(dissenting):
f dissent.
Waivers fall into two broad and general categories. The first is negative and arises out of a failure to act when action is required. The second is of the affirmative variety and is invoked whenever it appears that an accused or his counsel has withdrawn an issue from consideration by conduct which is “affirmative, deliberate and evidential of a conscious design.” United States v Mundy, 2 USCMA 500, 9 CMR 130. An examination of the reasons underlying each type of waiver will serve to demonstrate that neither may be applied in this case.
Ordinarily, the accused’s failure at the trial level to challenge the legality of a search results in an incomplete development of the circumstances of the search. Appellate tribunals, therefore, cannot ascertain from the record of such a trial whether the search was legal or illegal. Since this deficiency in the record is attributable to the accused, he is precluded from claiming prejudice upon appeal. United States v Dupree, 1 USCMA 665, 5 CMR 93.
The second type of waiver is found in situations similar to that presented by United States v Mundy, supra. There, the defense counsel prevailed upon the law officer to refrain from instructing the court-martial upon a lesser included offense clearly raised by the evidence. This Court held that such action constituted a waiver, declaring, “Necessarily a certain risk attends all tactics at trial level. When carefully considered tactics fail, the defense cannot be permitted to seek, upon appeal, further opportunity to indulge its tactical guesses at a new trial.”
There is, in this record of trial, no such void in the evidence as to the circumstances of the search as to preclude an intelligent conclusion on the question of its legality. Neither does the record warrant the inference that, when the defense counsel failed to include specifications 2 and 6 within the scope of his objection, he did so in pursuance of an affirmative, deliberate, and consciously designed tactical plan. The simple fact is he failed to appreciate certain fundamental matters, hereinafter more fully developed.
Thus, since the reasons supporting application of either type of waiver do not exist here, that principle is not at all applicable and should not be made the basis of this Court’s action. The only question we are called upon to decide is whether there appears on the face of the record clear error in an important area which we will reach and cure regardless of specific objection.
My reading of the record persuades me that such an error is presented here.
The first evidence of any significance was obtained by military law enforcement agents through the assistance of the “female civilian” referred to by the majority. The nature of her “assistance,” however, should be described a little more fully, for when it is examined at all, a new complexion is put on the case. First, she had no right to the accused’s automobile. Yet the agents purported to authorize her to drive it upon the military reservation. Second, while she was being questioned, she referred to items belonging to the accused and, at the agent’s suggestion, sent her son to bring in a brief case belonging to the accused and stored in the automobile. To say that the brief case was taken from the accused’s car by the female and not by law enforcement agents is to fly squarely in the face of the facts.
*427It is not contended that the Government had any right to search the accused’s automobile in the absence of specific authorization. This is a wise course. Emite v United States, 15 F 2d 623 (CA 5th Cir) (1926); United States v Hanley, 50 F 2d 465 (SD NY) (1931); Moring v United States, 40 F 2d 267 (CA 5th Cir) (1930), rehear den 41 F 2d 1008 (CA 5th Cir) (1930).
When private citizens obtain evidence illegally and deliver it to Government officials, the pro-priety of its use by the latter as an aid in the . prosecution of the owner of the property seized turns on the complicity of the officials in the original taking. Burdeau v McDowell, 256 US 465, 41 S Ct 574, 65 L ed 1048, 13 ALR 1159. In the instant case, there can be no doubt that the agents prevailed upon the “female” to bring the automobile to them, and to deliver to them the contents thereof. Her act was their act. Their act is to be judged by the same standard as that by which the legality of her conduct is to be gauged, and her conduct was obviously illegal.
Since this illegal seizure was the source of all of the evidence obtained in this case, the well-established “fruit of the poison tree” doctrine requires rejection of all evidence stemming from this source. Silverthorne Lumber Co. v United States, 251 US 385, 40 S Ct 182, 64 L ed 319.
While I need not pursue the various items of evidence obtained at the various searches involved here to their proper source, I have no trouble determining that the check forming the basis of specification 6 of the Charge came from the brief case. The agent to whom it was delivered said it came from that source, and upon receipt thereof he initialed it. Neither must I trace my way through the labyrinthine ways of the mind of the board of review. That tribunal held the searches illegal considering only the nature of the items involved. The question is far too fundamental for such distinctions, valid though they may be in ordinary circumstances.
In sum, all of the evidence supporting the findings returned by the court-martial under specifications 2 and 6 resulted from the unlawful invasion of the accused’s constitutional rights. Since this is apparent and unimpeachable, these findings should not be permitted to stand.
I would reverse the decision of the board of review.