(concurring in part and dissenting in part):
I concur in part and dissent in part.
I concur with the Chief Judge to the extent that I believe the decision of the board of review should be reversed. However, I do not believe the action of the police sergeant was in contravention of the law or the Fourth Amendment to the Constitution. Assuming the actions of the sergeant constituted a search, there was nothing unreasonable about the method he employed.
The sergeant was assigned as company police sergeant, and the record shows his normal duties in-eluded the inspection and checking of laundry bags. These bags are in the open, tied to the foot of the beds, and they are repositories for soiled articles of clothing. They are the property of the Government, they are not furnished for the purpose of keeping all the personalized effects of the serviceman, and they are not intended to have the sanctity of the home, person, foot lockers or wall lockers. When used in barracks, they may be opened and inspected by the company police sergeant, who may note their contents and take appropriate action when they are made the repository for articles other than those prescribed. Certainly, when a police sergeant has the right to open and notice the contents of a laundry bag, he does not commit a trespass or invade the privacy of the possessor by merely feeling the outside covering to ascertain whether there are items placed therein which may be either contraband or secreted contrary to orders. Here the sergeant did not open the bag, so at the worst by touching he merely learned that an object which was the size and shape of a camera was in the accused’s bag. While it is conceded he was looking for stolen property, his motive does not add to or detract from his authority.
There is some argument advanced that the record shows this sergeant exceeded his authority. If that were so, then his action might be illegal, but when the answers are considered in light of the broad sweep of the questions asked, together with the sergeant’s testimony that his duties included checking and inspecting laundry bags and the fact that he would not characterize his act of checking as a search, it becomes clear the witnesses were merely stating that the sergeant did not have the right to conduct a wholesale search of any and all the belongings of the company personnel. That much is conceded by all, but there is no evidence which contradicts his authority to open and notice the contents of the barracks bag.
I would, therefore, answer the certified question in the negative and affirm the findings of the court-martial, but to effect a practical disposition of the case without prejudice to the accused I join the Chief Judge in returning the record to the board of review.