(dissenting):
Forty pounds of marihuana were found in effects abandoned by the accused and his companions. It seems to me reasonable to conclude that the accused might have had additional marihuana on his person when he fled; if he did, it could be expected that he would have it on his person or in his quarters on the base. In my opinion, therefore, the authorization to search was supported by probable cause, not mere suspicion. The authorization did not allow the agents to rummage through the accused’s private papers and read letters addressed to him (Woo Lai Chun v United States, 274 F2d 708 (CA9th Cir) (1960)), but they were entitled to use their eyes to note everything open to view. United States v Burnside, 15 USCMA 326, 35 CMR 298 (1965). On the evidence, the trial judge could reasonably have concluded .that the lead to Sergeant Lindsay was obtained from his name and address on the envelope of a letter addressed to the accused. I would, therefore, sustain his ruling admitting in evidence the exhibits obtained from Lindsay.
One matter not within our grant requires consideration. The offense of which the accused was convicted was committed in August 1968. At that time, the maximum penalty for the offense of solicitation, the offense charged, was confinement at hard labor for four months. United States v Haveriland, 8 USCMA 621, 25 CMR 125 (1958); United States v Walker, 8 USCMA 38, 23 CMR 262 (1957) ; United States v Oakley, 7 USCMA 733, 23 CMR 197 (1957). The 1969 Manual, which was in effect at the time of trial, however, increased the punishment for solicitation, Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 127c, Table of Maximum Punishments, page 25-17. In apparent reliance on the 1969 Manual, the law officer instructed the court members that the punishment extended to a dishonorable discharge and confinement at hard labor for two years, and the court imposed a dishonorable discharge, confinement at hard labor for twelve months, and accessory punishments. The sentence, therefore, exceeds the legal maximum. See United States v Griffin, 19 USCMA 348, 41 CMR 348 (1970). Accordingly, I would set aside the decision of the United States Air Force Court of Military Review as to the sentence and return the record of trial to it for reassessment of the sentence.