(concurring in the result) :
I join with Chief Judge Quinn in affirming the decision of the board of review. In achieving this accord, however, we are clearly motivated by divergent opinion. For this reason, I concur in the result only.
The harmless error rule has long been thought a doctrine repugnant to constitutional Fifth Amendment infirmities. Indeed, it has been described as an “impermissible doctrine.” Lynumn v Illinois, 372 US 528, 537, 9 L ed 2d 922, 83 S Ct 917 (1963); Chapman v California, 386 US 18, 17 L ed 2d 705, 87 S Ct 824 (1967); cf. Bruno v United States, 308 US 287, 84 L ed 257, 60 S Ct 198 (1939); Payne v Arkansas, 356 US 560, 2 L ed 2d 975, 78 S Ct 844 (1958); Malinski v New York, 324 US 401, 89 L ed 1029, 65 S Ct 781 (1945); Spano v New York, 360 US 315, 3 L ed 2d 1265, 79 S Ct 1202 (1959); Jackson v Denno, 378 US 368, 12 L ed 2d 908, 84 S Ct 1774 (1964); see, also, Annotations, 1 L ed 2d 1735, 4 L ed 2d 1833, 12 L ed 2d 1340. Yet, even in this area, there appear signs of erosion. Chapman v California, supra.
On the other hand, as to constitutional Fourth Amendment abridgments, the harmless error doctrine has prevailed. In Fahy v Connecticut, 375 US 85, 87, 88, 11 L ed 2d 171, 84 S Ct 229 (1963), that defendant was convicted in a Connecticut State court of willfully injuring a public building, in violation of a Connecticut State statute. At trial, a can of black paint and a paint brush were admitted into evidence over objection. The Supreme Court subsequently reversed the conviction finding that the “erroneous admission of this unconstitutionally obtained evidence at this petitioner’s trial was prejudicial; therefore, the error was not harmless.” In reaching this conclusion, the test utilized was “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Compare Chapman v California, supra.
This Court, too, has followed the practice of assessing for prejudice in search and seizure cases. United States v Justice, 13 USCMA 31, 32 CMR 31; United States v Smith, 13 USCMA 553, 33 CMR 85; United States v Battista, 14 USCMA 70, 33 CMR 282. In rejecting the more stringent rule of inherent prejudice in such cases, we noted in United States v Simpson, 15 USCMA 18, 22, 34 CMR 464:
“. . . In view of our own decisions on the subject, we do not consider it wise to adopt so rigid a formula of reversal in advance of the Supreme Court of the United States.” [See, also, United States v Vierra, 14 USCMA 48, 54, 33 CMR 260.]
These obvious differences indicate, in my estimation, a considerable divergence in view by the Supreme Court as to the treatment of errors arising from search and seizure and those arising from self-incrimination. Accordingly, there is no assurance that the Court would apply its holding in Miranda to what is basically a search and seizure question.
In United States v Tempia, 16 USCMA 629, 640, 641, 37 CMR 249, by means of a concurring opinion, I said of Miranda v Arizona, 384 US 436, 16 L ed 2d 694, 86 S Ct 1602 (1966),
“. . . the Supreme Court construed and applied the Fifth and Sixth Amendments to the Constitution of the United States. .It, in a not too common procedure, laid down what, in future cases, is to be regarded as providing minimum constitutional guarantees to one being interrogated as to the commission of a crime. Being of 'constitutional dimension,’ Miranda v Arizona, supra, must be assessed accordingly.” [Emphasis supplied.]
*309I agree that
“The decision of the Supreme Court on this constitutional question is imperatively binding upon us, a subordinate Federal court, and we have no power to revise, amend, or void any of the holdings of Miranda, even if we entertained views to the contrary or regarded the requirements thereof as onerous to the military authorities.
“We are, however, obliged to accord this decision full faith and credit. To do so, we must necessarily face constitutional issues forthrightly, realizing full well that ‘[w]hen a case has been decided .by this Court, appellate review has terminated.’ At the same time we cannot be unmindful that decisions of this Court may in turn restrict subsequent review by the Supreme Court. United States v Culp, 14 USCMA 199, 33 CMR 411.”
Thus, as in the comparable past, I do not believe it now appropriate to apply the Miranda prerequisite to Fourth Amendment situations in 'advance of the Supreme Court. It may be that in the future the Supreme Court will so hold. In that event, so be it. However, the Supreme Court not having said that a Miranda-type warning is required to make consent to a search voluntary, I would not, in the absence of such a pronouncement, be the first to do so. State v McCarty, 199 Kan 116, 427 P2d 616 (1967).
Accordingly, I concur in the result reached by Chief Judge Quinn.