(concurring in part and dissenting in part) :
I concur in part and dissent in part.
In my opinion, the record establishes acquiescence in the demand made of accused to open his wall locker and not his freely given consent to search it. Eegardless of rationalization at this level, I am certain that, to the average Marine as well as to this accused, a staff sergeant’s “request” has sufficient authority and force to be treated as an order and to remove that degree of choice and volition essential to finding a waiver of rights under the Fourth Amendment.
The facts bear this out. Acting on nothing but the most unsupported suspicion, the victim of the alleged theft, Corporal Curtin, called his headquarters and requested a staff sergeant be sent to the barracks. Staff Sergeant Miller was directed to report there and, on his arrival, was asked by Curtin to accompany him to accused’s room. And, whether he was there to exercise the authority of command over the accused or, as the Government contends, to act informally in resolving any dispute which might arise, is immaterial. Suffice it to say that, under either construction, he was present as the official command representative and it was his stripes which bore weight in the controversy.
Indeed, this is borne out, for Corporal Curtin did not make the “re*518quest” to accused to open his wall locker. Instead, he asked Miller to do it for him. Any why? The answer is obvious. Miller’s rank, impartially exercised or not, would have the effect of securing obedience, however tardy, from the suspect.
This is precisely what happened, Staff Sergeant Miller asked accused if he would open the locker. When accused did not move to comply, Miller repeated the “request.” Accused again did not comply and then asked to speak with Curtin privately. It was only after this discussion and, according to Curtin, a third “request” from Miller, that accused finally gave in and opened the locker. Accused’s own phraseology sums up the situation when he termed Miller’s repeated injunctions as “indirect orders.”
Undoubtedly, a search of one’s personal effects based upon freely given consent is lawful and proper. Zap v United States, 328 US 624, 90 L ed 1477, 66 S Ct 1277 (1946); Davis v United States, 328 US 582, 90 L ed 1453, 66 S Ct 1256 (1946); Perlman v United States, 247 US 7, 62 L ed 950, 38 S Ct 417 (1918). But that consent must be obtained without any implication of the use of authority to obtain it. Thus, in Amos v United States, 255 US 313, 65 L ed 654, 41 S Ct 266 (1921), prohibition agents visited the defendant’s home and informed his wife they were there to search the premises. There was no evidence of threats or violence on their part but there admission without verbal or other resistance was nevertheless held to be without the necessary consent. The Court declared, at page 317, “it is perfectly clear” the mere statement of the agents’ purpose to search constituted “implied coercion.”
In like manner, the repeated “requests” of Staff Sergeant Miller that accused open his wall locker bore in on the accused that he had no choice but to comply with what amounted to the demands of his superior noncom-missioned officer. Marines and other combat troops are conditioned to obey their superiors, at the pain of suffering the severe penalties set out in the Code, and, in my opinion, accused’s reluctant compliance with Miller’s “requests” amounted to no more than that Pavlovian response. The presence of the staff sergeant and his repeated requests constituted, as in Amos, supra, “implied coercion” and, as in that case, we should here find the search illegal. The Government has the heavy burden of establishing consent by clear and positive testimony. United States v Justice, 13 USCMA 31, 32 CMR 31; United States v Westmore, 14 USCMA 474, 34 CMR 254. Here, it demonstrated only a submission to military authority. I would accordingly conclude accused did not consent to the search of his wall locker and hold the fruits of such examination should properly have been excluded from evidence.
As the only other evidence of the theft is found in a purported statement of the accused to the victim, I would order a rehearing where the question of guilt and innocence might be determined by a court freed of the influence of the inadmissible proof.
I join in that portion of my brothers’ opinion which finds a failure by the president of the court to comply with our decision in United States v Wheeler, 17 USCMA 274, 38 CMR 72.
I would reverse the decision of the board of review and order a rehearing.