(dissenting):
Common law and Supreme Court opinion acknowledge the right of self-help to resist unlawful interference with personal liberty. John Bad Elk v United States, 177 US 529, 44 L Ed 874, 20 S Ct 829 (1900); United States v Di Re, 332 US 581, 92 L Ed 210, 68 S Ct 222 (1948). However, the “concept of self-help is in decline.” State v Koonce, 89 NJ Super Ct 169, 214 Atl 2d 428, 436 (1965). In the context of modern society, legislatures, courts, and professional opinion perceive self-help, not as a ready and safe means to avoid unlawful restraint oh personal liberty, but as exposing “the officer, the suspect, and the innocent bystander to far graver consequences than the unlawful” interference. State v Ramsdell, 285 Atl 2d 399 (Sup Ct RI) (1971); compare Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, 2004 (1971).
Self-help has even less to recommend it when interference with the person, or his property, is pursuant to a warrant issued by a competent officer. In that situation, close questions as to probable cause, reliability of the informant, and the scope of the search may arise, which cannot realistically be decided at the scene by the individual or the law enforcement officer. Also, it is questionable, in principle and logic, to say that an officer retroactively lost his official capacity as an officer because it was later determined that the warrant under which he proceeded had been issued on an inadequate showing of probable cause or upon insufficient evidence of the realiability of the informant. See United States v Simon, 409 F2d 474 (CA 7th Cir) (1969); United States v Ferrone, 438 F2d 381 (CA 3d Cir) (1971). Although dictum, what the Third Circuit Court of Appeals' said in Ferrone about what is now called the “no sock” rule is worth quoting:
“. . . For the reasons that follow, we hold that a person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though that warrant may subsequently be held to be invalid.
*419“Society has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. We think a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search. The development of legal safeguards in the Fourth, Fifth, Sixth and Fourteenth Amendment fields in recent years has provided the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance. Indeed, since the validity of written process is readily susceptible to judicial review, it is doubtful whether resistance to written process can ever be justified today, absent a showing of transparent invalidity. This argument is particularly forceful when applied to the execution of search warrants, where resistance often leads to violence and physical injury. A public officer supported by written process has a right to expect that citizens will respond peaceably, that neither his life nor those of other parties will be endangered, and that any dispute will be resolved through legal means.”
“No sock” cases acknowledge situations in which reasonable resistance to the unlawful exercise of official authority is appropriate. In State v Ramsdell, supra, the Rhode Island Supreme Court noted that, if in effecting an arrest, the police officer uses unreasonable force, he “has exceeded the scope of his duties,” and if injured by the “arrestee attempting to defend himself, the officer cannot be considered to have been injured while engaged in the performance of his duties, and the assault felony statute is inapplicable.” In Ferrone, supra, page 390, the Court suggested that reasonable resistance might be proper where the search is “of transparent invalidity”; the Court also indicated that “there may be . . . unlawful . . . searches, with or without a warrant, the circumstances of which would be such a provocation to a reasonable man that the seriousness of the offense of resistance ought to be mitigated.” Ibid., footnote 19, at page 390. Other exceptions may be exposed in particular cases.
Although not directed to search and seizure situations, our cases dealing with self-help in overcoming improper restraint of liberty have approached the subject along the general lines of the “no sock” rationale of Ferrone and Koonce, including the apparent exceptions. United States v Hangsleben, 8 USCMA 320, 24 CMR 130 (1957); United States v Gray, 6 USCMA 615, 20 CMR 331 (1956). The majority’s description of Lieutenant Kielman’s action as a “deliberate and continued invasion” of the accused’s rights suggests that they perceive the lieutenant’s conduct as being “of transparent invalidity.” I view the facts differently.
According to the evidence, Lieutenant Kielman was authorized to search. The sufficiency of the authorization was not challenged at trial. The lieutenant testified that in the course of the search he discovered a laundry bag containing a plastic bag, the contents of which appeared to him to be marihuana. His testimony indicates an acquaintanceship with the substance sufficient to support his conclusion. After Kielman found the plastic bag, he found the letter in a box. The envelope was large and its bulk was “thick.” It did not appear to the lieutenant to be personal mail, so he opened it “just to see if there was anything in it.” Considering the nature of the substance for which the search was being made and the place in which some of the suspected substance had already been found, the lieutenant’s decision was, to me, reasonable and prudent.
*420No marihuana was in the envelope, but “before . . . [he] even opened up the letter,” Lieutenant Kielman saw the words “pot” and “speed.” Other testimony by the lieutenant reasonably supports the conclusion that he understood the word “pot” to be a commonly used synonym for marihuana. In my opinion, the word was exposed to the lieutenant’s view while he was lawfully examining the contents of the envelope for marihuana. Having seen the word, good sense and sound investigative practice required that he read the letter. A search can properly be conducted not only for contraband itself, but for evidence of its possession or control. Warden, Maryland Penitentiary v Hayden, 387 US 294, 18 L Ed 2d 782, 87 S Ct 1642 (1967). Consequently, as I construe the evidence, Lieutenant Kielman did not exceed the scope of his authority to search. Nor do I believe that the accused objected to the lieutenant’s reading of the letter because he believed it was not lawfully subject to inspection as part of the search.
It is extremely significant that when the accused seized the letter from Lieutenant Kielman, he also seized the plastic bag of suspected marihuana, and as he ran from the area, with Lieutenant Kielman in pursuit, he “empt[ied] the contents of the bag on the ground.” The evidence convinces me that the accused was not provoked to self-help because he believed he was being subjected to unlawful intrusion into his privacy, but that he seized the plastic bag and the letter to destroy evidence that he knew was incriminating. I would affirm the decision of the Court of Military Review.