(dissenting):
I dissent. Convicted of larceny and unlawful entry, the accused contends that the military judge erred in refusing to suppress the fruits of a search and that the evidence is insufficient to establish an unlawful entry. In my opinion the fruits of a lawful search incident to an apprehension based on probable cause were properly admitted in evidence. The evidence of record, however, does not establish that the accused’s entry was unlawful.
PROBABLE CAUSE
I disagree with the conclusion of the majority that the agent who apprehended the accused lacked probable cause. The information known to the arresting officer must show facts, not conclusions, that establish probable cause. Such information, however, is not intended to establish the existence of guilt either prima facie or beyond a reasonable doubt, but only to establish that the probabilities weigh in the Government’s favor, and thus justify the apprehension. See United States v. Scarborough, 23 U.S.C.M.A. 51, 48 C.M.R. 522 (1974). In determining whether probable cause has been shown, courts must not be hypertechnical. Id., citing United States v. Ventresca, 380 U.S. *871102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In dealing with probable cause, we deal with probabilities. These are not technical, they are factual and practical considerations on which reasonable and prudent men, not legal technicians act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The question is not whether a better showing of probable cause could have been made, but whether one in fact was made. United States v. Scarborough, supra; United States v. Leyva, 4 M.J. 690 (N.C.M.R.1977), pet. granted on other grounds, 5 M.J. 19 (C.M.A.1978).
The agent who apprehended the accused in this case was justified. He knew that the accused had been in the vicinity at the time of the theft and had prior financial problems which furnished a motive for the crime. The accused had difficulty in accounting for his whereabouts and appeared to be extremely nervous when questioned by the agent. The agent had eliminated his only other suspect, a sergeant, after personally searching him with negative results and receiving a reasonable account of his whereabouts. He did not believe that any person who was assigned to a section other than the accused’s and the sergeant’s committed the crime because he would have been unfamiliar with the area, unaware that the victim had left his money in the room, or afraid to break into the room not knowing when the members of the section would return. Although further investigation might have established a better showing of probable cause, the facts known to the agent were sufficient to warrant a prudent man in believing that the accused had committed the crime and consequently established probable cause for his apprehension.
UNLAWFUL ENTRY
The accused contends that the evidence was insufficient to establish that his entry into his section’s training room, where the larceny occurred, was unlawful because the record does not establish that the individual who padlocked the door to the room had authority to do so. The accused entered through an unlocked window in order to find a cigarette. The nature of the room, the status of the accused, and the time and purpose of his entry tend to indicate a lawful entry. The padlocked door and the method of entry indicate the opposite. In the absence of additional evidence showing that the accused was not authorized to enter at the time, the record does not establish the unlawfulness of his entry beyond a reasonable doubt. See United States v. Williams, 4 U.S.C.M.A. 214, 15 C.M.R. 241 (1954).
Accordingly, I would affirm the findings of guilty of Charge I alleging larceny, disapprove the finding of guilty of Charge II alleging unlawful entry, and reassess the sentence.