                        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.


                                 2
United States v. Gallagher, 07-0527/MC


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



                              3
United States v. Gallagher, 07-0527/MC


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


                                4
United States v. Gallagher, 07-0527/MC


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




                               5
United States v. Gallagher, 07-0527/MC


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.

                                6
United States v. Gallagher, 07-0527/MC


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).




                                7
United States v. Gallagher, 07-0527/MC


      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.


3
  Because 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.

                               8
United States v. Gallagher, 07-0527/MC


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


                                9
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.




                                10
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

                               11
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.

                               12
