Opinion of the Court
Kilday, Judge:
Accused was convicted by a general court-martial, convened at Forbes Air Force Base, Kansas, of three specifications alleging larceny of Government property, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of $50.00 per month for twelve months, and reduction to airman basic. The convening authority modified one of the specifications as to the value of property, but otherwise approved the findings and sentence.
A board of review in the office of The Judge Advocate General of the Air Force found that the alleged stolen property was secured as the result of an illegal search and seizure, and set aside the findings and sentence and ordered the charges dismissed.
Under the provisions of Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Air Force has certified the case to this Court on the following issue:
“WAS THE BOARD OF REVIEW CORRECT IN ITS DETERMINATION THAT THE PROPERTY IN QUESTION (PROSECUTION EXHIBITS 1 THROUGH 24) WAS OBTAINED BY AN ILLEGAL SEARCH AND SEIZURE AND THEREFORE IMPROPERLY RECEIVED IN EVIDENCE OVER OBJECTION OF THE ACCUSED?”
In view of the question certified, we shall limit our statement of the facts to those necessary to a resolution thereof. Accused was the tenant of a garage and his rent thereon was paid through the month of March 1962. He had resided in an apartment to the front of the garage, but had moved very shortly before the incident here involved. A Mrs. Stichler was tenant of another house at the same location. The apartment, house, and garage, were owned by the same person and the same real estate agent handled the rental of all three properties. Mrs. Stichler and the real estate agent were both of the opinion that the garage was appended to her house and rented by her with her house. However, accused had originally been a subtenant of the former occupant and had later rented the garage directly from the absentee owner. Accused had the door to the garage secured by a padlock and the door thereof was further protected by a burglar alarm.
Qn March 24, 1962, with permission [86]*86of the real estate agent, Mrs. Stichler cut the padlock on the garage with a hacksaw. Thereupon the bell of the burglar alarm began to sound. Being unable to disconnect the same, Mrs. Stichler, without looking into the garage, hurried to a telephone and called police. Two patrolmen responded. With Mrs. Stichler, they entered the garage and disconnected the bell. Neither of the patrolmen testified. Apparently because of something observed by them, they called a city detective who responded. The detective did not testify, but it was stipulated he had no search warrant. Apparently because of something observed by the detective, he called the Air Police, and Sergeant Hart, an Air Policeman, responded. Hart testified that when he arrived, at the garage he had a conversation with the detective about items in the garage which appeared to be Government property; that he looked into the garage and saw articles which were purportedly Government property, part of which property he saw from the door; but that he did hot know whether he could see any of the twenty-four articles, marked as exhibits before the court, from the door. Sergeant Hart was asked:
“TC: Sergeant Hart, prior to entering the garage, and standing at the doorway, could you see any items that would lead you to believe they were Government property?
“A. I could, Sir.
“Q. Would you describe that property to the court?
“A. I could see a buffer that had ‘55 AEMS’ visible on it.
“Q. What does that mean — ‘55 AEMS’?
“A. 55th Armament Electronics Maintenance Squadron.
“Q. Is that a squadron here at Forbes ?
“A. Yes, Sir.”
Sergeant Hart summoned Mr. Tighe, a Special Agent for the Office of Special Investigations, who went to the garage. Mr. Tighe testified that when he arrived' Mrs. Stichler advised him she had full control of the garage. She requested him to remove all the property in the garage. However, he removed only what appeared to be Government property. The record reflects that, in addition to the twenty-four items involved in the specifications in this case, the garage contained a large number of other articles bearing markings indicating Government ownership, and other property as well.
The law officer developed the following from the agent:
“Q. What caused you to go to the garage on the 24th of March?
“A. I had received a telephone call from the Topeka Police Department Dispatcher who advised me that Sergeant Hart from the Air Police Investigation at Forbes had requested my presence at the garage at the rear of 1612 Tyler Street, as there appeared to be a considerable amount of Government property locked in there.
“Q. When you got to the garage, you say you went into the garage alone?
“A. I did, Sir.
“Q. You found Pi-osecution Exhibits 1 through 24. Where were these exhibits when you went into the garage ?
“A. These exhibits were contained within barrels, boxes, and loosely lying on the floor of the garage.
“Q. Upon walking into the garage, just as you get to the door, can you see this property laying in the garage? Is it behind something, or closed in closets?
“A. The property was seen from the doorway.
“Q. In other words, you did not search for the property; it was in clear sight when you walked in the door?
“A. This is correct. Now, standing in the door with me were also three other persons — Detective Cook, Mrs. Stichler, and Sergeant Hart. I then entered the garage after Mrs. Stichler had advised me that she had complete custody of the garage.
[87]*87“Q. When you went to the garage —went through the door — was this property that you found in this garage — where was it? In a pile, in the middle of the floor, or stacked on shelves, or in closets- — -where was it?
“A. It was in boxes, small barrels, loose, on the floor, lying against the sides of the garage.
“Q.
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Opinion of the Court
Kilday, Judge:
Accused was convicted by a general court-martial, convened at Forbes Air Force Base, Kansas, of three specifications alleging larceny of Government property, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to bad-conduct discharge, confinement at hard labor for twelve months, forfeiture of $50.00 per month for twelve months, and reduction to airman basic. The convening authority modified one of the specifications as to the value of property, but otherwise approved the findings and sentence.
A board of review in the office of The Judge Advocate General of the Air Force found that the alleged stolen property was secured as the result of an illegal search and seizure, and set aside the findings and sentence and ordered the charges dismissed.
Under the provisions of Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Air Force has certified the case to this Court on the following issue:
“WAS THE BOARD OF REVIEW CORRECT IN ITS DETERMINATION THAT THE PROPERTY IN QUESTION (PROSECUTION EXHIBITS 1 THROUGH 24) WAS OBTAINED BY AN ILLEGAL SEARCH AND SEIZURE AND THEREFORE IMPROPERLY RECEIVED IN EVIDENCE OVER OBJECTION OF THE ACCUSED?”
In view of the question certified, we shall limit our statement of the facts to those necessary to a resolution thereof. Accused was the tenant of a garage and his rent thereon was paid through the month of March 1962. He had resided in an apartment to the front of the garage, but had moved very shortly before the incident here involved. A Mrs. Stichler was tenant of another house at the same location. The apartment, house, and garage, were owned by the same person and the same real estate agent handled the rental of all three properties. Mrs. Stichler and the real estate agent were both of the opinion that the garage was appended to her house and rented by her with her house. However, accused had originally been a subtenant of the former occupant and had later rented the garage directly from the absentee owner. Accused had the door to the garage secured by a padlock and the door thereof was further protected by a burglar alarm.
Qn March 24, 1962, with permission [86]*86of the real estate agent, Mrs. Stichler cut the padlock on the garage with a hacksaw. Thereupon the bell of the burglar alarm began to sound. Being unable to disconnect the same, Mrs. Stichler, without looking into the garage, hurried to a telephone and called police. Two patrolmen responded. With Mrs. Stichler, they entered the garage and disconnected the bell. Neither of the patrolmen testified. Apparently because of something observed by them, they called a city detective who responded. The detective did not testify, but it was stipulated he had no search warrant. Apparently because of something observed by the detective, he called the Air Police, and Sergeant Hart, an Air Policeman, responded. Hart testified that when he arrived, at the garage he had a conversation with the detective about items in the garage which appeared to be Government property; that he looked into the garage and saw articles which were purportedly Government property, part of which property he saw from the door; but that he did hot know whether he could see any of the twenty-four articles, marked as exhibits before the court, from the door. Sergeant Hart was asked:
“TC: Sergeant Hart, prior to entering the garage, and standing at the doorway, could you see any items that would lead you to believe they were Government property?
“A. I could, Sir.
“Q. Would you describe that property to the court?
“A. I could see a buffer that had ‘55 AEMS’ visible on it.
“Q. What does that mean — ‘55 AEMS’?
“A. 55th Armament Electronics Maintenance Squadron.
“Q. Is that a squadron here at Forbes ?
“A. Yes, Sir.”
Sergeant Hart summoned Mr. Tighe, a Special Agent for the Office of Special Investigations, who went to the garage. Mr. Tighe testified that when he arrived' Mrs. Stichler advised him she had full control of the garage. She requested him to remove all the property in the garage. However, he removed only what appeared to be Government property. The record reflects that, in addition to the twenty-four items involved in the specifications in this case, the garage contained a large number of other articles bearing markings indicating Government ownership, and other property as well.
The law officer developed the following from the agent:
“Q. What caused you to go to the garage on the 24th of March?
“A. I had received a telephone call from the Topeka Police Department Dispatcher who advised me that Sergeant Hart from the Air Police Investigation at Forbes had requested my presence at the garage at the rear of 1612 Tyler Street, as there appeared to be a considerable amount of Government property locked in there.
“Q. When you got to the garage, you say you went into the garage alone?
“A. I did, Sir.
“Q. You found Pi-osecution Exhibits 1 through 24. Where were these exhibits when you went into the garage ?
“A. These exhibits were contained within barrels, boxes, and loosely lying on the floor of the garage.
“Q. Upon walking into the garage, just as you get to the door, can you see this property laying in the garage? Is it behind something, or closed in closets?
“A. The property was seen from the doorway.
“Q. In other words, you did not search for the property; it was in clear sight when you walked in the door?
“A. This is correct. Now, standing in the door with me were also three other persons — Detective Cook, Mrs. Stichler, and Sergeant Hart. I then entered the garage after Mrs. Stichler had advised me that she had complete custody of the garage.
[87]*87“Q. When you went to the garage —went through the door — was this property that you found in this garage — where was it? In a pile, in the middle of the floor, or stacked on shelves, or in closets- — -where was it?
“A. It was in boxes, small barrels, loose, on the floor, lying against the sides of the garage.
“Q. Could you see immediately that some of this property appeared to be Government property?
“A. It did, Sir.
“Q. At least, some?
“A. Yes, Sir.
“Q. I understood from the Cross-Examination that you could not tell on the small items whether they had Government serial numbers until you took them out of the barrels and unwrapped them.
“A. This is true; however, there were many items that I could see from the door, that you could also see the Federal stock number, or ‘55 A & E’ on them.
“Q. What is ‘55 A & E’?
“A. 55th Armament Electronics Maintenance Squadron.
“Q. That is a squadron here at Forbes ?
“A. It is, Sir.
“Q. And the remainder of the property wasn’t hidden?
“A. Some items were in manufacturer’s boxes—
“Q. You’re talking about manufacturer’s boxes; is that—
“A. Some items were in manufacturer’s boxes, and some in boxes which could be obtained through grocery stores.”
Although there is extensive examination and cross-examination as to the conditions under which the property was observed and the garage entered, we believe the law officer, through the above questions, summed up the situation correctly. That is, there was quite a large number of items in the garage, which a view from the door quite clearly indicated were Government property, due to numbers, markings and packaging'. .In addition, there were boxes and barrels which contained other items. An examination of the items in the containers was necessary to secure their markings or stock numbers, and determine therefrom such items to be Government property. The twenty-four items admitted in evidence as exhibits come from such barrels, boxes, or containers.
There is no evidence in this record that Mrs. Stichler, in sawing the lock from the garage door, was doing anything other than attempting to enter upon or use premises to which she claimed the right to possession as a tenant thereof. Nothing suggests that she had any prior contact with the police. Neither is there anything to indicate she was acting in cooperation with any Governmental agency — local, military or Federal. In Burdeau v McDowell, 256 US 465, 65 L ed 1048, 41 S Ct 574 (1921), the Supreme Court said:
“The 4th Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.”
The actions of Mrs. Stichler, a private citizen, did not militate against the legality of the search. Bacon v United States, 97 Fed 35 (CA 8th Cir) (1899); United States v Volante, 4 USCMA 689, 16 CMR 263; United States v Rogan, 8 USCMA 739, 25 CMR 243. See also, United States v Seiber, 12 USCMA 520, 523, 31 CMR 106.
City police officers, responding to a call that a burglar alarm was sounding, and upon arriving finding such to be true, were clearly acting reasonably when they entered such premises and [88]*88disconnected the alarm. Testimony of the officers first to arrive is not before us. However, the testimony of the air policeman summoned by them shows the presence of numerous items, obviously Government property, in a position to be seen, and which were seen from the door and without entering the opened door. Likewise, the agent of the Office of Special Investigations had such a view when he reached the door of the garage. We, therefore, conclude that the actions of the police, both municipal and military, were reasonable and they therefore lawfully entered the garage.
Appellate defense counsel contend that even though we should conclude that the officers were legally upon the premises, still the seizure of the property was illegal. In this connection, we quote from the most recent expression of the Supreme Court in this particular area, United States v Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430 (1950):
“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v United States, 282 US 344, 357, 75 L ed 374, 382, 51 S Ct 153. . . .
“Assuming that the officers had time to procure a search warrant, were they bound to do so ? We think not, because the search was otherwise reasonable, as previously concluded.
. . The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.”
Cf. Trupiano v United States, 334 US 699, 92 L ed 1663, 68 S Ct 1229 (1948), expressly overruled on this question in United States v Rabinowitz, supra.
We conclude that the action of the Air Force representatives in taking the property into their possession was reasonable, and therefore, lawful. As we have previously concluded, they were lawfully in the garage. Therein they were confronted by a mound of property containing markings clearly indicating their Government character. Actually, some of the items bore the particular markings of an Air Force Squadron stationed at a nearby Air Force Base. A lady was present who asserted she was entitled to the exclusive possession of the garage. She demanded, or requested, that all property be removed therefrom. Confronted with that situation, the Air Force investigator responded by removing only what appeared to be Government property. From the “facts and circumstances — the total atmosphere” of this particular case, we are bound to conclude the action taken was reasonable. See Ellison v United States, 206 F2d 476 (CA DC Cir) (1953); Woodard v United States, 254 F2d 312 (CA DC Cir) (1958); Von Eichelberger v United States, 252 F2d 184 (CA 9th Cir) (1958); Sartain v United States, 303 F2d 859 (CA 9th Cir) (1962).
Appellate defense counsel, among other cases, cite: Taylor v United States, 286 US 1, 76 L ed 951, 52 S Ct 466 (1932); Johnson v United States, 333 US 10, 92 L ed 436, 68 S Ct 367 (1948); Chapman v United States, 365 US 610, 5 L ed 2d 828, 81 S Ct 776 (1961). There are very material differences between this case and those just cited. In the present instance there is no evidence any of those connected with the discovery and seizure of the property involved had any information that property had been stolen, that they suspected the accused of any offense, or that the search and seizure was for the purpose of securing evidence to be used against the accused or [89]*89any other person. The fact that Government property had been stolen became known only after the property was discovered and seized. One or more of such factors is present in each of the above-cited cases and others of similar import.
The same is not true, however, in the case at bar. Moreover, here military agents — who had lawfully gained knowledge that an unusually large quantity of Government property was located on the premises — were faced with the prospect that a woman claiming the right of possession of the garage was about to cast out and discard all items therein. Certainly it was reasonable, if not obligatory — if only for the purpose of safeguarding the same — that Government property found under the circumstances of this case be taken into possession by the Air Force representative who came upon it. The United States was indisputably entitled to possession of the items, and the agents acted reasonably in taking them into custody. See Davis v United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256 (1946); Harris v United States, 331 US 145, 91 L ed 1399, 67 S Ct 1098 (1947); United States v Sellers, 12 USCMA 262, 30 CMR 262.
The certified question is, therefore, answered in the negative and the decision of the board of review is reversed. The record will be returned to The Judge Advocate General of the Air Force for reference to the board of review for further action not inconsistent with this opinion.