(dissenting):
Regretfully, I must disagree with my brethren concerning the legality of the search and seizure in this case. In my opinion, the seizure of the notebook may be justified on two bases. First, it was an obvious record of the accused’s drug transactions and thus seizable as an item of evidence that the agents came across during the course of a lawful consensual search. Secondly, the notebook was also, for the same reason, subject to confiscation during a search incident to a lawful arrest, notwithstanding the military judge’s conclusion to the contrary.
The principal opinion concedes that Agent Freeman had been informed by Specialist Stewart that the accused sold him drugs on the day of the search, for which he had paid him the previous day. Stewart also informed Freeman that he paid the accused with a bill marked by a red, felt-tip pen with the numeral "4.” The opinion goes on to state, however, that Freeman took the accused into custody solely to search him for this bill and not because he had committed a crime. With this conclusion, I must disagree, for Freeman’s testimony repeatedly states that he apprehended the accused. Indeed, the defense did not really contest the matter at the trial. Thus, Freeman testified:
A. ... As a result of his [Stewart’s] statement Castro was apprehended at the unit motor pool by me.
Q. Why did you act so promptly on the statement of Mr. Stewart that he had given the individual this bill?
A. Primarily, in order that — some indication that we had apprehended Stewart, or some indication that Castro was involved prior to him obtaining knowledge that we knew he was involved in order that he would not dispose of the evidence.
On cross-examination, Agent Freeman testified that he took the accused "into custody” at the motor pool. As the defense counsel himself brought out, the accused "was actually physically in custody” at the time of the search. In response to the military judge’s question, Freeman testified further:
A. . . . [W]e agreed to go contact Castro, apprehend him, and bring him to the office for questioning, which we did.
A. I was the one who placed him under apprehension. Mr. Askew was with me at the time.
Following the apprehension, the accused was taken to Freeman’s office where he was informed that he was suspected of drug offenses, and of Stewart’s allegations against him, and asked if he would consent to a search of his person for the marked bill. He was also advised that "any other items of evidence which he was not entitled to be in possession of, and I believe we specifically mentioned drugs and contraband items, would be seized and used as evidence against him.” Accused consented to the search and, in addition, read and executed a "CONSENT FOR SEARCH” form which, among other things stated:
These investigators are authorized by me to take from my person any letters, papers, materials and/or other property which they may desire, provided an inventory of same is made and receipt given.
To be sure, Agent Freeman also testified that the purpose of the search was to determine if the accused was in possession of the marked bill and that the accused was so informed. The accused testified that he would not have consented to the search had he known its perimeter would extend beyond the bill. But, as can be seen from the above, that was not the only evidence which the military judge was entitled to consider *171in deciding the issue adversely to the accused.
Be that as it may, Agent Freeman had the accused turn out his pockets. An examination of the accused’s wallet failed to disclose the marked bill. He then examined a small black notebook removed from the accused’s jacket pocket to see if the bill was concealed therein. While leafing through it, he observed a written list of names, with sums of money recorded opposite them. Among the names were those of Specialist Stewart and one "Moose” whom Stewart had identified to Freeman as a person who also bought drugs from the accused. Freeman had encountered several similar lists in previous investigations that had proven to be records of drug sales. In addition, he had received information from other sources, including the civil authorities, that the accused was trafficking in drugs.
Based on the foregoing, Freeman seized the notebook. As I have noted, in my opinion, that seizure was lawful.
First, despite the military judge’s observation that he did "not think it was a search pursuant to an arrest,” it clearly seems to be supportable on that basis. Freeman repeatedly made it clear that the accused was apprehended not only to find the bill on him but for questioning in light of Stewart’s information and accusation. The statement regarding apprehension for "preserving the evidence,” viewed reasonably, means no more than that Freeman desired to apprehend the accused before the latter learned of Stewart’s arrest and disposed of the incriminating bill. Indeed, Freeman testified that he intended to search the accused even if he refused his consent. His resort to obtaining that consent was no more than a decent effort on the part of a police officer to obtain the accused’s cooperation rather than simply to order him to submit to an invasion of his privacy, as Freeman was entitled to do.
Once he had apprehended the accused, Agent Freeman was entitled fully to search the accused’s person. Gustafson v Florida, 414 US 260 (1973); United States v Robinson, 414 US 218 (1973); United States v Brashears, 21 USCMA 552, 45 CMR 326 (1972). The question whether he was entitled to seize the notebook during the search depends upon whether Freeman could reasonably conclude that it constituted evidence that would aid in the accused’s conviction for his alleged drug offenses. Bretti v Wainwright, 439 F2d 1042 (5th Cir 1971). If it did constitute such evidence, the agent was entitled to take custody of it. Warden v Hayden, 387 US 294 (1967); United States v Whisenhant, 17 USCMA 117, 37 CMR 381 (1967).
All concede that Freeman was properly leafing through the notebook while searching for the marked bill. In doing so, he observed the list of names, including two whom he had been informed were purchasing drugs from the accused. Sums of money were set down opposite their names as well as the others listed. His prior police experience with such lists had taught him that they usually related to the accused’s customers. Based on that experience and his knowledge of the accused’s dealings with Stewart and "Moose,” it was entirely reasonable for him to conclude that this was evidence of the accused’s guilt and to seize the book, Bretti v Wainwright, supra. It was an item of evidence in plain view and he was rightfully entitled to take possession of it. Harris v United States, 390 US 234 (1968); United States v Decker, 16 USCMA 397, 37 CMR 17 (1966); United States v Burnside, 15 USCMA 326, 35 CMR 298 (1965).
Secondly, all parties concede that the search itself was valid as based on the voluntary consent of the accused. The only argument is whether Agent Freeman exceeded his scope by seizing the notebook. Again, to reach the majority’s conclusion that he did so, one is required to overlook the evidence that Freeman’s experience led him to regard the book as a list of the accused’s customers and thus as evidence supportive of Stewart’s statements. This I cannot do. As noted above, a police officer is not required to disregard evidence of crime which he comes across during the course of a perfectly valid search. Coolidge v New Hampshire, 403 US 443 (1971); Warden v Hayden, supra; United States v Barone, 330 F2d 543 (2d Cir 1964); Davis v *172United States, 327 F2d 301 (9th Cir 1964).
Thus, this case is not all like United States v Cady, 22 USCMA 408, 47 CMR 345 (1973), in which we held a consensual search must cease from the moment that the accused withdrew his consent, and that its scope is restricted by the terms of the consent. Here, Freeman validly examined the notebook. He discovered evidence that had a close connection with the crime that he was investigating. It was evidence in plain view. Despite the understanding of the parties, I would conclude that he was entitled to seize it in the course of his duties. United States v Burnside, supra.
I would affirm the decision of the U S Army Court of Military Review.