Opinion of the Court
Paul W. BROSMAN, Judge:
This case is before us on petition, and presents a problem in the law of search and seizure. The accused, DeLeo, was tried by a general court-martial sitting at La Rochelle, France, for forgery, in violation of Article 123, Uniform Code of Military Justice, 50 USC § 717. The single specification alleged that he falsely, and with intent to defraud, endorsed the signature of Andrew D. Binz on fifteen American Express Company, United States dollar travelers checks, in the total amount of $200.00. He pleaded not guilty, but was found guilty as charged, and sentenced to be separated from the service with a bad-conduct discharge, to forfeit all pay and allowances and to be confined at hard labor for one year. The convening authority approved the findings and sentence, and a board of review has affirmed. We granted the accused’s petition in order that we might determine the admissibility of certain exhibits which will be ^described hereafter.
II
The evidence shows that on July 31, 1952, Andrew D. Binz, then an Army First Lieutenant, purchased American Express Company travelers checks, of ihe value of some $340.00, and at the time placed his name in the upper left hand comer of each check. On August 19, 1952, he left his hotel room in Bordeaux, France, dined at a nearby restaurant, visited a bar, and later strolled about the town. He returned to his lodgings sometime after midnight to discover that his wallet, containing approximately $280.00 in travelers checks, was missing. None of the cheeks was countersigned at the time of the loss. On August 25, 1952, he submitted a claim for reimbursement and was paid the face amount of the checks by the American Express Company. On November 26, 1952, he executed an affidavit stating that he was the purchaser of the missing checks; that they had not been countersigned by him or with his authorization; and that the countersignatures appearing thereon were forgeries made without his approval or knowledge. Later he learned that officials of the crime laboratory of the Criminal Investigation Division had concluded that the signatures on the checks were in fact his own. Lieutenant Binz thereupon repaid to the American Express Company the money received. from it. His decision in this respect seems to have been influenced in part by his involvement in other difficulties, which ultimately led to his resignation from the Army.
On March 23, 1953, letters rogatory (Commission Rogatoire) were forwarded to the Division Commissioner of Police at Bordeaux by the Examining Magistrate of the La Rochelle District. These letters were dated October 22, 1952, and were signed by a French Examining Magistrate. They purported to constitute judicial process authorizing an investigation, the taking of statements, and the conduct of all searches and seizures necessary for the purpose of determining the truth of a charge of “swindle,” which had been brought against one Bruno Di Fazio “and all concerned.”
When Di Fazio was arrested by the French police for dealing in counterfeit American money — which presumably constituted one aspect of the “swindle” charge — he implicated the accused as one of the “pushers” of the illegal currency. Because of this information, the accused became a definite suspect in the eyes of the French police. Further —according to an expert on French law —he then fell within the ambit of the mentioned letters rogatory.
In the prosecution of the investigation authorized by the letters, a certain Inspector Lestrade of the French police determined to interview the accused. Since the latter was a member of the Armed Forces of the United States, the Inspector requested that an American investigator be detailed to accompany him during the investigation — and the [154]*154Criminal Investigation Division assigned one of its agents, a warrant officer named Shumock, to accompany Lestrade to Camp Bersol, where the accused was stationed. The latter’s commanding officer, one Captain Baker, was then notified of the contemplated investigation of DeLeo. What next transpired is described by the accused as follows:
“On the 25th of March, 1953, I was told by one of the boys in my outfit that I had an appointment with the company commander at 10:00 o’clock the next morning. At 10:00 o’clock the next morning, which was March 26, 1953, I entered the commanding officer’s office and the company commander told me to have a seat and he went out and came back with Mr. Shumock and the French inspector and the CID interpreter. Mr. Shumock came over to me, came directly over to me, and told me that I could consider myself under arrest and that the charges which the French had made against me were counterfeit and traffic. . .
Accused was then searched by Shu-mock and found to possess two $5.00 bills in American military scrip. Both bills bore the same number. The accused did not occupy quarters at Camp Bersol, but his automobile was on the post at the time and was searched. Thereafter, the accused, Shumock and Inspector Lestrade went to DeLeo’s apartment in Bordeaux, where the accused unlocked the door, and the premises were searched. In the course of the search, the French Inspector examined the contents of a writing kit which was found on accused’s bed. After he had completed his investigation, Mr. Shumock observed a slip of paper on top of others folded in the kit. On this he saw written the name “Andrew D. Binz,” and instantly recalled having earlier investigated a matter involving a Lieutenant Binz. Further search of the box revealed four additional sheets bearing the lieutenant’s name. Shumock pocketed the slips and returned to the Criminal Investigation Division office with the accused.
DeLeo was thereafter released to the French authorities, who questioned him concerning his connection with the counterfeiting activities of Di Fazio. Later — and after proper warning — Mr. Shumock interrogated him with respect to the forgery offense with the commission of which he was later charged. As an investigative tactic, Mr. Shumock requested the accused to explain his possession of the five slips of paper bearing the name of Lieutenant Binz. As a result of this interrogation, the accused signed a statement in which he stated that he knew and understood his rights under Article 31, 50 USC § 602; that a search of his apartment had been made, during which five pieces of paper bearing the name of Andrew D. Binz were confiscated; that during August 1952 he had met a man called Joseph Delene-kaitis in Bordeaux; that Delenekaitis exhibited several American Express checks, which he said he had bought at a substantial discount because of their lack of countersignatures; that he wished to cash them; that the accused accompanied Delenekaitis to his room and demonstrated that the checks might be countersigned by means of copying the signatures already appearing thereon while holding the check to a windowpane, and thereafter retracing the signatures; that Delenekaitis solicited the accused to perform the task and offered him 5,000 francs; and that the latter did so and received the agreed payment therefor.
At the trial DeLeo denied furnishing the information contained in the statement, and in addition denied committing the forgery! Against him in evidence at the trial appeared the stipulated testimony of a Government handwriting “expert” who conceded that he had originally believed the countersignatures on the travelers checks to have been executed by Lieutenant Binz himself, but that later he became convinced that instead they were cleverly traced forgeries.1 Also in the evidence [155]*155received against the accused — and over his vigorous objection — were included (1) the five slips of paper allegedly found in his apartment and (2) the .•accused’s pretrial confession. It is now contended by appellate defense counsel that the sheets were obtained through an unlawful search and seizure on the !>art of American officials, and that the later confession constituted a fruit of •this “poisonous tree.”
Ill
Of course, if the search with which we are concerned in the case at bar is to be treated exclusively as a French one, it is not essential for the present purpose to inquire how and on what basis it was conducted. It is a well-established rule of Federal law that the Government may use evidence obtained through an illegal search effected by American state or by foreign police—unless Federal agents participated to «orne recognizable extent therein. United States v. Haywood, 208 F2d 156 (CA 7th Cir); Johnson v. United States, 207 F2d 314 (CA 5th Cir). Cf. United States v. Volante, 4 USCMA 689, 16 CMR 263.
As extending in a different direction, United States v. Byars, 273 US 28, 71 L ed 520, 47 S Ct 277, has been cited to us. There a Federal officer was present during a search conducted by state officials — his presence being attributable apparently to a hope that its accomplishment would reveal some item which might disclose the commission of a Federal offense. The Supreme Court concluded that the products of the search must, for the purposes of Federal prosecution, be treated as if all of the parties to it had been Federal .agents.
In our view, a somewhat higher degree of participation by Federal officials must be required in an overseas area, than in one within the continental limits of the United States, as the predicate for a finding that a particular search constituted an American enterprise. It strikes us that, within the United States, the choice posed in the Byars situation is not at all a difficult one. The Federal agent in such a case may either assure himself that the search is conducted under authority which would suffice for a purely Federal inquiry, or he may withdraw entirely from the venture and leave the matter to state investigation. There exists no strong purpose dictating his presence at the search — save the possibility of securing evidence of the commission of a Federal offense. If he is seeking evidence of that nature, it is not unfair to require that he comply with the usual standards for Federal searches, and he should not be permitted to try for an evidentiary windfall through attending a search conducted by state officers. Cf. Lustig v. United States, 338 US 74, 93 L ed 1819, 69 S Ct 1372.
The situation is materially different as we meet it outside the territory of the United States. That is to say, the serviceman, who is under investigation by the police of a foreign nation, is present in that country by reason of military orders. Having sent him there, the United States labors under a duty to protect him — so far as properly can be — with respect to the criminal procedures of that foreign government. As a part of such protection, it has been thought desirable to arrange for the presence of an American representative at the foreign trial of any military person. See, e.g., NATO Status of Forces Agreement, Article VII, 9(g). Keefe v. Dulles, — F2d — (CA DC Cir), September 16, 1954, 23 Law Week 2125. Since pretrial investigation may be as important as that of the trial in the fixing of guilt or innocence, it is also desirable that American agents be present during an investigation by the police of another nation into an offense of which a member of an American military service is suspected. It is not unnatural, therefore, that our Armed [156]*156Forces should seek to encourage close liaison between foreign police and our own military investigators — which the result that one of the latter shall be present to assure the fairness of the foreign inquiry involving a suspected American soldier, sailor or airman.
The nature and benefits of such a liaison arrangement are vividly displayed in the instant case. During the course of the trial, Warrant Officer Shumock was asked by an attorney for the accused why he — and not the French authorities — had taken the accused in custody initially. He replied: “For the benefit of liaison between myself and the French police, they will allow me to put him in custody to keep from having to lock the man up in the French jail.” And the accused’s individual counsel conceded that: '
“. . . If he [Shumock] thought he might find something, he could very easily have got permission before he went down there, but he didn’t anticipate anything like that and I dare say also, although it is not in evidence, he was going along to protect the military against the French police. It didn’t work out that way, but I am sure that is one of the implied reasons for which the Government allows the military to accompany the French police, to protect the rights of American citizens.” [Appellate Exhibit 1, page 18.]
In short, American officials in overseas areas have quite generally and properly acted in liaison with agents of the “host” country in connection with the investigation of offenses of which American servicemen are suspected— this for the purpose of assuring that the legitimate interests of the suspect are protected in the conduct of the foreign investigation.
With this in mind, we hesitate to hold too readily that the mere presence of a military investigator during a search by foreign police necessarily renders the proceeding an activity of the United States. Of course — absent treaty obligations to the contrary2 — the American investigator may elect to wash his hands of the matter and to withdraw from the enterprise. However, the adoption of this choice must in the long run redound to the detriment of American military personnel overseas — for, under it, and in case of difficulty, service people will find themselves alone in the hands of foreign investigators prior to trial, and will be without the benefit of the presence of an experienced countryman, who is able to explain to them unfamiliar procedures, to act as intermediary, and later to furnish to American authorities a disinterested report of the transaction for use in possible subsequent diplomatic representations by this country. See Keefe v. Dulles, supra.
[157]*157Mindful of these considerations, we suggest that circumstances which would serve to invoke the principle of the Byars case within the confines of the United States might not at all suffice to demonstrate that a search, primarily conducted by French officials in France, should be treated in law as an American investigative proceeding. Through these spectacles then we must eye the law officer’s determination here that the search was legal. When we observe, too, that the enterprise was initiated by Inspector Lestrade, and that the motive for its existence emanated wholly from the French police — with Shu-mock’s presence a no more than incidental element — we cannot doubt that the record is sufficient to sustain the trial court’s determination that the search was not an American one. Cf. United States v. Volante, supra. Completely consistent with this view is Shu-mock’s testimony to the effect that Inspector Lestrade had originally investigated the contents of the accused’s writing box, and that thereafter — as it lay open on the bed — the former by chance glimpsed a slip of paper containing a signature which appeared to be that of Lieutenant Binz.
IV
But what if we were to assume the present one to have been an American search? The Fourth Amendment to the Constitution provides that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Innumerable judicial decisions have an- nounced that, in general, the search of a dwelling is illegal unless authorized by a warrant which meets the requirements of the Fourth Amendment. A military person’s off-post dwelling — located in the United States — likewise may not lawfully be searched without a warrant. United States v. Darby, 2 CMR(AF) 200.
However, the unqualified doctrine that an American warrant must constitute the foundation for a legal search can scarcely apply outside the United States, its territories and possessions'— for no American court is available and empowered to issue warrants overseas. It is also obvious that Mr. Shumock’s path would not have been smooth had he sought — solely under the authority of American process — to enter a French dwelling situated in French territory. In light of the palpable overseas inapplicability of the usual requirements of a search warrant issued by a competent American court — -and of Rule 41, Federal Rules of Criminal Procedure— Federal courts have consistently refused to invalidate such searches by reason of the want of such authority. In these circumstances the test is simply one of reasonableness. Best v. United States, 184 F2d 131 (CA1st Cir), cert den 340 US 939, 95 L ed 677, 71 S Ct 480; Grewe v. France, 75 F Supp 433 (ED Wis); Richardson v. Zuppann, 81 F Supp 909 (MD Pa), aff’d 174 F2d 829 (CA 3d Cir).
Even as to searches made within the United States, exceptions to the safeguard of a warrant have long been accorded judicial recognition. As the Supreme Court said in United States v. Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430:
“. . . It was recognized by the framers of the Constitution that there were reasonable searches for which no warrant was required.
“It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. . . . 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.”
[158]*158It is well recognized that a valid search may be effected as an incident to a lawful arrest. United Headnote 6 States v. Rabinowitz, supra; Agnello v. United States, 269 US 20, 70 L ed 145, 46 S Ct 4; Weeks v. United States, 232 US 383, 58 L ed 652, 34 S Ct 341. Moreover, certain searches — as of an automobile— may be authorized on probable cause. Carroll v. United States, 267 US 132, 69 L ed 543, 45 S Ct 280. As the Supreme Court has observed in this context:
“. . . Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” [Brinegar v. United States, 338 US 160.]
It is axiomatic, of course, that the reasonableness of a search depends on the facts and circumstances of the particular case. Go-Bart Importing Co. v. United States, 282 US 344, 75 L ed 374, 51 S Ct 153. It is also admitted that a more stringent requirement of reasonableness may be imposed when the subject of the search is a dwelling, and that what may “constitute probable cause justifying the search of an automobile might be wholly insufficient to authorize the search of one’s dwelling place, his castle.” Pearson v. United States, 150 F2d 219 (CA 10th Cir); cf. Davis v. United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256.
Thus, with respect to the case at bar, we now approach the “fundamental inquiry” having to do with whether it was reasonable, in the absence of an American warrant, to search the dwelling maintained by the accused away from his military post and on French soil. See United States v. Rhodes, 3 USCMA 73, 11 CMR 73; United States v. Doyle, 1 USCMA 545, 4 CMR 137. We are sure that this search and the resultant seizure were reasonable.
Concerning searches, paragraph 152 of the 1951 Manual for Courts-Martial provides inter alia:
“The following searches are among those which are lawful:
“A search of property which is owned or controlled by the Unite'd 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.” [Emphasis supplied.]
Thus, it appears that a legal search of property may be effected (1) if the property is located in a foreign country, (2) if it is used by a military person, and (3) if the search is authorized by his commanding officer. We consider that such a search would be reasonable within the Fourth Amendment — with the result that there can be no problem of possible inconsistency between the Manual and that Amendment — assuming that the latter is to be accorded extraterritorial effect. Therefore, if— contrary to our holding — there were here no basis in evidence for the law officer’s determination that the questioned search was a French one, it would nonetheless have been lawful, if it had been authorized by an appropriate military commander.
By reason of his rationale for upholding the search, the law officer was not required to consider whether it had been so authorized — and we, too, find no need to determine the point. However, portions of the reported testimony do distinctly suggest that authority was present.3 As revealed thereby, Captain [159]*159¡Baker, the accused’s company commander, summoned him to the orderly room ■ and personally accompanied the investigators when they searched DeLeo’s automobile. Moreover, he made no objection whatever when informed of the agent’s desire and intention to search DeLeo’s lodgings in Bordeaux. It could well be argued that, under these circumstances, the failure of Captain Baker to indicate the slightest opposi-
tion to the continuation of a course of action in an earlier portion of which he had participated personally amounted to no less than an authorization by the most obvious implication. Of course, the consent of an accused is not to be inferred readily in such a situation; but that of a commanding officer to a proposed search involves somewhat different considerations. Certainly, there can be no sensible suggestion that [160]*160Captain Baker acquiesced unwillingly in the French request for a search because of the coercive influence of Mr. Shumock, as to whom he stood in a distinctly superior military position. And there is indeed no reason to assume that Captain Baker would have been more willing to permit a search of the accused’s quarters and belongings on an American military post at the instance of French officials, than one of quarters located away from that post and in a French city. Quite the contrary! The only conceivable deficiency, as we see it, is that the Captain did not authorize the search expressly— that is, in so many words. Yet in this setting the absence of an explicit direction to search would not inevitably require a holding that the search was unauthorized.
Y
Pretermitting the question of Captain Baker’s possible consent — a consent not relied on by the law officer or by the Government upon appeal — we nevertheless believe that the search was not unreasonable. The unavailability of an American court from which a warrant might be secured serves as one factor tending to justify the course of action taken by Mr. Shumock. Another is the existence of probable cause to accomplish the present search — a circumstance which was given substantial weight by us in another problem of search and seizure. See United States v. Doyle, supra.
Here the probable cause for the search stemmed originally from information supplied Agent Shumock by French officials in Bordeaux to the effect that the accused was suspected of dealing in counterfeit currency. Through them the American agent learned that this suspicion was based not on the usual informer’s “tip,” but rather on the fact that the accused had been directly implicated as a “pusher” by one who even then was in the custody of French officials awaiting trial for a similar offense. Shumock was further informed that the French officials had received authorization to take DeLeo into custody, and were armed with a warrant — entirely valid under French law — authorizing them to conduct a search of his quarters and: effects. This information was relayed to Captain Baker, the accused’s commander, who — as we have seen — summoned him to the orderly room. There the accused was almost immediately taken into custody by Agent' Shumock.
The accused’s person was searched as an incident of his apprehension — and apparently in the presence of his commanding officer. Through this search it was revealed that the former possessed two five-dollar bills (US Military Scrip) with identical numbers — at least one of which presumably was counterfeit. Thus, at this juncture there existed not only probable cause to believe that the accused had committed an offense, but direct evidence that he was engaged in committing one at that very moment.
On the basis of this information, it was decided — not unnaturally — to search the accused’s car and his quarters. In addition to their probable cause for this course of action, and their belief that further tools or fruits of his counterfeiting activities were located in the accused’s apartment, the searchers were armed with valid French process permitting the search- — -in the form of letters rogatory. Although these letters differ somewhat from a Federal search warrant, and seem to accord substantially broader powers to the investigator, the fact remains that the accused’s apartment was situated in French territory, where the letters appear to have constituted the only judicial process available under which search could proceed. This French location of his dwelling was in no sense attributable to an act of the United States — for DeLeo had been assigned quarters at Camp Bersol, a military post, but of his own free choice had elected to reside in Bordeaux. When we consider all of these circumstances in context, we are unwilling to say that the resulting search was unreasonable —even on the premise that the accused’s commander had not consented thereto. United States v. Whitler [ACM 4948] 5 CMR 458.
Of course, under such an assumption we would be required to concede that the investigator possessed the alterna[161]*161tive of securing express consent from the soldier’s commanding officer. However, just as the Supreme Court in the Rabinowitz case was able to conclude that a search was reasonable although it might have been accomplished under a warrant, we are permitted here to conclude that the present operation was reasonable although explicit consent thereto by the accused’s commanding officer could have been sought without difficulty.
YI
If the search was lawful, then what of the seizure? Of importance in this aspect of the matter is the distinction between merely evidentiary materials on the one hand, and on the other instru-mentalities of crime. See United States v. Rhodes, supra; United States v. Marrelli, 4 USCMA 276, 15 CMR 276. In the former case we held that an accused’s diary containing a record of certain illegal import transactions conducted by him amounted to a tool of the crime. In the latter we suggested that various cheeks — signed and uttered by the accused- — constituted the very means by which he had committed numerous offenses of “larceny by check.”
In the instant case the items seized took the form of five nondescript slips of white writing paper on which was written the name “Andrew D. Binz”— and which were located in the accused’s writing case. As appeared subsequently, the accused had pressed certain missing travelers checks to a windowpane and thereafter traced the signature of Andrew D. Binz. , Subsequently he had forged certain countersignatures by copying from the tracery to the checks.
An interesting analogy is furnished by Harris v. United States, 331 US 145, 91 L ed 1399, 67 S Ct 1098. There Government agents were engaged in a search for a number of cancelled checks thought to have been used in effecting the forgery of signatures to other checks. Clearly the Supreme Court regarded these cancelled checks as means and instrumentalities in the commission of forgery. See also Zap v. United States, 328 US 624, 90 L ed 1477, 66 S Ct 1277. The slips of paper here— bearing, as they did, no more than the apparent signature of Andrew D. Binz, who shortly before had complained of this offense — could hardly have been adapted to a purpose other than one of forgery, past or future. Without making sample signatures on such slips— whether freehand or through a process of tracing — it is doubtful that a credible forgery could have been perfected. Those documents, while not contraband, constituted “private papers” of DeLeo only in an extremely loose and undiscriminating sense of the term. Within the thrust of the Harris case — and our own decisions as well — they were subject to seizure.
Some difficulty inheres in the circumstance that the slips of paper in question were not the objects of the original search. As was pointed out in United States v. Doyle, supra: “The Federal courts have frequently condemned general exploratory searches, where the result of such a search is to produce unexpected products of crime.” But we added “However, if the search is lawful, officers may. seize items relatively apparent, even though the original purpose of the search did not relate to those items.” Although the pieces of paper seized here were not contraband or stolen property — like that involved in Doyle — we do not hesitate to say that the rule utilized there is broad enough to embrace the ease at hand. Thus, the seizure — like the search — we find to have been reasonable.
It must also be noted that Mr. Shu-mock did not possess the alternatives which would have been available to him had the investigation taken place within the limits of the United States. He could not here seek a warrant to seize the paper involved — for the reason that no American court was available to issue such an authorization. The letters rogatory in the possession of the French inspector of police would not have justified the seizure under Federal law, and there is no showing that the French courts would have been willing to issue other letters in connection with a purely intramural crime of the American Armed Forces. Should the French authorities have declined to aid him, when he returned thereafter to attempt a sei[162]*162zure of the papers, Mr. Shumock might well have run into serious difficulty. He would then have been proceeding to accomplish a search on French soil without the aid of local process. Doubtless his status would have been that of a trespasser — perhaps not as to the accused, but certainly as to French Nationals owning property through which he might necessarily have sought ingress. As the accused’s testimony reveals, his apartment constituted a part of the dwelling of a person of French nationality. Thus, we believe, these dangers are much more than fanciful. The purpose of the foregoing remarks is to delineate circumstances which appear to us to have a bearing on the reasonableness of the investigator’s actions here. Quite clearly — and in many ways — they are not identical with those which would obtain in the United States.
The basic premise of the present approach is that we must not lose sight of the very substantial differences in this context which exist between conditions as they would be found in the United States and those of other areas. Those differences — together with other factors — often render the possibility of crime and the difficulty of law enforcement greater there than here. These phenomena cannot be ignored with safety in determining the reasonableness of searches and seizures. Further — and in practical vein — it may be suggested that, if unrealistic restrictions are to be placed on American investigators abroad, highly undesirable, albeit indirect, consequences are likely to ensue. One possibility is that “host” countries may become inclined to exercise more widely the extensive concurrent jurisdiction over American troops which, under the NATO Treaty and other agreements, many of them possess —this because they will recognize that the hands of United States authorities are tied. A more remote contingency might even take the form of a reluctance to accept the presence of American forces, because of the inability of our courts to control military personnel adequately and to punish offenders. Cf. United States v. Garcia, 5 USCMA 88, 17 CMR 88.
VII
On the premise that the search in suit was unlawful, it might rationally be concluded in the ordi- nary case that the confession by the accused was likewise tainted with illegality.4 But the instant case is distinctly out of the common rut. Here the accused maintained in sworn testimony that he had not seen Mr. Shumock discover the incriminating slips in his quarters, and did not know that he had done so. His version runs to the effect that Mr. Shu-mock drafted a confession of guilt of the present offense — a crime he had never committed — and that he signed without reading because he wished to avoid a French trial for counterfeiting. DeLeo’s story is that he was “framed,” but that he willingly acquiesced in the plot of the American investigator, Mr. Shumock, because that course was preferred by him to trial by the French authorities. This account is scarcely complimentary to either of the law en-[163]*163foreement agencies involved — but it clearly amounts to a denial by the accused that his confession was in any measure the product of the allegedly unlawful search and seizure. Under the circumstances, we are not disposed to indulge in speculation concerning ■“poisonous trees” and the fruits thereof, but will accept the accused’s own view that the confession was in no way a result of the search.
A general analogy is furnished by the view of the Supreme Court expressed in Walder v. United States, 347 US 62, 98 L ed 503, 74 S Ct 354. There an accused in a drug ease testified in his own behalf on direct examination to the effect that at no time had he possessed narcotics. On a previous occasion narcotics had in fact been found in his possession by law enforcement agents. The court there ruled that the evidence of prior possession might lawfully be introduced, despite the fact that information concerning it had been the product of an unlawful search and seizure. The Walder case reveals clearly that an accused’s sworn testimony may unlock the door to prosecution evidence which might otherwise be illegal —and thus indirectly serve to deprive him of an advantage he would otherwise enjoy. Cf. United States v. Dodge, 3 USCMA 158, 11 CMR 158. DeLeo simply gambled on his ability to convince the court-martial of the accuracy of his sworn story that the confession amounted to no more than a complete fabrication — acquiesced in by him to forestall the exercise of French jurisdiction. We see no point in granting him a new election at this time.
VIII
In light of the foregoing, we unhesitatingly affirm the conviction.
Chief Judge Quinn concurs.