United States v. Rushing

17 C.M.A. 298, 17 USCMA 298, 1967 CMA LEXIS 204

• Court: United States Court of Military Appeals
• Decided: December 1, 1967
• Docket: No. 20,194
• Status: Published

Opinions

Opinion

Quinn, Chief Judge:

This appeal raises important questions relating to the Fourth Amendment right against unreasonable search.

The first question deals with consent to a warrantless search. It is well settled that a person may voluntarily waive the protection of the Fourth Amendment and authorize a policeman to search his home or his personal effects without a warrant. United States v Wilcher, 4 USCMA 215, 15 CMR 215. Annotation: Validity of consent to search given by one in custody of officers, 9 ALR3d 858 (1966). In United States v Insani, 10 USCMA 519, 28 CMR 85, we held that a police officer requesting consent to a warrantless search need not preliminarily warn the individual he has a right to do and say nothing. Later, we indicated it was not an indispensable predicate to the admission of evidence of consent to a search that the individual be first advised he had a right to refuse his consent, but if he did consent anything found during the search could be used against him. United States v Whitacre, 12 USCMA 345, 347, 30 CMR 345. We applied these rules to consent obtained from an accused in police custody. United States v Justice, 13 USCMA 31, 32 CMR 31. See also United States v Hurt, 9 USCMA 735, 778, 779, 27 CMR 3. These opinions were based upon the current of decision in the Federal civilian courts. At trial, however, the accused’s military counsel challenged the continued vitality of these principles in the light of Miranda v Arizona, 384 US 436, 470, 16 L ed 2d 694, 86 S Ct 1602 (1966). The law officer rejected the challenge, and ruled admissible testimony as to the discovery of marihuana during a search of the accused’s personal effects in his squad bay.

Special Agent Philip J. Curley of the Office of Naval Intelligence at Camp Lejeune, North Carolina, received a report from an Air Force Office of Special Investigations on Okinawa implicating the accused in marihuana offenses committed on Okinawa in the period from November 1965 to January 1966. At Curley’s request, the accused appeared at the Office of Naval Intelligence for questioning at about 9:00 a.m., April 19, 1966. Preliminarily, Curley informed the accused of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831, but did not advise him of his right to representation by a lawyer.¹ After several intermissions for various reasons, including lunch and “time spent taking a [written] statement,” in which the accused apparently related his use of marihuana on Okinawa and in California, the interview was terminated at about 2:55 p.m.² At that time, Agent Curley told the accused he “was desirous of searching” his effects. He advised the accused he “did not have the authority to make this search without” the accused’s consent, and the accused “did not have to permit” the search, but if he was willing to do so, he should read and sign a form of waiver tendered him.

The document was titled “Waiver of Search.” The accused read it. It recited that he had been informed of his “constitutional right not to have a search made” without a search warrant, and that he had the right to refuse to consent to the search, but that he did “hereby authorize” the search of his residence and personal effects and removal of “material or other property” desired by the agent. It also indicated that “[t]his written permission” was given “voluntarily and without promises or threats of any kind.”

No advice was given the accused as to the right to counsel in connection with the search. Nor was he informed that anything found or taken by the agent could be used against him in a court-martial.

The accused indicated he understood the waiver, and said he was “willing” to let Curley search his effects. In his own handwriting, he filled in several blanks on the form, such as his name and service number and the name of the agent authorized to search, and signed it.³ He and Curley proceeded to his company, where Curley talked to Captain Donald J. Hatch, the executive officer. The three of them then went to the accused’s squad bay. The accused opened his wall locker and removed a drawer containing personal effects which he “partially” pushed under a bunk. Under some T-shirts and shorts, Curley found three “waxed-sandwich” bags containing a “green tobacco, weed like substance.” He marked the bags and took them with him. Later examination by a chemist identified the contents as marihuana.

While the accused’s interview with Curley occurred before Miranda was decided by the Supreme Court of the United States, his trial was held after the Miranda opinion was published. Consequently, he is entitled to the benefits of the constitutional doctrine enunciated in that case. United States v Tempia, 16 USCMA 629, 37 CMR 249. Cf. United States v Hardy, 17 USCMA 100, 37 CMR 364. Under the decisions of this Court, and other Federal courts, previous to Miranda, the form of advice given the accused by Agent Curley was appropriate and legally sufficient to obtain his consent to a warrantless search, even though he was subject to police restraint at the time. The question is whether the precepts of Miranda command a different interpretation of the. Fourth Amendment. A few courts have already considered the question. Each saw no sound reason to adopt the Miranda procedures for the protection of rights secured by the Fifth and Sixth Amendments as indispensable safeguards for the Fourth Amendment right against unreasonable search. Gorman v United States, 380 F2d 158 (CA1st Cir) (1967); State v Forney, 181 Neb 757, 150 NW2d 915 (1967); State v McCarty, 199 Kan 116, 427 P2d 616 (1967). The importance of the issue impels me to put aside these persuasive precedents and examine the matter independently.

I start with the right to counsel in connection with a search. Does protection of the right of privacy under the Fourth Amendment necessarily include a right to the presence of counsel in the image of Miranda’s determination that the right to counsel is an indispensable safeguard for the Fifth Amendment right against self-incrimination ? Certainly the right to counsel is not confined to protection of Fifth Amendment rights. Rather, it exists in every “critical” confrontation between the individual and the Government, before trial as well as at trial. United States v Wade, 388 US 218, 226-227, 18 L ed 2d 1149, 87 S Ct 1926 (1967); Massiah v United States, 377 US 201, 12 L ed 2d 246, 84 S Ct 1199 (1964). To my knowledge, never before Miranda has it been suggested that the rights of the individual under the Fourth Amendment can be assured only by the presence of counsel during a search. The absence of any such suggestion in almost two centuries of critical analysis of the Fourth Amendment tends to support the conclusion that counsel during a search is not a constitutional requirement. Cf. Levy v Resor, 17 USCMA 135, 37 CMR 399. New insights and research may, however, demonstrate the error of accepted principle or procedure. See Warden v Hayden, 387 US 294, 18 L ed 2d 782, 87 S Ct 1642 (1967); Camara v Municipal Court, 387 US 523, 18 L ed 2d 930, 87 S Ct 1727 (1967). I do not, therefore, consider the silence of the past as sufficient to vindicate the present.

Search of an individual’s personal effects by Government agents is authorized by the Constitution. As the Supreme Court very recently observed, the home and place of business are not “ ‘sanctuaries’ ” into which the Government can never reach. Berger v New York, 388 US 41, 63, 18 L ed 2d 1040, 87 S Ct 1873 (1967). The Constitution protects people against “unreasonable” search. A reasonable search, therefore, is proper. At least four situations have been recognized as constitutionally valid bases for reasonable search: (1) A search authorized by a warrant issued by a proper official upon a satisfactory showing of probable cause; (2) a search incident to a valid arrest; (3) a search necessitated by exigent circumstances, such as “hot pursuit” of the criminal who has just perpetrated an offense; and (4) consent of the person having an interest in the property to be searched, and who may be adversely affected by the search.

No elaborate analysis is needed to demonstrate the dangers and impracticalities of extending the right to counsel to the first three situations. If advice as to the right to counsel is an absolute imperative for a search, as it is for custodial interrogation, then even a warrant-authorized search may be frustrated by the absence of any competent person on the premises or by the flight of such person on the officer’s announcement of his presence and purpose. See 18 USC § 3109; Rule 41, Federal Rules of Criminal Procedure. As far as the search incident to arrest is concerned, it is patently absurd to require a police officer apprehending a criminal in the commission of an offense to refrain from searching him for a gun or other weapon, until he has first warned him of his right to the presence of counsel. The policeman’s lot is not a happy one, but the Constitution does not command him to risk his life as a precondition to a search. Similarly, “hot pursuit” is not an occasion for cautionary instruction as to right to counsel. In fact, the absence of any discussion as to the right to counsel in a search, in the opinion in Warden v Hayden, supra, which was decided after Miranda, tends to indicate no Justice of the Supreme Court ever imagined that the Constitution confers a right to counsel in this type of search. What then of a search based on consent? Is it so dissimilar in nature as to demand different treatment? In Insani, supra, at page 521, we said we could “perceive no sound reason to set it apart from the other bases” for a legal search. I find nothing in a consent situation to make it so critical a stage of the proceedings against the accused as to require that the right to counsel be extended to it and to the ensuing search.⁴

A search is no more than a means of gathering evidence. There are no variable factors in the proceeding that can be monitored by counsel. Consent is not itself incriminatory. United States v Insani, supra. By itself, it cannot add to the weight of existing evidence in the hands of the Government. Cf. United States v Wade, supra, 388 US, at page 228. In short, consent as a basis for a search is a neutral circumstance as far as the accused is concerned. It is directed more to the propriety of proposed conduct by the Government than to a hostile confrontation between the accused and the Government. It merely obviates recourse by the Government to other alternatives of lawful action that may be open to it. The position of the individual asked for consent to a search may be compared to that of the person asked to give his fingerprints for identification or a sample of his blood for testing. In the latter instances, consent dispenses with the need to resort to other lawful means to realize the objective; but in neither ease does the accused have a right to the presence of counsel to monitor the proceedings. See United States v Wade, supra. 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. At trial, the accused can still oppose the admission of any evidence discovered in the search in meaningful ways. For example, he may object to the evidence on the ground of relevancy, see United States v Aloyian, 16 USCMA 333, 342, 36 CMR 489; United States v Vierra, 14 USCMA 48, 52, 33 CMR 260; or he can dispute the Government’s proof as to the nature of the evidence as contraband, or the fruit of the crime charged. See United States v Wade, supra, 388 US, at pages 227-228. All these circumstances support the view that the absence of counsel at the time of a request for consent to a search is not essential to preservation of the right of the individual, under the Fourth Amendment, to be secure from unreasonable search.

What of a request for a search addressed to an accused in police custody or subject to custodial interrogation? The question has a double aspect. The first is concerned with whether custody or interrogation is so potentially destructive of the right of privacy under the Fourth Amendment as to make essential a system of-preliminary warnings as to that right and the right to counsel; the second phase is concerned with the direct applicability of Miranda to an in-custody request for consent to a search.

In Gorman v United States, supra, 380 F2d, at page 164, the Court of Appeals noted a “surface plausibility” for adopting a system of threshold warnings to a request for consent to a search similar to that prescribed in Miranda to safeguard the right against self-incrimination, but it found no cogent “reason in policy or precedent automatically to borrow a procedure adapted to one set of constitutional rights . . . and apply it to a quite different right, serving quite different purposes.” Contra, Annotation: Validity of consent to search given by one in custody of officers, 9 ALR3d 858, 870-871. Certainly, the inherent pressures of a custodial situation are the same, whether the accused is asked to confess to a crime or consent to a search. I assume these pressui'es bear equally upon the voluntariness of a waiver of the Fourth Amendment right of privacy as they do upon a waiver of the Fifth Amendment right against self-incrimination.⁵ This similarity does not demonstrate that counsel’s presence at the request and at the search is indispensable to an accused’s right to refuse his consent. A station house confession can make the procedural safeguards of trial empty formalities ; thus, counsel’s presence during the interrogation “enhances the integrity of the fact-findings processes in court.” Miranda v Arizona, supra, 384 US, at page 466. Consent discloses nothing as to the accused’s guilt or innocence. As I said before, it merely provides a basis for further action by the Government. Neither the process of asking for consent, nor the search itself, is subject to variable factors that can condition these proceedings to incriminate the accused. Cf. United States v Wade, supra. In fact, the circumstances mentioned in the general discussion on the nature and effect of consent apply equally to consent obtained from a person in custody. All these materially differentiate a request for consent to a search from a request to answer incriminating questions. This Court commented upon the difference in United States v Insani, supra, at pages 520-521, as follows:

“Under Article 31, a person accused or suspected of an offense has, when interrogated, the right to be informed, first, of the nature of the alleged wrong; that he need not make any statement in regard to it; and, that if he does say anything, it may be used against him in a court-martial. If he is not so advised, a statement made by him is inadmissible in evidence against him. United States v Nowling, 9 USCMA 100, 25 CMR 362. This right is entirely different from the right to be free from unreasonable search. It is reciting the obvious to say there can be an interrogation without a search, and, conversely, a search without interrogation. Where there is either interrogation or a search, the admissibility of evidence obtained therefrom is ordinarily tested by the principles applicable to the one or the other, as the case may be, but not to both. In fact, the accused at least impliedly concedes that evidence obtained as a result of a search authorized by competent authority is not inadmissible because the accused was not advised of his rights under Article 31 before the search. See United States v Davis, 4 USCMA 577, 16 CMR 151. However, he maintains that a different rule should apply to a search based upon consent. He argues that by giving consent to a search he provides a ‘predicate for the admission’ of any incriminating evidence which may be found as a result of the search and in effect his consent incriminates him.

“Consent to a search is by itself in no way incriminating. It relates only to the preliminary question of the lawfulness of the search. In that regard it is no different from any other basis for a legal search. We perceive no sound reason to set it apart from the other bases for a search by requiring that the accused be first warned of his separate and different rights under Article 31. Of course, the fact that the accused is informed of his rights under Article 31 may be considered in determining whether the accused consented to the search or merely yielded to the color of authority. See United States v Burdick, 214 F2d 768 (CA3d Cir) (1954). But the absence of such advice does not preclude a finding of free and voluntary .consent as a matter of law. This is not to say that a consent search will never present an occasion for informing the accused of his rights under Article 31. In a number of eases we have pointed out an important distinction between the legality of a search and the admission of evidence of identification of the property by the accused as property belonging to him.”

As I observed earlier, since Miranda, the Supreme Court of the United States has published a number of opinions analyzing the constitutional principles of search. In several, the Court referred to a search based upon consent, but in none did it intimate that preliminary warning is essential to preservation of the right to privacy. At the beginning of my opinion, I pointed out that several courts specifically declined to hold that a system of preliminary warnings comparable to that prescribed in Miranda for protection of the Fifth Amendment was necessary to safeguard the Fourth Amendment. No doubt substantial interplay exists between the Fourth and Fifth Amendments. The excerpt from opr opinion in Insani describes one way in which the two Amendments interact. But there also are significant dissimilarities between the process of interrogation and a request for consent to a search. Considering these differences, in the light of centuries of judicial experience with searches predicated upon consent, I am not persuaded that mandate of a system of threshold warnings in the image of Miranda is the only certain way to determine that consent was freely given, with full knowledge of the right to refuse.

Of course, preliminary advice as to the reason for the search, and to the effect that the search cannot be made without a warrant or other reason recognized in law, and that the accused has the absolute right to refuse to consent to the search, but if he consents any evidence found in the search can be used against him in a criminal trial, is eminently desirable. Of course, preliminary advice of this kind is strong evidence of an informed and voluntary consent, rather than submission to, or acquiescence in, the assertion of authority. Indeed, preliminary warning has been recognized as a sound and desirable practice; but it has not been propounded as a constitutional precept. United States v Justice, supra, at page 34; United States v Smith, 13 USCMA 553, 33 CMR 85; United States v Blalock, 255 F Supp 268 (ED Pa) (1966). Miranda does not command reversal of this view. I conclude, therefore, that it is not an indispensable condition to the admission of evidence of consent to a search by a person, in or out of police custody, that before he gave consent, he was especially informed of the following matters: (1) The specific reason for the search; (2) that he has a right to counsel and to the presence of counsel before he gives his'consent; (3) that the police officer cannot make a search without a warrant and without his consent; (4) that he has the absolute right to refuse to give consent to the search; and (5) that if he consents to the search, any evidence discovered in the search can be used against him in a criminal trial.

I turn now to the second aspect of a request for consent to a search addressed to a person in custody. This situation directly involves the system of preliminary warnings formulated in Miranda. To highlight the matter, let us suppose the accused was arrested in the lobby of a hotel, and asked to consent to a search of his hotel room. Let us suppose, further, that before he was asked for consent, the accused was informed by the arresting officer he had no warrant to authorize the search, that without the accused’s consent he could not search the room without first obtaining a warrant from a magistrate upon demonstrating to him probable cause to make the search, and that if he gave consent, anything found could be used against him; and, finally, suppose the accused answered the request for consent as follows: “You don’t need a warrant. Here is the key to my room; go ahead and search it.”

Under Miranda, no statement obtained from “interrogation” in a custodial situation is admissible at trial, unless the accused was first informed of his right to remain silent and his right to counsel. Are the accused’s remarks in the hypothetical situation “statements” resulting from “interrogation” within the meaning of Miranda? I think not.

In my opinion, the interrogation contemplated by Miranda is not the mere asking of a question irrespective of its content; it is rather questioning to elicit information about the individual’s knowledge of the matters contained in the question. Consequently, not every question constitutes “interrogation” as defined in Miranda. For example, I am certain Miranda would not forbid use of remarks by an accused in the following circumstances: The accused is arrested on the street. On the way to the station house in a police car, one of the arresting officers asks him if he would like a cigarette. The accused answers, “yes,” and accepts the cigarette. He lights it, takes a puff, exhales the smoke, and says “well, I guess you’ll find the money sooner or later, so I may as well tell you it’s under the floorboards in the bedroom of my apartment.” Indisputably, a question was asked the accused before he was advised of his right to remain silent and to have counsel present during interrogation. But the question as to whether he would like a cigarette does not constitute custodial interrogation, as I interpret that concept in Miranda. Here, the request for consent was made at the end of the interrogation. At the beginning, accused had been fully warned of his right to remain silent, but he had not been advised of his right to counsel. If he had been so warned, his consent would, under Miranda, be admissible against him. Yet, warning as to the right to remain silent and the right to counsel, both of which rights the accused might be willing to waive, would not necessarily apprise the accused that he has a right to refuse consent to a warrant-less search. United States v Blalock, supra; cf. Gorman v United States, supra. Advice as to the Fifth Amendment right against self-incrimination is not conclusive of whether the accused voluntarily gave his consent to a search. United States v Insani, supra. As I have already observed, the two rights are conceptually different. In my opinion, a request for consent to a search is not “interrogation,” and the accused’s response is not a “statement,” within the meaning of Miranda. I conclude, therefore, that Insani is still sound, and that evidence of consent to a search by a person in custody is admissible, without threshold warnings as to the right to remain silent and the right to counsel. In particular situations, the failure to give such warnings may weigh against the Government, but it does not automatically compel exclusion of evidence of consent. Cf. United States v Burns, 17 USCMA 39, 37 CMR 303.

Left for consideration is whether the accused did, in fact, consent to the search by Agent Curley. Three judicial authorities with the power to make findings of fact on the issue, the law officer, the convening authority, and the board of review, have found that the accused voluntarily consented to the search. In an earlier day, review in this Court would have focused on whether there was substantial evidence in the record to support the finding. United States v Wilcher, supra; United States v Sessions, 10 USCMA 383, 27 CMR 457; see also Rogers v United States, 369 F2d 944 (CA10th Cir) (1966), certiorari denied, 388 US 922, 18 L ed 2d 1371, 87 S Ct 2125 (1967). Appellate courts, however, have increasing-]y observed that when constitutional rights are involved “independent examination of factual issues” may be required. Be-renyi v Immigration Service, 385 US 630, 636, 17 L ed 2d 656, 87 S Ct 666 (1967); see also Ker v California, 374 US 23, 32-34, 10 L ed 2d 726, 83 S Ct 1623 (1963). I approach the record of trial, therefore, with the broader view that the Government must establish consent by clear and convincing evidence. United States v Herberg, 15 USCMA 247, 35 CMR 219.

Submission to authority is not voluntary consent. The record contains evidence supportive of both consent and coercion. For example, the long period of interrogation suggests coercion ; on the other hand, the accused’s admittedly willing discussion of his criminal conduct indicates he had no desire to hide anything, and, therefore, freely elected to allow the search. Similarly, the evidence demonstrates the accused knew the marihuana was among his effects; such knowledge tends to indicate he would not voluntarily consent to the search. United States v Wilcher, supra, at page 218; United States v Gregory, 204 F Supp 884 (SD NY) (1962). The inference, however, is opposed by other evidence indicating that the accused anticipated he could reach his locker before Cur-ley started the search, conceal the marihuana, and thereby establish his innocence of any recent misconduct. See Grice v United States, 146 F2d 849 (CA4th Cir) (1945). I need not, however, evaluate the conflicting inferences. The accused’s own testimony provides a direct and definitive account of the circumstances that led to his consent to the search.

The accused testified that at the beginning of the interview he was advised of his rights under Article 31, Code, supra. He admitted he “fully” understood them, and elected to “reveal certain pieces of information” concerning “what had gone on before on Okinawa.” During the recess for lunch, when Agent Curley left the ONI office to get sandwiches, he went to the waiting room in the ONI office to write out a statement.⁶ Later, the statement was typed, and given to him. Apparently, at that point, he asked Agent Curley, what else he “planned to do.” Curley produced the consent form.

On direct examination, the accused testified that when Curley gave him the form he said: “ T would like you to sign this waiver of search to complete my interview.’ ”⁷ Under cross-examination, he admitted he read the waiver, and understood he “had a right not to have CURLEY search.” He signed the instrument, after filling in the blanks. It is certain, therefore, that the accused knew and understood he had a constitutional right to refuse his consent. It is equally certain he signed the waiver knowing what it was. The only question, therefore, is whether he did so of his own free will, or because he was coerced by Agent Curley or the circumstances of the interrogation. That question is answered by other parts of the accused’s testimony.⁸

According to accused, he sivned the consent form because he “thought maybe” Curley “could go through my outfit and maybe could search it without my consent.” On cross-examination, he reaffirmed this explanation. His cross-examination testimony is as follows:

“Q [Trial Counsel]: In other words, you knew you had a right not to have CURLEY search your effects, isn’t that a fact?

“A: Yes, sir, I felt that if I didn’t sign it, it would be done on a command level.”

It is not coercion or threat for a police officer to indicate to an accused in custody that if he refuses to consent to a search, the officer will apply for a warrant. Gatterdam v United States, 5 F2d 673 (CA6th Cir) (1925); Hamilton v State of North Carolina, 260 F Supp 632, 635 (ED NC) (1966); Cameron v State, 171 Tex Crim 224, 346 SW2d 845 (1961). A declaration of this kind is nothing more than the statement of an intention to follow a legal, course of action. It is not at all comparable to a representation that the search can be made without a warrant or that a warrant can be procured when, actually, it is not reasonably certain that it can. See State v Trumbull, 23 Conn Sup 41, 176 A2d 887 (1961); United States v Baldocci, 42 F2d 567 (SD Cal) (1930). In any event, the idea that an application could be made to command for authority to search did not originate with Agent Curley. The accused thought of it himself; and he convinced himself that he should consent to the search. See Rinehart v State, 114 So 2d 487 (DC Fla) (1959), writ dismissed, 121 So 2d 654 (1960), certiorari denied, 365 US 849, 5 L ed 2d 813, 81 S Ct 812 (1961). His will to refuse consent was manifestly not overborne by any false representation of authority by Curley or any trick or pressure on his part.

A reading of the accused’s testimony results in an abiding conviction that he gave his consent voluntarily, with full knowledge that he had the right to refuse it and with a full opportunity to exercise that right. I, therefore, sustain the law officer’s ruling admitting evidence of the results of the search.

The decision of the board of review is affirmed.

1 It should be noted that, at the time of the interrogation, preliminary advice as to the right to counsel was not yet considered a constitutional requirement. United States v Tempia, 16 USCMA 629, 37 CMR 249.

2 A tape recording of the interview was made until the luncheon recess. This tape was examined by defense counsel before and during trial.

3 The document was admitted in evidence at the trial. At the time, the law officer noted that the back contained handwritten notes, apparently by Agent Curley, as to circumstances of the search. To make certain these notes did not come to the attention of the court members, he had trial counsel read only the face of the exhibit; the record indicates the instrument was kept from the court members.

4 In this area, too, there is a significant silence in the post -Miranda Supreme Court cases dealing with the constitutional principles of search. Camara v Municipal Court, 387 US 523, 539, 18 L ed 2d 930, 87 S Ct 1727 (1967), for example, commented on consent as a basis for a search. Discussing the problem of search to determine compliance with regulations for the health and safety of the community, the Court observed that “most citizens allow inspections of their property without a warrant. Thus, as a practical matter ... , it seems likely that warrants should normally be sought only after entry is refused.” There isn’t the slightest intimation that consent is a nullity, unless the investigator first advises the individual that he has a right to a lawyer. See also See v City of Seattle, 387 US 541, 18 L ed 2d 943, 87 S Ct 1737 (1967).

5 Even before Miranda it was well settled that when the Government relies upon consent to a search received from a person in custody, its burden of demonstrating that the consent was voluntary is particularly heavy. See United States v Wilcher, 4 USCMA 215, 15 CMR 215; United States v Herberg, 15 USCMA 247, 35 CMR 219.

6 The statement was never offered in evidence.

7 Curley’s testimony is to the effect that he informed the accused he “did not have to permit this search,” but if he was “willing to permit” it, he should read the waiver and be sure he “fully understood it.”

8 Curley also testified on the point. He stated he told the accused he “did not have the authority to make this search without his consent” and that the accused “did not have to authorize” the search. He further testified he made no promises to the accused and did not “employ any threats” against him.