United States v. Greene

56 M.J. 817, 2002 CCA LEXIS 57, 2002 WL 467160
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 25, 2002
DocketNMCM 200102232
StatusPublished
Cited by5 cases

This text of 56 M.J. 817 (United States v. Greene) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Greene, 56 M.J. 817, 2002 CCA LEXIS 57, 2002 WL 467160 (N.M. 2002).

Opinion

PRICE, Senior Judge:

This case is before us as an interlocutory appeal by the Government, filed pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 and Rule for Courts-Martial 908, Manual for Courts-Martial, United States (2000 ed.). The general issue is whether the military judge erred in suppressing evidence seized during a consent search of the appellee’s barracks room. More specifically, the Government argues that the military judge erred in ruling that investigators exceeded the scope of the appellee’s consent to search for child pornography. We agree that the military judge erred in his ruling.

Facts

At trial, the appellee moved to suppress all evidence discovered during a consensual search and seizure of his personal computer and associated computer discs by a special agent (SA) of the Naval Criminal Investigative Service (NCIS). In attempting to show that the search and seizure was lawful, the Government called three witnesses and offered a Permissive Authorization for Search form, Appellate Exhibit VIII. With the exception of a service record page showing the appellee’s history of assignments, Appellate Exhibit IX, the appellee declined to present any evidence. After hearing argument, the military judge issued detailed findings of fact and conclusions of law.

[819]*819Except as noted later in this decision, we adopt the military judge’s detailed essential findings of fact as our own. We include those findings1 here to summarize the facts of this matter.

1. The accused has been charged at this general court-martial with knowingly possessing visual depictions of minors engaged in sexually explicit conduct that had been transported in interstate or foreign commerce in violation of 18 U.S.C. §§ 2252 and 2252A (as assimilated under Article 134, UCMJ, 10 U.S.C. § 934, and alleged alternatively). These charges were referred to this general court-martial (created on 29 January 2001) by Commander, Navy Region, Mid-Atlantic, on 25 June 2001.
2. On 07 February 2000, the accused was an 18-year-old active duty Navy member, and a student at the Naval Air Technical Training Center located in Pensacola, Florida. At that time he resided in military quarters, specifically, barracks room 219 located in Barracks “F,” which he shared with AE3 David T. Webster, U.S. Navy. This barracks room was accessed by use of a pre-programmed computer “swipe” card. Among their various possessions, both the accused and AE3 Webster kept personal computers and associated equipment in their barracks room for their personal use and enjoyment.
3. On 07 February 2000, all parties to this motion are in agreement, and the court finds, that the accused enjoyed a reasonable expectation of privacy in both his barracks room, and in regard to his personal computer located therein.
4. After morning classes and lunch on 07 February 2000, AE3 Webster, the accused’s roommate, returned to his barracks room and found the accused working on his computer, ostensibly downloading musie from the “NAPSTER” website. The accused asked AE3 Webster not to “mess with his computer” because he did not want to interrupt the downloading process. The accused departed the barracks room to return to class. AE3 Webster remained in the room.
5. AE3 Webster became suspicious of the accused’s computer activities that afternoon. At the time, AE3 Webster believed, but was not certain, that he had seen the accused viewing images of child-pornography on his computer on two separate occasions in the month-and-a-half preceding 07 February 2000, and he believed the accused’s computer activity that afternoon might be related to child-pornography.
6. AE3 Webster decided to ascertain what the accused was up to. He tapped on the computer keyboard and discovered that the accused was, in fact, downloading music from the Napster web-site. He then conducted an independent search of the accused’s hard-drive files. He eventually located two computer images he believed to be child pornography. One depicted a nude, Asian girl holding a carrot; the other depicted 4 nude boys in a room on a mattress engaged in some form of sexual activity.
7. AE3 Webster then went down to the barracks quarterdeck and spoke to ° barracks staff members (also called “Military Training Instructors” [“MTI’s”]) requesting a room change. When they inquired as to his reason for such a request, AE3 Webster stated words to the effect that his roommate, the accused, was viewing child-pornography on his personal computer located inside their room. The barracks staff contacted the Naval Criminal Investigative Service (NCIS), and AE3 Webster was instructed to return to classes.
8. Later that afternoon, when the accused and AE3 Webster returned to [820]*820their room from class, they discovered that their computer “swipe” cards no longer opened their barracks door. Such an occurrence was not uncommon. Barracks personnel often “locked out” individuals from their rooms in order to get them to report to the quarterdeck for messages, assignments, etc. The evidence indicates that barracks personnel were responsible for the decision to lock the accused out of his room.
9. Special Agent Gary Marsh and Detective William Ramsey reported to Barracks “F” at approximately 1430 on the afternoon of 7 February 2000 to investigate the allegation that the accused was in possession of child pornography.
10. The accused and AE3 Webster went to the quarterdeck and reported that their “swipe” cards did not work. The accused was then instructed by either an NCIS agent or a barracks staff member to go into the “MTI” office, where he was addressed by Special Agent Marsh and Detective Ramsey.
11. AE3 Webster, the accused’s roommate, was never interviewed by Special Agent Marsh or Detective Ramsey prior to their request for permissive search authorization from the accused, or their ultimate search of the accused’s room. Accordirigly, AE3 Webster never described to barracks personnel or NCIS the photos he had seen that day, or where he had seen them, prior to the accused’s room being searched.
12. The office in which they were located was approximately 10 feet by 10 feet and contained a desk and at least one chair. Present in the room were the accused, Special Agent Marsh, Detective Ramsey, and a first class petty officer from the barracks staff (“MTI”).
13. The accused was not advised of his Article 31(b), UCMJ, 10 U.S.C. § 831(b), rights at that time. Instead, Special Agent Marsh identified himself and advised the accused that he was “investigating a complaint of child pornography,” and that he wanted the accused’s consent to search his room and computer.

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Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 817, 2002 CCA LEXIS 57, 2002 WL 467160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-greene-nmcca-2002.