U.S. v. Gallagher, 66 M.J. 250

First Principles: Constitutional Matters: Search and Seizure

1. 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; the prohibition does not apply, however, to situations in which voluntary consent has been obtained
2. under the apparent authority doctrine, 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 law enforcement officer at the moment would warrant a man of reasonable caution to believe that the consenting party had authority over the premises or effects
3. while the scope of consent to search a premises may be delimited by the consenter, if the consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. 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; the prohibition does not apply, however, to situations in which voluntary consent has been obtained
2. valid consent to search can be provided, under some circumstances, by a third party; 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
3. under the apparent authority doctrine, 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 law enforcement officer at the moment would warrant a man of reasonable caution to believe that the consenting party had authority over the premises or effects
4. the scope of the apparent authority to consent with respect to a container on the premises depends on whether it was objectively unreasonable under the circumstances for a law enforcement officer to believe that the consent extended to the particular container on the premises and the container could reasonably hold the object of the search
5. while the scope of consent to search a premises may be delimited by the consenter, if the consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization
6. absent evidence tending to show that an officer should have known that a closed container on the premises was not under the authority of a person who consented to the search, the search of a closed container belonging to a third party will be deemed reasonable
7. a military judge did not abuse his discretion denying a motion to suppress on the ground that a spouse had apparent authority to consent to the search of the briefcase where there was nothing to indicate that common authority over the briefcase had been withheld, the briefcase was kept in a common area and opened without manipulation of the tumblers, and the law enforcement officer who discovered the briefcase was reasonable in relying on the spouse’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 appellant and it would have been just as reasonable to conclude the briefcase was primarily used by the consenting spouse
8. when one spouse consented to a search of the entire house, the apparent authority doctrine extended 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, videotapes and pictures, as it was objectively reasonable for a law enforcement officer to believe the general consent to search the home for videotapes and pictures included valid consent to search unlocked containers which might hold such evidence, to include the briefcase

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion; it reviews findings of fact for clear error and conclusions of law de novo