U.S.A v. Rendon

• Decision Date: 17 June 2010
• Docket Number: No. 09-4687.,09-4687.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Kevin RENDON, a/k/a Lina, a/k/a linalil, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

607 F.3d 982

UNITED STATES of America, Plaintiff-Appellee,v.Kevin RENDON, a/k/a Lina, a/k/a linalil, Defendant-Appellant.

No. 09-4687.

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2010.

Decided: June 17, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: William Todd Watson, Office of The Federal Public Defender, Alexandria, Virginia, for Appellant. Andrew McCormack, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Caroline S. Platt, Research and Writing Attorney, Office Of The Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Jay V. Prabhu, Assistant United States Attorney, Office Of The United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER and MOTZ, Circuit Judges, and JAMES A. BEATY, JR., Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ and Judge Beaty joined.

OPINION

NIEMEYER, Circuit Judge:

In this appeal, Kevin Rendon challenges, as unconstitutional, a search of his Microsoft Zune MP3 player conducted by the military while he was a private in the U.S. Army, which led to his conviction in civilian court for possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(A).

While in the Army, Rendon's MP3 player was examined pursuant to the standard intake procedure of the unit to which he had been transferred, and child pornography was discovered on the player. Based on that evidence and Rendon's subsequent statement to military officers that there was a “high” likelihood that child pornography would be discovered on his computers at his residence-his mother's house in Lorton, Virginia-a state search warrant issued at the request of the Fairfax County Police Department to search the residence. The search of the computers produced thousands of images containing child pornography.

After Rendon was indicted for possession of child pornography, he filed a motion to suppress both his statement and the images discovered on his home computers as the fruit of an unconstitutional search of his MP3 player. The district court denied Rendon's motion, holding, among other things, that the search of the MP3 player was legally conducted as part of a valid military inspection and therefore did not violate Rendon's Fourth Amendment rights. Rendon thereafter pleaded guilty, reserving the right to appeal the district court's ruling on his motion to suppress, under Federal Rule of Criminal Procedure 11(a)(2), and the district court sentenced Rendon to 97 months' imprisonment.

In this appeal, we conclude that in the circumstances of this case Rendon did not have a reasonable expectation of privacy in the contents of his MP3 player that was violated and that therefore the state search warrant was not the fruit of an illegal search. Accordingly, we affirm.

I

On March 31, 2008, Private Kevin Rendon, a soldier in the U.S. Army, was transferred from the “D Trp, 5th Squadron, 15th Cavalry, 194th Armored Brigade” at the Army base in Fort Knox, Kentucky, to the “HHC, 46th Adjutant General Battalion, 194th Armored Brigade,” also at Fort Knox. The HHC, 46th Adjutant General Battalion was an “out-processing unit” for soldiers who were being discharged from the Army, and Rendon was transferred to the unit to be discharged from the Army for medical reasons, having been diagnosed with Crohn's disease.

Upon arrival at his new unit, Rendon was counseled on the unit's rules and regulations, and he signed a statement indicating that he would abide by them or be subject to discipline under the Uniform Code of Military Justice. In addition, all of Rendon's personal property was inspected and inventoried pursuant to the unit's regularly performed intake protocol. The protocol was spelled out in the “Drill Sergeant Continuity Book” (the “DSCB Handbook”) that was applicable to the unit. The DSCB Handbook provided in part:

Upon arrival to HHC all Soldiers must first report to the processing room. Soldiers are accepted between the hours of 0830 and 1500, Monday through Friday to include training holidays. Enclosed is a checklist to assist if necessary.

Once complete with the processing room the new Soldier will move to the game room for further in-processing. The soldier will strip down into PT's to ensure that he does not have any contraband. He will separate all of his belongings into three sections; civilian and personal property, military clothing needed while here in HHC, and military clothing to be stored in the supply room. As the [Drill Sergeant] it is your responsibility to ensure that the new Soldier receives a reception and integration counseling, has his belongings inventoried, i.e. cell phones/ipods are turned on and checked to ensure that the[re] are no graphic materials on them such as pornography.

The soldiers are issued linen and the following paperwork is properly completed: Personal Data Sheet, DA 4856, DA 3076, DA 2062, Personal Inventory, and DA 4986. The Soldier's medicine must also be collected, inventoried, and logged into the medication locker in the CQ office. If the supply technician is not available the items that are to be stored in the supply must be temporarily stored until the supply technician is available. During this process the Platoon Guide/Assistant Platoon Guide may be utilized as an assistant. Once the Soldier is completely in-processed arrangements must be made for him to receive a brief from the first sergeant.

J.A. 47 (emphasis added). Staff Sergeant Luis Quintana, a drill sergeant who was responsible for the inspection of Rendon's property, described the intake protocol for new soldiers:

When a soldier arrives, they go through [the unit's] processing NCO, they make sure the paperwork is correct. And then they are moved over to a game room and they dump all of their equipment. All of their civilian equipment is inventoried, [and] their military equipment is inventoried.

If they have any kind of contraband, any type of electrical equipment, anything like that, it's all collected up, it is confiscated for the time that they are in the unit until the time that they leave the unit, and then everything is given back to them.

* * *

When we take electronic equipment, what happens with it is we put it in a log, we mark it down with serial numbers, model numbers, and we lock it in a wall locker. And we ensure that it is tagged with their name, put in the bins, we lock the wall locker, and then we lock the door that the wall locker is in.

* * *

And if there is a device, such as cell phones, MP3 players, iPods or anything like that that have downloadable images, we have to screen them for gang-related activity type paraphernalia. Any, what is it called, extremist organization stuff. Any type of pornographic material. Because any of that stuff cannot be spread throughout the barracks and is not in good standing with the military, and we have to report that to our senior personnel.

J.A. 65-67 (emphasis added).

In accordance with these procedures, Rendon's Microsoft Zune MP3 player was inspected to determine if it contained any prohibited materials. When Sergeant Quintana turned on Rendon's MP3 player, he saw what looked to him to be “some sort of child pornography.” He stated that he saw images of young girls “posing in provocative ways.” In “[s]ome of the pictures the girls were touching themselves; some of the young girls were showing their private body parts.... One was of her top, but she was covering it with her hand and another was one with a bathing suit, but she was pulling [it] off to her side exposing [her] vagina.” Sergeant Quintana estimated that the girls in the pictures were between 7 and 18 years old.

After observing these images, Quintana brought them to the attention of officers higher in the chain of command, including Captain Eric Horton, the unit's commanding officer. After reviewing the images himself, Captain Horton called the Army Criminal Investigation Division (“CID”) for guidance. The CID told Horton “to go through all the pictures to see if there [were] any pictures of girls that were naked.” After Captain Horton determined that there were in fact images of naked children, he directed Sergeant Quintana to take Rendon to the CID.

Rendon, while being questioned by the CID, consented to a search of his MP3 player that uncovered hundreds of images of young girls posing in sexually provocative positions. Rendon also gave the CID a sworn statement that there was a “high” likelihood that child pornography would be found on his home computers. Special Agent Bradley Stoffer of the CID then notified the Fairfax County (Virginia) Police Department of what had been uncovered. The police obtained a search warrant for Rendon's residence in Lorton, Virginia, and, in executing the warrant, uncovered thousands of images and videos of child pornography, including some in which children-boys and girls-were depicted engaging in explicit sexual acts with adult males.

After Rendon was indicted by a federal grand jury for possession of child pornography, he filed a motion to suppress his statement and the evidence seized from his residence, contending that they were the products of an illegal search of his MP3 player by the military. The district court denied the motion, holding that “Rendon had no reasonable expectation of privacy in the contents of the MP-3 player that the military inspected when he arrived at the base.” The court found that the inspection of the MP3 player was conducted “for a military-not law enforcement-purpose” dictated by the military's need “ ‘for good order and discipline in the armed forces.’ ” (Quoting Henson v. United States, 27 Fed.Cl. 581, 593 (1993)). The court also found that the inspection of Rendon's MP3 player was “in accordance with pre-existing, written...