(dissenting):
I dissent.
In addition to other offenses, the accused was found guilty of larceny of a camera, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. The findings of guilty with respect to this delict were set aside by a Navy board of review on the ground that evidence with regard thereto, admitted at the accused’s trial, resulted from an illegal search and seizure. The Judge Advocate General of the Navy certified to this Court the question whether the board of review was correct in determining the search involved to be illegal.
The pertinent facts are uncomplicated and uncontested. Acting Staff Sergeant Martin was the Company Police Ser*612geant. Upon making his regular inspection of the barracks on December 19, 1958, he noticed the accused in Room 5. No one was supposed to be there. He also observed keys hanging from an unmarked wall locker and seized them, informing the accused that he should tell “whoever it was in the room” that he had them. At approximately 12:80 p.m., Private Koresian came to Martin and complained that he was unable to open his locker in Room 5. Martin and Koi-esian returned to the room and discovered that one of the keys which had been seized earlier fitted the locker. Koresian opened the locker and discovered his camera was missing. Martin instructed all personnel to remain in the room and reported the matter to the company executive officer, Captain Reilly. Reilly, whose testimony indicated he had authority to conduct searches, proceeded to Room 5 and searched the possessions of its occupants. Nothing was discovered.
Between 2:00 p.m. and 3:00 p.m., Martin returned to Room 5 in order to secure the personal belongings of a man absent on leave. “Just out of curiosity,” he decided to check the occupants’ laundry bags. Squeezing each of them, he felt an object in accused’s bag resembling a camera and case. He again summoned Captain Reilly. The latter opened accused’s laundry bag and found Koresian’s camera. It was returned to the bag. After the occupants returned to the room, the bags were formally searched and the camera seized.
From the foregoing circumstances, it will be seen that the legality of Captain Reilly’s second quest depends upon the propriety of the earlier search by Staff Sergeant Martin. An authorized search made as the result of information obtained through an earlier illegal investigation is infected with the taint of the earlier search and becomes also illegal. Silverthorne Lumber Co. v United States, 251 US 385, 40 S Ct 182, 64 L ed 319 (1920); United States v Ball, 8 USCMA 25, 23 CMR 249; Manual for Courts-Martial, United States, 1951, paragraph 152. Thus, we are faced at the outset with the basic issue of whether Staff Sergeant Martin’s investigation of the laundry bags was an official action and, if so, whether it was properly authorized.
With regard to the initial proposition, it has been pointed out with respect to military searches that:
“An accused may only exclude from evidence the results of an illegal search ‘conducted or instigated by persons acting under authority of the United States.’ The mere fact that the searcher is a Federal employee, however, does not impose responsibility for his action upon the Government. He must have been acting in a law enforcement capacity. The necessity for this limitation is obvious ; otherwise, military law enforcement agencies would be saddled with responsibility for the acts of all members of the armed forces, in whatever capacity.” [Cobbs and Warren, Military Searches and Seizures, 1 Military Law Review 17 (DA Pamphlet 27-100-1 September 1958).] [Emphasis supplied.]
Thus, in United States v Volante, 4 USCM A 689, 16 CMR 263, we held a search by a post exchange steward of a subordinate’s locker to be an inquiry by a volunteer, as he was motivated by a fear that he would be held personally responsible for missing property unless he was able to affix the blame elsewhere. And in United States v Rogan, 8 USCMA 739, 25 CMR 243, we upheld the search of a lieutenant’s gas mask bag by a master sergeant who was the officer’s subordinate and the victim's superior. There, we also noted that we equated searches by persons having direct disciplinary authority over the person searched to those conducted by law enforcement agents. United States v Rogan, supra, at page 742.
Viewed in the light of the foregoing precedents, I am certain the evidence of record clearly establishes that Staff Sergeant Martin’s search was conduct of an official nature. He was the Company Police Sergeant; he was charged with the duty of inspecting the barracks; and he admittedly exercised disciplinary authority over the accused. Indeed, it was *613he who initially reported the victim’s loss and participated in Captain Reilly’s subsequent investigation. Finally, his declaration that he checked the laundry bags “out of curiosity” should be considered in context, for then it becomes apparent that Martin intended to indicate only his dissatisfaction with the earlier failure to discover the camera and not that he was acting on the basis of personal inquisitiveness.
The question whether Martin was authorized to conduct a search is easily resolved. He was no longer acting under the aegis of Captain Reilly, for that officer had long since completed his search and returned to his office. The record is devoid of any circumstances indicating that Reilly in any way intended to continue his inquiry into the matter. That Martin had no separate authority to conduct the search is specifically admitted by him in the record and is also substantiated by Captain Reilly’s testimony. Indeed, the contention of both these parties is that Martin did not conduct a search but merely “felt” of the accused’s laundry bag.
Accordingly, I am of the opinion that Staff Sergeant Martin’s discovery of the camera involved constituted an illegal search. Hence, Captain Reilly’s later search was also illegal. United States v Ball, supra; Silverthorne Lumber Co. v United States, supra. As this was the position taken by the board of review, it necessarily follows that I would uphold its decision and answer the certified question in the affirmative.
The author of the principal opinion, however, does not answer the query presented to us. Admitting that there is substantial evidence to support the finding that Martin’s action was official, he argues that there is also a basis for contending that his search, conducted two hours later, was a mere continuation of the earlier investigation carried on by Captain Reilly. Finding that the board of review did not consider this possibility, the record is returned for their reconsideration.
Not only is the record devoid of any testimony tending to support that contention, but it also affirma-tively establishes the contrary. Martin re-entered Room 5 solely to secure another person’s belongings in order that they might be safely kept pending that individual’s return from leave. Both Martin and Captain Reilly stated that the former had no authority to make a search. Indeed, their contention, and that of the Government before the board of review and this Court, is that “feeling” of laundry bags did not constitute a search. The theory advanced in the principal opinion is indeed novel in the case. I suspect that the failure of the board of review specifically to discuss it in their opinion and the failure of counsel to advance it results from their inability to discern any factual basis, however tenuous, for it in the evidence.
Pretermitting the question whether the record supports the argument advanced by the Chief Judge, a reading of the board’s opinion will disclose the statement that the “evidence of record . . . leaves little doubt that Acting Staff Sergeant Martin’s ‘bag squeezing’ activities were conducted in an official, rather than a private, capacity and that the same had not, in fact, been duly authorized.” No one can deny that this expressly stated conclusion has a substantial basis in the recorded testimony. We need go no further, for, unless we find that the board’s action is erroneous as a matter of law, we cannot set it aside. United States v Alaniz, 9 USCMA 533, 26 CMR 313. By suggesting an alternative evidentiary theory on which affirmance of the findings may be based, we ignore the board’s fact-finding prerogative and force upon it the product of our own thinking. I believe that more dignity should be accorded to the product of its members who, it must be remembered, are also legally trained. Hence, I am willing to assume they performed their duties properly and weighed all matters raised by the evidence in reaching their determination. Thus, I am unable to join in the ordered disposition of this case.
I would answer the certified question in the affirmative and uphold the decision of the board of review.