Opinion
PERRY,
The appellee was convicted by a general court-martial of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. He was sentenced by the military judge to a dishonorable discharge, confinement at hard labor for 10 months, forfeiture of $100 pay per month for 10 months, and reduction to the lowest enlisted grade. The convening authority approved the findings, but permitted to stand only so much of the sentence as provided for a bad-conduct discharge, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade.
On appeal, the United States Air Force Court of Military Review set aside all findings and the sentence, with leave to the Government to conduct a rehearing.1 The ratio decidendi of that decision was that English,2 the appellee’s roommate, was acting in an official capacity in relation to the Air Force Office of Special Investigations [9]*9(OSI) when he urged the appellee to return certain stolen goods, and that the appellee’s act in doing so was a verbal act, the volun-tariness of which must be measured along the same guidelines as a confession. United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149 (1971). Finding that English did not advise the appellee of the latter’s rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b), the Court of Military Review ruled that the implicit confession of the appellee in returning the goods was inadmissible. His subsequently executed confession to the OSI, additional stolen items discovered in a later search of the appellee’s quarters pursuant to his “consent” therefor, and the appellee’s oral confession to having stolen these items as well, were held to be fruits of the poisonous initial violation of the ap-pellee’s Article 31(b) rights and, likewise, inadmissible.
Thereupon, the Judge Advocate General of the Air Force certified the following issues to this Court:
1. Was the Court of Military Review correct in holding that the conduct of the accused’s roommate was “official” conduct within the ambit of Article 31 [10 U.S.C.A. § 831]?
2. If issue 1 is answered in the affirmative, was the Court of Military Review correct in holding that the accused’s consent to the search of his trailer was tainted by his act of turning over the stolen property?
In May 1976, the OSI at Keesler Air Force Base, Mississippi, received information that certain property which was missing from the base medical center had been seen in a trailer shared by the appellee, as well as English and English’s wife. One of the agents interviewed English, who denied the theft of the property. However, English indicated that he had seen that the appellee had such property at the trailer and suggested that he be permitted to attempt to persuade the appellee to surrender it to the OSI. “He said he didn’t know whether he could or not, but he would” try. The request was conveyed to the OSI detachment commander, who agreed that it “seemed like the only thing to do since we didn’t have probable cause for a search warrant.” No promises were made to English conditioned on return of the property.
Later that day, English and the appellee walked into the OSI office, one carrying a microscope and the other carrying an illu-minator, each of which had previously been reported stolen from the hospital. Following a warning as to his Article 31/Templa 3 rights, the appellee executed a statement admitting larceny of the returned property, but he denied having stolen anything else. Additionally, he told the OSI that he had returned the two items because English had “came [sic] right out and said I’d better bring these back, that you know I’ve got them anyway.”
Subsequent to his confessing to having stolen the microscope and the illuminator, the appellee was asked if he would consent to a search of his residence, and he responded in the affirmative. At that time, the appellee was handed a consent-to-search form and told to read it. Thereon, it advised, inter alia, that he had the absolute right to refuse to give consent and that he could consult a lawyer before giving his consent.. Prior to signing the form, the appellee asked if giving permission to search the trailer meant that the OSI could come back in two or three days and search again. When he was apprised that the consent was good only for a single search on that date, the appellee signed the form. At the trailer, prior to the initiation of the search, he was reminded of his consent “rights” and that his interrogation rights were still in effect. When he renewed his consent, a search ensued, uncovering the additional items forming the basis for specification 2. Thereafter, the appellee orally admitted having also stolen these. items from the medical center.
[10]*10The principal question before us is whether English’s conduct was “official” in nature, thereby requiring that Article 31 warnings be given. It was held below that “the OSI sanction of English’s suggested course of action rendered English’s participation official for Article 31 warning purposes.”
In determining whether English acted in an official capacity, we recognize that the OSI agreed to allow English to proceed. However, they did not contribute in any way to the details of English’s activities. He was given no directions or advice. There was not even any arrangement for English to make reports to OSI on his progress. No promises were made to English conditioned on return of the property. Agent Reid even admitted that they did not have any assurance that English would not give “Sergeant Kirby the opportunity to destroy the property” or otherwise dispose of it. Furthermore, the OSI did not have anyone watching the trailer or English. When English left the OSI, he was free to pursue his own devices. Indeed, he was even free to do nothing. But he approached Kirby and told him he had better bring the property back because the OSI knew he had the items. This was a true statement. The only thing English did not tell Kirby was that he told the police he would try to persuade him to return the property. We think it is significant that English did not ask Kirby if he stole the property, nor did he try to elicit any other details. He simply informed Kirby that the OSI knew he had the items, but he in no way prevented Kirby from being free to do nothing, to consult a lawyer for advice, to dispose of the property, or to return it. We find nothing in the conversation between English and Kirby which placed any obligation on Kirby to return the property. English was acting entirely for his own benefit to clear himself from suspicion of this theft, especially since he was soon due for separation from the service. Indeed, we find very significant what occurred after English requested to consult with an attorney but was told none was available at that time, which was true. After he said he would like to tell the agent something, the following colloquy occurred:
Reid: I’m sorry, I can’t ask you any other questions because you’ve asked for an attorney. I don’t want to violate your rights, because you are exercising your rights.
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Opinion
PERRY,
The appellee was convicted by a general court-martial of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. He was sentenced by the military judge to a dishonorable discharge, confinement at hard labor for 10 months, forfeiture of $100 pay per month for 10 months, and reduction to the lowest enlisted grade. The convening authority approved the findings, but permitted to stand only so much of the sentence as provided for a bad-conduct discharge, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade.
On appeal, the United States Air Force Court of Military Review set aside all findings and the sentence, with leave to the Government to conduct a rehearing.1 The ratio decidendi of that decision was that English,2 the appellee’s roommate, was acting in an official capacity in relation to the Air Force Office of Special Investigations [9]*9(OSI) when he urged the appellee to return certain stolen goods, and that the appellee’s act in doing so was a verbal act, the volun-tariness of which must be measured along the same guidelines as a confession. United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149 (1971). Finding that English did not advise the appellee of the latter’s rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b), the Court of Military Review ruled that the implicit confession of the appellee in returning the goods was inadmissible. His subsequently executed confession to the OSI, additional stolen items discovered in a later search of the appellee’s quarters pursuant to his “consent” therefor, and the appellee’s oral confession to having stolen these items as well, were held to be fruits of the poisonous initial violation of the ap-pellee’s Article 31(b) rights and, likewise, inadmissible.
Thereupon, the Judge Advocate General of the Air Force certified the following issues to this Court:
1. Was the Court of Military Review correct in holding that the conduct of the accused’s roommate was “official” conduct within the ambit of Article 31 [10 U.S.C.A. § 831]?
2. If issue 1 is answered in the affirmative, was the Court of Military Review correct in holding that the accused’s consent to the search of his trailer was tainted by his act of turning over the stolen property?
In May 1976, the OSI at Keesler Air Force Base, Mississippi, received information that certain property which was missing from the base medical center had been seen in a trailer shared by the appellee, as well as English and English’s wife. One of the agents interviewed English, who denied the theft of the property. However, English indicated that he had seen that the appellee had such property at the trailer and suggested that he be permitted to attempt to persuade the appellee to surrender it to the OSI. “He said he didn’t know whether he could or not, but he would” try. The request was conveyed to the OSI detachment commander, who agreed that it “seemed like the only thing to do since we didn’t have probable cause for a search warrant.” No promises were made to English conditioned on return of the property.
Later that day, English and the appellee walked into the OSI office, one carrying a microscope and the other carrying an illu-minator, each of which had previously been reported stolen from the hospital. Following a warning as to his Article 31/Templa 3 rights, the appellee executed a statement admitting larceny of the returned property, but he denied having stolen anything else. Additionally, he told the OSI that he had returned the two items because English had “came [sic] right out and said I’d better bring these back, that you know I’ve got them anyway.”
Subsequent to his confessing to having stolen the microscope and the illuminator, the appellee was asked if he would consent to a search of his residence, and he responded in the affirmative. At that time, the appellee was handed a consent-to-search form and told to read it. Thereon, it advised, inter alia, that he had the absolute right to refuse to give consent and that he could consult a lawyer before giving his consent.. Prior to signing the form, the appellee asked if giving permission to search the trailer meant that the OSI could come back in two or three days and search again. When he was apprised that the consent was good only for a single search on that date, the appellee signed the form. At the trailer, prior to the initiation of the search, he was reminded of his consent “rights” and that his interrogation rights were still in effect. When he renewed his consent, a search ensued, uncovering the additional items forming the basis for specification 2. Thereafter, the appellee orally admitted having also stolen these. items from the medical center.
[10]*10The principal question before us is whether English’s conduct was “official” in nature, thereby requiring that Article 31 warnings be given. It was held below that “the OSI sanction of English’s suggested course of action rendered English’s participation official for Article 31 warning purposes.”
In determining whether English acted in an official capacity, we recognize that the OSI agreed to allow English to proceed. However, they did not contribute in any way to the details of English’s activities. He was given no directions or advice. There was not even any arrangement for English to make reports to OSI on his progress. No promises were made to English conditioned on return of the property. Agent Reid even admitted that they did not have any assurance that English would not give “Sergeant Kirby the opportunity to destroy the property” or otherwise dispose of it. Furthermore, the OSI did not have anyone watching the trailer or English. When English left the OSI, he was free to pursue his own devices. Indeed, he was even free to do nothing. But he approached Kirby and told him he had better bring the property back because the OSI knew he had the items. This was a true statement. The only thing English did not tell Kirby was that he told the police he would try to persuade him to return the property. We think it is significant that English did not ask Kirby if he stole the property, nor did he try to elicit any other details. He simply informed Kirby that the OSI knew he had the items, but he in no way prevented Kirby from being free to do nothing, to consult a lawyer for advice, to dispose of the property, or to return it. We find nothing in the conversation between English and Kirby which placed any obligation on Kirby to return the property. English was acting entirely for his own benefit to clear himself from suspicion of this theft, especially since he was soon due for separation from the service. Indeed, we find very significant what occurred after English requested to consult with an attorney but was told none was available at that time, which was true. After he said he would like to tell the agent something, the following colloquy occurred:
Reid: I’m sorry, I can’t ask you any other questions because you’ve asked for an attorney. I don’t want to violate your rights, because you are exercising your rights.
English: I want to go ahead and tell you something.
Reid: At this time, then, are you going to waive your rights and go ahead and talk to us?
English: Yes, sir, I am.
Reid: Well, you don’t want an attorney at this time?
English: No. I’ll see one later. Right now I want to go ahead and tell you something.
Reid: Okay. What do you want to tell me?
Then followed his offer, according to Agent Reid: “[H]e told us if we would let him go out there he would try to talk the individual into bringing the equipment back. He said he didn’t know whether he could or not but he would attempt to.”
Thus, the OSI was not just lying in wait for someone to help them, nor did they even hint at that. It was English who insisted on volunteering after the OSI had exhibited scrupulous respect for English’s rights.
What the OSI did in essence was to tell English he could do as he chose. We can envision serious constitutional problems which could arise if the OSI had kept English in custody or had given him an order not to talk to Kirby about the property. Thus, we decline to require that law enforcement officials take steps to prevent citizens from acting as English did, which in reality merely amounted to advising his friend and roommate what the OSI knew, and then suggesting the obvious. But he left the ultimate decision to Kirby, who acted in order to avoid what he conceived to be the inevitable, namely that a search could take place. English did not even tell Kirby that if he did not return the items, he would go to the OSI. We are aware that the OSI believed that they did not have [11]*11probable cause to search. But they never sought a judicial determination of that matter. In fact, they had an informant who had seen the property in question. We cannot be sure that he would not at least have given a signed statement to that effect if told that was necessary, and he may even have agreed to appear in person before a magistrate. We consider that under these circumstances, there is at least a reasonable likelihood that probable cause to search would exist. Therefore, Kirby’s perception was not obviously wrong.
We do not choose at this time to set forth a comprehensive statement of the precise characteristics of officiality where the other party is not a person known to the accused as a law enforcement agent or a superior. Suffice to say that we are satisfied as a matter of law that the evidence is insufficient to support the finding of the Court of Military Review that English was acting in an official capacity. Accordingly, the first certified question is answered in the negative. This removes the need to answer the second question.
The decision of the United States Air Force Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for reference to that court for further review.
Chief Judge FLETCHER concurs in the result.
Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.