(dissenting):
I dissent.
My brothers’ affirmance of this case is based, in the main, on this Court’s opinion in United States v Kazmierczak, 16 USCMA 594, 37 CMR 214,1 and the fact that they find the military police acted in good faith in undertaking a post-arrest inventory of the accused’s property. Not only do I find Kazmierczak, in which I dissented, distinguishable from this case, but good faith on the part of the police is not the test for determining whether an accused’s rights under the Fourth Amendment to the Constitution have been violated. Henry v United States, 361 US 98, 102, 4 L Ed 2d 134, 80 S Ct 168 (1959); United States v Garlich, 15 USCMA 362, 370, 35 CMR 334.
The accused and two unnamed individuals, each riding a motorcycle, were observed by military police Sergeant Hill and his patrol partner traveling three abreast on a road on the base. This was against base traffic regulations. Sergeant Hill also noticed that none of the bikes displayed a post registration. At the orders of Sergeant Hill, the accused and one of the men stopped their motorcycles while the third continued on with the MPs in pursuit. When the latter was stopped some two hundred feet away, the accused and his companion fled in the opposite direction. The accused was pursued and apprehended approximately one-half mile away. The motorcycle had gone into a ditch and the accused was caught attempting to run away. He was immediately searched and then transported to the provost marshal’s office in the patrol car. His motorcycle and a black bag attached thereto were transported to the office in a patrol van. On arrival, the cycle was left in the locked van and the bag was taken into the patrol supervisor’s office. Examination of the contents of the bag revealed the presence, among other things, of a switchblade knife. At trial, the defense motion for suppression of this evidence, on the ground that it was secured by an illegal search, was denied by the law officer. We granted review on the question of whether the law officer erred in denying the motion.
*138The Government alleges that the examination of the bag was authorized under appropriate Army Regulations2 which provide for the inventory of property of an individual who is to be detained, or, if the individual is to be released and the property detained, the same inventory must be conducted.3 In this case, the Government argues that the motorcycle and bag could not be released to the appellant because he did not show or even claim ownership.
Ifind the Government’s contentions exceedingly strange, especially in light of the testimony at trial. Sergeant Hill testified, at the out-of-court hearing, that he thought the property in accused’s possession, the bag and the motorcycle, belonged to the accused. In addition, he revealed that if a man is apprehended for the traffic violations charged against the accused, his vehicle and the property therein are not impounded. Hill was unaware of any reports of stolen motorcycles.
Sergeant Anderson, who, along with Sergeant Boyle, brought the motorcycle and the bag to the station and there examined the contents of the bag, did so with the permission of Sergeant Hill. Sergeant Boyle found the switchblade in one of the two shaving kits which were in the bag.
Sergeant Doeden, the Military Police Desk Sergeant, also told the court that a man is not detained for committing the traffic offenses charged against the accused and his personal property is not inventoried or detained. A traffic offender is cited for the offense and released, or at most escorted to his unit. In cross-examination, Sergeant Doeden testified that he was on duty on the night accused was arrested and as desk sergeant he normally makes the determination whether property is to be detained or kept from the person in any way. He was then asked the following questions by defense counsel :
“Q Did you make a determination that this property was going to be detained ?
“A After it had been inventoried, yes.
“Q Before it had been inventoried?
“A Not before it had been inventoried.
“Q No determination that this property was going to be impounded, confiscated, detained or anything else?
“A No, sir, because we didn’t know for sure to whom it belonged. If it belonged to the person we thought it did, it would have been released with the owner, or it would be detained.”
Doeden did not ask the accused if the property was his but believed that the accused had denied ownership to Sergeant Hill. But Hill testified that when he questioned the accused as to the ownership of the motorcycle and the bag, “He did not say anything, sir.” A vehicle registration decal was found in the accused’s wallet. Later inquiry revealed that it applied to the motorcycle.
In United States v Kazmierczak, supra, a majority of this Court upheld the right of the military to inventory the personal effects of a serviceman, when the latter has been confined, in order to protect them. Evidence found therein was held to be admissible.
Although I dissented in Kazmierczak, I, nevertheless, find it distinguishable from the ease at bar on two grounds. First, Kazmierczak was in confinement at the time4 and, second, the *139decision to conduct the inventory was made by the squadron commander and not by the arresting officers. The latter of these two grounds is the more important. In Kazmierczak, the majority cited Frank v Maryland, 359 US 360, 3 L Ed 2d 877, 79 S Ct 804 (1959), as authority for its holding that “there are occasions when the individual’s right of privacy yields to the Government’s right to perform a proper public function.” But Frank v Maryland, supra, was specifically overruled on the basis of the more important of the two issues which I find distinguishes this case from Kazmierczak. Camara v Municipal Court, 387 US 523, 18 L Ed 2d 930, 87 S Ct 1727 (1967) ; See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S Ct 1737 (1967).
In Frank, supra, the Supreme Court upheld a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant, where the inspection, required by an ordinance, was made to determine whether the city health code was being violated. In the subsequent cases of Camara and See, the Court, as noted, specifically overruled Frank “to the extent that it sanctioned such warrantless inspections.” Camara, 387 US, at page 528. After discussing at length the Fourth Amendment prohibition against searches and seizures without a warrant and the prosecution’s argument that the public interest demands and justifies warrantless administrative searches, the Court held, in Camara, 387 US, at page 534:
“In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections.”
My brothers do not believe that the decisions in Camara and See require a different result or view of the basic principle in Kazmierczak. They state that “Now, as before, the test remains one of reasonableness.” But a search of private property at another time and place than that of the arrest does not “meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” Preston v United States, 376 US 364, 368, 11 L Ed 2d 777, 781, 84 S Ct 881 (1964). In its most recent pronouncement on the reasonableness of a search without a warrant, the Supreme Court, in Chimel v California, 395 US 752, 768, 23 L Ed 2d 685, 89 S Ct 2034 (1969), held as “ ‘unreasonable’ under the Fourth and Fourteenth Amendments,” a search without a warrant whose scope went beyond that of the arrested person and the area from which he might have obtained either a weapon or something that could have been used as evidence against him.
We cannot, by labeling what happened here an inventory, avoid the application of the Fourth Amendment protection against warrantless searches and seizures. The effect is the same. The failure of the accused to acknowledge ownership of the motorcycle or the bag is no excuse for searching or inventorying the latter without a warrant. He had a constitutional right to silence and his assertion of that right is not a bar to a later claim of unlawful search. See Jones v United States, 362 US 257, 4 L Ed 2d 697, 80 S Ct 725, 78 ALR2d 233 (1960). Nor is the good faith of the officers in conducting the inventory in accord with regulations sufficient to disregard constitutional principles. United States v Allah, USDC, Texas, 5 Criminal Law Reporter 2462 (1969); Henry v United States, supra. The law requires that the decision must be made by a disinterested magistrate and he may grant such authority not indiscrim*140inately but only upon a showing of probable cause. McDonald v United States, 335 US 451, 93 L Ed 153, 69 S Ct 191 (1948); Chimel v California; Camara v Municipal Court; and See v Seattle, all supra. Cf. Terry v Ohio, 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868 (1968), with Sibron v New York, 392 US 40, 20 L Ed 2d 917, 88 S Ct 1889 (1968).
In short, I believe that my brothers err grievously in affirming what I believe to be a clear violation of constitutional principles. I would reverse the accused’s conviction for the possession of a switchblade knife in violation of a lawful order (Charge II, specification 1) and order the specification dismissed. I would return the case to the Court of Military Review for reassessment of the sentence on the basis of the remaining finding of guilty.
The prosecution at trial, in an out-of-court hearing on the admissibility of the evidence (Appellate Exhibit 1, page 53), argued that since an inventory not a search was conducted, Kazmierczak was dispositive of the issue. The board of review, in its opinion, held that “The issue that is squarely before us is the same that confronted the Court in United States v Kazmierczak, supra.”
AR 190-22 and AR 190-45.
Despite numerous references to an inventory and to the number of the form to be used for this purpose, I am unable to find either the original or a copy thereof in the record or in the allied papers.
While the accused in this case was taken to the station house, he apparently was not confined, for the allied papers disclosed that he was on duty later that day (April 22, 1968). The charge sheet reflects that he was restricted to the company area on April 26, 1968, and placed in pretrial confinement the following day,.