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 

2

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

3

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 
United States v. Gallagher, 07-0527/MC 

4

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 
United States v. Gallagher, 07-0527/MC 

5

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 
United States v. Gallagher, 07-0527/MC 

6

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

7

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

8

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

9

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 
United States v. Gallagher, 07-0527/MC 

10

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

11

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 
United States v. Gallagher, 07-0527/MC 

12

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.