(concurring):
The admissibility of evidence obtained from a search depends upon what was actually done, not upon what could have been done. Cf. United States v Taylor, 5 USCMA 178, 17 CMR 178. Consequently, I have strong reservations about some intimations in the principal opinion that what the agents could have done is material to the validity of the search.
The critical question before us is whether under the circumstances of *187this case, the accused’s assumption of a position alongside a bunk and the presentation of a duffel bag for inspection, constitute identification of his effects within the meaning of Article 31, Uniform Code of Military Justice, 10 USC § 831. See United States v Taylor, supra; United States v Bennett, 7 USCMA 97, 21 CMR 223. Two principles provide the framework for consideration of that issue. First, an accused need not .be warned of his rights under Article 31 as a condition precedent to a lawful search. United States v Insani, 10 USCMA 519, 28 CMR 85. Secondly, a “shakedown” search of this kind is lawful. United States v Gebhart, 10 USCMA 606, 28 CMR 172. In that kind of search, generally, every person assigned to the room or barracks to be searched is directed to place his effects on his bunk and to stand alongside, or to open his locker and stand by it. In my opinion, compliance with these directions is not an act or statement “regarding the offense” which requires that the accused first be warned of his rights under Article 31 to make admissible evidence of the result of the search. United States v Taylor, supra. The direction and the act of compliance are necessary incidents of a shakedown inspection. I referred to these matters in my opinion in United States v Gebhart, supra. There, as here, the accused and other occupants of the room to be searched were ordered to stand by their respective bunks for a search of the bunks, lockers, and personal effects. Commenting on the propriety of this type of search, I said:
“Applied to the facts of the instant case, these basic concepts support the propriety of the initial search. Armed with authority to conduct searches and confronted with a report that certain personal property had been stolen from an enlisted man’s locker, Captain Reilly proceeded to conduct the familiar ‘shakedown’ inspection of the effects of all personnel assigned to that room. Taking into consideration the freedom of access occupants of military quarters have to all parts thereof, this generalized type of search has long been regarded as reasonable. United States v Swanson, 3 USCMA 671, 14 CMR 89.”
The shakedown type of search is “generalized,” and a person’s action in standing by his bunk and personal effects is not a specific admission that particular articles belong to him. The general nature of this search distinguishes it from the specific type of search in which the chase of the accused is “‘too hot; . . . the scent, too fresh’ ” to say reasonably that the accused’s identification of his effects is not a statement in regard to the offense under investigation. United States v Taylor, 5 USCMA 178, 17 CMR 178, 182 and concurring opinion by Judge Latimer, page 184; United States v Holmes, 6 USCMA 151, 19 CMR 277. I agree, therefore, with the conclusion that the instant search and discovery of the stolen money was legal and did not require that the accused be first advised of his rights under Article 31. As a result, nothing that took place during the search could possibly taint the accused’s subsequent confession.
I would answer the certified question in the negative, and I join in returning the record of trial to the board of review for further proceedings.