(dissenting):
I respectfully dissent.
While I agree that the marijuana was lawfully seized from appellant by Sergeant McGee, I am constrained to conclude that the substance methamphetamine was not.
Sergeant McGee, while functioning as his company’s duty NCO, stumbled upon the casually seated grouping of appellant and two companions in a barracks squadbay. With his presence going unnoticed for several seconds, Sergeant McGee was able to observe a plastic bag on appellant’s lap which appeared to contain green vegetable matter. During this period of observation Sergeant McGee’s impression of the nature of this vegetable matter was essentially neutral; however, when appellant noticed the presence of Sergeant McGee and immediately attempted to “crumble everything up and . . . hide it in his lap,” the sergeant concluded “that something was wrong, something illegal” and that “it just clicked in [his] mind that the green stuff *829that was in the bag had to be or possible [sic] was marijuana.” Immediately thereafter the sergeant seized the plastic bag and its contents. On appeal, as at trial, the lawfulness of this seizure1 is attacked as a violation of appellant’s protections under the Fourth Amendment.2
It is clear that the command of the Fourth Amendment is directed at two separate and distinct classes of unreasonable intrusion: searches and seizures. Both of these classes are protected in the case of service personnel in precisely the same manner as their civilian counterparts. See United States v. Unrue, 22 U.S.C.M.A. 466, 468, 47 C.M.R. 556, 558 (1973). The test of any alleged illegality of governmental intrusion is whether or not, under the circumstances, the action by government agents in effecting the search or seizure was in fact reasonable. See United States v. Hartsook, 15 U.S.C.M.A. 291, 35 C.M.R. 263 (1965); United States v. Battista, 14 U.S.C.M.A. 70, 33 C.M.R. 282 (1963). Therefore, any proper inquiry turns first to whether or not the search, if any, of appellant was lawful.
It is axiomatic that searches conducted by police and similar agents of the government are in fact reasonable if such searches are conducted in accordance with the directives of a lawfully issued search warrant predicated upon an untainted affidavit or like predicate specifying probable cause for the search. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). It is uncontroverted that, in the case sub judice, Sergeant McGee had no such warrant or like authority at or after he encountered appellant and his cronies. Thus, an examination is required to reveal what, if any, exception to the warrant requirement exists which would bring Sergeant McGee’s actions, immediately prior to the challenged seizure, within the pale of lawful enterprise. See paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition).
Perhaps it would be best to indicate initially what these actions patently were not. They were not of a nature as would have one conclude that appellant, confronted by the sergeant, gave his consent to what subsequently transpired. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Mayton, 1 M.J. 171 (C.M.A.1975); cf., United States v. Johnson, 17 U.S.C.M.A. 514, 38 C.M.R. 312 (1968). They were neither carried out in open fields or woodlands, see Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924), nor undertaken incident to hot pursuit. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Nor do I believe that Sergeant McGee came into possession of the contraband pursuant and incident to a lawful apprehension of appellant.3 And, while I do not agree, conceptually, with the notion that necessity searches, to prevent the removal or disposal of criminal goods, are not applicable to persons and dwellings, see United States v. Kinane, 1 M.J. 309, 312 (C.M.A.1976), an application of that rule is unnecessary to any determination here for there yet exists one valid underlying basis *830for the lawfulness of Sergeant McGee’s preparatory activity.
Factually,4 Sergeant McGee’s actions come within the purview of the “plain *831view” doctrine.5 “Positioned in a place where he ha[d] a right to be,” Sergeant McGee was “entitled to use his regular senses and to take cognizance of information gleaned from such use.” United States v. Hessler, 4 M.J. 303, 304 (C.M.A.1978). Here, the sergeant was making duty rounds which took him into the open squadbay. While his initial interest, if not his suspicion, was aroused by the group of which appellant was a member, such interest was quickly crystalized into a perception of wrongdoing once his presence was ascertained and appellant attempted to take evasive measures to preclude further exposure of the prohibited items to the gaze of the sergeant. However, the cat was already out of the bag and the furtive efforts of appellant were ineffectual as to getting it back in again.6 The sergeant testified that this event precipitated an awareness on his part that something unlawful was afoot. Armed with his previous knowledge of the apparent true nature of the “green vegetable matter,” Sergeant McGee at that moment had probable cause to believe that he was witnessing criminal activity and thus, could have apprehended appellant on the spot had he the presence of mind to do so. See Hessler, supra, at 306. Considering the totality of the circumstances presented here, it is immaterial that he did not. Id. at 307. In that the substance ultimately shown to be marijuana was in plain view and Sergeant McGee had probable cause to believe that it was in fact marijuana, his seizure of the substance was altogether proper. See United States v. Schultz, 19 U.S.C.M.A. 311, 41 C.M.R. 311 (1970).
However, the marijuana was not the only substance seized at that time. The substance stipulated at trial to be methamphetamine formed the basis for appellant’s conviction as to the second specification of the *832charge against him. With respect to this substance there is no evidence of record which would indicate that Sergeant McGee previously ever had seen methamphetamine in any form.7 Consequently, it can not be asserted with any degree of vigor that he had probable cause to seize this material, for not every illegal act necessarily gives rise to another. Cf., United States v. Decker, 16 U.S.C.M.A. 397, 37 C.M.R. 17 (1966). And, much as a search and a seizure are separate acts, each being required to satisfy the constitutional mandate of reasonableness prior to the receipt into evidence at a criminal trial of the fruits of the combined activity, see United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965), so too must each seizure be judged against its own individual predicate in terms of that lawfulness which will make the evidence thereby obtained legally admissible at trial.
Here, the methamphetamine was seized contemporaneously with the marijuana. Undeniably then, if there was probable cause to seize the methamphetamine its receipt into evidence at appellant’s trial was properly allowed by the military judge. However, on the record before us I am constrained to conclude that at the time Sergeant McGee seized the vial he lacked probable cause to believe that it contained a prohibited substance of any description or nomenclature. Thus, this seizure was undoubtedly predicated upon mere suspicion. This being so, the seizure of this second substance was unlawful and the military judge erred in allowing the evidence to be admitted against appellant. Compare United States v. Thomas, 16 U.S.C.M.A. 306, 36 C.M.R. 462 (1966), with United States v. Smeal, 23 U.S.C.M.A. 347, 49 C.M.R. 751 (1975); See State v. Hoggans, 35 Or.App. 669, 582 P.2d 466 (1978); State v. Shinault, 584 P.2d 1204 (Ariz.App.1978). In that this is the sole evidence against appellant under specification 2 of the charge, the finding of guilty as to that specification should be set aside. United States v. Brown, 10 U.S.C.M.A. 482, 28 C.M.R. 48 (1959). As I would not indulge in speculation concerning the impact of this significant fallacious finding on the sentencing entity, the sentence, likewise, should be set aside and a rehearing authorized. See United States v. Dukes, 5 M.J. 71 (C.M.A.1978); United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970).
Accordingly, I would return the record to the Judge Advocate General for further proceedings not inconsistent with this opinion. Such action would effectively moot appellant’s present contention that ambiguity exists concerning the commencement date of the suspension of the adjudged bad-conduct discharge.
. Seized from appellant at the same time as the marijuana was the substance subsequently analysed to be methamphetamine, a schedule II controlled substance as defined by section 202 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 Stat. 1236), as updated and republished within § 1308.12(d)(2), Title 21, Code of Federal Regulations, 1976, and stipulated to be such by all parties at trial.
. U.S.Const. amend. IV. That venerable shield against lawless governmental intrusion upon private rights provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. As will be seen from the facts, see note 4 infra, Sergeant McGee’s authority and degree of control of appellant’s person was, even in the former’s own mind, far from being so complete as to deprive appellant of the ability and freedom to walk away. Cf., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Sergeant McGee testified that on the occasion in question he was serving as Ordnance Maintenance Company duty noncommissioned officer and in that capacity he was touring the squadbay of Barracks 105 aboard Marine Corps Base, Camp Lejeune, when he saw appellant and two other enlisted Marines sitting on a “rack”. He walked up behind these individuals “to see what they were doing”. McGee, at this point, observed a newspaper spread across appellant’s lap, and on that newspaper, McGee saw “like a plastic bag with some kind of green substance in it”. McGee stood there observing for several seconds before the three men behind whom he was standing discovered his presence. When appellant and the other two individuals discovered McGee standing behind them, McGee testified appellant “crumbled everything up and tried to hide it in his lap”. Sergeant McGee noted that when he first saw the newspaper and plastic bag with the green substance in it, he did not suspect that any criminal activity was afoot, but when upon discovering McGee’s presence in his midst, appellant “tried to conceal everything,” McGee concluded “that something was wrong, something illegal” and at that point “it just clicked in [his] mind that the green stuff that was in the bag had to be or possible [sic] was marijuana” McGee also testified that he knew what marijuana looked like as he had seen marijuana on occasions prior to 3 November 1977. At this point, McGee testified, he seized the plastic bag and its contents from appellant. During cross-examination, McGee was questioned about how he went about seizing the bag containing what he suspected to be marijuana as follows:
Q: Okay, you say you seized the box from Lance Corporal GILBERT, would you go into the circumstances surrounding the seizure of the box?
A: Well, it wasn’t the box, sir, it was the newspaper.
Q: Oh well, then the newspaper?
A: Well, after he tried to conceal it I walked around to the front of the rack so I could face him. The first thing I said was what do you have. Then he started going into please, Sarge, let me flush it down the commode. I’m about to be promoted to Corporal, please let me get away, I’ll take it out of the building as long as you don’t say anything. I had my A. duty try and call the OD.
MJ: Wait just a minute. You asked Lance Corporal GILBERT what do you have?
WIT: Yes, sir.
MJ: Did you give him an Article 31 warning at this time?
WIT: No, sir.
MJ: I’m not going to consider the statement made, “Please let me flush it down the toilet,” that being a statement made after a 31 warning should have been given.
Individual military counsel resumed examination:
Q: Continue.
A: Yes, sir. I had my A-duty try to find the Company Gunny but he had already left the building; he had been there previously. Then I had him try to call the OD, the line was busy; he tried a couple of times, but the lines were busy. So he came back to me and he told me the line was busy and in the meantime Lance Corporal GILBERT said, “Okay I’ll give you the package” and he gave it to me, sir.
Q: Did you in any way threaten Lance Corporal GILBERT?
TC: Your honor, we object to this as to relevancy.
MJ: Overruled.
WIT: I’m not sure if I did or not, sir, I know I tried to use quite a bit of tact on him to get the package away. At first everybody in the building was coming and telling him to run, to get out of the building and everything. So I may have, sir, but I can’t swear to that.
Q: Weren’t you trying to scare him in some way to give you the package?
A: Yes, sir, when I first started, when I asked him what he had and he went into his plea, I said, give it to me so I can get the OD up here, (sic) Everybody was saying to run with it, not to give it to me. So then I tried to scare him, more or less, so he would give it to me so he wouldn’t run and so he wouldn’t try to get out of the building.
Q: How did you try and scare him?
A: Well, sir, I was telling him that if the Battalion OD comes up here he would probably lock him up that night or take him down to the OD shack and make him stay down there.
Q: Did you in fact say to Lance Corporal GILBERT that you would get it from him one way or another?
A: I may have, yes, sir.
Q: Did you in fact say, “Lance Corporal GILBERT if you don’t give me the package, I’m going to bust your head?”
A: I don’t really know, sir, I may have but I don’t really know, sir.
Q: You don’t know, and you don’t remember?
A: I don’t really remember, sir.
Q: Did you scare him into giving you the package?
TC: Your Honor, objection relevancy.
MJ: Overruled, proceed.
WIT: I must have, sir, because at first he was real reluctant to give it to me and then he just said okay, and handed it to me.
Q: Did you also state to him in trying to get the package from him that nothing would become of the incident if you gave me (sic) the package?
*831A: I have no idea if I said that or not, sir. I don’t believe I did because I have busted a lot of people before and I know that I can’t make a statement like that because I have nothing to do with it once I take it away from him.
Q; Did you also state that you could search anyone or anything in the barracks because you were the duty NCO?
A: I don’t believe I did, sir, I think I made a statement of saying, if I suspect anybody of having anything I can look and see what it is.
* * * * * *
Q: Do you still deny making any type of threat to obtain the package from Lance Corporal GILBERT?
A: No, sir, I won’t deny, but I don’t remember really, sir. Everything happened there so fast I was talking to him and I was trying to get the Battalion OD on the phone at the same time through my A duty. I may have, sir, but that’s — I don’t even remember writing down anything saying that I did, sir.
Q: Did you say something to the effect that, “If I make a bust it will be some brownee (sic) points towards promotion to staff sergeant?”
A; No, sir, and that has nothing to do with getting promoted to staff sergeant, sir.
Q: Did you say that, “I have a right to search any part or person in the barracks because I’m duty NCO?”
A: I may have, yes sir, but I won’t swear to that, sir, I may have said that . . . (R. 87-89; 100).
The two individuals who were seated on the “rack” with appellant at the time Sergeant McGee came upon them and confronted appellant testified for the defense. Both men testified that only after McGee had threatened several times to “ring [appellant’s] neck” if he did not hand over the plastic bag and its contents did appellant surrender the same to McGee.
. This doctrine, the most authoritative pronouncement of which is to be found in the plurality opinion of Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is followed in the military. See, e. g., United States v. Hessler, 4 M.J. 303, 304 (C.M.A.1978); United States v. Schultz, 19 U.S.C.M.A. 311, 41 C.M.R. 311 (1970); United States v. Decker, 16 U.S.C.M.A. 397, 37 C.M.R. 17 (1966); United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965); United States v. Bolling, 10 U.S.C.M.A. 82, 27 C.M.R. 156 (1958); United States v. Doyle, 1 U.S.C.M.A. 545, 4 C.M.R. 137 (1952); United States v. Garcia, 3 M.J. 1090 (N.C.M.R. 1977); United States v. Cruz, 3 M.J. 707 (A.F.C. M.R.1977); United States v. Reynolds, 1 M.J. 823 (A.F.C.M.R. 1976); United States v. Hernandez-Florez, 50 C.M.R. 243 (A.C.M.R.1975); United States v. Whitehead, 48 C.M.R. 344 (N.C.M.R.1973).
. The metaphor was first applied in a criminal law context by Mr. Justice Jackson in United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947).
. The stipulated evidence was that the clear plastic vial containing a tan powder-like substance in fact contained 0.53 grams of methamphetamine. There is no evidence of record which would remotely suggest, as does the majority herein, that the marijuana and the vial containing the methamphetamine were both contained in the same plastic bag.