(dissenting):
I have disagreed with my brothers in so many search and seizure cases that I approached this case with a desire to accommodate my views to theirs. But, unhappily, I cannot accept what I believe to be a half-Janus approach to the evidence.
Agent Todd testified that he gave Colonel Cartwright all the information he had about the suspected offense. More than that he had a facsimile of the fake bingo card used by the accused, and especially pointed out the kind of tape used and how the “numbers could be cut and glued back in.” According to Major Spitler, who was present at Todd’s explanation, “Colonel Cartwright was very well acquainted with the situation.” A limitation on the scope of the authority to search can be implied from the surrounding circumstances. United States v Ness, 13 USCMA 18, 23, 32 CMR 18. In the light of Agent Todd’s meticulous particularization of the offense and the means of its accomplishment, I have no doubt whatever that Colonel Cartwright’s authority to search was intended by him, and understood by Agent Todd, to be a search for articles connected with the preparation of the false card, not a search for anything and everthing that might somehow be criminal in nature. That is sufficient particularity to satisfy the Constitution’s prohibition against general, exploratory searches. United States v Vierra, 14 USCMA 48, 52, 33 CMR 260. If more is required, it was provided by the presence of Lieutenant Fritz throughout the actual search. He had the power to authorize a search; he was fully apprised of the circumstances of the accused’s commission of the alleged offense; and he testified he was convinced a search was necessary. He further testified he knew he could “prohibit them from searching,” if a search was not warranted by the facts apparent to him. Where the necessity for a search is established and the officer empowered to authorize a search is present at the place of the search, an authorization “inchoate at issuance” may become full and unconditional in the execution of the search. United States v Ness, supra, at page 23.
I am satisfied that while they did not know precisely what instrumental-ities of the crime might still be in the accused’s possession, both the officers authorizing the search and the agents contemplated that the search would be limited to articles connected with the offense. I would, therefore, sustain the law officer’s ruling on the admissibility of the evidence, and affirm the decision of the board of review.