Opinion of the Court
EVERETT, Chief Judge:
Pursuant to his guilty pleas, appellant was convicted by a military judge sitting as a general court-martial on charges that he had carried a concealed weapon, resisted apprehension, escaped from custody, and wrongfully possessed and introduced into a military installation 180.98 grams of hashish, in violation of Articles 92, 95, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892,895, and 934, respectively. The sentence extended to a dishonorable discharge, 3 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade; but, pursuant to a pretrial agreement, the convening authority reduced the confinement to 27 months, but otherwise approved the sentence. The Court of Military Review affirmed the findings and sentence as approved by the convening authority.
We granted review on this issue:
WHETHER THE APPELLANT’S PLEA OF GUILTY TO ESCAPE FROM LAWFUL CUSTODY WAS IMPROVIDENT BECAUSE IT WAS NEVER ESTABLISHED THAT THE APPELLANT WAS PLACED UNDER LAWFUL CUSTODY.
The question must be answered in the affirmative.
I
During the providence inquiry, the military judge explained that the elements of the escape-from-custody charge under Article 95 were that appellant “had reason to believe that” the officers who apprehended him “were empowered to hold ... [him] in custody and that” he “freed himself from the restraint of this custody before” being “released ... by proper authority.” Garcia-Lopez acknowledged that these elements existed in his ease. However, when asked to describe in his own words the events that gave rise to this charge and that of resisting apprehension, he stated:
I be in my room and I hear somebody touch the door and they open the door and when they come in, I said, “come on in.” They told me that this is a search. I said, “okay, come on in.” They came in, two people come in and I run outside and when I running outside, running by Bravo Battery, two people grabbed me. They apprehend me outside of the kaserne and they found on me a knife and the pieces [of hashish].
Upon further inquiry by the judge, appellant acknowledged that “when the lieutenant and the two sergeants came into ... [his] room,” they had “directed] ... [him] to stay in the room” and he had known that he was “to stay there.” Moreover, he had felt that his “freedom of movement had been impaired”; but nonetheless he had run. After being chased, he was caught; and, after a struggle, he was subdued and searched.
A stipulation of fact, which became prosecution exhibit 1, gave this recital of the relevant events:
That on 29 May 1981, Colonel William Good, Deputy Commander, Baumholder Military Community, properly authorized a search of the person and room of Specialist Four Manuel A. Garcia-Lopez, United States Army, Battery A, 2d Battalion, 81st Field Artillery; That First Lieutenant Robert A. Tinsley, Command Sergeant Major Henry K. Ellis and First Sergeant James Walker went to SP4 Garcia-Lopez’ room, Room 229, Building 9002, Strassburg Kaserne, Idar-Oberstein, Federal Republic of Germany; That 1LT Tinsley knocked on the door and that SP4 Garcia said “Come in”; That 1LT Tinsley, CSM Ellis and 1SG Walker entered; That 1LT Tinsley informed SP4 Garcia of the search authorization and directed him to stay in the room; That 1LT Tinsley is a commissioned officer of the United States Army authorized to apprehend SP4 Garcia-Lopez;
That SP4 Garcia-Lopez walked towards a trash can located near the door; That SP4 Garcia-Lopez put a can in the trash and ran out; That 1SG Walker told him [231]*231to stop but that he continued running; That 1SG Walker chased after him, shouting for him to stop, as he ran down the hallway, down the stairs and out of the building; That two members of a guard detail joined the chase as SP4 Garcia-Lopez ran down the street and down a hill behind the buildings; That he and the guards jumped over a fence and dropped ten feet into a yard; That SP4 Garcia-Lopez hit his head when he fell but that he got up and continued running away; That one guard caught up with and tackled him as they crossed a street; ... ******
That at the time of his original apprehension SP4 Garcia-Lopez had three plastic baggies containing one hundred forty six (146) individually wrapped pieces of marijuana in the hashish form; That the hashish weighed 180.98 grams.
II
“Custody,” within the meaning of Article 95 of the Code, “is that restraint of free locomotion which is imposed by lawful apprehension.” See para. 174d, Manual for Courts-Martial, United States, 1969 (Revised edition). “Apprehension” is defined by Article 7(a) of the Code, 10 U.S.C. § 807(a), as “the taking of a person into custody,” and it is based “upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Art. 7(b).
Of course, there can be restraint of personal freedom which constitutes a seizure of the person for purposes of the Fourth Amendment, but which falls short of apprehension. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968). Thus, in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Supreme Court upheld the seizure of a person and his temporary detention pending a search of his premises, although he was arrested only after this search. Cf. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The Court concluded that such a limited intrusion on the defendant’s security and freedom was reasonable under the circumstances.
There is no doubt that the order to appellant to remain in his room while it was being searched .was a lawful order. In United States v. Glaze, 11 M.J. 176, 177 (C.M.A.1981), we recognized that
[l]aw enforcement authorities can properly take reasonable measures to assure that, until reasonable investigative steps can be completed, evidence is not destroyed, crime scenes are not disarranged, and suspects do not flee. Cf. Rawlings v. Kentucky, 448 U.S. 98,110 n. 5, 100 S.Ct. 2556, 2564 n. 5, 65 L.Ed.2d 633, 645 n. 5 (1980); Dutile, Freezing the Status Quo in Criminal Investigations: The Melting of Probable Cause and Warrant Requirements, 21 B.C.L.Rev. 851 (1980). In the military community, orders may be used for such purposes.
Cf. United States v. Schneider, 14 M.J. 189 (C.M.A.1982). However, that order did not transform the limited nature of this intrusion into “custody.” The fact that appellant’s freedom of movement had been impaired, which he acknowledged in his providence inquiry, is of no moment in determining the legal nature of that impairment. See Michigan v. Summers, supra.
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Opinion of the Court
EVERETT, Chief Judge:
Pursuant to his guilty pleas, appellant was convicted by a military judge sitting as a general court-martial on charges that he had carried a concealed weapon, resisted apprehension, escaped from custody, and wrongfully possessed and introduced into a military installation 180.98 grams of hashish, in violation of Articles 92, 95, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892,895, and 934, respectively. The sentence extended to a dishonorable discharge, 3 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade; but, pursuant to a pretrial agreement, the convening authority reduced the confinement to 27 months, but otherwise approved the sentence. The Court of Military Review affirmed the findings and sentence as approved by the convening authority.
We granted review on this issue:
WHETHER THE APPELLANT’S PLEA OF GUILTY TO ESCAPE FROM LAWFUL CUSTODY WAS IMPROVIDENT BECAUSE IT WAS NEVER ESTABLISHED THAT THE APPELLANT WAS PLACED UNDER LAWFUL CUSTODY.
The question must be answered in the affirmative.
I
During the providence inquiry, the military judge explained that the elements of the escape-from-custody charge under Article 95 were that appellant “had reason to believe that” the officers who apprehended him “were empowered to hold ... [him] in custody and that” he “freed himself from the restraint of this custody before” being “released ... by proper authority.” Garcia-Lopez acknowledged that these elements existed in his ease. However, when asked to describe in his own words the events that gave rise to this charge and that of resisting apprehension, he stated:
I be in my room and I hear somebody touch the door and they open the door and when they come in, I said, “come on in.” They told me that this is a search. I said, “okay, come on in.” They came in, two people come in and I run outside and when I running outside, running by Bravo Battery, two people grabbed me. They apprehend me outside of the kaserne and they found on me a knife and the pieces [of hashish].
Upon further inquiry by the judge, appellant acknowledged that “when the lieutenant and the two sergeants came into ... [his] room,” they had “directed] ... [him] to stay in the room” and he had known that he was “to stay there.” Moreover, he had felt that his “freedom of movement had been impaired”; but nonetheless he had run. After being chased, he was caught; and, after a struggle, he was subdued and searched.
A stipulation of fact, which became prosecution exhibit 1, gave this recital of the relevant events:
That on 29 May 1981, Colonel William Good, Deputy Commander, Baumholder Military Community, properly authorized a search of the person and room of Specialist Four Manuel A. Garcia-Lopez, United States Army, Battery A, 2d Battalion, 81st Field Artillery; That First Lieutenant Robert A. Tinsley, Command Sergeant Major Henry K. Ellis and First Sergeant James Walker went to SP4 Garcia-Lopez’ room, Room 229, Building 9002, Strassburg Kaserne, Idar-Oberstein, Federal Republic of Germany; That 1LT Tinsley knocked on the door and that SP4 Garcia said “Come in”; That 1LT Tinsley, CSM Ellis and 1SG Walker entered; That 1LT Tinsley informed SP4 Garcia of the search authorization and directed him to stay in the room; That 1LT Tinsley is a commissioned officer of the United States Army authorized to apprehend SP4 Garcia-Lopez;
That SP4 Garcia-Lopez walked towards a trash can located near the door; That SP4 Garcia-Lopez put a can in the trash and ran out; That 1SG Walker told him [231]*231to stop but that he continued running; That 1SG Walker chased after him, shouting for him to stop, as he ran down the hallway, down the stairs and out of the building; That two members of a guard detail joined the chase as SP4 Garcia-Lopez ran down the street and down a hill behind the buildings; That he and the guards jumped over a fence and dropped ten feet into a yard; That SP4 Garcia-Lopez hit his head when he fell but that he got up and continued running away; That one guard caught up with and tackled him as they crossed a street; ... ******
That at the time of his original apprehension SP4 Garcia-Lopez had three plastic baggies containing one hundred forty six (146) individually wrapped pieces of marijuana in the hashish form; That the hashish weighed 180.98 grams.
II
“Custody,” within the meaning of Article 95 of the Code, “is that restraint of free locomotion which is imposed by lawful apprehension.” See para. 174d, Manual for Courts-Martial, United States, 1969 (Revised edition). “Apprehension” is defined by Article 7(a) of the Code, 10 U.S.C. § 807(a), as “the taking of a person into custody,” and it is based “upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Art. 7(b).
Of course, there can be restraint of personal freedom which constitutes a seizure of the person for purposes of the Fourth Amendment, but which falls short of apprehension. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968). Thus, in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Supreme Court upheld the seizure of a person and his temporary detention pending a search of his premises, although he was arrested only after this search. Cf. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The Court concluded that such a limited intrusion on the defendant’s security and freedom was reasonable under the circumstances.
There is no doubt that the order to appellant to remain in his room while it was being searched .was a lawful order. In United States v. Glaze, 11 M.J. 176, 177 (C.M.A.1981), we recognized that
[l]aw enforcement authorities can properly take reasonable measures to assure that, until reasonable investigative steps can be completed, evidence is not destroyed, crime scenes are not disarranged, and suspects do not flee. Cf. Rawlings v. Kentucky, 448 U.S. 98,110 n. 5, 100 S.Ct. 2556, 2564 n. 5, 65 L.Ed.2d 633, 645 n. 5 (1980); Dutile, Freezing the Status Quo in Criminal Investigations: The Melting of Probable Cause and Warrant Requirements, 21 B.C.L.Rev. 851 (1980). In the military community, orders may be used for such purposes.
Cf. United States v. Schneider, 14 M.J. 189 (C.M.A.1982). However, that order did not transform the limited nature of this intrusion into “custody.” The fact that appellant’s freedom of movement had been impaired, which he acknowledged in his providence inquiry, is of no moment in determining the legal nature of that impairment. See Michigan v. Summers, supra.
From our reading of the providence inquiry and the stipulation, it appears clear that, at the time he fled from the room, appellant was not in custody within the meaning of Article 95. There is no indication that an apprehension had been “effected by clearly notifying the person to be apprehended that he is thereby taken into custody.” See para. 19c, Manual, supra. Nor do the surrounding circumstances support a conclusion that appellant had been apprehended prior to his flight. See United States v. Kinane, 1 M.J. 309, 314 (C.M.A.1976). See also United States v. Sanford, 12 M.J. 170 (C.M.A.1981). Instead, appellant simply was being temporarily detained in connection with a search of his room and of his person.
Although persons often are searched incident to apprehension, there is no invariable requirement that someone be apprehended [232]*232before he may be searched. See Michigan v. Summers, supra. Therefore, the statement in the stipulation that authority had been obtained to search appellant and his room is not equivalent to saying that authority had been obtained to apprehend appellant, or even that there was an intention to apprehend him. Similarly, even, though one of the officers performing the search was authorized to apprehend, that is not equivalent to saying either that the officer intended to apprehend or that an apprehension took place. To adopt the Government’s position in this case would be to encourage the apprehension of a suspect when this was unnecessary for investigative purposes; and certainly nothing in the Code intends such a result.
Since the providence inquiry and the stipulation do not sustain the plea of guilty— and indeed are contrary to that plea, see Article 45, UCMJ, 10 U.S.C. § 845 — the plea of guilty to escape from custody and the finding based thereon must be set aside.
III
Appellant was convicted of introducing hashish into a military installation and, in a separate specification, of possessing this same hashish on the same date and on the same installation. Under such circumstances the introduction includes the possession; accordingly, the finding of guilty of possession should be set aside and the specification dismissed. United States v. Miles, 15 M.J. 431 (C.M.A.1983); United States v. Roman-Luciano, 13 M.J. 490 (C.M.A.1982).
IV
The decision of the United States Army Court of Military Review is reversed as to specification 2 of Charge II, specification 1 of Charge III, and the sentence. The findings of guilty of those specifications are set aside and the specifications are dismissed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Military Review for reassessment of the sentence based on the remaining findings of guilty.
Judge FLETCHER concurs.