(dissenting):
I dissent.
The issue presented here is whether *32the accused’s confession was procured through the use of the unlawful “taps,” and I start with the premise that the “taps” tainted the confession, if they procured it. Nardone v. United States, 308 US 338, 84 L ed 307, 60 S Ct 266. A short resume of the facts will disclose why I conclude procurement is so implicit in this record as to be clearly visible to those who believe the Communications Act should apply to persons in the services.
Complaints concerning obscene telephone conversations had been received over a substantial period of time and the local sheriff contacted Air Force officials to have them install an intercept system on the Base. Although the accused had been suspected for some six months, and was the only suspect, Mr. Jacks, a special agent of the Office of Special Investigations, had just never taken the time to interview him. While the accused was confined to the hospital because of an accident, it was decided — I suppose without giving any thought to catching the only suspect— to tap the pay telephones on the Air Base. What a fortunate happenstance, it was that Mr. Jacks and the military authorities selected the one pay telephone in the Base hospital area, the only telephone, readily accessible to the accused, as the first to be tapped. When the offensive telephone call was made, Mr. Jacks was promptly informed of its obscene nature by a personal messenger, and although it was 9:30 p.m., Sunday evening, he proceeded forthwith to the hospital to interview the accused with regard to the indecent telephone call.
The sudden urge on the part of Mr. Jacks to get behind him a task which he had been unable to complete in a rather lengthy period would alone cause me to believe the interception furnished the lead to this conviction. But I need not rely on any sort of inferential process, for Mr. Jacks admitted — in response to a series of questions asked by a court member — that this one monitored obscene telephone call caused him to go directly to the accused and interview him concerning his participation in the intercepted conversation. Although Mr.' Jacks testified that he did not know for certain who had made the telephone call, he knew the accused was in the hospital, he knew the monitored telephone was in the hospital, he knew the telephone message was obscene, and the accused was his only suspect. Furthermore, no complaint had been made by the victim prior to the interrogation and so the source of knowledge, of the nature of the message could only have been the intercept. It really takes no imagination on my part to conclude that because of the illegal intercept, Mr. Jacks knew the accused had made an indecent telephone call, and he immediately, at a rather unusual time, undertook the long delayed interrogation which terminated successfully.
The majority opinion seeks to rely upon Sullivan v. United States, 219 F 2d 760 (CA DC Cir) (1956), but I view that case as a slender reed of support. In that ease the opinion goes on to state:
“. . . one Bolen telephoned the defendant from a police station and made, an appointment to meet him. On another telephone in the same station, a policeman listened to the conversation. The defendant kept the appointment and sold Bolen drugs. Police were present and arrested the defendant.
“. . . Although the policeman acceded, in cross-examination, to a suggestion that his knowledge of Bolen’s arrangements ‘to go to the . . . delicatessen . . . and meet Sullivan . . . came from listening in on the extension wire’, the policeman had testified specifically that the defendant ‘agreed to meet [Bolen] at the usual place, he said, and at 3 o’clock.’ (Emphasis added.) Since the ‘usual place’ was not identified over the telephone, what the police heard over the telephone did not directly enable them to be present at the criminal transaction. Neither did it alert them to question Bolen about his arrangements with the defendant, and thereby indirectly enable them to be present. For they. knew that Bolen was arranging an appointment with the defendant, and were therefore fully alerted, before *33the telephone conversation took place.” [Emphasis supplied.]
Furthermore, I do not view United States v. Bayer, 331 US 532, 67 S Ct 1394, 91 L ed 1654, as being of material aid to my associates in the present instance. In my opinion, the chief meaning of Bayer within the present context is the presumption it appears tacitly to erect in favor of the admissibility of a confession voluntarily given after fair warning, and obtained long after the termination of the illegal restraint. With that principle I have no quarrel as, of course, the prosecution may show that the confession was not procured through the use of an unlawful intercept. My complaint here is that the record shows the contrary.
As in United States v. Noce, 5 USCMA 715, 19 CMR 11, I prefer to rely on the Manual and decisions of the Supreme Court of the United States. In the former I find this language :
“ ‘Evidence is inadmissible against the accused if it was obtained as a result of an unlawful search of his property conducted or instigated by persons acting under authority of the United States, or if it was obtained under such circumstances that the provisions of Section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 USC 605), pertaining to the unauthorized divulgence of communications by wire or radio, would prohibit its use against the accused were he being tried in a United States district court. All evidence obtained through information supplied by such illegally obtained evidence is likewise inadmissible.’ ” [Emphasis supplied.]
In Nardone v. United States, supra, the Court stated this principle:
“We are here dealing with specific prohibition of particular methods in obtaining evidence. The result of the holding below is to reduce the scope of § 605 to exclusion of the exact words heard through forbidden interceptions, allowing these interceptions every derivative use that they may serve. Such a reading of § 605 would largely stultify the policy which compelled our decision in Nardone v. United States, supra. That decision was not the product of a merely meticulous reading of technical language. It was the translation into practicality of broad considerations of morality and public well-being. This Court found that the logically relevant proof which Congress had outlawed, it outlawed because ‘inconsistent with ethical standards and destructive of personal liberty.’ 302 US 379, 384, 58 S Ct 275, 277, 82 L ed 314, 317. To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.’ What was said in a diiferent context in Silverthorne Lumber Co. v. United States, 251 US 385, 392, 40 S Ct 182, 183, 64 L ed 319, 321, 24 ALR 1426, is pertinent here: ‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.’ See Gouled v. United States, 255 US 298, 307, 41 S Ct 261, 264, 65 L ed 647. A decent respect for the policy of Congress must save us from imputing to it self-defeating, if not disingenuous purpose.”
I realize full well that the prosecution offered the written confession, made by the accused on April 14, as evidence in this ease, and not the oral statement made shortly after the intercept. But nothing appears, save the passage of a relatively short time interval, to interrupt the chain of causation, and this, I believe, is not enough. Certainly in the light of this record the burden was on the Government to establish that the evidence introduced at trial was obtained independently of the illegal interception, and this was not done. See United States v. Coplon, 185 F2d 629 (CA2d Cir) (1950). I, therefore, conclude that the confession used in this case was obtained through the use of the wire tap, and the decision of the board of review should be reversed.