Opinion of the Court
Quinn, Chief Judge:
This is an appeal from a conviction for larceny from a barracks mate, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The principal issue is the admissibility of evidence of the discovery of the stolen money in the accused’s shoe and a statement made by him at that time.
About 1:30 a.m., on August 2, 1964, Private First Class Robert L. Dorsey, known to his associates as the “Slammer” because he was heavyweight boxing champion of the Third Army, returned to his barracks. Before he went to bed he placed $145.00 in his locker, and locked the door with a key. He put the key in a pocket of his trousers, which he put on his footlocker. About six hours later, Dorsey awakened. On going to his locker, he discovered his money was missing. The only person present in the bay was the accused. Pie occupied the next bunk, and was a close friend.
Dorsey exclaimed that “‘Ls]ome SOB’ ” had taken his money. He and the accused inspected the locker for marks of entry, but found none. Dorsey reasoned that someone had probably removed the key from the pocket of his trousers to open the locker, and then had returned the key. The accused wondered “ ‘who could have taken’ ” the money, and suggested that it might be “ ‘Radeo.’ ” He advised Dorsey to notify the Criminal Investigations Detachment. Dorsey’s reaction to the suggestion was that he would “ ‘see Radeo later,’ ” but “ ‘now’ ” he wanted to search the accused’s gear. The accused told him to “ ‘go ahead.’ ” Thereupon Dorsey indicated that instead of searching accused’s gear, he would search the accused’s person. At first, the accused “didn’t want” to be searched; then he tendered his wallet to Dorsey. Dorsey examined it and saw it contained only $6.00. He told the accused he now wanted to “ ‘search . . . [his] shoes,’ ” and asked the accused to remove them. The accused refused and started to leave. Dorsey grabbed him by the shirt, tearing it. The accused continued to protest, and he demanded to know whether Dorsey considered him a criminal. Eventually he removed the right shoe, and threw it aside. Dorsey told him to take off the left shoe. The accused’s response was to continue his protest against Dorsey’s conduct. Dorsey “balled” his fist and said he would knock out the accused and take off the shoe himself, if the accused did not remove it. Finally, the accused took off his shoe. As Dorsey took possession of it, the accused said: “‘It’s all there. I’m sorry I took it. I guess I took a joke a little bit too far.’ ” He followed Dorsey as he moved around the barracks, repeating that he was “ ‘sorry’ ” he took the money, he just “ ‘carried a joke too far.’ ’1
[497]*497Although Dorsey’s testimony about his discovery of the money was admitted without defense objection, the accused now contends the law officer should have stricken it on his own motion because the discovery of the money and the accused’s statements at the time were obtained by coercion, in violation of Article 31 of the Uniform Code of Military Justice, 10 USC § 831, and the accused’s rights under the Fourth and Fifth Amendments to the Constitution of the United States.
The failure to object to the evidence is troublesome. The theory of the defense was that the accused took the money merely as a joke, in accordance with a commonplace practice in the barracks of temporarily concealing the property of a barracks mate so that he would search for it, and thereby provide amusement to the others. The theory is strongly, if not best, advanced by the statements made by the accused immediately after Dorsey discovered the missing money. Reliance on this theory explains defense counsel’s failure to object to evidence which he might otherwise have considered inadmissible. The affirmative use by the defense of Government evidence, admitted without defense objection, normally constitutes an abandonment of all possible grounds of objection. Lawn v United States, 355 US 339, 353, 2 L ed 2d 321, 78 S Ct 311 (1958), rehearing denied, 355 US 967, 2 L ed 2d 542, 78 S Ct 529 (1958). In a similar instance of defense utilization of possibly objectionable evidence introduced by the Government, we held the accused “should not . . . on appeal be heard to complain that the actions in which he actively participated [at trial] were prejudicial.” United States v Kelly, 7 USCMA 218, 224, 22 CMR 8. However, appellate defense counsel urge us to disregard what happened at trial because Dorsey’s testimony is the only evidence of accused’s implication in the theft. The issue, say counsel, is “so fundamental” that we should not, in the interest of justice, hold the accused accountable for his course of action at trial. Cf. United States v Fisher, 4 USCMA 152, 15 CMR 152. Although the record of trial reflects more than mere failure to object, recent judicial applications of the Fourth and Fifth Amendments invite consideration of the legal consequences of Dorsey’s action. We, therefore, pass over the procedural hurdles to reach the substance of the issue.
At least since Boyd v United States, 116 US 616, 29 L ed 746, 6 S Ct 524 (1886), Federal courts have commented on the close interplay between the Fourth Amendment protection against unreasonable search and seizure and the privilege against self-incrimination provided by the Fifth Amendment. As recently as Mapp v Ohio, 367 US 643, 656, 6 L ed 2d 1081, 81 S Ct 1684 (1961), the Supreme Court of the United States described evidence of the results of an unrea[498]*498sonable search and seizure as “tantamount to coerced testimony.” See also Davis v United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256 (1946), rehearing denied, 329 US 824, 91 L ed 700, 67 S Ct 107 (1946); Nueslein v District of Columbia, 115 F2d 690 (CA DC Cir) (1940). Nevertheless, the two provisions are separate; and there may be a violation of one Amendment without involving the other. The difference between the two provisions was explicitly noted by the Supreme Court in Curcio v United States, 354 US 118, 1 L ed 2d 1225, 77 S Ct 1145 (1957). There, a custodian of the books of a union was served with two subpoenas to appear before a grand jury. One directed him to bring the union books; the other was to obtain his testimony as a witness. He appeared before the grand jury, but did not bring the books; and he refused to answer any questions as to their whereabouts. The Supreme Court held that while he could properly be compelled to produce the books because, as custodian, he had no personal interest in them, he could not be forced to disclose their whereabouts. We have also commented on the distinction in a number of cases in which the accused was required to identify property. See United States v Taylor, 5 USCMA 178, 17 CMR 178; United States v Holmes, 6 USCMA 151, 19 CMR 277.
Whether by reason of Article 31 of the Uniform Code, supra, or the Fifth Amendment, this Court has decided for the military that an incriminating statement obtained from an accused by coercion is inadmissible in evidence against him, without regard to whether the coercion was exerted by a Government agent or a private individual. United States v Trojanowski, 5 USCMA 305, 312, 17 CMR 305; United States v Shanks, 12 USCMA 586, 588, 31 CMR 172. However, the Constitutional provision against unreasonable search and seizure has consistently been applied only to action by, or under the aegis of, Government authority.
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Opinion of the Court
Quinn, Chief Judge:
This is an appeal from a conviction for larceny from a barracks mate, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The principal issue is the admissibility of evidence of the discovery of the stolen money in the accused’s shoe and a statement made by him at that time.
About 1:30 a.m., on August 2, 1964, Private First Class Robert L. Dorsey, known to his associates as the “Slammer” because he was heavyweight boxing champion of the Third Army, returned to his barracks. Before he went to bed he placed $145.00 in his locker, and locked the door with a key. He put the key in a pocket of his trousers, which he put on his footlocker. About six hours later, Dorsey awakened. On going to his locker, he discovered his money was missing. The only person present in the bay was the accused. Pie occupied the next bunk, and was a close friend.
Dorsey exclaimed that “‘Ls]ome SOB’ ” had taken his money. He and the accused inspected the locker for marks of entry, but found none. Dorsey reasoned that someone had probably removed the key from the pocket of his trousers to open the locker, and then had returned the key. The accused wondered “ ‘who could have taken’ ” the money, and suggested that it might be “ ‘Radeo.’ ” He advised Dorsey to notify the Criminal Investigations Detachment. Dorsey’s reaction to the suggestion was that he would “ ‘see Radeo later,’ ” but “ ‘now’ ” he wanted to search the accused’s gear. The accused told him to “ ‘go ahead.’ ” Thereupon Dorsey indicated that instead of searching accused’s gear, he would search the accused’s person. At first, the accused “didn’t want” to be searched; then he tendered his wallet to Dorsey. Dorsey examined it and saw it contained only $6.00. He told the accused he now wanted to “ ‘search . . . [his] shoes,’ ” and asked the accused to remove them. The accused refused and started to leave. Dorsey grabbed him by the shirt, tearing it. The accused continued to protest, and he demanded to know whether Dorsey considered him a criminal. Eventually he removed the right shoe, and threw it aside. Dorsey told him to take off the left shoe. The accused’s response was to continue his protest against Dorsey’s conduct. Dorsey “balled” his fist and said he would knock out the accused and take off the shoe himself, if the accused did not remove it. Finally, the accused took off his shoe. As Dorsey took possession of it, the accused said: “‘It’s all there. I’m sorry I took it. I guess I took a joke a little bit too far.’ ” He followed Dorsey as he moved around the barracks, repeating that he was “ ‘sorry’ ” he took the money, he just “ ‘carried a joke too far.’ ’1
[497]*497Although Dorsey’s testimony about his discovery of the money was admitted without defense objection, the accused now contends the law officer should have stricken it on his own motion because the discovery of the money and the accused’s statements at the time were obtained by coercion, in violation of Article 31 of the Uniform Code of Military Justice, 10 USC § 831, and the accused’s rights under the Fourth and Fifth Amendments to the Constitution of the United States.
The failure to object to the evidence is troublesome. The theory of the defense was that the accused took the money merely as a joke, in accordance with a commonplace practice in the barracks of temporarily concealing the property of a barracks mate so that he would search for it, and thereby provide amusement to the others. The theory is strongly, if not best, advanced by the statements made by the accused immediately after Dorsey discovered the missing money. Reliance on this theory explains defense counsel’s failure to object to evidence which he might otherwise have considered inadmissible. The affirmative use by the defense of Government evidence, admitted without defense objection, normally constitutes an abandonment of all possible grounds of objection. Lawn v United States, 355 US 339, 353, 2 L ed 2d 321, 78 S Ct 311 (1958), rehearing denied, 355 US 967, 2 L ed 2d 542, 78 S Ct 529 (1958). In a similar instance of defense utilization of possibly objectionable evidence introduced by the Government, we held the accused “should not . . . on appeal be heard to complain that the actions in which he actively participated [at trial] were prejudicial.” United States v Kelly, 7 USCMA 218, 224, 22 CMR 8. However, appellate defense counsel urge us to disregard what happened at trial because Dorsey’s testimony is the only evidence of accused’s implication in the theft. The issue, say counsel, is “so fundamental” that we should not, in the interest of justice, hold the accused accountable for his course of action at trial. Cf. United States v Fisher, 4 USCMA 152, 15 CMR 152. Although the record of trial reflects more than mere failure to object, recent judicial applications of the Fourth and Fifth Amendments invite consideration of the legal consequences of Dorsey’s action. We, therefore, pass over the procedural hurdles to reach the substance of the issue.
At least since Boyd v United States, 116 US 616, 29 L ed 746, 6 S Ct 524 (1886), Federal courts have commented on the close interplay between the Fourth Amendment protection against unreasonable search and seizure and the privilege against self-incrimination provided by the Fifth Amendment. As recently as Mapp v Ohio, 367 US 643, 656, 6 L ed 2d 1081, 81 S Ct 1684 (1961), the Supreme Court of the United States described evidence of the results of an unrea[498]*498sonable search and seizure as “tantamount to coerced testimony.” See also Davis v United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256 (1946), rehearing denied, 329 US 824, 91 L ed 700, 67 S Ct 107 (1946); Nueslein v District of Columbia, 115 F2d 690 (CA DC Cir) (1940). Nevertheless, the two provisions are separate; and there may be a violation of one Amendment without involving the other. The difference between the two provisions was explicitly noted by the Supreme Court in Curcio v United States, 354 US 118, 1 L ed 2d 1225, 77 S Ct 1145 (1957). There, a custodian of the books of a union was served with two subpoenas to appear before a grand jury. One directed him to bring the union books; the other was to obtain his testimony as a witness. He appeared before the grand jury, but did not bring the books; and he refused to answer any questions as to their whereabouts. The Supreme Court held that while he could properly be compelled to produce the books because, as custodian, he had no personal interest in them, he could not be forced to disclose their whereabouts. We have also commented on the distinction in a number of cases in which the accused was required to identify property. See United States v Taylor, 5 USCMA 178, 17 CMR 178; United States v Holmes, 6 USCMA 151, 19 CMR 277.
Whether by reason of Article 31 of the Uniform Code, supra, or the Fifth Amendment, this Court has decided for the military that an incriminating statement obtained from an accused by coercion is inadmissible in evidence against him, without regard to whether the coercion was exerted by a Government agent or a private individual. United States v Trojanowski, 5 USCMA 305, 312, 17 CMR 305; United States v Shanks, 12 USCMA 586, 588, 31 CMR 172. However, the Constitutional provision against unreasonable search and seizure has consistently been applied only to action by, or under the aegis of, Government authority. Almost a half century ago, the Supreme Court of the United States held there was no “invasion of the security afforded by the 4th Amendment against unreasonable search and seizure,” when the wrong “done was the act of individuals in taking the property of another.” Burdeau v McDowell, 256 US 465, 475, 65 L ed 1048, 41 S Ct 574 (1921). More recently, in extending the protection of the Fourth Amendment, through the Fourteenth Amendment, to state prosecutions, the Supreme Court noted that the Constitutional provision was a guarantee against “official lawlessness.” Mapp v Ohio, supra, at page 655. United States District Judge Youngdahl succinctly stated the rule in United States v Frank, 225 F Supp 573, 575 (DC DC) (1964), as follows:
“. . . The exclusionary rule applied to evidence seized in violation of the Fourth Amendment is designed to force law enforcement agents to observe the procedural safeguards of the Constitution. Where, as here, any possible irregularity . . . was solely the responsibility of private persons, with no connection or collusion of any kind with any law enforcement agent, the exclusionary rule does not apply.”
The distinction between Government action and private conduct is relatively clear, and easy to discern, in the civilian community. In the military, the line of demarcation is blurred by the fact that one individual may exercise authority over another because of superiority of rank or command. This circumstance may complicate the problem in a particular case; it does not, however, eliminate the distinction between Governmental and private action. See United States v Beck, 15 USCMA 333, 35 CMR 305; United States v Dandaneau, 5 USCMA 462, 18 CMR 86. We referred to the distinction in considering the admissibility of evidence obtained by a search in United States v Volante, 4 USCMA 689, 16 CMR 263. There, a post exchange steward searched the accused’s personal effects. The steward was superior in rank to the accused, but both were fellow employees of the exchange. The evidence showed the steward suspected the accused of [499]*499thievery, and made the search to determine if the accused had effected a shortage for which the steward would have been pecuniarily liable. We held the evidence was sufficient to support the trial ruling that the steward “acted as a private individual and not in an official capacity.” Id., at page 693. In United States v Rogan, 8 USCMA 739, at page 742, 25 CMR 243, we said: “Evidence obtained as a result of a search conducted by a private person is admissible, whereas that obtained from an illegal search by those acting under the authority of the United States is inadmissible.”
In view of the close relationship between Dorsey and the accused, the change of attitude, from cooperativeness to obstructionism, undoubtedly gave Dorsey good reason to believe the accused had his money. See United States v Armstrong, 4 USCMA 248, 15 CMR 248. It is arguable, therefore, that Dorsey was merely engaged in the recapture of his own property; and that a thief, who has no legal right to the property, is not protected by the Fourth Amendment against the owner’s right of recoupment. See Deck v United States, 339 F2d 739 (CA DC Cir) (1964). Cf. United States v Trojanowski, supra, at page 312. Be that as it may, the evidence leaves no room for any conclusion but that Dorsey acted exclusively in his own private interests when he searched the accused’s shoes. Under established precedent, therefore, Dorsey’s testimony as to the discovery of the money is admissible. Appellate defense counsel, however, contend that current cases require us to overrule these precedents and include within the protection against unreasonable search and seizure the conduct of private persons, acting for purely private purposes. None of the cases cited tend to support counsel’s conclusion; and our own research has uncovered only one case which even suggests it. In a dictum., a District Court observed that the Constitutional provision is a “guarantee of . . . security as against not only other persons generally but particularly against the Government itself.” United States v Chodak, 68 F Supp 455, 458 (D Md) (1946). The search in Chodak had in fact been made by Government agents. We do not consider the dictum as indicating a possible trend of opinion away from the Supreme Court’s holding in Burdeau v McDowell, supra. On the contrary, United States v Frank, supra, reaffirms the continued vitality of Burdeau in the Federal courts.
Left for consideration is whether the accused’s statement about being sorry he took the money and that he had carried a joke too far was properly admitted in evidence. If the statement was coerced, it was not admissible. United States v Trojanowski, supra. Without restating the evidence, we agree with Government counsel, that unlike the situation in Trojanowski, the circumstances here show the statement was unmistakably volunteered by the accused. , The statement impresses us as an effort on the accused’s part to exculpate, not incriminate, himself. As we indicated earlier, it was used at trial to establish the accused’s theory of defense. We conclude, therefore, that the law officer properly allowed the statement in evidence.
The second assignment of error depends upon the exclusion of Dorsey’s testimony as to the discovery of the money in the accused’s shoe. Since we have decided that issue against the accused, the subsidiary question must be similarly determined.
The decision of the board of review is affirmed.
Judge Kilday concurs.