Opinion of the Court
HOMER FERGUSON, Judge:
During the early morning hours of November 15, 1956, the accused was seen in the Air Police Operations Office, Sheppard Air Force Base, Texas, by Airman Second Class Williamson, an air policeman. The accused had apparently been apprehended at the main gate for a uniform violation. The usual practice in such cases was to have the man’s Class “A” pass “pulled.” Sometime that evening Williamson, while on town patrol in Wichita Falls, Texas, observed the accused sitting at a table in a local night spot called the “Cotton Club.” Although he was “not sure” that the accused’s Class “A” pass had been taken away, he strongly suspected that he did not have one. He waited until the accused left the club, and then approached him and asked to see his pass. The accused complied with the request and displayed an Armed Forces Liberty Pass DD Form 345, bearing the name of one “John G. Hensley.” This, of course, did not correspond with the accused’s identification card and he was taken into custody.
At trial, the'defense counsel objected to the introduction of the pass (Prosecution Exhibit 1) in evidence on the ground the air policeman had failed to advise the accused of his rights under Article 31 though he suspected him of' having committed an offense. ' The objection was overruled and the prosecution exhibit was admitted in evidence. We granted review to consider the cor-' rectness of the law officer’s ruling in this matter.
The accused was charged inter alia with the offenses of being drunk in a public place and wrongful possession of an unauthorized pass with intent to deceive, both offenses being in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The law officer granted the accused’s motion for a finding of not guilty as to the offense of being drunk in a public place but he was found guilty of wrongfully possess[102]*102ing an unauthorized pass with intent to deceive.
The record leaves little doubt but that the accused was a suspect within the meaning of Article 31, Uniform Code of Military Justice, 10 USC § 831. The testimony of Williamson clearly indicates that he had strong reason to suspect the accused of being guilty of a pass violation. In addition, he testified that while observing the accused in the club, he considered him to be neither drunk nor disorderly and that the only reason his attention was drawn to him was because he “had ssen [sic] him earlier in Air Police Operations.” This latter testimony was obviously accorded great weight by the law officer in sustaining the accused’s motion for a finding of not guilty as to the offense of being drunk in a public place.
The language of Article 31, supra, is clear and unequivocal. Section (b) provides that no person subject to the Code shall interrogate or request any statement from “an accused or a person suspected of an offense” without first advising him of his rights under the Article. Any statement obtained “in violation of this article” is inadmissible in evidence. Section 31(d), supra. While it is true that here there was no request that the accused make a statement, there was, however, a request that he produce identification. The distinction between oral declarations and physical acts for the purpose of requiring a warning under the Article has been specifically rejected by the Court. In United States v Holmes, 6 USCMA 151, 19 CMR 277, the record showed that agents suspecting an accused of having committed an offense under the Code asked him to show them certain articles of his clothing. The accused complied with the request, although there was no warning under Article 31, supra. The Government urged in that case that physical conduct is not a “statement” and therefore there was no need to advise the accused of his rights. A majority of the Court, however, held otherwise and reasoned as follows:
“. . . At a trial when a witness is asked a question to which he replies by nodding his head, that action constitutes his testimony. By the same standard, when a law enforcement agent asks a question 'regarding the offense’ of a person suspected of a crime, the suspect’s reply is a statement, whether it consists of an oral declaration or a physical act. In either case, the reply is ‘an affirmative conscious act on the part of the individual affected by the demand’ and therefore within the purview of Article 31. United States v Rosato, 3 USCMA 143, 147, 11 CMR 143.”
We conclude, therefore, that the accused’s conduct in producing the pass at the request of the air policeman was the equivalent of language which had relevance to the accused’s guilt because of its content. See United States v Taylor, 5 USCMA 178, 17 CMR 178.
The Government urges that the decision of the board of review in United States v Williamson, ACMS-14116, November 28, 1956, requires affirmance of the accused’s conviction. The accused there, as in the instant case, was charged with wrongful possession of a false pass, with intent to deceive. The evidence showed that a senior training noncommissioned officer was required to know whether or not airmen of his squadron were on duty at all times, and if not, whether they had a valid pass or were authorized to be off-duty. He had reasonable grounds to suspect that the accused was not present for duty and did not have a pass. The accused was called into his office and without being advised of his rights, was required to produce his pass which turned out to be false. At trial, the pass was admitted in evidence over defense objection that the accused had not been advised of his rights under Article 31, supra. In affirming the accused’s conviction, the board said in pertinent part that:
“. . . To hold that Article 31 requires a preliminary warning to such an order or request would be to hold in effect that an airman could refuse to surrender or show his pass. Otherwise, the warning would be completely meaningless. It is obvious that an airman has no such right and that Article 31 was never intended to create such a right. Accordingly, we conclude that such an order or request [103]*103does not constitute an ‘interrogation’ within the meaning of Article 31 and a warning of the rights conveyed by Article 31 is never a preliminary requirement to such order or request. This is true whether or not the request or order is given isolatedly or during the course of an official interrogation of an airman who is accused or suspected of an offense. Moreover, an order or request that an accused or suspect surrender or show his pass does not call for an incriminatory ‘statement’ within the meaning of Article 31, but only requires that the airman surrender or show his pass if he has one. The giving of such an order or request is to be distinguished from the circumstances where, during an investigation, an accused or suspect is asked a question and in reply makes a ‘statement’, either by way of oral declaration or physical act, that constitutes a communication against interest. In the latter circumstance, the questioning of accused clearly amounts to an ‘interrogation’ and his reply (either by oral or by physical act) constitutes a ‘statement’ within the purview of Article 31 (United States v. Holmes, 6 USCMA 151, 19 CMR 277; United States v Taylor, 15 USCMA [sic: 5 USCMA] 178, 17 CMR 178).”
We find the reasoning of the board of review in the Williamson case unpersuasive and expressly decline to follow it.
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Opinion of the Court
HOMER FERGUSON, Judge:
During the early morning hours of November 15, 1956, the accused was seen in the Air Police Operations Office, Sheppard Air Force Base, Texas, by Airman Second Class Williamson, an air policeman. The accused had apparently been apprehended at the main gate for a uniform violation. The usual practice in such cases was to have the man’s Class “A” pass “pulled.” Sometime that evening Williamson, while on town patrol in Wichita Falls, Texas, observed the accused sitting at a table in a local night spot called the “Cotton Club.” Although he was “not sure” that the accused’s Class “A” pass had been taken away, he strongly suspected that he did not have one. He waited until the accused left the club, and then approached him and asked to see his pass. The accused complied with the request and displayed an Armed Forces Liberty Pass DD Form 345, bearing the name of one “John G. Hensley.” This, of course, did not correspond with the accused’s identification card and he was taken into custody.
At trial, the'defense counsel objected to the introduction of the pass (Prosecution Exhibit 1) in evidence on the ground the air policeman had failed to advise the accused of his rights under Article 31 though he suspected him of' having committed an offense. ' The objection was overruled and the prosecution exhibit was admitted in evidence. We granted review to consider the cor-' rectness of the law officer’s ruling in this matter.
The accused was charged inter alia with the offenses of being drunk in a public place and wrongful possession of an unauthorized pass with intent to deceive, both offenses being in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The law officer granted the accused’s motion for a finding of not guilty as to the offense of being drunk in a public place but he was found guilty of wrongfully possess[102]*102ing an unauthorized pass with intent to deceive.
The record leaves little doubt but that the accused was a suspect within the meaning of Article 31, Uniform Code of Military Justice, 10 USC § 831. The testimony of Williamson clearly indicates that he had strong reason to suspect the accused of being guilty of a pass violation. In addition, he testified that while observing the accused in the club, he considered him to be neither drunk nor disorderly and that the only reason his attention was drawn to him was because he “had ssen [sic] him earlier in Air Police Operations.” This latter testimony was obviously accorded great weight by the law officer in sustaining the accused’s motion for a finding of not guilty as to the offense of being drunk in a public place.
The language of Article 31, supra, is clear and unequivocal. Section (b) provides that no person subject to the Code shall interrogate or request any statement from “an accused or a person suspected of an offense” without first advising him of his rights under the Article. Any statement obtained “in violation of this article” is inadmissible in evidence. Section 31(d), supra. While it is true that here there was no request that the accused make a statement, there was, however, a request that he produce identification. The distinction between oral declarations and physical acts for the purpose of requiring a warning under the Article has been specifically rejected by the Court. In United States v Holmes, 6 USCMA 151, 19 CMR 277, the record showed that agents suspecting an accused of having committed an offense under the Code asked him to show them certain articles of his clothing. The accused complied with the request, although there was no warning under Article 31, supra. The Government urged in that case that physical conduct is not a “statement” and therefore there was no need to advise the accused of his rights. A majority of the Court, however, held otherwise and reasoned as follows:
“. . . At a trial when a witness is asked a question to which he replies by nodding his head, that action constitutes his testimony. By the same standard, when a law enforcement agent asks a question 'regarding the offense’ of a person suspected of a crime, the suspect’s reply is a statement, whether it consists of an oral declaration or a physical act. In either case, the reply is ‘an affirmative conscious act on the part of the individual affected by the demand’ and therefore within the purview of Article 31. United States v Rosato, 3 USCMA 143, 147, 11 CMR 143.”
We conclude, therefore, that the accused’s conduct in producing the pass at the request of the air policeman was the equivalent of language which had relevance to the accused’s guilt because of its content. See United States v Taylor, 5 USCMA 178, 17 CMR 178.
The Government urges that the decision of the board of review in United States v Williamson, ACMS-14116, November 28, 1956, requires affirmance of the accused’s conviction. The accused there, as in the instant case, was charged with wrongful possession of a false pass, with intent to deceive. The evidence showed that a senior training noncommissioned officer was required to know whether or not airmen of his squadron were on duty at all times, and if not, whether they had a valid pass or were authorized to be off-duty. He had reasonable grounds to suspect that the accused was not present for duty and did not have a pass. The accused was called into his office and without being advised of his rights, was required to produce his pass which turned out to be false. At trial, the pass was admitted in evidence over defense objection that the accused had not been advised of his rights under Article 31, supra. In affirming the accused’s conviction, the board said in pertinent part that:
“. . . To hold that Article 31 requires a preliminary warning to such an order or request would be to hold in effect that an airman could refuse to surrender or show his pass. Otherwise, the warning would be completely meaningless. It is obvious that an airman has no such right and that Article 31 was never intended to create such a right. Accordingly, we conclude that such an order or request [103]*103does not constitute an ‘interrogation’ within the meaning of Article 31 and a warning of the rights conveyed by Article 31 is never a preliminary requirement to such order or request. This is true whether or not the request or order is given isolatedly or during the course of an official interrogation of an airman who is accused or suspected of an offense. Moreover, an order or request that an accused or suspect surrender or show his pass does not call for an incriminatory ‘statement’ within the meaning of Article 31, but only requires that the airman surrender or show his pass if he has one. The giving of such an order or request is to be distinguished from the circumstances where, during an investigation, an accused or suspect is asked a question and in reply makes a ‘statement’, either by way of oral declaration or physical act, that constitutes a communication against interest. In the latter circumstance, the questioning of accused clearly amounts to an ‘interrogation’ and his reply (either by oral or by physical act) constitutes a ‘statement’ within the purview of Article 31 (United States v. Holmes, 6 USCMA 151, 19 CMR 277; United States v Taylor, 15 USCMA [sic: 5 USCMA] 178, 17 CMR 178).”
We find the reasoning of the board of review in the Williamson case unpersuasive and expressly decline to follow it. The distinction it attempts to draw is not only artificial and without basis in either law or logic, but runs contrary to the meaning and spirit of Article 31 (b) of the Code, supra.
We are not to be understood as holding that every routine or administrative check by an air policeman of a serviceman’s pass or identification card must first be preceded by an Article 31 warning. However, when a reasonable suspicion exists, as in the instant case, that a pass violation is being committed, the suspect must be advised of his rights before an examination or surrender of his pass is requested. Under such circumstances the request to produce amounts to an interrogation and a reply either oral or by physical act constitutes a “statement” within the purview of Article 31, supra. United States v Holmes, and United States v Taylor, both supra. Of course, while we recognize that a pass is a privilege this is not to say that incidents which grow out of the use of such pass are not entitled to the protection of Article 31. Cf. United States v Johnson, 7 USCMA 488, 22 CMR 278. An excellent decision highlighting the distinction between a routine pass check on the one hand and an order to produce a pass based on a suspicion that a pass violation has occurred on the other, is the case of United States v Meyers [ACMS-8174], 15 CMR 745. There, a gate guard, while conducting a routine pass check of airmen leaving the base, discovered the accused in possession of an unauthorized pass. No warning pursuant to Article 31 of the Code, supra, was given prior to a request that the accused produce his pass. Statements made by the accused at the time were admitted in evidence. In affirming the accused’s conviction of a wrongful possession of an unauthorized pass, the board held the accused’s statements were properly admitted into evidence. In its opinion, the board said:
. . we are convinced that a gate guard, when questioning an airman about his pass, in the routine manner shown here, is conducting neither a formal nor informal investigation of an offense as that term is used in paragraph 140a of the Manual. Were it otherwise, we would be faced with the prospect, ridiculous as it may seem, of finding service personnel having to queue up at innumerable military checkpoints so that Article 31 may be read to them before being questioned concerning their authority to enter or leave the installation.”
In holding that Article 31(b), supra, did not apply under those circumstances, the board made it clear that it “by no means intend [ed] to imply that carte blanche should be given such air policemen as a class. Their questioning may well reach the level of an ‘investigation’ in a different factual setting, thus necessitating invocation of the proscription contained in Article 31 (see ACM 6858, Murray, . . . [12 CMR 794]). [104]*104The line of demarcation of course, cannot be drawn with mathematical precision and each case is necessarily-governed by its own facts and circumstances.” We believe the board’s holding in the Meyers case is correct and that the instant ease represents the “different factual setting” there contemplated.
We are not impressed by the Government’s argument that had the accused refused to produce the pass, he could have been searched and its presence discovered. This argument falls wide of the mark for the truth of the matter is that there was no lawful arrest present. The decision of the board of review is reversed. The record is returned to the Judge Advocate General of the Air Force for reference to a board of review for reassessment of a sentence on the basis of the remaining approved finding of guilty.
Chief Judge QUINN concurs.