Opinion of the Court
IÍOMER FERGUSON, Judge:
The accused was convicted by a general court-martial of wrongful possession of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. This Court granted review of two issues:
1. Whether the law officer erred in not permitting defense counsel to state the grounds of his objection to Exhibit 1, and in overruling the defense objection to the search without inquiring into the legality thereof.
2. Whether the search and seizure was legal.
The pertinent facts will be noted where necessary to a discussion of the issues. Concerning the first issue, the following appears in the record:
“Q Who was searching the accused?
“A Sergeant First Class Temple-ton.
“Q Did Sergeant Templeton give you anything at that time?
“IC: I object.
“LO: Overruled.
“IC: May I state the grounds?
“LO: Overruled. Continue.
“Q Did Sergeant Templeton give you anything when you were standing next to the accused?
“A He did. He gave me two small bottles. One was empty. The other was full, after I looked at it.
“IC: I move that the answer be stricken, on the grounds that this was an illegal search.
“LO: Overruled.”
It is the law officer’s task to rule initially on the admissibility of evidence. United States v Stewart, 1 USCMA 648, 5 CMR 76. While his ruling is not lightly to be disregarded, if it is incorrect as a matter of law, an appellate tribunal is not bound by it. United States v DeLeon, 5 USCMA 747, 19 CMR 43. To aid the judge or law officer in his task, there is imposed upon counsel the duty of objecting to evidence considered to be inadmissible. “The function of the objection is, first, to signify that there is an issue of law, and, secondly, to give notice of the terms of the issue.” Wigmore, Evidence, 3d ed, § 18. The specific grounds for the objection must be stated, and ordinarily new bases may not be raised for the first time on appeal. Boston and A. R. Go. v O’Reilly, 158 US 334, 15 S Ct 830, 39 L ed 1006. See generally Wigmore, supra, § 18. The basis for the rule has been stated thusly:
“. . . The object of requiring the grounds of objection to be stated, which may seem to be a technicality, is really to avoid technicalities, and prevent delay in the administration of justice. When evidence is offex-ed to which there is some objection, substantial justice requires that the objection be specified, so that the party offering the evidence can remove it, if possible, and let the case be tried on its merits. If it is objected that the question is leading, the form may be changed; if that the evidence is irrelevant, the relevancy may be shown; if that it is incompetent, the incompetency may be removed; if that it is immaterial, its materiality may be established; if to the order of introduction, it may be withdrawn and offered at another time, — and thus appeals could often be saved, delays avoided, and substantial justice administered.” [Rush v French, 1 Ariz 99, 25 Pac 816, 822.]
These well-established concepts are designed to aid in the orderly administration of justice. In the instant case, however, we do not have a situation where defense counsel failed to object, nor was the failure to specify the grounds for his protest attributable to him. It was the law officer who not [487]*487only arbitrarily overruled the objection but, upon request, refused to permit the defense counsel to state his grounds. Such arbitrary action usually results in an uninformed ruling and generally deprives appellate authorities of a proper record upon which to assess the correctness of the law officer’s action. Either result may prove fatal to the validity of any ensuing conviction.
When the evidence was thus admitted, defense counsel moved that it be stricken because it was the product of an illegal search. This, in effect, was a renewal of the earlier objection, and the question of the search’s legality was thereby put in issue. Upon objection, the Government had the burden of establishing its propriety. United States v Berry, 6 USCMA 609, 20 CMR 325. As the Chief Judge, speaking for a unanimous Court, said in United States v Weaver, 9 USCMA 13, 25 CMR 275:
“Certainly the mere assertion that a search is illegal is an insufficient basis upon which to make an informed ruling. Inquiry into the basis, and the circumstances, of the search must be made.”
The law officer thus compounded his previous error by again overruling the objection without any inquiry into the circumstances. Such action cannot be condoned.
While the law officer’s ruling was uninformed, the evidence subsequently received sufficiently reflects the circumstances of the search to permit an informed appellate judgment thereon. Thus, while we deem his arbitrariness prejudicial, we also pass to the second granted issue which squarely presents the question of the legality of the search.
The circumstances under which the search took place were briefly as follows: On June 14, 1958, the accused and nine other soldiers, all of whom were on pass, were transported to Community Center 1 on an Army truck. Six or seven of the ten had been suspected for the past four months of using narcotics. The accused’s commanding officer, Lieutenant Clark, received information that one of the ten had borrowed $10.00 before going on pass. Included in the group was one individual, not the accused, who reputedly had been “caught” with narcotics but never tried because of a defect in the chain of custody. Acting upon his suspicions, Lieutenant Clark arranged for a search of all ten of the men upon their return. When they returned on the truck, all ten were “apprehended,” searched, stripped, and searched again. Sergeant First Class Templeton testified that he found two bottles of heroin (Prosecution Exhibit 1) on the accused.
Both parties in essence have treated the question as one of the reasonableness of the search. Only unreasonable searches are prohibited. Carroll v United States, 267 US 132, 45 S Ct 280, 69 L ed 543. The question is simply one of whether there was probable cause to search. What is reasonable, of course, may vary according to the circumstances. For example, a search which may be considered reasonable on a wartime battle front to secure evidence of spying might, under different conditions, be regarded as highly irregular.
The opinions of Federal courts support five general types of searches as legal. Paragraph 152, Manual for Courts-Martial, United States, 1951, lists them as follows:
1. “A search conducted in accordance with the authority granted by a lawful search warrant.”
2.
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Opinion of the Court
IÍOMER FERGUSON, Judge:
The accused was convicted by a general court-martial of wrongful possession of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. This Court granted review of two issues:
1. Whether the law officer erred in not permitting defense counsel to state the grounds of his objection to Exhibit 1, and in overruling the defense objection to the search without inquiring into the legality thereof.
2. Whether the search and seizure was legal.
The pertinent facts will be noted where necessary to a discussion of the issues. Concerning the first issue, the following appears in the record:
“Q Who was searching the accused?
“A Sergeant First Class Temple-ton.
“Q Did Sergeant Templeton give you anything at that time?
“IC: I object.
“LO: Overruled.
“IC: May I state the grounds?
“LO: Overruled. Continue.
“Q Did Sergeant Templeton give you anything when you were standing next to the accused?
“A He did. He gave me two small bottles. One was empty. The other was full, after I looked at it.
“IC: I move that the answer be stricken, on the grounds that this was an illegal search.
“LO: Overruled.”
It is the law officer’s task to rule initially on the admissibility of evidence. United States v Stewart, 1 USCMA 648, 5 CMR 76. While his ruling is not lightly to be disregarded, if it is incorrect as a matter of law, an appellate tribunal is not bound by it. United States v DeLeon, 5 USCMA 747, 19 CMR 43. To aid the judge or law officer in his task, there is imposed upon counsel the duty of objecting to evidence considered to be inadmissible. “The function of the objection is, first, to signify that there is an issue of law, and, secondly, to give notice of the terms of the issue.” Wigmore, Evidence, 3d ed, § 18. The specific grounds for the objection must be stated, and ordinarily new bases may not be raised for the first time on appeal. Boston and A. R. Go. v O’Reilly, 158 US 334, 15 S Ct 830, 39 L ed 1006. See generally Wigmore, supra, § 18. The basis for the rule has been stated thusly:
“. . . The object of requiring the grounds of objection to be stated, which may seem to be a technicality, is really to avoid technicalities, and prevent delay in the administration of justice. When evidence is offex-ed to which there is some objection, substantial justice requires that the objection be specified, so that the party offering the evidence can remove it, if possible, and let the case be tried on its merits. If it is objected that the question is leading, the form may be changed; if that the evidence is irrelevant, the relevancy may be shown; if that it is incompetent, the incompetency may be removed; if that it is immaterial, its materiality may be established; if to the order of introduction, it may be withdrawn and offered at another time, — and thus appeals could often be saved, delays avoided, and substantial justice administered.” [Rush v French, 1 Ariz 99, 25 Pac 816, 822.]
These well-established concepts are designed to aid in the orderly administration of justice. In the instant case, however, we do not have a situation where defense counsel failed to object, nor was the failure to specify the grounds for his protest attributable to him. It was the law officer who not [487]*487only arbitrarily overruled the objection but, upon request, refused to permit the defense counsel to state his grounds. Such arbitrary action usually results in an uninformed ruling and generally deprives appellate authorities of a proper record upon which to assess the correctness of the law officer’s action. Either result may prove fatal to the validity of any ensuing conviction.
When the evidence was thus admitted, defense counsel moved that it be stricken because it was the product of an illegal search. This, in effect, was a renewal of the earlier objection, and the question of the search’s legality was thereby put in issue. Upon objection, the Government had the burden of establishing its propriety. United States v Berry, 6 USCMA 609, 20 CMR 325. As the Chief Judge, speaking for a unanimous Court, said in United States v Weaver, 9 USCMA 13, 25 CMR 275:
“Certainly the mere assertion that a search is illegal is an insufficient basis upon which to make an informed ruling. Inquiry into the basis, and the circumstances, of the search must be made.”
The law officer thus compounded his previous error by again overruling the objection without any inquiry into the circumstances. Such action cannot be condoned.
While the law officer’s ruling was uninformed, the evidence subsequently received sufficiently reflects the circumstances of the search to permit an informed appellate judgment thereon. Thus, while we deem his arbitrariness prejudicial, we also pass to the second granted issue which squarely presents the question of the legality of the search.
The circumstances under which the search took place were briefly as follows: On June 14, 1958, the accused and nine other soldiers, all of whom were on pass, were transported to Community Center 1 on an Army truck. Six or seven of the ten had been suspected for the past four months of using narcotics. The accused’s commanding officer, Lieutenant Clark, received information that one of the ten had borrowed $10.00 before going on pass. Included in the group was one individual, not the accused, who reputedly had been “caught” with narcotics but never tried because of a defect in the chain of custody. Acting upon his suspicions, Lieutenant Clark arranged for a search of all ten of the men upon their return. When they returned on the truck, all ten were “apprehended,” searched, stripped, and searched again. Sergeant First Class Templeton testified that he found two bottles of heroin (Prosecution Exhibit 1) on the accused.
Both parties in essence have treated the question as one of the reasonableness of the search. Only unreasonable searches are prohibited. Carroll v United States, 267 US 132, 45 S Ct 280, 69 L ed 543. The question is simply one of whether there was probable cause to search. What is reasonable, of course, may vary according to the circumstances. For example, a search which may be considered reasonable on a wartime battle front to secure evidence of spying might, under different conditions, be regarded as highly irregular.
The opinions of Federal courts support five general types of searches as legal. Paragraph 152, Manual for Courts-Martial, United States, 1951, lists them as follows:
1. “A search conducted in accordance with the authority granted by a lawful search warrant.”
2. “A search of an individual’s person, of the clothing he is wearing, and of the property in his immediate possession or control, conducted as an incident of lawfully apprehending him.”
3. “A search under circumstances demanding immediate action to prevent the removal or disposal of property believed on reasonable grounds to be criminal goods.”
4. “A search made with the freely given consent of the owner in possession of the property searched.”
5. “A search of property which is [488]*488owned or controlled by the United States and is under the control of an armed force, or of property which is located within a military installation or in a foreign country or in occupied territory and is owned, used, or occupied by persons subject to military law or to the law of war, which search has been authorized by a commanding officer (including an officer in charge) having jurisdiction over the place where the property is situated or, if the property is in a foreign country or in occupied territory, over personnel subject to military law or to the law of war in the place where the property is situated.
The first and fifth categories are clearly inapplicable here, there having been no search warrant and the search having been of the person rather than of property. The fourth type of search listed also gives us little pause. Here, there was no grant of consent. A peaceful submission to officers of the law, that is to say, an acquiescence in the search, is not consent. United States v Heck, 6 CMR 223.
Concerning the third type of search, there being no information that criminal goods could be found, there can be no valid contention that immediate action was needed to prevent their removal or disposal. There is nothing in the record to support any contention that Lieutenant Clark was aware of any facts which rendered immediate action necessary.1
Finally, concerning the second type of search listed by the Manual as being lawful, we find it inapplicable here as there was no lawful apprehension. Although Lieutenant Clark, as an officer, had authority to apprehend (see Manual for Courts-Martial, supra, paragraph 19), the person making an apprehension must have a reasonable belief that an offense has been committed and that the person apprehended committed it. Article 7(b), Uniform Code of Military Justice, 10 USC § 807. The record shows no basis for any such belief by Lieutenant Clark. He merely suspected several men. This suspicion had continued for a period of four months with some surveillance during that period, yielding no results. The only circumstance which apparently differentiates the evening chosen for the search from any other evening was the information that one of the ten men had borrowed $10.00. As appellate defense counsel contends, if possession of money was to be the deciding factor, the search might better have been held immediately after payday. An apprehension may not be used as a pretext to search for evidence of crime. United States v Lefkowitz, 285 US 452, 52 S Ct 420, 76 L ed 877. Nor can an apprehension be validated by what it uncovers. United States v Asendio, 171 F2d 122 (CA3d Cir) (1948).
While there is substantial discretion vested in the commanding officer to order a search of persons and property under his command, consideration of all the circumstances herein make it clear beyond cavil that Lieutenant Clark acted on nothing more than mere suspicion.2 Reasonable or probable cause was clearly lacking for both the apprehension and the search and, although the military permits certain deviations from civilian practice in the procedures for initiating a search, the substantive rights of the individual und, the necessity that probable cause exist! therefor remain the same.3 Unreason^ [489]*489able searches and seizures will not be tolerated. The great importance attached to the fundamental protection of the Constitution against unreasonable searches and seizures requires no elaboration. While we recognize the commanding officer’s traditional authority to conduct a search in order to safeguard the security of his command, that issue is not presented here.
The action of Lieutenant Clark here was with utter disregard for the rights of the accused and the others. He acted upon mere suspicion with no factual basis for his action. He ordered a wholesale search of all those in the truck, those “suspected” and those regarded as completely innocent. He ordered that any suspicious objects be seized and turned over to him. The search was general and exploratory in nature and wholly lacking in reasonable cause. Without the evidence obtained as a result of the illegal search, i.e., the bottles of heroin, the prosecution’s case must fall.
The decision of the board of review is reversed and the Charge ordered dismissed.
Chief Judge Quinn concurs.