(dissenting):
I dissent.
In my opinion, the principal opinion, with its restrictive approach to the basic issue presented in this case, condones a flagrant abuse of the accused’s constitutional protection against unreasonable search and seizure. While our grant of review concerned itself specifically with whether an accused must be advised of his rights under Uniform Code of Military Justice, Article 31, 10 USC § 831, prior to obtaining his consent to an examination of his belongings, neither the objection at the trial nor the arguments and briefs on appeal are so qualified. On-the contrary, they address themselves directly to an inquiry into whether the accused, in fact, consented to the search of his wall locker. While I have serious reservations concerning whether an accused’s statement of consent may properly be introduced into evidence without a demonstration that he was advised of his rights under Article 31, Code, supra, I prefer to dispose of this-appeal on the basic question presented!
Charged with larceny, Insani’s guilt, is predicated solely on the inferences to. be derived from his unexplained possession of recently stolen property, consisting of an ' electric razor, two cameras, and a camera ease. It is also important to note the victims had cigarettes taken from them at the same time, although these latter items were not included in the larceny charge. Possession of the stolen property was developed from the testimony of accused’s commanding officer who conducted a search of his locker at the behest of military policemen who had already partially investigated its contents. The policemen summoned the commander to complete the search when they noted the locker contained seven cartons of cigarettes and evaluated that fact in light of the items determined to be missing and the accused’s indication he had visited the victims’ quarters to obtain a cigarette. As the commanding officer’s search was thus intimately connected with the earlier quest by the military police, its validity depends upon the legality of their actions. Silverthorne Lumber Co. v United States, 251 US 385, 40 S Ct 182, 64 L ed 319; cf. United States v Doyle, 1 USCMA 545, 4 CMR 137; dissenting opinion of Judge Latimer, United States v DeLeo, 5 USCMA 148, 17 CMR 148; Manual for Courts-Martial, United States, 1951, paragraph 152.
Preliminarily, it should be noted that the accused was observed sitting on a bed in the victims’ room. Upon being asked the reason for his presence, he replied that he wanted a cigarette. Thereafter, he apparently returned" to his own room and went to bed. The property in question was soon discovered to be missing, and military police were called. Three law enforcement agents, Sergeant Mutchler, Private First Class Riess, and Private First Class Nemac, arrived on the scene. After identifying the accused as the nocturnal visitor to the victims’ quarters, they attempted to arouse him but were unsuccessful until they resorted to physical force. What transpired subsequently is best described by their own testimony:
“Q. Why did you go the room of Insani?
“A. [Sergeant Mutchler] Because Burney was going to point the man out that was in the room.
“Q. Did Burney point out Insani?
“A. Yes, sir.
“Q. What was Insani doing at the time you first saw him?
“A. He was in bed.
“Q. Sleeping?
*523“A. Yes, sir. I think so. I tried to wake him up.
“Q. Were you successful?
“A. No, sir.
“Q. How hard did you try?
“A. Well, I tried hard enough.
“Q. Did you try shaking him?
“A. Yes, sir, I did.
“Q. Then what action did you take in order to wake Insani?
“A. I didn’t .take any action. As I said before there was two military police there. They were fastworking people. They were young boys. He was on his feet before I knew what was going on.
“Q. How did they put him on his feet?
“A. Lifted him on his feet.
“Q. Is it true that one got on one arm and one got on the other arm and lifted him up forcibly?
“A. Yes, sir.
“Q. At that time did you read him Article 31, Uniform Code of Military Justice?
“A. I did not because he was in no condition.
“Q. What do you mean?
“A. At that time I don’t think he would have understood it.
“Q. Why do you say that?
“A. Because he didn’t act normal.
“Q. What was abnormal or subnormal about him at that time?
“A. He acted like he was — well, under the influence.
“Q. You were of the opinion that he was under the influence of alcohol so you did not read Article 31, Uniform Code of Military Justice to him.
“A. Yes, sir.
“Q. When you got him on his feet, did he appear to stagger?
“A. Yes.
“Q. Would you say he was too drunk to drive an automobile?
“A. I wouldn’t say he was drunk.
I wouldn’t — I would say I wouldn’t want to see him drive one.
“Q. You thought he was too drunk to read him Article 31, Uniform Code of Military Justice.
“A. Yes, sir, I did at that time.
“Q. Then you asked him to open his wall locker, is that correct?
“A. If he’d please open his wall locker.
“Q. Did you ask him if he would please open his wall locker? Were you that polite to him?
“A. Yes, I was. I am polite to everybody.
“Q. When he got up and you had him awake on his feet, did his movements to you indicate that he was a normally sober person?
“A. [Private First Class Riess] Well, sir, I can’t actually say that he got up and — he could have been just tired or otherwise to me he was sober.
“Q. He was sober?
“A. Yes, sir.
“Q. What do you mean by his actions as they might refer to tired ?
“A. Well, he had his eyes closed and he kept pushing the other MP away and I had to grab him to. keep him from swinging on the other MP and after that he quieted down and he was awake.
“Q. Did you have to pull Insani out of bed ?
“A. Yes, sir.
“Q. Did you have to yell to him to wake him up?
“A. Yes, sir.
“Q. Did you tell him he didn’t have to open his wall locker?
“A. No, sir, I didn’t say anything like that.
“Q. When he got out of bed you all are talking to him and you asked him to open his wall locker. And he went for his wall locker, were they the actions of a — were they smooth, coordinated actions or were they uncoordinated because he was tired and sleepy?
“A. [Private First Class Nemae] Well, sir, we didn’t ask him to open his wall locker. We requested that he open it. He didn’t seem like he wanted to open his wall locker, sir.
“Q. Do you think he didn’t. Why didn’t you think he seemed like he wanted to open his wall locker?
*524“A. Well, sir, I just — by his actions and that I don’t think he wanted to open his wall locker.
“Q. You said he didn’t want to open his wall locker.
“A. Well, sir, by what I mean he didn’t want to open his wall locker— in one instance there in the billets when PFC Riess told him that his keys were in his shoe, well, he had his keys in his hands then all of a sudden his keys disappeared again. PFC Riess pulled the covers of his bed down and discovered the keys again and at that time Insani opened the wall locker.
“Q. You said Insani seemed a little bit reluctant, is that correct?
“A. Yes, sir.
“Q. Suppose you told Insani he didn’t have to open that locker. Do you think he would have opened it?
“A. Sir, we didn’t ask Insani to open his wall locker. We requested it.
“Q. What is the difference between ask and request?
“A. If you ask a man to do something that’s just about like telling him to do it. If you request him to do something that’s of his own free will.” [Emphasis supplied.]
It is basic to our law that a search made with the freely granted consent of an accused person is lawful and its fruits admissible in evidence. United States v Wilcher, 4 USCMA 215, 15 CMR 215; United States v Berry, 6 USCMA 609, 20 CMR 325. It is an equally sound proposition, however, that mere peaceful acquiescence in the desires of law enforcement personnel does' not amount to consent to search. United States v Berry, supra; Johnson v United States, 333 US 10, 68 S Ct 367, 92 L ed 436; United States v Cook, 1 CMR 850. The burden is on the Government to establish, this predicate. United States v Sessions, 10 USCMA 383, 27 CMR 457; United States v Brown, 10 USCMA 498, 28 CMR 64. Nevertheless, we do not reverse unless the record offers no reasonable basis for the law officer’s conclusion that the search was consensual. United States v Alaniz, 9 USCMA 533, 26 CMR 313.
Consent to search has not been lightly implied in either the Federal or military systems. Thus, in Amos v United States, 255 US 313, 41 S Ct 266, 65 L ed 654, a wife’s grant of permission to nonviolent entry by Federal prohibition agents was held to result from coercion implied by their very presence on her threshold and deemed to amount to no more than mere acquiescence. In Catalanotte v United States, 208 F 2d 264 (CA 6th Cir) (1953), the defendant, informed by officers that he was suspected of narcotics violations, stated to them, “ ‘The house is yours. You won’t find any narcotics here.’ ” The declaration was held not to amount to consent to conduct a search. And in United States v Alberti, 120 F Supp 171 (SD NY) (1954), wherein the defendant’s reply to a request for permission to search consisted of the statement, “ ‘No, go ahead. The place is yours,’ ” it was concluded he did no more than indicate his resignation to the inevitable.
In United States v Heck, 6 CMR 223, military police informed a warrant officer their mission was to search the apartment jointly occupied by him and the accused. He replied, “Yes,” and stepped aside. The board of review found the response implied no more than peaceful submission to officers of the law. Similarly, in United States v Guest, 11 CMR 758, the accused offered no objection to the search of his locker. Acquiescence rather than consent was found.
Viewed in the light of the foregoing precedents, the admitted facts in this record inevitably dictate the conclusion that, as a matter of law, there was no basis for finding the accused consented to the search in question. Forcibly removed from his bed in either a fatigued or intoxicated state, the accused was repeatedly requested by armed officers of the law to open his locker. Although one deemed him incapable of understanding his rights under Article 31, Code, supra, and another noted his obvious reluctance to comply with their “request,” the policemen persisted in their course. Surely, it must have been obvious to this accused that resistance *525to tbeir demands would be futile, and the repeated assertion that he acted voluntarily is ridiculous. That the lawlessness of their actions may have become apparent to even the officers themselves is indicated by their discontinuance of the quest and contact of the accused’s commander to conduct a further search. Certainly, if they believed accused to have consented, there v/as no reason for them to cease operations upon discovery of his possession of incriminating cigarettes.
Under the circumstances, there was little that the accused could do except bow to the force arrayed against him, and I would hold that his compliance with the “request” amounted to no more than peaceful submission to the inevitable. By according a greater dignity to his failure actively to protest, police methods are impliedly approved which smack of those commonly employed in totalitarian states and whose use I deem far more subversive of basic freedoms than permitting this accused to escape the consequences of his allegedly criminal behaviour. Cf. Johnson v United States, supra.
I would reverse the decision of the board of review and authorize a rehearing or dismissal of the charge.