between a military member acting as a private individual and “an

agent of the Government”).

     “‘Mislaid property’ is that which is intentionally put into

a certain place and later forgotten.”   1 Am. Jur. 2d. Abandoned,

Lost, and Unclaimed Property § 14 (2007).   Here, the military

judge’s findings indicate that under the circumstances of its

recovery, the computer could appropriately have been

characterized as mislaid property.   While an owner retains some

expectation of privacy in lost or mislaid property, that

interest is “outweighed by the interest of law enforcement

officials in identifying and returning such property to the


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United States v. Michael, No. 07-6005/NA


owner.”   Gudema v. Nassau County, 163 F.3d 717, 722 (2d Cir.

1998) (citation omitted).4   Presumably, the owner of valuable

mislaid property anticipates and hopes that if the mislaid

property is found it will be turned in to authorities.

Similarly, he expects that authorities will make reasonable

efforts to determine the identity of the owner and keep the

property safe until its return to him.

     Since none of our prior decisions has squarely addressed

the search of mislaid property, resolution of the issue

necessarily requires a weighing of the governmental interests at

stake against the constitutionally protected interest of the

servicemember in the privacy of his effects.    See South Dakota

v. Opperman, 428 U.S. 364, 377-78 (1976) (Powell, J.,

concurring).   “The reasonableness of any particular governmental

activity does not necessarily or invariably turn on the

existence of alternative ‘less intrusive’ means.”    Illinois v.

Lafayette, 462 U.S. 640, 647 (1983).     United States v. Conklin,

63 M.J. 333 (C.A.A.F. 2006), does not state otherwise.    Rather,

that case addressed the question of whether the taint from a

prior unlawful search was vitiated by later events for the

purpose of the application of the exclusionary rule.    Id. at

335-40.   In dicta, the Court commented on the unlawful search

4
  It is well settled that a person retains no expectation of
privacy in abandoned property. See 29 Am. Jur. 2d. Evidence
§ 646 (2007).

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United States v. Michael, No. 07-6005/NA


itself in the context of addressing the deterrent effect of the

exclusionary rule.   Id. at 340.    The Court noted that in the

context of a dormitory room inspection, the search itself was

avoidable because there were less intrusive means available to

obtain search authorization.    Id. at 339.

     Whether Goeth’s search was reasonable or unreasonable in

this case does not hinge on whether less intrusive means were

available.   Rather, it depends on whether Appellant had a

subjective (actual) expectation of privacy in the property

searched that was objectively reasonable.     Id. at 337.   This in

turn depends, in part, on the location of the property searched.

As the Court noted in Conklin, “‘the threshold of a

barrack/dormitory room does not provide the same sanctuary as

the threshold of a private room.’”     Id. (citation omitted).    The

same can be said of a public restroom.    The reasonableness of

the search also depends on the nature and scope of the

governmental intrusion.

     Goeth testified that his duties as an MTI included

receiving and securing valuable personal effects of the students

depending on what “phase” of training the students had entered.

Thus, he was engaged in a caretaking function.    See generally

Opperman, 428 U.S. at 369.     Although the rules of evidence

contain no express provision for situations like this, Military

Rule of Evidence (M.R.E.) 314(k) addresses “Other searches.”


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United States v. Michael, No. 07-6005/NA


Under this rule, “A search of a type not otherwise included in

this rule and not requiring probable cause under Mil. R. Evid.

315 may be conducted when permissible under the Constitution of

the United States as applied to members of the armed forces.”

See Murray v. Haldeman, 16 M.J. 74, 82 (C.M.A. 1983) (upholding

Navy compulsory urinalysis program in part based on M.R.E.

314(k)).    The military judge concluded that it was reasonable

for Goeth, in determining the identity of the owner, to proceed

all the way to the “Systems Properties” display.    However, the

military judge’s conclusion that Goeth’s continued efforts in

determining the last name of the owner were unreasonable in

light of other alternatives is inconsistent with what the law

requires.   “[T]he real question is not what ‘could have been

achieved,’ but whether the Fourth Amendment requires such

steps.”    Lafayette, 462 U.S. at 647.   In this case, on these

facts, Appellant possessed a diminished expectation of privacy

in his personal computer that was mislaid in a common area.

Further, the legitimate governmental interest in identifying the

owner of mislaid property and safekeeping it until its return to

the owner outweighed the interest Appellant retained in his

mislaid and subsequently found laptop.    Moreover, the military

judge made no findings of ulterior motive, nor did he question

Goeth’s assertion that his examination was for identification

purposes only.   In the military context, it was reasonable for


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United States v. Michael, No. 07-6005/NA


the MTI to seek to determine the ownership of the computer and

do so by powering it up and performing a cursory examination of

folders likely to reveal the owner’s identity.

        Thus, having lawfully reached the “Recent Documents” list,

it may be that the files in issue were at that point in plain

view.    However, because of the interlocutory nature of the issue

we leave resolution of this question to the military judge on

remand.    It is enough that we agree with the lower court that

the military judge relied on an erroneous view of the law and

conclude as the lower court did that Goeth’s search was

reasonable at least up to that point that he observed

Appellant’s list of recent files viewed.

                               DECISION

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.       The record is returned to the

Judge Advocate General of the Navy for remand for further

proceedings.




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United States v. Michael, 07-6005/NA


     RYAN, Judge, joined by ERDMANN, Judge (concurring in

part and in the result):

     For the reasons stated in my dissent in United States

v. Lopez de Victoria, No. 07-6004, slip op. (C.A.A.F. Feb.

25, 2008) (Ryan, J., dissenting) I would hold that we have

no jurisdiction over this case in its present procedural

posture.   However, the Court has found that we have

jurisdiction, and I agree with the opinion of the Court on

the merits.   Consequently, I concur in the judgment.   See,

e.g., McKelvey v. Turnage, 792 F.2d 194, 210 (D.C. Cir.

1986) (Scalia, J., concurring in part and dissenting in

part) (participating on the merits after finding, contrary

to the majority, that no jurisdiction existed).   I do not

intend, going forward, to revisit my dissent on the

jurisdictional point in every appeal of a Court of Criminal

Appeals decision stemming from an Article 62, Uniform Code

of Military Justice, 10 U.S.C. § 862 (2000), appeal:    a

majority of the Court has held that we have jurisdiction.
