(concurring in the result) :
I concur in the result.
I am in agreement with the conclusions reached by the majority that the statements made by the accused in which he identified the marking in his clothing and admitted the ownership of the overcoat were elicited in violation of Article 31(b) of the Uniform Code of Military Justice, 50 USC § 602. That Article prohibits persons subject to the Code from interrogating, or requesting any statement from, without prior warning, one suspected of an offense regarding the offense of which he is accused or suspected. There may be instances when similar questions would properly constitute a mere incident to the search and seizure and, in a different setting, to require a person to identify his property might be permissible. However, in this instance the record is clear that this accused was the only person on the premises at the time the statements were requested; the officers suspected that he was the possessor of marijuana at the time he was asked to identify his clothing; the questions were asked for the specific purpose of connecting him with the suspected offense; and the identification was an important link in the chain of circumstantial evidence.
I need not concern myself with arguing the merits of the contention that the accused was required to incriminate himself as subparagraphs (6) and (c) of Article 31 of the Code are controlling. They provide:
“No person subject to this code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be-used as évidence against him in a. trial by court-martial.
“No person subject to this code shall compel any person to make a. statement or produce evidence before any military tribunal ■ if the statement or evidence is not material the issue and may tend to degrade him.”
Here, there was an investigation, the accused was interrogated, he was suspected of the offense of possessing marijuana, it was anticipated the drug would be found in his personal possessions, and an admission of their ownership could be of value only as evidence connecting him with the suspected crime. He was not warned, and his answers were admitted as evidence against him. The conclusion follows that the quoted provisions of the Article were violated and that error was committed in allowing the testimony to be introduced.
I do not concur with that portion of the opinion which bases reversal upon the grounds of general prejudice. Although that doctrine has been adopted as the law of this Court, I do not believe it necessary to resort to its extremes in the present instance. Nor do I believe the Government is correct in its contention that the compelling evidence rule necessitates affirmance in this case. My conclusion in this phase of the case is founded upon my determination that the confession, received in evidence against the accused, was the product of the unlawful activities of the officers and was, therefore, inadmissible. Hence, the competent evidence is insufficient to support the conviction.
In the case of United States v. DeLeo, 5 USCMA 148, 17 CMR 148, I developed my views on the question of whether a confession, resulting from leads unlawfully unearthed, was rendered inadmissible even though proper warning was given to the accused prior to the time the confession was made. There I was of the opinion that the clue had been obtained through an unlawful search and seizure. I reviewed the civilian cases in which evidence leading to confessions had been obtained through unlawful search and seizure *185or by wiretapping. My research indicated, generally, that the courts have refused to allow the Government to use the fruits of the wrongdoing of its officers. My concepts are expressed in the following quotation from that case:
“If I follow the doctrine announced in those Federal eases, the confession with which we deal is inadmissible. There is, however, another facet of the problem which is present in military law but which is absent in civilian law. Under Article 31, Uniform Code of Military Justice, 50 USC § 602, an accused must be informed that he need not make any statement concerning the offense for which he is being investigated. There is no dispute that in this instance the accused was so advised. This poses a question as to whether such a warning cuts off the causal connection between the original illegal act and the giving of the confession. To ■furnish an answer, it is necessary to weigh the right of the Government to use a derivative confession partly insulated from its tainted source by .-a warning against the wrong which made its production possible. Both •cannot be preserved. Generally speaking, the right of the Government must yield to the right to be secure in a home; but at times the “violation of the latter may be so detached from the former that the “taint has disappeared. Warning is a factor to be weighed in determining the attenuation. In this instance, as .a matter of good sense and in spite of the warning, the connection between the confession and the illegal seizure had not become so attenuated as to dissipate the taint. While some time had elapsed, the freshly obtained •evidence was spread before- the accused and he was directed to explain his possession. The psychological disadvantage of being confronted with illegally obtained documents could hardly be more pronounced. The accused was faced with compelling evidence of guilt and given confusing instructions. He was first told he need make no statement, and an explanation was then demanded. With the fruits of the seizure staring him in the eye and with the possible choice of confessing his crime to his friends, or being further pursued by the French, he was left a difficult choice. Arguments on abstract theories vanish when the poisoned fruit is the bait used to lure the accused to talk. In the instant case, he seized the bait and now the Government asserts it should be the beneficiary of the wrong. Having set the chain of circumstances in motion by an illegal venture, it seems only just that the Government should not profit by the fruits of its wrongdoings.”
In the instant case the issues are parallel as we must deal with a violation of Article 31(6) which directly connected the accused with the offense, and which led to the discovery of the marijuana cigarettes. Immediately upon their discovery, the accused was hustled forthwith to the provost marshal’s office, and after receiving a warning, he signed a confession to the crime. The warning at that time was a hollow ritual. After obtaining illegally the necessary information to convict the accused, the Government agents then informed him he need not talk. Trapped by his own admission of guilt, he was confronted with a hopeless choice. Colloquially speaking, his was not a free choice to let the “cat out of the bag.” Here the Government agents lured it into the open. Under those circumstances to hold that the confession was competent would permit the Government to profit by its own wrongdoing.
I would hold the confession inadmissible and its reception prejudicially erroneous.