Two published decisions in one day! United States v. Gallagher

On February 28, 2007, the Navy-Marine Corps Court of Criminal Appeals decided United States v. Gallagher. The case raises interesting issues involving M.R.E. 404(b) and the 4th Amendment. Gunnery Sergeant Gallagher lived in military housing with his wife and children. His wife worked part-time as a manager at blockbuster video. Gunnery Sergeant Gallagher placed a camera in the bedroom of a ten-year-old neighbor and fellow Marine. On November 2, 2001, while NCIS agents were speaking with Gunnery Sergeant Gallagher on Paris Island, other agents were dispatched to his home to seek a permissive search authorization from his wife. The agents were looking for photographs of the ten-year-old neighbor. His wife consented, and she waited in the living room as the agents searched the family home. During a search of the garage, which the family had converted into a common area, the agents came across a man's briefcase sitting next to a refrigerator. Whether the briefcase was locked was disputed at trial, but the Court sided with the NCIS agents who testified that it was not. They opened the briefcase and found child pornography. They then took the briefcase into the living room where, for the first time, Mrs. Gallagher told them that the briefcase belonged to her husband.

The case centers on the reasonableness of the search of a closed briefcase in the family home and whether Mrs. Gallagher's consent to search was valid with respect to the briefcase. In finding the search to be reasonable, the Court relied heavily upon United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). In Melgar, a number of men and women were in a hotel room. One of the women who had rented the room gave consent to search the room. During the search, agents found a floral purse and opened it. The Seventh Circuit noted, "generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." The Court reasoned that law enforcement had no way of knowing that the floral purse found did not belong to the female renter who had consented to the search and that the search was reasonable under those circumstances.

I wonder if the NMCCA did not set itself up for reversal by relying so heavily upon Melgar. Is Melgar really that closely related to the situation in Gallagher? Did the NCIS agents really believe that the men's briefcase sitting beside the refrigerator could have belonged to Gallagher's stay-at-home wife or minor children? Perhaps she used the briefcase in her part-time duties at blockbuster. What if Gallagher had hidden the photographs in a humidor? How about a shaving kit? I suspect the result would have been the same at NMCCA. It is certainly possible that some women smoke cigars while shaving and carrying around men's briefcases. But, if the right to search the home is a close call, to which NMCCA is entitled some discretion, the next issue is not even close.

The government sought to introduce the testimony of VK. VK, then 21, would testify that, when she was 10, Gunnery Sergeant Gallagher had a sexual relationship with her. Gallagher was acquitted by an Ohio jury of the crime intercourse with VK in 1994. The government sought to introduce VK's testimony to rebut Gallagher's defense that he had innocently placed the video camera in VK's room to make a movie about the family home for her family. The Court found that Gallagher's alleged sexual relationship with VK when she was ten was logically and legally relevant to negate his claim of mistake of fact on the "peeping tom" offense. The Court cited the cases of United States v. Barnett, 63 M.J. 394 (C.A.A.F. 2006) and United States v. Thompson, 63 M.J. 228 (C.A.A.F. 2006), but did it read them? The prior bad acts in Barnett were much more similar to the charged misconduct than those in Gallagher, and the C.A.A.F. found them to be inadmissible.

Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. You decision has less than a year to live.