United States v. Gallagher , 66 M.J. 250 ( 2008 )

UNITED STATES, Appellee
v.
Joey M. GALLAGHER, Gunnery Sergeant
U.S. Marine Corps, Appellant
No. 07-0527
Crim. App. No. 200400151
United States Court of Appeals for the Armed Forces
Argued February 27, 2008
Decided May 13, 2008
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: William E. Cassara, Esq. (argued);
Lieutenant Brian D. Korn, JAGC, USN (on brief); Major
Jeffery S. Stephens, USMC.
For Appellee: Major Brian K. Keller, USMC (argued);
Commander P. C. LeBlanc, JAGC, USN.
Amicus Curiae for Appellant: Matthew W. Kuskie (law
student) (argued); Joseph Zengerle, Esq. (supervising
attorney) (on brief) –- for the George Mason University
School of Law.
Military Judge: T. A. Daly
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gallagher, 07-0527/MC
Judge RYAN delivered the opinion of the Court.
Today we are asked the question whether, when one
spouse consents to a search of the entire house, the
apparent authority doctrine extends that consent to an
androgynous, unmarked, unlocked, briefcase kept in a common
area of the home, which could reasonably hold the object of
the search. Based on the facts of this case, we hold that
it was not objectively unreasonable for the officer to
believe the consent to search the home extended to the
briefcase, and the apparent authority doctrine applies.
Because Appellant’s wife had apparent authority to consent
to the search, the military judge did not abuse his
discretion in admitting the evidence found in the briefcase
during the permissive search or the evidence based on the
derivative seizure and subsequent command authorized search
of Appellant’s computer.1
I. Facts
A general court-martial, composed of officer and
enlisted members, convicted Appellant, contrary to his
1
We heard oral argument in this case at George Mason
University School of Law, Arlington, Virginia, as part of
the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This
practice was developed as part of a public awareness
program to demonstrate the operation of a federal court of
appeals and the military justice system.
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pleas, of two specifications of possession of child
pornography under 18 U.S.C. § 2252, and one specification
of violating South Carolina’s “Peeping Tom” statute, S.C.
Code. Ann. § 16-17-470, in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2000). The sentence adjudged by the court-martial and
approved by the convening authority included a dishonorable
discharge, reduction to the lowest enlisted grade,
forfeitures of all pay and allowances, and confinement for
thirteen years. The Navy-Marine Corps Court of Criminal
Appeals affirmed the findings and sentence. United States
v. Gallagher, 65 M.J. 601, 611 (N-M. Ct. Crim. App. 2007).
On Appellant’s petition, we granted review of two issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED BY FINDING THAT THE SEARCH OF
APPELLANT’S CLOSED BRIEFCASE, LOCATED IN THE GARAGE OF
APPELLANT’S HOME, DID NOT EXCEED THE SCOPE OF HIS
WIFE’S CONSENT TO SEARCH THE AREAS OF THE HOME OVER
WHICH SHE HAD ACTUAL OR APPARENT AUTHORITY.
II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED BY HOLDING THAT THE EVIDENCE OF THE
CONTENT OF APPELLANT’S COMPUTER HARDDRIVE WAS PROPERLY
ADMITTED AND WAS NOT THE PRODUCT OF AN UNLAWFUL
SEARCH.
Appellant was accused of attempting to place a video
camera in the bedroom of an eleven-year-old neighbor.
Based on this accusation, Naval Criminal Investigative
Service (NCIS) conducted a permissive search of Appellant’s
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home. During the search, the NCIS agents discovered child
pornography in an unlocked briefcase in Appellant’s den.
Based on this evidence the agents seized Appellant’s
computer, which they later searched pursuant to a search
authorization.
At trial, Appellant moved to suppress the evidence
found in the briefcase based on the fact that has wife did
not have authority to consent to the search of the
briefcase. Appellant also moved to suppress the evidence
found on his computer, as he claimed the search
authorization was based on and derivative of the evidence
discovered in the briefcase. The military judge conducted
a hearing to determine whether the evidence was admissible.
At the hearing the military judge heard testimony from
Appellant’s wife and the NCIS agents who had conducted the
search. Based on that testimony the military judge
concluded that Appellant’s wife, Mrs. Gallagher, had
consented to the search. He found that the agents
introduced themselves and explained to Mrs. Gallagher that
an accusation had been made that Appellant had acted
inappropriately with a child. The military judge found
that the agents explained to Mrs. Gallagher that they were
there to search the house for videotapes or pictures
related to the case and asked her for her permission to do
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so. He also determined that the agents presented Mrs.
Gallagher with a Department of the Navy Permissive
Authorization for Search and Seizure (PASS) form, which she
signed. The form specifically allowed the agents to search
for and remove from the home “any property or papers found
during the search which are desired for investigative
purposes.”
The military judge found that the NCIS agents searched
the entire house, looking for pictures and videotapes.
Mrs. Gallagher would come in and out of the rooms being
searched, but never objected to the search. Eventually,
the agents made their way to the home’s attached garage,
which had been converted into a den. The military judge
found that the room was used by the entire family and
contained a couch, television, wet bar, refrigerator, and
freezer. In the garage, in between the refrigerator and
freezer, the Agents discovered a burgundy briefcase with
two latch locks. The military judge found that nothing
external to the briefcase indicated to whom it belonged.
One of the agents picked up the briefcase and discovered
that the tumblers on each latch were zeroed. The agent was
able to open the briefcase by pushing on both latch buttons
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at the same time without manipulating the tumblers.2 Upon
inspection of the briefcase’s contents, the agent
discovered child pornography. Based on the child
pornography found in the briefcase the agents seized
Appellant’s home computer. Later, the agents obtained a
command authorization to search the computer, which also
contained child pornography.
From these facts, which Appellant does not contest,
the military judge concluded that Mrs. Gallagher had common
authority over the home and was therefore able to consent
to a search of the home and containers contained therein.
The conclusion that Mrs. Gallagher’s actual authority to
consent to the search of the home extended to the search of
the briefcase was made despite Mrs. Gallagher’s testimony
that she had never opened Appellant’s briefcase and that
the briefcase was the exclusive domain of Appellant. The
military judge further held that the evidence obtained from
the briefcase was admissible under the apparent authority
doctrine, as no facts adduced at the hearing tended to show
that the agents should have reasonably known that the
briefcase was the exclusive property of Appellant’s.
2
A forensic analysis of the briefcase prior to trial
determined that it was a standard Chinese-made briefcase
from an unknown manufacturer. The examiners determined
that while one of the locks was not functional, neither had
been forced.
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Having held that the evidence from the briefcase was
admissible, the military judge rejected the argument that
the search authorization for the computer, which was based
on the contents of the briefcase, was tainted and held that
evidence found in the computer was also admissible.
On appeal, the CCA did not address the issue of Mrs.
Gallagher’s actual authority to consent to the search of
the briefcase, but held that the evidence found in the
briefcase was admissible under the apparent authority
doctrine because the NCIS agents reasonably relied on Mrs.
Gallagher’s consent to the search of the home, regardless
of her actual authority to consent to the search of the
briefcase. Gallagher, 65 M.J. at 607-08. The CCA also
determined that the search of the computer was derivative
of the search of the briefcase and was admissible. Id. at
608.
II. Analysis
This Court reviews a military judge’s ruling on a
motion to suppress evidence for an abuse of discretion.
United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F.
2002). It reviews findings of fact for clear error and
conclusions of law de novo. United States v. Flores, 64
M.J. 451, 454 (C.A.A.F. 2007).
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We agree with the parties that the military judge’s
findings of fact, from which the facts above are drawn, are
not clearly erroneous. The question before us is whether
the legal conclusion that Mrs. Gallagher had apparent
authority to consent to the search of the briefcase was an
abuse of discretion.3 We hold that it was not.4
Ordinarily the search of a home, to include a search
of items, such as a briefcase within the home, is
prohibited in the absence of a warrant. U.S. Const. amend.
IV. “The prohibition does not apply, however, to
situations in which voluntary consent has been obtained.”
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Valid
consent to search can be provided, under some
circumstances, by a third party. United States v. Rader,
65 M.J. 30, 32 (C.A.A.F. 2007); see also United States v.
Matlock, 415 U.S. 164, 170-71 (1974); Frazier v. Cupp, 394
U.S. 731, 740 (1969); United States v. Reister, 44 M.J.
3Because the CCA decided the case on the basis of apparent
authority, we review the case on that basis, and need not
reach the issue whether actual authority to consent to the
search of the home extended to the briefcase under the
facts of this case.
4
As the parties recognize, the admissibility of the
contents of the computer turns on whether the search of the
briefcase was lawful. Wong Sun v. United States, 371 U.S.
471, 487-88 (1963); Nardone v. United States, 308 U.S. 338,
341 (1939). Having held that the initial search of the
briefcase was lawful, we affirm the CCA’s holding that the
contents of the computer were likewise admissible.
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409, 414 (C.A.A.F. 1996); United States v. Clow, 26 M.J.
176, 183 (C.M.A. 1988); Military Rule of Evidence (M.R.E.)
314(e)(2).
As the CCA recognized, Gallagher, 65 M.J. at 606, and
we recently reiterated, “[a] third party has authority to
consent to a search when he possesses common authority over
or other sufficient relationship to the premises or effects
sought to be inspected.” Rader, 65 M.J. at 32 (citation
and quotation marks omitted).
A search may be reasonable under the Fourth Amendment
even though the person purporting to give consent lacks
actual authority to consent, if, viewed objectively, “the
facts available to the officer at the moment [would]
warrant a man of reasonable caution [to believe] that the
consenting party had authority over the premises” or
effects. Rodriguez, 497 U.S. at 188 (internal citations
and quotation marks omitted). The scope of the apparent
authority depends on whether it was objectively
unreasonable under the circumstances for law enforcement to
believe that the consent extended to a particular container
on the premises, and the container could reasonably hold
the object of the search. Florida v. Jimeno, 500 U.S. 248,
251 (1991). While the scope of consent to search may be
delimited by the consenter, if consent “would reasonably be
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United States v. Gallagher, 07-0527/MC
understood to extend to a particular container, the Fourth
Amendment provides no grounds for requiring a more explicit
authorization.” Id. at 252. Taken together, these Supreme
Court rulings stand for the proposition that absent
evidence tending to show that an officer should have known
that the closed container was not under the authority of
person who consented to the search, the search of a closed
container belonging to a third party will be deemed
reasonable. United States v. Melgar, 227 F.3d 1038, 1041-
42 (7th Cir. 2000).
No one suggests that the items for which consent to
search was granted –- pictures and videotapes –- could not
easily fit within a briefcase. And, in this case,
Appellant concedes that his wife had actual authority to
consent to the search of the home, to include any space
over which they exercised joint control, for videotapes and
pictures. Nonetheless, he asks us to disaggregate that
authority from any authority to consent to the search of
the briefcase. We decline that invitation under the facts
of this case, and hold that the military judge did not
abuse his discretion denying the motion to suppress on the
ground that Mrs. Gallagher had apparent authority to
consent to the search of the briefcase.
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United States v. Gallagher, 07-0527/MC
Appellant argues that law enforcement’s reliance on
Mrs. Gallagher’s consent to search the home for consent to
search the briefcase was unreasonable -– because it was a
briefcase: “the police searched an item [(a briefcase)]
that was quintessentially one which would be owned by a
service member or other professional.” This argument is
unpersuasive.
In this case, the military judge noted that there was
nothing to indicate that common authority over the
briefcase had been withheld. It was kept in a common area
and opened without manipulation of the tumblers. Moreover,
the military judge concluded that the NCIS agent who
discovered the briefcase was reasonable in relying on Mrs.
Gallagher’s consent to search the home, which was not
limited in any way, because he “possessed no facts that
reasonably should have caused him to believe the briefcase
was the exclusive domain of the accused. In fact, it would
have been just as reasonable to conclude the briefcase was
primarily used by Mrs. Gallagher.”5
5
This finding is supported not only by the location of the
briefcase and the lack of any exterior markings from which
ownership would be discernable, but also by the fact that
not every Marine carries a briefcase, and the fact that
Mrs. Gallagher also worked as a manager of a video store,
and had informed the agents that she was getting ready for
work when they arrived. These facts are in marked contrast
to cases like United States v. Welch, 4 F.3d 761, 765 (9th
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United States v. Gallagher, 07-0527/MC
Our review of the record leads us to a similar
conclusion and, in any event, the military judge applied
the correct legal analysis and his findings of fact are
supported by the record. We agree with the CCA that it was
objectively reasonable, given the androgynous, unmarked,
nature of the briefcase, and given its location in a common
area of the home, for law enforcement to “conclude that the
general consent given by Mrs. Gallagher to search the house
for videotapes and pictures included valid consent to
search unlocked containers which might hold such evidence.
. . .” Gallagher, 65 M.J. at 606-07.
III. Decision
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
Cir. 1993), United States v. Salinas-Cano, 959 F.2d 861,
864-66 (10th Cir. 1992), and United States v. Whitfield,
939 F.2d 1071, 1075 (D.C. Cir. 1991), where there was
either indicia of ownership or facts known to law
enforcement which put them on notice that ownership of the
item to be searched was in question.
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