[112]*112OPINION OF THE COURT
Duncan, Chief Judge:
A grant of review was made in this case in order to consider whether the search warrant issued by a staff judge advocate was invalid because the issuing officer was not the equivalent of a neutral and detached magistrate.
The facts are not really in dispute. On the naval installation in question, Naval Air Station, Whidbey Islandj Oak Harbor, Washington, an instruction1 authorized the station judge advocate to authorize searches upon probable cause as a delegation of the commander’s authority in this regard. On May 23, 1972, Naval Investigative Service Special Agent Stovall sought authorization from the station judge advocate to search the appellant’s person and his dwelling place in base housing. Stovall’s affidavit, which was in fact dictated by the station judge advocate himself on the basis of information supplied by Stovall, is set out in full in the margin. Basically, it states that one Marrine, a Marine corporal who had been arrested by customs authorities at Blaine, Washington, for possession of marihuana, made a statement under oath that on May 18, 1972, he had purchased the marihuana from a woman named Chris, believed to be a sailor’s wife, at a residence he identified, which was located on Naval Air Station, Whid-bey Island. Stovall further indicated that investigation of the base locator system disclosed the residence was occupied by the appellant and his wife, Chris. Sto-vall’s affidavit also relates that a resident agent of Naval Investigative Service Agency, Whidbey Island, during a previous investigation had verified through "normal investigative procedures” appellant’s identity, his wife’s identity, and their address, on the basis of "reliable information” furnished by two other named individuals who identified the appellant’s wife as "Chris.” They also provided other "reliable” information "concerning numerous dangerous drug and narcotics users in the Whidbey Island area including . . . [one of the informant’s] purchase from, use with, and possession by Jack STAGGS at his address in Victory housing, and also implicating Chris STAGGS as being a possessor and user of marijuana.” The affiant further states that Marrine "has agreed to effect a controlled purchase of marijuana from Jack STAGGS at the residence at 666 Brant Street, Oak Harbor, Washington on this date.”
At trial, , the station judge advocate admitted it would be fair to say that there was not enough information or evidence available to constitute probable cause for the search at the time he spoke with Stovall. Nevertheless, on the basis of the affidavit, a "COMMAND AUTHORIZATION FOR SEARCH AND SEIZURE,” dated May 23, 1972, also set out in the margin, was issued by the station judge advocate for the search of Staggs, his residence, and any automobiles belonging to him, for "[m]arijuana and any controlled drug or substance and any special marked currency of the United States.” The authorization was subject to "subsequent corroboration that Michael T. Marrine, CPL, USMC, will effect a controlled purchase of marijuana from the said Jack Lee Staggs, SN, USN, D89-76-11, on 23 May 1972, under the direction of Agents Carl Merritt and Harvey Stovall, NISO.” The record indicates that it was Stovall who initially proposed that Marrine would be willing to effect a controlled purchase from the appellant, and that the station judge advocate believed such "corroboration” was needed "to round out the probable cause.”
The written warrant was issued around 3:30 p.m., and the station judge advocate received a telephone call about 6:00 p.m. from Stovall who related that Marrine had made a controlled purchase of marihuana from the appellant in the house in question; that Marrine stated the appellant "told him that he expected additional marijuana to be there that night about 9 o’clock” and that he should return then if he "was interested in buying more.” When Stovall asked the station judge advocate at this time whether the search warrant should be immediately executed inasmuch as its condition of a controlled purchase had been fulfilled, or whether the investiga[113]*113tors should wait until another purchase could be made by Marrine after 9 o’clock, the station judge advocate "left that up to them and told them that they could wait and attempt to make another purchase but whatever they did it must be executed before midnight.” The station judge advocate considered that the oral authorization over the telephone was sufficient authority to conduct a search, and in any event Stovall had the written warrant, "so taking the two together he had the authorization.”
Marrine made a second controlled purchase after 9 o’clock, and thereafter Sto-vall and other NIS agents, without again contacting the station judge advocate to advise him of the circumstances of the second controlled purchase, went to appellant’s house and apprehended him and searched the premises, finding a large quantity of marihuana and 71 tablets of amphetamines, which were introduced in evidence at this trial over defense objection they were seized in an unlawful search.
Additional relevant facts are that the station judge advocate was routinely approached on search matters by investigative authorities even though the instruction delegating him the power to authorize searches declared that "[ojrdinarily” the commanding officer will be "the officer responsible for authorizing searches of persons and property.” Moreover, the station judge advocate had previously talked with an accused in another case who traded information "about the drug traffic in the area” for clemency, giving evidence against the appellant herein, whereupon the station judge advocate "contacted Naval Investigative Service sometime after that and on behalf of the command asked them to conduct an investigation into STAGGS['] activities.” That investigation of the appellant conducted some 5 months earlier produced inconclusive results. When approached on May 23, 1972, with a request for authorization to search the appellant and his residence, the station judge advocate remembered the appellant’s name "immediately.” Lastly, after the arrest of Staggs, the station judge advocate was heard to say "we’d been after him” for some time.
At the outset, it is helpful to focus on two points which are not at issue in this case. First, the fact that the officer who issues the warrant was also the station judge advocate need not detain us, for his authority in this matter seems to us to have been properly delegated from the appropriate commanding officer, paragraph 152, Manual for Courts-Martial, United States, 1969 (Rev.), and there appears to be no inherent conflict of interest between serving as a station judge advocate and exercising the authority to order searches on probable cause on behalf of a commanding officer. If a commanding officer with responsibility "for the maintenance of order and discipline within his command” is not per se disqualified from authorizing searches upon probable cause, Wallis v O’Kier, — F2d — (10th Cir Feb. 19, 1974), neither is his staff judge advocate. Next, we are not concerned with the adequacy of the Stovall affidavit and the station judge advocate’s written authorization to search. Rather, our primary focus is upon the entire participation of this particular station judge advocate in authorizing the search.
Whether an authorization to search is made by a commanding officer, or as in this case by his delegate, the act of authorizing a search on the basis of probable cause is a " 'judicial function.’ ” United States v Drew, 15 USCMA 449, 454, 35 CMR 421, 425 (1965).
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[112]*112OPINION OF THE COURT
Duncan, Chief Judge:
A grant of review was made in this case in order to consider whether the search warrant issued by a staff judge advocate was invalid because the issuing officer was not the equivalent of a neutral and detached magistrate.
The facts are not really in dispute. On the naval installation in question, Naval Air Station, Whidbey Islandj Oak Harbor, Washington, an instruction1 authorized the station judge advocate to authorize searches upon probable cause as a delegation of the commander’s authority in this regard. On May 23, 1972, Naval Investigative Service Special Agent Stovall sought authorization from the station judge advocate to search the appellant’s person and his dwelling place in base housing. Stovall’s affidavit, which was in fact dictated by the station judge advocate himself on the basis of information supplied by Stovall, is set out in full in the margin. Basically, it states that one Marrine, a Marine corporal who had been arrested by customs authorities at Blaine, Washington, for possession of marihuana, made a statement under oath that on May 18, 1972, he had purchased the marihuana from a woman named Chris, believed to be a sailor’s wife, at a residence he identified, which was located on Naval Air Station, Whid-bey Island. Stovall further indicated that investigation of the base locator system disclosed the residence was occupied by the appellant and his wife, Chris. Sto-vall’s affidavit also relates that a resident agent of Naval Investigative Service Agency, Whidbey Island, during a previous investigation had verified through "normal investigative procedures” appellant’s identity, his wife’s identity, and their address, on the basis of "reliable information” furnished by two other named individuals who identified the appellant’s wife as "Chris.” They also provided other "reliable” information "concerning numerous dangerous drug and narcotics users in the Whidbey Island area including . . . [one of the informant’s] purchase from, use with, and possession by Jack STAGGS at his address in Victory housing, and also implicating Chris STAGGS as being a possessor and user of marijuana.” The affiant further states that Marrine "has agreed to effect a controlled purchase of marijuana from Jack STAGGS at the residence at 666 Brant Street, Oak Harbor, Washington on this date.”
At trial, , the station judge advocate admitted it would be fair to say that there was not enough information or evidence available to constitute probable cause for the search at the time he spoke with Stovall. Nevertheless, on the basis of the affidavit, a "COMMAND AUTHORIZATION FOR SEARCH AND SEIZURE,” dated May 23, 1972, also set out in the margin, was issued by the station judge advocate for the search of Staggs, his residence, and any automobiles belonging to him, for "[m]arijuana and any controlled drug or substance and any special marked currency of the United States.” The authorization was subject to "subsequent corroboration that Michael T. Marrine, CPL, USMC, will effect a controlled purchase of marijuana from the said Jack Lee Staggs, SN, USN, D89-76-11, on 23 May 1972, under the direction of Agents Carl Merritt and Harvey Stovall, NISO.” The record indicates that it was Stovall who initially proposed that Marrine would be willing to effect a controlled purchase from the appellant, and that the station judge advocate believed such "corroboration” was needed "to round out the probable cause.”
The written warrant was issued around 3:30 p.m., and the station judge advocate received a telephone call about 6:00 p.m. from Stovall who related that Marrine had made a controlled purchase of marihuana from the appellant in the house in question; that Marrine stated the appellant "told him that he expected additional marijuana to be there that night about 9 o’clock” and that he should return then if he "was interested in buying more.” When Stovall asked the station judge advocate at this time whether the search warrant should be immediately executed inasmuch as its condition of a controlled purchase had been fulfilled, or whether the investiga[113]*113tors should wait until another purchase could be made by Marrine after 9 o’clock, the station judge advocate "left that up to them and told them that they could wait and attempt to make another purchase but whatever they did it must be executed before midnight.” The station judge advocate considered that the oral authorization over the telephone was sufficient authority to conduct a search, and in any event Stovall had the written warrant, "so taking the two together he had the authorization.”
Marrine made a second controlled purchase after 9 o’clock, and thereafter Sto-vall and other NIS agents, without again contacting the station judge advocate to advise him of the circumstances of the second controlled purchase, went to appellant’s house and apprehended him and searched the premises, finding a large quantity of marihuana and 71 tablets of amphetamines, which were introduced in evidence at this trial over defense objection they were seized in an unlawful search.
Additional relevant facts are that the station judge advocate was routinely approached on search matters by investigative authorities even though the instruction delegating him the power to authorize searches declared that "[ojrdinarily” the commanding officer will be "the officer responsible for authorizing searches of persons and property.” Moreover, the station judge advocate had previously talked with an accused in another case who traded information "about the drug traffic in the area” for clemency, giving evidence against the appellant herein, whereupon the station judge advocate "contacted Naval Investigative Service sometime after that and on behalf of the command asked them to conduct an investigation into STAGGS['] activities.” That investigation of the appellant conducted some 5 months earlier produced inconclusive results. When approached on May 23, 1972, with a request for authorization to search the appellant and his residence, the station judge advocate remembered the appellant’s name "immediately.” Lastly, after the arrest of Staggs, the station judge advocate was heard to say "we’d been after him” for some time.
At the outset, it is helpful to focus on two points which are not at issue in this case. First, the fact that the officer who issues the warrant was also the station judge advocate need not detain us, for his authority in this matter seems to us to have been properly delegated from the appropriate commanding officer, paragraph 152, Manual for Courts-Martial, United States, 1969 (Rev.), and there appears to be no inherent conflict of interest between serving as a station judge advocate and exercising the authority to order searches on probable cause on behalf of a commanding officer. If a commanding officer with responsibility "for the maintenance of order and discipline within his command” is not per se disqualified from authorizing searches upon probable cause, Wallis v O’Kier, — F2d — (10th Cir Feb. 19, 1974), neither is his staff judge advocate. Next, we are not concerned with the adequacy of the Stovall affidavit and the station judge advocate’s written authorization to search. Rather, our primary focus is upon the entire participation of this particular station judge advocate in authorizing the search.
Whether an authorization to search is made by a commanding officer, or as in this case by his delegate, the act of authorizing a search on the basis of probable cause is a " 'judicial function.’ ” United States v Drew, 15 USCMA 449, 454, 35 CMR 421, 425 (1965). "[Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v United States, 389 US 347, 357 (1967) (footnotes omitted). One well-recognized exception to the requirement that a magistrate or judicial officer must authorize certain searches is found in the military practice permitting commanding officers or their delegates to authorize searches upon probable cause. Paragraph 152, MCM. Nevertheless, we have held that a commanding officer "stands in the same position as a Federal magistrate issuing a search warrant.” United States v Sam, 22 USCMA 124, 127, 46 CMR 124, 127 (1973). Consequently, the military officer’s decision to authorize a search on probable cause must be made with "a [114]*114magistrate’s neutrality and detachment.” Id. Or, to put it in the words of the Manual in describing the necessary quality of an officer delegated the power to authorize searches, the magistrate function in the military must be exercised by an "impartial person.” Paragraph 152, MCM. The search authority must be exercised with "a 'judicial’ rather than a 'police’ attitude to the examination of the operative facts.” United States v Drew, supra at 454, 35 CMR at 426.
Assuming that the station judge advocate was acting within the sphere of his official duties in ordering an investigation into suspected activity by the accused, such activity standing alone does not amount to participation in the process of investigation divesting him of lawful authority to order a search upon probable cause. Our review, however, must consider the fact that he ordered the first investigation into the accused’s suspected drug activity. Furthermore, at trial, the station judge advocate admitted that the appellant’s name "came back immediately” when the request for authorization to search was presented to him. He also admitted that "we’d been after him [the appellant] for that long [December to May].” Such statement while providing a suggestion of satisfaction with the predicament of the accused, may also be only connotative of the duration of the Government’s suspicion of the accused.
The key matter in controversy is the prospective authority to search. Our result in the instant case does not demand that we decide whether probable cause existed for the search before or after the condition of the authorization (controlled purchase) was met.
Marrine’s first purchase of marihuana was made on May 18, 1972. The station judge advocate’s stated belief was that at the time of application for authority to search the facts of the purchase were stale. From the purchase made on May 18, it can reasonably be inferred that there was marihuana present at appellant’s home. However, according to the testimony of the station judge advocate, he did not believe that probability continued and existed on May 23, when the authority to search was requested. Therefore, according to the station judge advocate himself, there was no probable cause to search based on Marrine’s first purchase. Search warrants are directed to present crimes rather than those that may arise. Although the station judge advocate properly could consider the full range of information he had concerning Staggs and his premises, the probable cause to search arose only after the first controlled purchase. Moreover, it would have demonstrated probable cause independent of Marrine’s first purchase.
What the fact pattern displays, then, is an initial failure of probable cause and the person acting as a magistrate participating in designing a plan to produce a probable cause situation. Joining this activity, his assistance to the agent in preparing the affidavit, and the stated history of the investigation and comments concerning appellant, we do not believe that the search in this case was authorized by a person of the requisite impartiality, neutrality, and detachment.
We emphasize that our conclusion that the search authorization in this case was invalid is based on the peculiar facts before us. We are well aware that a commander’s responsibility for the maintenance of order and discipline in his command requires that he direct and sometimes participate in investigations into criminal activities. He is also the individual empowered to issue search authorizations on probable cause. Nothing in this decision is intended to invalidate this long-standing practice, as we are certain that, in the ordinary course of events, a commander is able to separate his responsibilities and maintain the requisite judicial attitude toward making determinations of the existence of probable cause. But, in this case, the evidence indicates that the station judge advocate departed from his normal role and became an active participant in gathering evidence against the accused. That participation was inconsistent with his duty to remain an impartial and detached magistrate.
We have determined that probable cause, according to the station judge advocate’s fact determination, did not arise until after the controlled purchase. [115]*115This is not a holding that all conditional authority to search is a ground for invalidating the search. Compare United States v Allende, 486 F2d 1351 (9th Cir 1973), with United States ex. rel. Beal v Skaff, 418 F2d 430 (7th Cir 1969).
The decision of the U. S. Navy Court of Military Review is reversed. The findings of guilty of specifications 1 and 2 of the charge and the sentence are set aside. The remaining findings of guilty are affirmed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be authorized.
Senior Judge Ferguson concurs.