Opinion of the Court
GeoRge W. Latimer, Judge:
Accused was convicted by general court-martial for the barracks larceny of $31.00 from a fellow soldier, in violation of Article 121, Uniform Code of Military Justice, 10 USC §921. He was sentenced to confinement at hard labor for twelve months, forfeiture of all pay and allowances for that same period, and reduction to the grade of recruit. The convening authority reduced the forfeitures to $50.00 per month for twelve months, but otherwise approved the sentence. However, the board of review held the law officer had erred in admitting accused’s pretrial confession into evidence, set aside the findings and sentence, and ordered the charge dismissed. Thereafter, The Judge Advocate General of the Army certified the case to this Court under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, requesting us to determine whether the board of review was correct in holding that the law officer erred. Parenthetically, we note that The Judge Advocate General, upon certifying the ease, remitted the unexecuted portion of accused’s sentence.
At trial, it was established that the victim of this theft and accused were both billeted in the same barracks. Upon retiring on the evening in question, the victim had placed his billfold, which contained $31.00 in currency, inside his pillow case. Next morning, when he awoke, he found his wallet lying on the floor and his money was gone. No one had permission to take the money. After the undisputed testimony recounted above had been adduced, the prosecution offered in evidence a pretrial confession accused had executed on the afternoon the theft was discovered. The law officer allowed it to be admitted over objection by the defense, and thereafter both parties rested. It is the propriety of that ruling with which we are here concerned.
Defense counsel contended that accused’s confession was involuntary and hence inadmissible, for the reason that it was the direct result of a prior illegal search and seizure, and an illegal interrogation. The bulk of this trial transcript is devoted to the defense efforts to substantiate that argument and the prosecution’s opposition thereto, and it is apparent that the defense turned primarily on the volun-tariness of the confession, for if it was allowed in evidence and given weight by the court-martial, the evidence of guilt is compelling. The testimony adduced which bears on the defense objection is hereinafter generally stated.
This offense occurred in a Replace[182]*182ment Detachment and the barracks which was the locus of the theft housed casuals, at least some of whom — including accused — were on orders for transfer that afternoon to permanent units. When the victim arose and found his money gone, he arranged with the fire guard to secure the building while he reported his loss to the charge of quarters at the orderly room. At about six o’clock, before breakfast, the Duty Officer and two sergeants had the occupants of the barracks lay out their equipment and inspected the wallets of each in an attempt to find the stolen currency. They were unsuccessful but, after the morning meal, the detachment commander directed that criminal investigation agents be called in and that another full scale search be conducted. The barracks was again secured, and this second search commenced around 9:00 a.m. It was the intention of the investigating party thoroughly to search the entire barracks and those billeted therein, but inasmuch as accused had been previously identified by a guard as the person he had seen the night before removing the victim’s pillow from his bunk, it was suggested that the operation start with him. One Sergeant Hawkins, the acting platoon sergeant, was to perform the actual search. Neither he nor the other members of the searching party knew where accused’s bunk or wall locker were located, but Hawkins had with him a roster listing the bunk numbers of those billeted in the barracks, each of whom was assigned a locker with a corresponding number.
Without warning him in accordance with Article 31, Uniform Code of Military Justice, 10 USC § 831, Hawkins directed accused to point out his bunk and get his equipment. Accused substantially complied, by getting his duffel bag — which was clearly marked with his name and serial number— from his wall locker, and placing it on the end bunk. He removed the padlock that secured the bag and thereupon Hawkins commenced to search through the contents of the duffel bag. In a pocket of one of the first garments he inspected — a fatigue jacket marked with accused’s name— he found a roll of bills in the identical denominations and sum as the missing currency. As soon as the money was found, at about 9:30 a.m., accused was, for the first time, warned by a criminal investigator of his rights under Article 31, and then taken, after a short stop at the orderly room, to the provost marshal’s office. He was not interviewed there until after he had his lunch, when, at about 1:00 p.m., he was again properly warned of his rights. By approximately 2:20 in the afternoon accused executed the written confession which is the subject of the certified question.
Until the stolen currency was found accused had denied any knowledge of or complicity in the theft, and during his questioning at the provost marshal’s office the clothing from which the money was recovered was kept in plain view, and the interrogator made reference to the fact that the money had been found. Further, accused in his testimony regarding the voluntariness of his confession, stated categorically that he would not have admitted the theft had the money not been found.
The foregong evidence was elicited solely for the purpose of determining the collateral question of the volun-tariness of the accused’s confession and was brought before the court wholly by the defense tactics at trial. The Government did not attempt to use any of that testimony on the merits nor was the money introduced. The law officer overruled defense counsel’s objection, admitting the confession in evidence, but he emphatically admonished the court members that the evidence relating to the search and seizure bore only on the question of the voluntariness of accused’s confession, that no other consideration was to be attached to it, and that the court was not to give it any weight whatever on the ultimate issue of accused’s guilt or innocence. He also advised that as a matter of law the accused’s actions in producing his belongings as directed without an Article 31 warning amounted to an incriminating statement which was rendered inadmissible [183]*183in evidence and, likewise, so was the ■physical evidence discovered during the search. As the law officer summed it up, to quote his language, “Therefore it is my ruling that the entire search proceeding became unlawful.” However, he submitted for the court members’ determination whether the confession was the product of an unlawful search and seizure or prior incriminating statement, informing them that the confession should be deemed not to have so resulted if the investigators would have discovered the actual evidence of accused’s guilt without his assistance.
The board of review held that the law officer erred in allowing accused’s confession in evidence.
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Opinion of the Court
GeoRge W. Latimer, Judge:
Accused was convicted by general court-martial for the barracks larceny of $31.00 from a fellow soldier, in violation of Article 121, Uniform Code of Military Justice, 10 USC §921. He was sentenced to confinement at hard labor for twelve months, forfeiture of all pay and allowances for that same period, and reduction to the grade of recruit. The convening authority reduced the forfeitures to $50.00 per month for twelve months, but otherwise approved the sentence. However, the board of review held the law officer had erred in admitting accused’s pretrial confession into evidence, set aside the findings and sentence, and ordered the charge dismissed. Thereafter, The Judge Advocate General of the Army certified the case to this Court under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, requesting us to determine whether the board of review was correct in holding that the law officer erred. Parenthetically, we note that The Judge Advocate General, upon certifying the ease, remitted the unexecuted portion of accused’s sentence.
At trial, it was established that the victim of this theft and accused were both billeted in the same barracks. Upon retiring on the evening in question, the victim had placed his billfold, which contained $31.00 in currency, inside his pillow case. Next morning, when he awoke, he found his wallet lying on the floor and his money was gone. No one had permission to take the money. After the undisputed testimony recounted above had been adduced, the prosecution offered in evidence a pretrial confession accused had executed on the afternoon the theft was discovered. The law officer allowed it to be admitted over objection by the defense, and thereafter both parties rested. It is the propriety of that ruling with which we are here concerned.
Defense counsel contended that accused’s confession was involuntary and hence inadmissible, for the reason that it was the direct result of a prior illegal search and seizure, and an illegal interrogation. The bulk of this trial transcript is devoted to the defense efforts to substantiate that argument and the prosecution’s opposition thereto, and it is apparent that the defense turned primarily on the volun-tariness of the confession, for if it was allowed in evidence and given weight by the court-martial, the evidence of guilt is compelling. The testimony adduced which bears on the defense objection is hereinafter generally stated.
This offense occurred in a Replace[182]*182ment Detachment and the barracks which was the locus of the theft housed casuals, at least some of whom — including accused — were on orders for transfer that afternoon to permanent units. When the victim arose and found his money gone, he arranged with the fire guard to secure the building while he reported his loss to the charge of quarters at the orderly room. At about six o’clock, before breakfast, the Duty Officer and two sergeants had the occupants of the barracks lay out their equipment and inspected the wallets of each in an attempt to find the stolen currency. They were unsuccessful but, after the morning meal, the detachment commander directed that criminal investigation agents be called in and that another full scale search be conducted. The barracks was again secured, and this second search commenced around 9:00 a.m. It was the intention of the investigating party thoroughly to search the entire barracks and those billeted therein, but inasmuch as accused had been previously identified by a guard as the person he had seen the night before removing the victim’s pillow from his bunk, it was suggested that the operation start with him. One Sergeant Hawkins, the acting platoon sergeant, was to perform the actual search. Neither he nor the other members of the searching party knew where accused’s bunk or wall locker were located, but Hawkins had with him a roster listing the bunk numbers of those billeted in the barracks, each of whom was assigned a locker with a corresponding number.
Without warning him in accordance with Article 31, Uniform Code of Military Justice, 10 USC § 831, Hawkins directed accused to point out his bunk and get his equipment. Accused substantially complied, by getting his duffel bag — which was clearly marked with his name and serial number— from his wall locker, and placing it on the end bunk. He removed the padlock that secured the bag and thereupon Hawkins commenced to search through the contents of the duffel bag. In a pocket of one of the first garments he inspected — a fatigue jacket marked with accused’s name— he found a roll of bills in the identical denominations and sum as the missing currency. As soon as the money was found, at about 9:30 a.m., accused was, for the first time, warned by a criminal investigator of his rights under Article 31, and then taken, after a short stop at the orderly room, to the provost marshal’s office. He was not interviewed there until after he had his lunch, when, at about 1:00 p.m., he was again properly warned of his rights. By approximately 2:20 in the afternoon accused executed the written confession which is the subject of the certified question.
Until the stolen currency was found accused had denied any knowledge of or complicity in the theft, and during his questioning at the provost marshal’s office the clothing from which the money was recovered was kept in plain view, and the interrogator made reference to the fact that the money had been found. Further, accused in his testimony regarding the voluntariness of his confession, stated categorically that he would not have admitted the theft had the money not been found.
The foregong evidence was elicited solely for the purpose of determining the collateral question of the volun-tariness of the accused’s confession and was brought before the court wholly by the defense tactics at trial. The Government did not attempt to use any of that testimony on the merits nor was the money introduced. The law officer overruled defense counsel’s objection, admitting the confession in evidence, but he emphatically admonished the court members that the evidence relating to the search and seizure bore only on the question of the voluntariness of accused’s confession, that no other consideration was to be attached to it, and that the court was not to give it any weight whatever on the ultimate issue of accused’s guilt or innocence. He also advised that as a matter of law the accused’s actions in producing his belongings as directed without an Article 31 warning amounted to an incriminating statement which was rendered inadmissible [183]*183in evidence and, likewise, so was the ■physical evidence discovered during the search. As the law officer summed it up, to quote his language, “Therefore it is my ruling that the entire search proceeding became unlawful.” However, he submitted for the court members’ determination whether the confession was the product of an unlawful search and seizure or prior incriminating statement, informing them that the confession should be deemed not to have so resulted if the investigators would have discovered the actual evidence of accused’s guilt without his assistance.
The board of review held that the law officer erred in allowing accused’s confession in evidence. To recapitulate ■the board’s reasoning briefly, it accepted the law officer’s conclusion that '■the evidence surrounding the search and seizure was inadmissible, since accused was a suspect at the time the Government agents elicited from him what amounted to admissions as to the location and identification of his clothing without proper warning in accordance with Article 31. Thus, the board’s opinion continues, the real evidence obtained through the search was tainted, and since the criminal investigator used it as a lever to extract accused’s confession from him only a short period later without warning him the illegally obtained evidence could not be used against him, the admission of guilt was involuntary and should not have been admitted by the law officer. And since the evidence of record was legally insufficient without the confession, the board of review ordered the charge and specification dismissed.
The board’s decision cannot be permitted to stand. While I do not disagree with the Chief Judge, I believe it preferable to decide this case on the theory used by the law officer. See my concurring opinion in United States v Taylor, 5 USCMA 178, 17 CMR 178. Although the sole question here is whether accused’s extrajudicial confession was inadmissible as a matter of law because it was involuntary in that he was wibhout free choice to give or withhold it, we of necessity commence our inquiry with the determination on the search which the law officer made at trial. Manifestly he was wholly mistaken if, as his language indicates, he believed the search was illegal. Unquestionably, this search was lawful for at least two reasons. It was authorized by the Detachment Commander, and there can be no doubt but that probable cause existed. A nighttime barracks theft had been reported from a guarded building at the time those billeted therein arose, and little time had elapsed in which the stolen money could have been carried away. It was, therefore, highly likely that the money was in possession of an occupant of the barracks. Moreover, many of the soldiers in the unit were scheduled to ship out that very afternoon and thus the search could be justified on the additional ground that immediate action was necessary to prevent removal or disposal of the money. United States v Doyle, 1 USCMA 545, 4 CMR 137; United States v Swanson, 3 USCMA 671, 14 CMR 89; Manual for Courts-Martial, United States, 1951, paragraph 152. Clearly, this search was nothing more or less than a familiar “shakedown” inspection, the lawfulness of which has long been recognized. Indeed, the facts here are even stronger than those in United States v Gebhart, 10 USCMA 606, 28 CMR 172, where the Chief Judge observed:
“Applied to the facts of the instant case, these basic ■ concepts support the propriety of the initial search. Armed with authority to conduct searches and confronted with a report that certain personal property had been stolen from an enlisted man’s locker, Captain Reilly proceeded to conduct the familiar ‘shakedown’ inspection of the effects of all personnel assigned to that room. Taking into consideration the freedom of access occupants of military quarters have to all parts thereof, this generalized type of search has long been regarded as reasonable.” [10 USCMA at page 610.]
[184]*184True it is that the searchers got no further than accused. However, it is not surprising that they started with him for the evidence pointed in his direction and to two others in the barracks whose wallets had previously been found to contain more than the amount stolen. And it 'should be remembered that the commander had ordered, and the investigating party indeed was required, thoroughly to search the entire barracks. But when the currency was found, obviously there was no need to continue further.
It is apparent, therefore, that the board of review improperly accepted the law officer’s determination that the search was illegal. The next question, then, concerns the accused's alleged self-incriminating activity in complying with the directions by the searching party to produce his gear for inspection. Appellate Government counsel urge that the directions were but an integral part of the search and were only preliminary to the real identification which would have been apparent to anyone who observed the bag. And indeed, such an argument is persuasive when, as here, the Government agents clearly would have obtained the same results forcibly because of the order previously given by the commanding officer, and without according accused polite treatment and directing his assistance. See United States v Cuthbert, 11 USCMA 272, 29 CMR 88. The directions of the investigators were no more than saying “bring your duffel bag or we- will come and get it.”
The answer to that contention, however, is of no consequence, for assum-ing that accused’s compli-anee with the order to get his equipment constituted a forced nonverbal statement, it makes no difference. The defense argues that under our decisions in United Startes v Taylor, supra, and United States v Holmes, 6 USCMA 151, 19 CMR 277, articles seized in an otherwise legal search are rendered inadmissible when an unwarned identification by a suspect connects him with the incriminating real evidence. But no such evidence was used against ae-cused, and in that connection our unanimous decision in United States v Bennett, 7 USCMA 97, 21 CMR 223, must be considered. In that instance, after learning that the investigators had obtained authority to search, accused furnished them a key to his locker. He was then taken to his billet where they had him identify his locker and certain of his clothing — all before proper warning in accordance with Article 31. We noted in our decision that the accused’s acts amounted to a statement and adverted to our holding in Taylor, supra, but went on to say:
“At the time when the agents undertook to make a search in this case, they had obtained authorization for that course of action and were accompanied by the unit commander. Thus, the search itself was reasonable and lawful, unless the questions asked in one way or another rendered it illegal. We are sure they did not, for the billet of the accused was known; the charge of quarters was present and he was familiar with the locker assignment; accused’s locker had his name across the door; the agents had noticed that identifying feature on their first visit; and access to its interior was made easy by the use of a key voluntarily furnished by accused. The articles of clothing, with the possible exception of a pair of boots about which the accused was interrogated, were all found within the locker and it was secured by a lock. We, therefore, reach the conclusion that the Government obtained possession of the property lawfully. When consideration is given to the foregoing, it becomes apparent that the questions asked were innocuous, the answers cumulative, and the information obtained corroborative of facts well known to the parties conducting the search. Under such circumstances, it can fairly be said that the interrogation furnished the agents no advantage which could be later exploited to wring a confession out of the accused. Accordingly, we are faced with a situation where the [185]*185Government obtained real evidence by a lawful search and seizure, and the questions asked were merely vocal aids to that legal process. Viewed in their true light, they were preliminary inquiries and added nothing to the knowledge of the investigator.” [7 USCMA at page 100.]
That same conclusion is required by the facts in the case at bar. Here a search of all those billeted in the barracks and their equipment had been properly authorized, and accused was so apprised. Also, those conducting the search were armed with a roster listing accused’s bunk and locker assignment, so refusal to produce would have availed him naught and, in fact, would but have served to arouse the investigators’ suspicions further. In addition, accused’s duifel bad was clearly marked with his name, as was the jacket in which the money was hidden. Some suggestion is advanced, however, that accused might not have been using the space detailed to him; and it is pointed out that other casuals housed in the building were preparing to ship out and their baggage was lying in various places in the barracks. The short answer to those arguments, though, is that the searchers were embarked on a “shakedown” inspection of the entire barracks, and had they started with other members of the detachment, by a process of elimination they necessarily would have identified the accused’s duifel bag from those of other soldiers. Or had it been left in a locker other than his own, a complete inspection of all lockers would have disclosed it. And once found— as it was certain to have been — accused’s bag itself, being marked, provided the searching party with all the information necessary. Clearly then, as in the Bennett case, the directives given accused, when viewed in their proper light, were but preliminary aids to a wholly legal process, and beyond peradventure they provided no additional knowledge to the investigators.
That brings us to our final inquiry. Although the law officer concluded the whole search process was illegal, it is to be borne in mind that that evidence was not introduced against accused. Rather, as in United States v Bennett, supra, “the prosecution scrupulously refrained from using any evidence that was obtained prior to warning,” and it came before the court-martial solely because it was elicited by defense counsel on the interlocutory question of the admissibility of accused’s confession, and its voluntariness. And while the law officer advised that the search process was improper, he admitted the confession. From what has been said before, it is manifest that he did not err in allowing it in evidence. Indeed, it is again profitable to advert to our decision in Bennett, supra, where we said:
“The relative insignificance of the questioning shown in this record does not render the questioned interrogation legal,. but it does shed light on the issue of what led this accused to make a later detailed pretrial statement. No question of force, physical violence, coercion, compulsion or inducement is involved, and whatever information the Government illegally obtained at the time of the search was chargeable only to the failure to warn. It touched only on the identity of the locker and accused clothing, and he was apprised of the fact that his locker was to be opened and his clothing was to be seized. He had voluntarily furnished a key after overhearing a conversation in which the agents were authorized to use the force necessary to search and seize. It was then that he capitulated, and thereafter he undoubtedly cooperated in localizing the search to his particular effects. Therefore, we believe a reasonable person could properly believe that the answers he gave to the agents during the search were such an insignificant part of the seizure that they played no part, either psychological or otherwise, in influencing the accused later to bare his breast and confes? his crime, If finding the [186]*186clothes can be said to have played any part in inducing the confession, the concomitant tainted admissions which accused seeks to build into an important factor were of no consequence in this drama, for the evidence obtained was not needed to relate the accused to the clothing which was seized. We, therefore, hold that the law officer could reasonably conclude that accused’s later pretrial statement, if induced by anything other than a desire to unburden himself, was called forth by the results of the prior legal seizure, rather than by accused’s minor admissions made contemporaneously therewith.” [7 USCMA at pages 100 and 101.]
See also United States v Green, 7 USCMA 539, 23 CMR 3.
Significantly, the accused does not complain that he was impelled to confess because he was ordered to produce the bag. His testimony is that he was motivated to admit his guilt because the money was found in his jacket. That latter circumstance indeed connected him with the theft, but in this setting accused’s verbal act, while it ended the search earlier, did not furnish the Government one iota of evidence which, in the course of the inspection, would not have been obtained legally and properly. To suppose that such a neutral statement would influence a subsequent confession when there have been at least two intervening warnings in compliance with Article 31 is placing a premium on credulity.
Accordingly, assuming without accepting the view that the accused’s compliance with the investigators’ orders to get his equipment constituted incriminating actions which were the equivalent of statements and inadmissible under Article 31 of the Code, the law officer did not abuse his discretion in admitting accused’s confession. And after having allowed that extrajudicial statement in evidence, the law officer correctly charged the court members on the question thereby placed before them for their consideration — that of voluntariness. In this connection, they were carefully advised that unless convinced beyond reasonable doubt that the confession was not the product of an unlawful search and seizure or prior incriminating statement, they must reject it as involuntary, but if they were convinced that accused’s acts during the search were merely cumulative or corroborative of facts otherwise known or which would have become known without any act on the part of the accused, they could consider the confession and, if otherwise convinced of its voluntariness, attach to it such weight as they deemed appropriate.
The law officer’s instructions to the court-martial were long and complex, but under his favorable charge for the accused on the legality of the search, the theory of the defense, the posture of the evidence and the questions posed by the court concerning his charge, that was perhaps unavoidable. However, when narrowed down to its essentials, the advice made the court members fully aware of the limited consideration attaching to the evidence adduced on the interlocutory question and of the proper touchstone for their use in determining the issue of voluntariness. Hence, the questioned confession was properly admitted into evidence and submitted to the court-martial under instructions favorable to the accused.
The certified issue is answered in the negative and the decision of the board of review is reversed. The record is returned to The Judge Advocate General of the Army for further action not inconsistent with this opinion.