Opinion
COX, Judge:
After mixed pleas, appellant was convicted by a military judge sitting as a general court-martial of dereliction of duty (three specifications), larceny (three specifications), burglary (two specifications), housebreaking, and false swearing, in violation of Articles 92, 121, 129, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 921, 929, 930, and 934, respectively. His sentence to confinement for 4 years, partial forfeitures, reduction to E-l, and a dishonorable discharge was approved by the convening authority. The Court of Military Review affirmed. 20 M.J. 867 (1985).
We granted review of the following specified issue:
WHETHER THE EVIDENCE OBTAINED FROM THE SEARCH OF THE ACCUSED’S OFF-BASE STORAGE LOCKER WAS OBTAINED IN VIOLATION OF HIS RIGHT TO COUNSEL.
I hold that the request for consent to search did not violate appellant’s right to counsel under the Fifth or Sixth Amendments of the United States Constitution; Article 27, UCMJ, 10 U.S.C. § 827; United States v. McOmber, 1 M.J. 380 (C.M.A. 1976); or Mil.R.Evid. 305(e), Manual for Courts-Martial, United States, 1969 (Revised edition).
On March 17, 1984, appellant and Captain Dennis Reimer, both stationed at Davis-Monthan Air Force Base, Arizona, were arrested by Tucson police officers while fleeing the scene of a burglary. Two days later, Agent Freddie L. Myloyde of the Air Force Office of Special Investigations (OSI) called appellant’s commander and asked that appellant report to the OSI office. Agent Myloyde planned to question appellant about other burglaries that he was investigating. After being advised of his rights, appellant stated that he wanted to talk with his civilian attorney. No at[298]*298tempt was made to interrogate appellant, but Agent Myloyde asked appellant to return to the OSI office after consulting with his lawyer.
That same morning the Tucson police detective working on appellant’s case stopped by the OSI office and briefed Agent Myloyde on his independent investigation. Among other things, he informed Agent Myloyde that he had received a phone call from the manager of Kolb Road Self-Storage, reporting that both appellant and Captain Reimer had rented units at his self-storage facility. The manager recognized their names from a newspaper account of the arrest.
Later that afternoon, Agent Myloyde ascertained that appellant had not returned to the OSI office. He called appellant’s commander and asked that appellant again report to the OSI office. Appellant arrived shortly thereafter and was asked if he had talked to his lawyer yet. Appellant replied that he had and that he was “advised ... not to discuss the investigation.” Agent Myloyde then asked appellant for consent to search his locker at Kolb Road Self-Storage, his car, and his house. Appellant indicated he would consent but stated that he wanted to talk to his lawyer prior to signing the consent form. Agent Myloyde advised appellant he could refuse to consent, but appellant “still indicated that he would be willing to consent.” For 25-to-30 minutes, appellant tried calling his lawyer but was unable to get in touch with him. Appellant then told Agent Myloyde “that he would go ahead and sign the [consent-to-search] form and” inform his lawyer of this later.
The consent-to-search form provided, in part:
I know that I have an absolute right to give my consent to a search. I understand that, if I do consent to a search, anything found in the search can be used against me in a criminal trial or in any other disciplinary or administrative procedure. I also understand that, if I do not consent, a search cannot be made without a warrant or other authorization recognized in law.
A search of the storage locker revealed a cache of property later determined to be stolen. Appellant subsequently withdrew his consent, so his house and car were not searched on the basis of consent.
The defense made a timely motion at trial to suppress the results of the search, contending that appellant’s consent to search was obtained in violation of his right to counsel. The military judge and the Court of Military Review concluded otherwise, however, recognizing the fundamental difference between waiver of the Fourth-Amendment right against unreasonable searches and the Fifth-Amendment right against compelled self-incrimination.
The Fourth Amendment protects one’s privacy against unreasonable searches and seizures by the police. A constitutionally valid basis for a reasonable search is consent. Unlike the per se rules applicable to admissibility of a statement obtained in a custodial interrogation, the validity of a consent to search, whether obtained from one in custody or not, hinges on whether the consent was voluntary under the totality of the circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See Mil.R.Evid. 314(e). No one factor is dispositive.
A limited Fifth-Amendment right to appointment and presence of counsel at a custodial interrogation has evolved “to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment Rights.” Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986). Counsel’s presence at a custodial interrogation is believed to assure “that statements made in the government-established atmosphere are not the product of compulsion,” thereby enhancing “the integrity of the fact-finding processes in court.” Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694 (1966). On the other hand, Fourth-[299]*299Amendment protections have “nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.” Schneckloth v. Bustamonte, supra 412 U.S. at 242, 93 S.Ct. at 2055.
To safeguard the Fifth Amendment’s privilege against compelled self-incrimination, the prophylactic rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed.2d 378 (1981), requires that when an accused invokes his right to have counsel present during custodial interrogation, questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1884-85. See United States v. Applewhite, 23 M.J. 196 (C.M.A.1987).
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Opinion
COX, Judge:
After mixed pleas, appellant was convicted by a military judge sitting as a general court-martial of dereliction of duty (three specifications), larceny (three specifications), burglary (two specifications), housebreaking, and false swearing, in violation of Articles 92, 121, 129, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 921, 929, 930, and 934, respectively. His sentence to confinement for 4 years, partial forfeitures, reduction to E-l, and a dishonorable discharge was approved by the convening authority. The Court of Military Review affirmed. 20 M.J. 867 (1985).
We granted review of the following specified issue:
WHETHER THE EVIDENCE OBTAINED FROM THE SEARCH OF THE ACCUSED’S OFF-BASE STORAGE LOCKER WAS OBTAINED IN VIOLATION OF HIS RIGHT TO COUNSEL.
I hold that the request for consent to search did not violate appellant’s right to counsel under the Fifth or Sixth Amendments of the United States Constitution; Article 27, UCMJ, 10 U.S.C. § 827; United States v. McOmber, 1 M.J. 380 (C.M.A. 1976); or Mil.R.Evid. 305(e), Manual for Courts-Martial, United States, 1969 (Revised edition).
On March 17, 1984, appellant and Captain Dennis Reimer, both stationed at Davis-Monthan Air Force Base, Arizona, were arrested by Tucson police officers while fleeing the scene of a burglary. Two days later, Agent Freddie L. Myloyde of the Air Force Office of Special Investigations (OSI) called appellant’s commander and asked that appellant report to the OSI office. Agent Myloyde planned to question appellant about other burglaries that he was investigating. After being advised of his rights, appellant stated that he wanted to talk with his civilian attorney. No at[298]*298tempt was made to interrogate appellant, but Agent Myloyde asked appellant to return to the OSI office after consulting with his lawyer.
That same morning the Tucson police detective working on appellant’s case stopped by the OSI office and briefed Agent Myloyde on his independent investigation. Among other things, he informed Agent Myloyde that he had received a phone call from the manager of Kolb Road Self-Storage, reporting that both appellant and Captain Reimer had rented units at his self-storage facility. The manager recognized their names from a newspaper account of the arrest.
Later that afternoon, Agent Myloyde ascertained that appellant had not returned to the OSI office. He called appellant’s commander and asked that appellant again report to the OSI office. Appellant arrived shortly thereafter and was asked if he had talked to his lawyer yet. Appellant replied that he had and that he was “advised ... not to discuss the investigation.” Agent Myloyde then asked appellant for consent to search his locker at Kolb Road Self-Storage, his car, and his house. Appellant indicated he would consent but stated that he wanted to talk to his lawyer prior to signing the consent form. Agent Myloyde advised appellant he could refuse to consent, but appellant “still indicated that he would be willing to consent.” For 25-to-30 minutes, appellant tried calling his lawyer but was unable to get in touch with him. Appellant then told Agent Myloyde “that he would go ahead and sign the [consent-to-search] form and” inform his lawyer of this later.
The consent-to-search form provided, in part:
I know that I have an absolute right to give my consent to a search. I understand that, if I do consent to a search, anything found in the search can be used against me in a criminal trial or in any other disciplinary or administrative procedure. I also understand that, if I do not consent, a search cannot be made without a warrant or other authorization recognized in law.
A search of the storage locker revealed a cache of property later determined to be stolen. Appellant subsequently withdrew his consent, so his house and car were not searched on the basis of consent.
The defense made a timely motion at trial to suppress the results of the search, contending that appellant’s consent to search was obtained in violation of his right to counsel. The military judge and the Court of Military Review concluded otherwise, however, recognizing the fundamental difference between waiver of the Fourth-Amendment right against unreasonable searches and the Fifth-Amendment right against compelled self-incrimination.
The Fourth Amendment protects one’s privacy against unreasonable searches and seizures by the police. A constitutionally valid basis for a reasonable search is consent. Unlike the per se rules applicable to admissibility of a statement obtained in a custodial interrogation, the validity of a consent to search, whether obtained from one in custody or not, hinges on whether the consent was voluntary under the totality of the circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See Mil.R.Evid. 314(e). No one factor is dispositive.
A limited Fifth-Amendment right to appointment and presence of counsel at a custodial interrogation has evolved “to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment Rights.” Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986). Counsel’s presence at a custodial interrogation is believed to assure “that statements made in the government-established atmosphere are not the product of compulsion,” thereby enhancing “the integrity of the fact-finding processes in court.” Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694 (1966). On the other hand, Fourth-[299]*299Amendment protections have “nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.” Schneckloth v. Bustamonte, supra 412 U.S. at 242, 93 S.Ct. at 2055.
To safeguard the Fifth Amendment’s privilege against compelled self-incrimination, the prophylactic rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed.2d 378 (1981), requires that when an accused invokes his right to have counsel present during custodial interrogation, questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1884-85. See United States v. Applewhite, 23 M.J. 196 (C.M.A.1987). However, the privilege against self-incrimination protects only testimonial evidence, not physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; United States v. Lloyd, 10 M.J. 172 (C.M.A.1981). See Mil.R.Evid. 305(d)(1). Neither Article 81, UCMJ, 10 U.S.C. § 831, nor Fifth-Amendment safeguards are infringed by a request for consent to search, as such a request is not interrogation, and the consent thereby given is not a statement. United States v. Morris, 1 M.J. 352, 354 (C.M.A.1976); United States v. Rushing, 17 U.S.C.M.A. 298, 38 C.M.R. 96 (1967) ; United States v. Insani, 10 U.S.C.M.A. 519, 28 C.M.R. 85 (1959); United States v. Thompson, 12 M.J. 993, 996 (A.F.C.M.R.1982); United States v. Rice, 3 M.J. 1094, 1102-1103 (N.C.M.R.), pet. denied, 4 M.J. 163 (1977). See United States v. Stoecker, 17 M.J. 158 (C.M.A.1984).
"The fact that consent was given is neutral and has no tendency to show that the accused was guilty of any offense.” United States v. Spivey, 10 M.J. 7, 10 (C.M.A.1980) (Everett, C.J., concurring in the result). Consent is not in itself incriminating; it merely provides a legal basis to conduct a search which “obviates recourse by the Government to other alternatives of lawful action that may be open to it.” United States v. Rushing, 17 U.S.C.M.A. at 303, 38 C.M.R. at 101. Cf. United States v. Nowling, 9 U.S.C.M.A. 100, 25 C.M.R. 362 (1958) (accused was suspected of pass violation, so policeman should have given Article 31 warnings before asking him to display pass); United States v. Taylor, 5 U.S.C.M.A. 178, 17 C.M.R. 178 (1954) (suspect should have been warned under Article 31(b) before being asked to identify his clothing).
Because he was already represented by counsel, a fact well known to investigators, appellant maintains that his consent to search was obtained in violation of his Sixth-Amendment right to counsel. I reject the notion that the Sixth-Amendment right to counsel attaches at the point of interrogation merely because the suspect has retained counsel. The Supreme Court has explicitly addressed this argument, stating:
[T]he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any “criminal prosecutio[n],” U.S. Const., Arndt. 6, the accused shall not be left to his own devices in facing the “ ‘prosecutorial forces of organized society.’ ” Maine v. Moulton, ... [474 U.S. 159]106 S.Ct. [477] at 484 [88 L.Ed.2d 481], (quoting Kirby v. Illinois, 406 U.S. [682] at 689 [92 S.Ct. 1877, at 1882, 32 L.Ed.2d 411], ...). By its very terms, it becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the “intricacies ... of law,” ibid., is needed to assure that the prosecutor’s case encounters “the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 [104 S.Ct. 2039, 2045, 80 L.Ed.2d 657] ... (1984).
Moran v. Burbine, 106 S.Ct. at 1146.
Appellant also contends that the rule in United States v. McOmber, supra, was [300]*300violated by the investigator’s failure to notify counsel when he requested appellant’s consent to search. Relying on Article 27, rather than constitutional grounds, we held in McOmber that
[o]nce an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code.
1 M.J. at 383 (emphasis added). The purpose of McOmber and its progeny is to protect the right to counsel under Article 27 by assuring counsel a reasonable opportunity to be present at any interrogation of the accused. United States v. Dowell, 10 M.J. 36, 40 (C.M.A.1980). The notice-to-counsel requirement of McOmber has been incorporated into Mil.R.Evid. 305(e). By its terms, McOmber, as well as MibR.Evid. 305(e), is inapplicable to a request for consent to search, as such a request is not questioning in the sense of “interrogation,” and consent obtained is not a “statement” under Article 31. United States v. Rushing, United States v. Insani, and United States v. Rice, all supra. See United States v. Stoecker, 17 M.J. at 161-62.
“Consent to a search, like consent to the taking of a sample of blood or fingerprints, is not subject to manipulative conditions which endanger or derogate from the accused’s right to a fair trial.” United States v. Rushing, 17 U.S.C.M.A. at 303, 38 C.M.R. at 101. Thus, there is no compelling need to create yet another prophylactic rule by expanding McOmber to require that counsel be given an opportunity to monitor search requests. I am not persuaded that this is necessary to assure effective legal representation or to promote the truth-finding process. Whether consent to search was freely and voluntarily given can properly “be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, supra 412 U.S. at 227, 93 S.Ct. at 2047. See United States v. Wallace, 11 M.J. 445 (C.M.A.1981).
If the investigators had refused appellant the opportunity to contact his counsel or neglected to advise him that he could refuse to consent to the search, that would weigh heavily against a determination that the consent was voluntary. It is undisputed, however, that appellant was given the opportunity to contact his lawyer. When he was unable to reach him, appellant did not request a postponement until he could consult with his lawyer. Instead, he suggested proceeding with the search and informing his lawyer later. It is also clear that appellant was aware that he did not have to consent to the search and that anything discovered thereby could be used against him. The determination by the military judge that appellant voluntarily consented to the search of his storage locker is fully supported by the evidence.
[301]*301The decision of the United States Air Force Court of Military Review is affirmed.
Although I agree with Chief Judge Everett’s concern regarding use of a communication to establish a proprietary interest in the item searched, that is not a problem here. Certainly, it was not viewed as such by defense counsel, who did not object on that basis at trial. Furthermore, as appellant's "communication” was not introduced into evidence on the merits, it does not appear that it was used by the factfinder in determining guilt.
I disagree with Judge Sullivan that the concept of inevitable discovery under Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), is applicable under the facts of this case. The police detective testified that there was no move underway to obtain a search warrant at the time consent to search appellant's locker was requested, as they had no probable cause. The day after the consent search, a warrant was obtained to search the locker. The detective testified, however, that absent the information obtained from the consent search of the locker, they would not have had probable cause to obtain a search warrant at that time. Neither the military judge nor the Court of Military Review made any findings regarding inevitable discovery. Thus, I am not convinced that the evidence in the locker would have ultimately and inevitably been discovered by lawful means absent the consent search. Cf. United States v. Silvestri, 787 F.2d. 736 (1st Cir.1986); United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985).