Opinion of the Court
The accused was convicted by a general court-martial of seven offenses, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, involving the wrongful possession, use and sale of marijuana. He was sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for thirty years and reduction in rank to private. The staff legal officer in his review recommended the disapproval of the court’s findings upon wrongful possession of marijuana, expressing his view that the evidence upon which the court based these determinations of guilt was the product of an illegal search of the accused’s residence and seizure of marijuana therefrom, and therefore inadmissible.
The convening authority acted upon his staff legal officer’s advice by disapproving the court’s findings of unlawful possession and reducing the sentence to dishonorable discharge, total forfeitures, and confinement at hard labor for twenty years, with reduction to the grade of private. The board of review, in affirming, did not pass on the search and seizure question. However, the accused, in his petition for review which this Court granted, asserts that his pretrial statement confessing two of the three offenses of selling marijuana to named individuals with which he was charged was inadmissible in evidence. The contention is made that the confession was tainted by an illegal search and seizure. The question at the threshold of this case therefore is the legality of that search and seizure.
The facts, insofar as pertinent to this appeal, are as follows: After receipt of information incriminating the accused, Naval investigators in conjunction with civilian authorities “staked out” accused’s shack for a period of over twenty-four hours. The surveillance was unproductive until accused while approaching his shack at night was arrested by approximately six law enforcement officers in civilian clothes. Accused was handcuffed, the key to the shack was taken from his right hand pocket, and the subsequent search disclosed the presence of marijuana. Accused was then taken to the provost marshal’s office where he executed an oral confession which was followed by a similar written statement the next morning.
The evidence as to whether or not the accused consented to the search of his shack, as to whether or not the Government agents offered to procure a search warrant, as to whether or not the Government agents employed force, and as to whether or not the accused was given an adequate Article 31 warning (Code, supra, 10 USC § 831) is conflicting.
I
We first direct our attention to the question of the legality of the search and seizure. In United States v Berry, 6 USCMA 609, 20 CMR 325, we held that if the Government’s justification for a search is the consent of a person whose property is searched, the Government must establish such by clear and positive testimony. In the instant case we are confronted by the accused’s testimony that the circumstances of the arrest had put him in fear.
In Judd v United States, 190 F2d 649 (CA DC Cir) (1951), it was said that before a court holds a defendant to have waived his protection under the Fourth Amendment, there must be convincing evidence to that effect. In that case defendant was arrested without a warrant, booked on an open “investiga-' tion” charge, questioned for several-hours, and then taken to his home some
. . His statements while in jail, which are relied on as consent, may be summarized as: I have nothing to hide, you can go there and see for yourself. Conceivably, that is the calm statement of an innocent man; conceivably, again, it is but the false bravado of the small-time criminal. But, however it be characterized, it hardly establishes willing agreement that the officers search the household without first procuring a warrant. Comparable statements have been held insufficient where the victim of the search was safely in his home, his place of business, or in his automobile.”
In the case of United States v Lantrip, 74 F Supp 946 (ED Ark) (1948), Federal officers went to the defendant’s home, identified themselves, and stated they would like to search his premises. The defendant said, “Go ahead,” or words to that effect. The court held this to be a peaceful submission to the law enforcement officers, an acquiescence in the search rather than a consent thereto. Accord, United States v Slusser, 270 Fed 818 (SD Ohio) (1921).
In the recent case of United States v Wallace, 160 F Supp 859 (DC), the defendant had been under arrest and interrogation for some time before giving the alleged consent to a search of his premises. No confession or incul-patory admission preceded the alleged permission to conduct the search. “In defendant’s words, he was ‘conned’ and ‘sweet talked’ into stating that he did not object.” The court commented:
“On these facts and under these circumstances the question is whether legal consent was given. The criterion in answering this question is set forth in Judd v. United States, 89 U.S. App. D.C. 64, 190 F. 2d 649, and briefly is as follows: Consent to such search and seizure must be proved by clear and positive testimony and it must be established that there was no duress or coercion, actual or implied. Where the defendant is under arrest the Government’s burden is particularly heavy. Intimidation and duress are almost necessarily implicit in such situations, and if the Government alleges their absence it has the burden of convincing the Court that they are in fact absent. Paraphrasing this, the consent must be clearly shown to be free, uncoerced and voluntary. Under the above facts and considering the total atmosphere under which defendant stated that he had no objection to the search, I am of the opinion that his consent was not real, uncoerced and voluntary, but that he was tricked or coerced into saying he had no objection.
“. . . That this distinction on the facts is a valid one would seem obvious, but it is recognized in the Higgins case, supra [93 U.S. App. D.C. 340, 209 F. 2d 820], where the Court stated that ‘no sane man who denies his guilt would actually be willing that policemen search his room for contraband which is certain to be discovered.’ ”
There remains the serious question of why the Government agents had not procured a search warrant. They testified that they felt the need for the search to be immediate to prevent contraband from being removed from the accused’s shack. However, we note that at least six Government agents participated in the arrest. Certainly leaving some to guard the shack while others procured a warrant would not be imposing an unreasonable requirement upon the arresting officers.
In United States v Jeffers, 342 US 48, 72 S Ct 93, 96 L ed 59, the Supreme Court pointed out that the prohibition against unreasonable searches and seizures by the Fourth Amendment does not place an unduly oppressive weight upon law enforcement officers and that the burden is on those seeking an exemption to the Amendment to show it.
As we have stated in reviewing the record of trial, the staff legal officer concluded, as a matter of fact, that the law officer had erred in holding the search was with the accused’s consent, and that the evidence obtained therefrom was admissible and so advised the
In United States v Massey, 5 USCMA 514, 18 CMR 138, we stressed the convening authority’s almost absolute appellate reviewing powers. It is clear beyond cavil that this Court is not possessed of fact-finding powers, Article 67(d), Uniform Code of Military Justice, 10 USC § 867, and that we may not overturn a truly factual determination based upon the evidence of record made by intermediate appellate bodies possessed of fact-finding jurisdiction. United States v Bunting, 6 USCMA 170, 19 CMR 296; United States v Moreno, 5 USCMA 500, 18 CMR 124; United States v Moreno, 6 USCMA 388, 20 CMR 104. In the present case the factual determination of this controverted factual issue by the convening authority is binding upon this Court.
II
In view of our holding upon the search and seizure question, the other assigned issues need not long detain us. Whether the results of the illegal search affected the voluntariness of the accused’s later confession is a factual question which should have been, but apparently was not, considered by the convening authority. See United States v Dutcher, 7 USCMA 439, 22 CMR 229; United States v Bennett, 7 USCMA 97, 21 CMR 223.
The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Navy for resubmission to the convening authority for further consideration consistent with this opinion.