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.
2
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.
3
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.’”
4
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
5
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).
7
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.”
8
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
9
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.
10
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.