Tuesday, May 13, 2008

2 New . . . Wait CAAFlog Beat me to It

Two new CAAF opinions today. United States v. Gallagher, No. 07-0527, is a relatively mild mannered consent to search case. Judge Ryan's BLUF opinion in Gallagher says it all (there is one sentence in here that contains some of the best use of adjectives by the CAAF this term):
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.
With that synopsis, it is hard to argue with the unanimous holding. That's not to say that CAAFlog commenter Bill Cassara and the fighting . . . ducks . . . at Code 45 did anything but a stellar job framing the issues to get it this far. I haven't seen Code 46's briefs on the issue, but from the way the opinion came out they did their job, too. And while our MIA contributor Guert's impassioned commentary on this case below stands as some of the best blogging on this site to date, the facts didn't shake out quite like he thought. No men's briefcase, just an unidentified briefcase. Wife wasn't a clerk at Blockbuster, but the manager. The Court even cited Melgar, Guert! Thankfully Guert only predicted the demise of Gallagher's 404(b) holding, lest his perfect prediction streak be broken.

As for United States v. Adams, No. 07-0796, I will have to leave that to the pros. I have to catch some dinner.


Fitzcarraldo said...

I liked her use of the word "androgynous." Who knew Judge Ryan was a Replacements fan?

Anonymous said...

Use of the term "androgynous" here seems too contrived to me. By actual social expectation, not what Judge Ryan may wish it to be, briefcases generally are used by men. Women's carrying cases DO look different than unstylish rectangular briefcases. If one gets too detached from social conventions, everything is "androgynous," whether cigars, barbels, panties or lipstick.

One small step forward for feminism; one giant step back for 4th Amendment protections.

Anonymous said...

Giant? COme on...based upon the facts of this case it is clear what the result was going to be.

Anonymous said...

Adams is another one of those re-interpretations of a convening authority's intent. These types of cases are the reason the public feels that "military justice" is an oxymoron and not readily achievable. This is, what, the third case this term to do this?

It's getting a little ridiculous to keep seeing CA's, with their several layers of checks and rechecks, make such a mess. Unfortunately, its even more ridiculous to see CAAF keep covering for them. I think it's a little more important that the gov't, with its nearly unlimited resources, be held accountable for screwing up, even if it means an AWOL check-bouncer gets away with it.

Anonymous said...

Why not do away with the antiquated CA action and SJAR? They are never done right and leadt o significant litigation. Or have 2 boxes in a CA action: Approved or disapproved. That's it. Do away with all the post trial monkeying around with the process. If a court martial imposses a sentence, let that be the sentence.

Anonymous said...

I like the idea of a form/chart, which a convening authority could use to indicate his action clearly and simply. If it's good enouugh for rights advisements, findings/sentence worksheets, etc. why not for the CA's action? If you did it right, you wouldn't need a single statutory/regulatory change.


No Man said...


As long as it doesn't involve punching holes in the CA form, I could be on board with that. What about a form where the check filled parts of two boxes? Only 9 Justices could figure that one out.

John O'Connor said...

I agree with SD. Though I think the CAAF's use of contract theories in construing CA actions is silly, this could all be solved by a CA action that is on a form. For each type of punishment other than a punitive discharge, list out the punishment and let the CA choose from a menu: (1) approved in full; (2) disapproved in full; (3) approved in full but a portion is suspended (add details of suspension). At the end of the section for each punishment would be a sentence something like "all approved portions of this punishment are ordered executed."

For the punitive discharge, it's either approved or disapproved with no final sentence about execution.