(concurring in part and dissenting in part) :
I concur in part and dissent in part.
The Chief Judge’s opinion does not reach the important issue of whether there was failure to warn the accused of his right not to make a statement, for the reason a finding is made that the gloves were not produced pursuant to the direction of the First Sergeant. I cannot accept that view of the evidence because there would be no occasion for any clothing to be delivered by the accused to the orderly room for inspection absent the order. However, I reach his result on this facet of the controversy, for I conclude the accused was not a suspect at the time the order was issued within the meaning of Article 31(b), Uniform Code of Military Justice, 10 USC § 831. To my mind, the problem here narrows to a determination of when one, who with others had an opportunity to commit a crime, is a person suspected of an offense and entitled to be warned of his rights under military law.
In United States v Nowling, 9 USCMA 100, 25 CMR 362, this Court cast some light on the question, for while a majority held it improper to require a person suspected of not possessing a valid pass to produce one without first being given an Article 31 warning, they went on to state:
“We are not to be understood as holding that every routine or administrative check by an air policeman of a serviceman’s pass or identification card must first be preceded by an Article 31 warning. However, when a reasonable suspicion exists, as in the instant case, that a pass violation is being committed, the suspect must be advised of his rights before an examination or surrender of his pass is requested.” [Emphasis supplied.]
I touched on the question in my dissenting opinion in United States v Wilson, 2 USCMA 248, 8 CMR 48, for there I advanced the concept that Article 31:
. . cannot be construed to apply to every person who happens to be asked a question concerning an offense possibly committed by him . . . the facts [must] be developed far enough that the party conducting the investigation has reasonable grounds to suspect the person interrogated has committed an offense.”
In the case at bar, it was the lack of reasonable grounds of suspicion of any one person, and particularly this accused, when the order was given which causes me to reach my conclusion. At that time, no statement as such was made but the gloves were delivered. It is accused’s action in identifying his gloves which I equate to a statement. At the commencement of his investigation, the agent reasoned that the culprit was likely to be one who had access to the building where the vending machine was located. A considerable number of individuals fell in that class, including the guards and the military and civilian personnel employed therein. Expediency made it desirable to inquire of the guards first since their number was the smallest. At this *805stage of events, when the investigator sought to interview those in the guard class, he obtained the assistance of the battalion adjutant, who notified two units to have a total of nine men report with their clothing. If it was necessary to notify the accused of his rights — that he.need not produce his clothing — it was necessary that all the guards be so notified. Up to this point, the investigation was routine. There were neither circumstances nor evidence which pointed suspicion toward any individual. Therefore, to say that the accused was at that time a person suspected of an offense is necessarily to say that all who had access to the building were such. I am unwilling to interpret Article 31 so broadly, for to do this would bring about undesirable and absurd results. Certainly to construe that Article in such a way as to seriously hinder military commanders in conducting showdown inspections of their commands to recover stolen Government property would cause a result which I am sure was unintended by Congress. The Article specifically provides that the warning is mandatory only when the person interrogated is suspected of an offense, and even if I take the definition of the word “suspect” most favorable to the accused, I do not find that the investigator imagined he committed the offense — this for the reason there was no evidence which would cause the most fertile imagination to suspect the accused.
After the accused appeared, the investigating agent noticed his hands and saw what appeared to be blue stains. This fixed suspicion on him and he thereupon became a suspect. Evidence then had developed to a point where he was linked with the crime and set apart from that class of persons whose only common denominator was their freedom to enter the building. This is the time when I believe a warning was required.
In several previous cases we held that the identification of clothing by a suspect at the direction of investigating agents was a “statement” within Article 31, and thus had to be preceded by the proper warning. United States v Taylor, 5 USCMA 178, 17 CMR 178; United States v Holmes, 6 USCMA 151, 19 CMR 277. The only distinguishing feature I can find here is the one I discuss above. However, in this instance, a warning was given to the accused before he made any statement as a suspect, and anything he stated thereafter either orally or in writing was admissible.
For the foregoing reasons, I agree with the conclusion of the Chief Judge that there was no error in admitting the results of the examination or the pretrial statements of the accused which may have been occasioned thereby.
The other question involving multiplicity hardly bears comment for, assuming multiplicity, it is unimportant. The accused was convicted on fourteen specifications which carried a maximum sentence of six years and three months with a dishonorable discharge and forfeitures. He was sentenced to a year in confinement with permissible accessories. The staff judge advocate recommended dismissal of two minor offenses and correctly informed the convening authority that five years and three months was the maximum limit of confinement. The two specifications found to be multi-plicious by the Court would not reduce the maximum period of incarceration below four years and nine months, so I see no good purpose in returning the record for reassessment of sentence. Article 59 of the Code, 10 USC § 859, applies equally to findings and sentence, and the two specifications which are considered multiplicious are so relatively unimportant that the error was harmless.
I would affirm the decision of the board of review.