(concurring) :
My interpretation of the applicability of Rochin v. California, 842 US 165, 96 L ed 183, 72 S Ct 205, 25 ALR2d 1396, with respect to the issues of the present case accords more nearly with that of Judge Latimer than with the view of the dissenting judge. As I read it, that case simply held that the use of certain evidence in a California court violated due process concepts enjoined by the Fourteenth Amendment, because the evidence consisted of information obtained through subjecting the accused to stomach-pumping— forcibly and over his protest.
If the case before us involved real evidence obtained from-an accused person by use of a catheter and over his protest, I should similarly conclude that fundamental standards of decency in law enforcement had been infringed, and that a conviction predicated in any part on such evidence violated the concept of “military due process.” I find no real difficulty in distinguishing the result in such an instance from an obtaining of blood samples by force.
In the first place, catheterization involves infinitely more physical discomfort than the' mere pricking of a suspect’s finger — although it is perhaps not so painful as the dissenting judge implies. The degree of distress caused by this medical procedure — I am informed — will depend on a number of factors, principally the suspect’s' threshold of pain, his nervousness and tension at the time, and the skill of the operator. Second, at least some slight risk of urinary tract infection is associated with the challenged operation. In this regard, a mitigating circumstance would be present, of course, if the extraction were performed — as in the instant ease — by a qualified physician. A third — and to my mind a most important factor — is the psychological impact potential possessed by this type of scientific exploration.' The extraction of the fluid is, of course, from the male reproductive organ. Subconscious fears associated with this area are substantial — indeed so great that many schools of psychoanalysis place special emphasis on the role of the “fear of castration.” In addition, an accused might well entertain distinctly conscious fears of infection from the operation'. Finally, if forcible catheterization were permitted, a sublimated “third degree”— one embracing pseudoscientific menaces —might easily result. By this I mean to suggest that the fear of injury to the organs concerned is so massive and pervading that a suspect might tend to choose confession as a route of escape from the threat of catheterization. And investigators might seek to accelerate the unburdening of an accused’s conscience by implying subtly that — unless he talked — it would be necessary . to search, say, his urinary tract for evidence.1 In light of these considerations, I must hold- that the forcible extraction of urine from a protesting accused is as noxious as the use of a stomach pump over objection.
While physical force may not be exerted to obtain samples of urine, I doubt that the furnishing of them falls within the purview of the privilege against self incrimination. As Judge Latimer properly points out, this privilege should not be extended to include real evidence in the form of bodily fluids, which in no wise involve testimonial utterances. At least one criterion for use in the solution of the instant problem- takes the form of an inquiry into whether the accused is being required to create evidence. An Air Force board of review recently utilized this test in a well-reasoned opinion which I adopt for the present purpose. See United States v. Brints, ACM 8386, 15 CMR 818.
Both handwriting samples and spoken words — the evidentiary items involved in Rosato, Eggers, and Greer, cited by my brothers — involve a creative performance on the part of the accused. Without his conscious affirmative ae*330tion, they can never exist; they could not possibly be — apart from a positive exercise of will by him. Conceivably the accused might live out the remainder of his life without either speaking or writing — although admittedly the prospect would not be happy. The creation of urine, on the other hand, eventuates apart from any sort of effort of will, and involves only involuntary and unavoidable physiological functions. In this sense, therefore, no “creativeness” is essential to the formation or discharge of this fluid. The conscious mind controls only the time and place of essential disposal. Accordingly, I am sure that — unlike the rule in the situations involving handwriting and voice exemplars — a person suspected on reasonable grounds may lawfully be required by an order from superior authority to furnish urine samples for chemical analysis. Obviously, under my view, Article 31 does not apply to demand any sort of warning to the accused, since he could be directed to furnish a sample were he initially to decline to do so, and since such a sample can scarcely be considered a “statement”— for the latter term refers solely to testimonial utterances. United States v. Milton, ACM S-7345, 13 CMR 747.
The case at hand involved neither an order nor the extraction of urine over the accused’s protest. Instead, he was totally unconscious when the withdrawal occurred. Accordingly, of the four factors which served to induce my conclusion that forcible catheterization must be deemed unlawful, the single one present here is the possibility of infection arising from the insertion of the instrument. Since a qualified physician carried out the procedure, and apparently acted in an approved professional fashion, I do not feel justified in asserting that the process embraced so fundamental a violation of decency as to require reversal of the findings. Instead, the method of detection employed seems permissible, since the accused was unconscious, and since it is clear that no action of law enforcement personnel contributed to his insentience.
Moreover — and conceding arguendo that the catheterization of an unconscious suspect might be deemed illegal— there is no clear showing in the case before us now that the extraction did not constitute a reasonable measure of medical diagnosis, as opposed to a method of crime detection. In short, the record does not make manifest a violation of any of the accused’s rights— such, for example, as would be demanded for reversal under the principle of United States v. Josey, 3 USCMA 767, 14 CMR 185. Furthermore, if illegality be regarded as present in the extraction of the urine sample, I suspect that in essence we are here confronted with an illegal search and seizure — or something very like it — with the result that any claim of illegality would have been waived by reason of the accused’s failure to object to the evidence obtained thereby. United States v. Dupree, 1 USCMA 665, 5 CMR 93.
Finally a survey of the defense’s theory of the case — as clearly revealed in the instant record— makes it apparent to me that the use at the trial of the results of analysis of the fluid sample obtained from the accused while unconscious could not merit reversal— whether under an invocation of “divine law,” the “law of nature,” or any other sort of law. The prosecution offered the testimony of the mamasan in whose house of call the accused allegedly had used narcotics. Thereafter trial counsel tendered in evidence the results of the urinalysis. The defense presented no objection to this evidence. Instead, both Private Williamson, the present appellant, and a co-accused took the stand to advance the theory that — although the former had received the narcotic — he had not known what he was doing at the time. In the version presented by the defense, indeed, the ma-masan and her aiders and abettors loomed as the villains of the piece. They injected Williamson with narcotics while he was too intoxicated to have any notion of what was transpiring. By this theory of defense, the accused was precluded — it seems to me — from advancing at the appellate level any contention that he was prejudiced by the use of inadmissible evidence at the *331trial. Cf. United States v. Henry, 4 USCMA 158, 15 CMR 158 (all opinions).
One instance of a similar method of • extracting a confession has been reported to me by a former service law enforcement officer, who participated in the transaction.