(dissenting):
I dissent.
There are many areas discussed in the principal opinion with which I must express my disagreement. Indeed, the broad approach to the narrow issue before us seems to contravene almost every principle which we have heretofore announced with respect to search and seizure, self-incrimination, and the effect of- a law officer’s ruling. A recounting of the evidence in the record will illustrate my meaning.
Accused was found guilty of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to confinement at hard labor for twelve months, reduction to the grade of recruit, and forfeiture of all pay and allowances. The convening authority reduced the forfeitures *188but otherwise approved the sentence. The board of review set aside the findings of guilty and ordered the charge dismissed on the ground that the accused’s confession was the product of a search and seizure ruled illegal by the law officer. Thereafter, The Judge Advocate General of the Army certified the following question to this Court:
“WAS THE BOARD OF REVIEW CORRECT IN HOLDING THAT THE LAW OFFICER ERRED IN ADMITTING THE CONFESSION INTO EVIDENCE?”
At the trial, the prosecution introduced evidence which tended to establish that accused and one Goodson occupied the same barracks in a replacement detachment. On the evening in question, Goodson placed his wallet, containing $31.00, in his pillow slip and went to bed. On the following morning, he arose and discovered his empty wallet on the floor. He immediately had the barracks secured and reported the theft to the Charge of Quarters. A general examination of the wallets of all occupants of the barracks was authorized by the duty officer. Nothing incriminating was found, other than the fact that two soldiers possessed sums of money in excess of that stolen. The men were permitted to leave the barracks, and the Criminal Investigation Detachment was notified. Agent Matthews was sent to the scene. By this time, the detachment commandant had been notified of the theft and the negative result of the earlier search. He directed that another, more thorough examination be made of the effects of all personnel in the barracks. This order was, in part, based on the fact that the men were to be reassigned to other units on that day.
Agent Matthews was informed by Sergeant Esquivel and Sergeant Hawkins, two of accused’s superiors, that he had been seen with the victim’s pillow on the preceding evening. All testified that they considered accused to be a suspect and decided to commence the search with an examination of his effects. Thereafter, without any warning under Code, supra, Article 31, 10 USC § 831, Matthews interrogated accused concerning the pillow incident of the previous night. He was also asked the location of his bunk and “went and showed ’em my bed.” He was then questioned concerning the whereabouts of his “equipment and stuff.” Accused replied that it was in his locker, situated at the end of the barracks. He was told to “drag it out.” This information was elicited from the accused, as neither Matthews, Hawkins, nor Esquivel were aware of the location of the property to be searched. Although Sergeant Hawkins had in his possession a personnel roster which listed bed and locker assignments, he could not positively state that it included such information with respect to the accused. However, the roster “normally” would have shown his locker and bed number. In any event, the anticipated reassignment of personnel had caused many persons to remove and pack their gear. Hence, interrogation of the accused was necessary in order to discover the location of his property. Thus, Sergeant Hawkins testified as follows:
“Q. I say that you, Sergeant, the sole purpose in your asking the man where his bunk was, was because you didn’t know where he was sleeping, is that right?
“A. Right, sir.
“Q. And you wanted to know?
“A. Right, sir.
“Q. Now, you did not know where his equipment was being kept, did you?
“A. That’s right, sir.
“Q. So you asked him so you could go get it, is that not correct?
“A. That’s right, sir.
“Q. Because you all wanted to search it?
“A. Right, sir.”
Having secured accused’s equipment and baggage, Hawkins proceeded to search it. An examination of a fatigue jacket taken from accused’s duffel bag disclosed the presence of currency in the exact amount and denominations stolen. Accused was then advised of his rights under Code, supra, Article 31, and taken to the Military Police Station. This occurred at approximately 9:30 a.m. Following lunch, he was again advised of his rights and in*189terrogated by Agent Matthews. During the questioning, reference was made to the discovery of the money in his fatigue jacket and the jacket itself was displayed. Accused confessed, according to his testimony, only because the money had been discovered in his jacket.
It should be borne in mind that the defense produced the foregoing evidence relating to the search and its result. After establishing a corpus de-licti with the victim’s testimony, the prosecution sought only to introduce accused’s confession in evidence. Defense counsel objected on the basis of the unwarned interrogation of the accused which resulted in the identification of the property to be searched. In support of his contention that the subsequent confession was the product of this earlier, unwarned interview, he established the circumstances surrounding the discovery of the money and accused’s detention.
Ultimately, the law officer held that the search was unlawfully conducted and that its products were inadmissible. In view of the references in the principal opinion to its legality, premised upon probable cause and authorization by the commanding officer, I deem it necessary to advert to the exact wording of his ruling, which will demonstrate beyond peradventure that the trial judge was concerned with the accused’s unwarned interrogation rather than the quite different proposition of authority to conduct the quest. Thus, he stated to the court members:
. . In this case, you have heard evidence to the effect that the person or persons conducting the search, without warning the accused of his rights under Article 31, directed the accused to produce his belongings and lay them out for inspection. The accused complied and a search of his belongings produced certain physical evidence which tended to connect the accused with the offense charged. The acts of the accused at this time amounted to an incriminating statement within the purview of Article 81 and are rendered inadmissible in evidence because of the failure to warn the accused of his rights under Article 81 prior thereto. The physical evidence discovered during the search is likewise rendered inadmissible. Therefore, it is my ruling that the entire search proceeding became unlawful at that point and thus you we precluded from considering any and all of this search evidence, to include the accused’s acts and the physical evidence which was discovered, during your deliberations on the merits of the case, that is, your deliberations on the guilt or innocence of the accused.” [Emphasis supplied.]
From the foregoing recital of the evidence and the ruling of the law officer, it appears, that the issue which he decided, and which eventually led to the board of review’s reversing action, was simply whether the unwarned interrogation of the accused concerning the identification of his property rendered the subsequent search unlawful. As pointed out in the principal opinion, our decisions in United States v Taylor, 5 USCMA 178, 17 CMR 178, and United States v Holmes, 6 USCMA 151, 19 CMR 277, hold without qualification that an otherwise lawful search is rendered illegal and its products made inadmissible when an unwarned identification by a suspect connects him with incriminating real evidence. Thus, in the Taylor case, we reversed because the accused “was asked [without warning] to point out the clothing items which were his property.” United States v Taylor, supra, at page 180. In United States v Holmes, supra, the same action was ordered for the erroneous receipt in evidence of certain clothing worn by the accused. The items had been obtained by investigators who, without giving the required advice, asked the accused “to accompany them to his bunk [and] ... ‘to show . . . the clothes that he had worn that evening.’ ” United States v Holmes, supra, at page 154. Finally, in United States v Williams, 10 USCMA 578, 28 CMR 144, we similarly ordered a rehearing when agents, without warning, learned from the accused the location of certain clothing which he had worn on the night of his .offense.
*190The cited cases make it clear beyond cavil that the law officer applied proper legal principles in making his ruling favorably to the accused. Indeed, they are the very authorities which were called to his attention by counsel. My brothers, however, overturn the trial ruling by seeking first to treat it as a simple issue of search and seizure and, secondly, to consider the question of self-incrimination as if it were identical to that before us in United States v Bennett, 7 USCMA 97, 21 CMR 223.
I have already suggested that the first approach is absolutely at variance with the rationale behind the law officer’s ruling. Concededly, the search itself was authorized by a commanding officer who undoubtedly had probable cause to suspect the accused.1 Thus, it was legally commenced. This, however, is totally irrelevant to our resolution of the issue before us, for, as counsel argued and as the law officer pointed out, the actual quest became unlawful only because of the later, unwarned interrogation of the accused. United States v Taylor, United States v Holmes, United States v Williams, all supra. Thus, the real key to the accuracy of the board of review’s opinion is not the authorization for the search, but whether, as a matter of law, it can be stated that there was no evidence in the record to support the law officer’s ruling.
It is the law officer’s task initially to rule on the admissibility of evidence, United States v Stewart, 1 USCMA 648, 5 CMR 76, and we are bound to respect his decision unless “it is incorrect as a matter of law.” United States v Brown, 10 USCMA 482, 486, 28 CMR 48; United States v DeLeon, 5 USCMA 747, 19 CMR 43. Thus, in United States v Berry, 6 USCMA 609, 20 CMR 325, we pointed out that it was the law officer, rather than the members of the court-martial, who must resolve the disputed questions of fact, apply the law, and rule finally with respect to a question of the legality of a search. Turning to the record before us, I assert that he did just that, and fairly resolved the matter in favor of the accused.
Initially, it must be noted that there is no conflict in the evidence concerning whether accused, although suspected of larceny, was not warned prior to being interrogated by Matthews, Esquivel, and Hawkins. It is equally clear that none of these men, particularly in view of the impending departure of all the transients involved, knew the location of accused’s locker, duffel bag, or bunk. They admittedly obtained this information from the accused. Perhaps they could have obtained the same result by reference to Hawkins’ roster or by questioning other soldiers. The point is that they did not do so, and the evidence is more than sufficient to support the ruling of the law officer that they chose the forbidden course of discovering this essential fact by unadvised questioning of a suspect. Moreover, I suggest that the consideration of what these investigators “could have” done is wholly immaterial. Suppose, for example, we were confronted with a record in which a military detective did not advise an accused of his rights under Code, supra, Article 31, before obtaining a confession, but the testimony also established that he “could have” warned the accused if he had desired to do so, or that the confession meant little to him for he “could have” solved the crime without it. Can it be seriously suggested that we would affirm merely because he might have chosen these alternative courses of action when he, in fact, did not? The answer is not only obvious, but we made it patently clear when the late Judge Brosman and the Chief Judge rejected the same contention in United States v Taylor, supra, at page 182:
. . To say that this places an insupportable burden on the investigative and enforcement agencies of military law is to talk nonsense. Thus, in the case before us now, the *191investigators concerned would have lost nothing by pausing to inform the accused of his rights under Article 31, and of the offense of which he was suspected. Thereafter, if he declined to identify his clothing, they could (a) have sought identification from other occupants of the hut; or (h) looked for identification marks on the garments which would reveal their ownership. In any event, although a heavier burden had been placed by Congress on military investigators than is visible here, this Court — like the several Armed Forces — luould nonetheless be bound by that mandate.” [Emphasis supplied.]
The other prop used to overturn the board of review’s decision is a comparison of this ease with United States v Bennett, supra. Thus, it is said that, in view of our decision in that case, the board of review was wrong to reverse here, “assuming that accused’s compliance with the order to get his equipment constituted a forced nonverbal statement.” Again, I believe that the author of the principal opinion errs in his construction of our holding there.
In Bennett, supra, agents requested a suspected accused to identify his locker and certain articles of clothing found therein without the required warning under Article 31. There, as here, the Government made no offer in evidence of the items it thereby obtained, and the issue before us was, as here, simply whether the evidence thus obtained was used to extort a confession from the accused. However, we pointed out quickly that the property in question there had been lawfully obtained by the Government, as the accused’s locker assignment was known to the agents without regard to the interrogation. Indeed, the locker itself bore accused’s name, an identifying feature which they had noted before questioning him. Of that controlling factor, we said, at page 100:
. . When consideration is given to the foregoing, it becomes apparent that the questions asked were innocuous, the answers cumulative, and the information obtained corroborative of facts well known to the parties conducting the search.”
An examination of this record, however, discloses that only the questions resulted in identification of accused’s clothing; that the answers thereto furnished the sole disclosures regarding its location; and that they were the single source of the agent’s information. Accordingly, it does not appear to me that United States v Bennett, supra, presenting the very antithesis of the situation here depicted, can serve as a basis for overturning the board of review.
In sum, it is my view that the evidence of the circumstances surrounding the search raised an issue concerning its lawfulness in light of the unwarned obtaining of information regarding the accused’s bed, locker, and property. It may be that the law officer could have concluded that no impropriety was present. See United States v Cuthbert, 11 USCMA 272, 29 CMR 88, and United States v Insani, 10 USCMA 519, 28 CMR 85. In both of these cases, however, we noted the failure of accused to raise any issue regarding the identification of his locker. As noted above, the point is that the law officer chose to rule against the Government and that the record offers a substantial basis for his decision. Accordingly, we must accept it. United States v Brown, supra; United States v Berry, supra.
Having concluded that the law officer’s ruling was correct, there can be little argument concerning the propriety of the board of review’s action. As we pointed out in United States v Bennett, supra, at page 101:
“. • . [W]e now announce the rule that if the Government obtains admissions illegally, and they are of a nature likely to produce a subsequent confession, a strong showing that a subsequent warning severed the presumptive influence must be made to permit use of the confession. Furthermore, absent any shoioing that the accused knew or had been informed that his prior admissions could not be used against him, the fact that he was advised of his rights prior to the execution of his confession would normally not avoid the *192Taylor result.” [Emphasis supplied.]
In the instant case, not only was the accused not advised of the inadmissibility of the stolen money discovered upon him but the fact that it was so found was used as a tool of interrogation. Thus, it is clear beyond cavil that the board operated well within proper bounds in determining that the confession was inadmissible. See United States v Alaniz, 9 USCMA 533, 26 CMR 313. Accordingly, I am of the view that the certified question must be answered in the affirmative.
Although it was not included within the certified issue, the fact that the principal opinion also treats of the sufficiency of the law officer’s instructions regarding whether accused’s confession was a product of the prior unlawful search necessitates a brief expression of my views thereon. In this respect, I need go no further than to state that the advice repeatedly informed the court-martial that the confession might be considered if Matthews, Esquivel, and Hawkins “could have” utilized means other than unwarned interrogation of the accused to identify his propery, although they did not, in fact, do so. As I have stated above, what “could have” been done is meaningless in the resolution of this question. Accordingly, to advise the members of the court that it had controlling significance was prejudicially erroneous. It has been said that the saddest words in the English language are “What might have been.” The truth of that aphorism will be truly demonstrated if possible alternative courses of action are to govern the development of the law of self-incrimination.
I would answer the certified question in the affirmative and affirm the decision of the board of review.
I note some intimation in the principal opinion that such a search need not be based upon probable cause. As I am convinced that the authority to conduct the search was never in issue at the trial, I am satisfied merely to call my brothers’ attention to United States v Brown, 10 USCMA 482, 28 CMR 48, and our contrary holding therein.