(concurring):
I do not believe that the exclusionary rule is the appropriate legal mechanism to resolve the dilemma created by an informant who testifies at trial that before he advised the commander that the accused was in the possession of LSD he had planted the drugs on the accused without the accused’s knowledge. This is evidence which goes directly to the element of the charge of wrongful possession of LSD that the possession of drugs is with the knowledge of the accused person. In this case, the military judge, as factfinder, addressed himself to this issue by expressing his belief that the informant "lied when he was on the witness stand about how the accused, Specialist Carlisle, got the LSD.” The military judge went on to state, "I am satisfied that Carlisle is guilty of the offense of possession of LSD beyond a reasonable doubt.” This adjudication of guilt by a valid trial forum should be disturbed only for the most weighty of reasons.
To resolve this case differently by reopening the question of the validity of the search and seizure which uncovered the crucial physical evidence of the LSD found on the accused’s person would require us to determine now in his favor an essentially factual issue which went against the accused at trial. Although it would indeed be a travesty of justice for a person to be convicted of wrongfully possessing drugs which had been planted on him unknowingly, an appellate court is ill equipped to make such a determination. Surely, it is not legally required to set aside every conviction automatically where an informant subsequently "confesses” that he set up a phony case against an accused. Such a rule would wreak havoc with a criminal justice system already deeply dependent on informants by exposing them to the inevitable pressure to recant their stories for a price or under threat once an accused they have informed upon is brought to trial.
The exclusionary rule should be invoked to invalidate a search only when there has been governmental misconduct or unreasonableness capable of deterrence associated with it.1 There is no indication in this. record that the commander who authorized the search in question was aware that the LSD had been planted on the accused. And, although the informant’s reliability was highly questionable, his reliability was *569assessed favorably in the appropriate forum, first by the officer authorizing the search, and then in the trial forum when the issue of probable cause for authorizing the search was extensively reviewed and decided adversely to the accused. The factual determinations incident to the authorization to search, and the military judge’s ruling on the admissibility of evidence seized in the search, are not demonstrably erroneous or improper, and no governmental misconduct or unreasonableness associated with the search procedures warrants the exclusion of the evidence found therein. With these additional thoughts, I concur in affirming the search and the admission of its fruits in evidence.
I also concur with the opinion that warnings under Article 31, Uniform Code of Military Justice, 10 USC § 831, were not required in the conversations between Sergeant Godwin and the accused.
See Theodor v Superior Court of Orange County, 501 P2d 234, 249 (Cal, 1972).