2013 CAAF LEXIS 569
C.A.A.F.2013Background
- Kelly, a wounded SSgt, had his personal effects inventoried in Iraq; one soldier-owned laptop was sent to JPED at Aberdeen.
- JPED searched the laptop for classified material under AR 638-2, then for gore, inappropriate material, and porn per JPED protocol.
- Child pornography was discovered; CID obtained a search authorization based on that discovery.
- ALARA CT 139/2006 purportedly extended AR 638-2 to wounded soldiers, but this was procedurally improper.
- The military judge denied suppression; the Army Court of Criminal Appeals affirmed; the case was granted review to assess Fourth Amendment validity.
- This court held that JPED’s search was not a valid inventory or inspection under M.R.E. 313 and violated the Fourth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AR 638-2 applies to wounded soldiers for PE processing | Kelly; AR 638-2 governs deceased/missing, ALARACT extended it | Government; AR638-2 applies to wounded per ALARACT interpretation | AR 638-2 cannot be validly extended by ALARACT; not applicable |
| Whether JPED's search of the laptop was a valid inventory under M.R.E. 313(c) | Search was an inventory to protect property; reasonable | Search was for contraband; not a true inventory; improper purpose | Not an inventory under 313(c); invalid |
| Whether JPED's search qualifies as an inspection under M.R.E. 313(b) | Search authorized by inspection to ensure unit security | No proper inspection authority; not for unit security | Not a valid inspection under 313(b) |
| Whether the Fourth Amendment was violated by the search | Search reasonable as administrative and protective | Search reasonable under military regulations | Search violated Fourth Amendment; suppression proper |
Key Cases Cited
- South Dakota v. Opperman, 428 U.S. 364 (U.S. 1976) (inventory reasonableness balancing; pretext not allowed)
- Florida v. Wells, 495 U.S. 1 (U.S. 1990) (inventory search not a pretext for evidence)
- Illinois v. Lafayette, 462 U.S. 640 (U.S. 1983) (reasonableness balancing for searches in vehicle/misc contexts)
- United States v. Jasper, 20 M.J. 112 (C.M.A. 1985) (inventories may be reasonable under military regs; protect property rights)
- United States v. Kazmierczak, 16 C.M.A. 594, 37 C.M.R. 214 (C.M.A. 1967) (shakedowns of effects to assess readiness permissible)
- United States v. Long, 64 M.J. 57 (C.A.A.F. 2006) (Fourth Amendment in military context; existing framework for searches)
- United States v. Jones, 132 S. Ct. 945 (2012) (privacy expectations; physical intrusion considerations)
- Jackson v. United States, 48 M.J. 292 (C.A.A.F. 1998) (inspection authority and limits under MR.E 313(b))