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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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. 
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.