(concurring):
I concur.
In one of our early cases, United States v Florence, 1 USCMA 620, 5 CMR 48, this Court unanimously adopted the longstanding civilian rule that searches incident to lawful arrest are legal. The validity of that principle is undisputed, and no useful purpose would be served by dwelling on its history here. However, the interested reader may trace the development of the rule through the cases cited in that opinion. And more recently in United States v Dutcher, 7 USCMA 439, 22 CMR 229, while a majority of the Court there decided the question on a different ground, I relied upon the same rule in resolving the issue that confronted us.
In my view, the above cases are controlling here, for if in those instances there was a legal search incident to lawful apprehension, necessarily the same is true in the case at bar. Here the accused was assigned for duty and working at the Postal Locator. As the Chief Judge points out, the commanding officer thereof, who was aware that accused had been observed abstracting a letter from the mail and of other suspicious circumstances, told him to step into the supply room, informed him he had been seen putting mail in his pockets, and instructed him to empty the same. Certainly there can be no question but that the officer had probable cause to and in fact did apprehend the accused. Nor can there be any doubt that the latter was well aware his freedom of movement had been restricted because he was suspected of stealing mail. In light of these circumstances, it is beyond cavil that there was authority to search accused — in fact, individual defense counsel conceded this to be so. The only question, then, is whether the acts here constitute a search, and, again, I believe Florence and Dutcher are dispositive. It should be obvious under the posture of this record that instructing or asking an accused to empty his pockets in lieu of a “frisking” by apprehending authorities, does not militate against a search. Rather, it was certain accused would be required to give up any incriminating evidence he possessed — whether with or without his consent — and the manner employed was merely a less offensive method of accomplishing the same end. Certainly in view of the courtesy extended him, the accused should be the last to complain of the method used to obtain possession of the letters. To remove all question, however, I point out that in the two aforementioned eases, Florence was “requested to produce . . . [his] wallet” (1 USCMA at page 622); and Dutcher was asked if he minded going through his billfold and was directed to do so himself (7 USCMA at page 440). As both those situations were searches, manifestly the same is true in this instance. And since it is unnecessary to warn an accused in accordance with the provisions of Article 31, Uniform Code of Military Justice, 10 USC § 831, in order to obtain his consent to a search, United States v Insani, 10 USCMA 519, 28 CMR 85, I am unable to determine wherein any of this accused’s rights have been impinged.
Accordingly, I join the Chief Judge in reversing the decision of the board of review.