dissenting in part:
I disagree with the majority’s conclusion that the commander “improperly merged the role of criminal investigator into what constitutionally should have been a purely judicial decision at the time of his authorization to search given in the barracks.”
I believe that the language used by the Court of Military Appeals in numerous summary case dispositions following Ezell is appropriate in this case:
The military commander was not per se disqualified to authorize the search. United States v. Ezell, 6 M.J. 307 (C.M.A.1979). Moreover, examination of the record of trial reveals no evidence that the military commander who authorized the search in this case was involved in the competitive enterprise of ferreting out evidence of crime or that he was otherwise predisposed against the appellant, (citations omitted).
The commander received a call at his quarters from his first sergeant who advised him that six members of his command were in a barracks room where marihuana was apparently being smoked. He authorized a search of the room and then asked if his presence was required and was told by the first sergeant that it was. Upon his arrival he entered the room and satisfied himself that the odor was marihuana. He summoned company officers and NCOs to conduct the search and remained in the area until it was concluded. Military police were also called to the scene. As items of contraband were discovered they were shown to the commander. He did not personally engage in searching or seizing anything. His actions were described as “supervisory.” However, during one of his arguments the trial defense counsel characterized his presence as a “mere formality.” What must be remembered about both descriptions is that the incident took place before the Ezell decision. Nowhere in Ezell does the Court state that the mere presence of a commander at the search will automatically invalidate his authorization to search. When the commander who authorized the search is present, certainly those conducting the search will normally consider themselves to be subject to his authority. That was true in this case. What must be examined are the personal actions of the commander that could transform him into a law enforcement official. I do not find his actions in this case to be of such a nature. This case arose in a foreign country as did United States v. Hessler, 7 M.J. 9 (C.M.A.1979). In Hessler the odor of activated marihuana in the barracks environment in a foreign country was held to pose such a present danger to the military mission as to create an emergency situation justifying an immediate warrantless entry by the squadron duty officer to prevent its continued activation. The Court cautioned that if a more extensive search was desired a search authorization should be obtained. An authorization was obtained in this case. The *676same situation involving six members of his command would seem to present a sufficient emergency situation to justify the presence of the military commander. Presence under those circumstances should not now cast him in the role of a military investigator ferreting out evidence of a crime. The actions of the commander did not nearly approach those of the commanders concerned in the several cases disposed of in the Ezell decision.
In United States v. Boswell, decided in the Ezell decision, the commander authorized the search and then proceeded to conduct the same by rummaging through a desk, looking under coats, and examining a cupboard, all in the presence of the accused. The Court stated:
By personally conducting the search and seizing the items whose admission was challenged, Major Moi revealed that he had been engaged in law enforcement activities throughout his participation in the entire authorization process. In addition his attitude resulting from the failure of the earlier search of the accused’s room to support action against the accused raised the spectre of bias which must be avoided if the authorizing official is to remain neutral and detached.
As the Court cautioned in Ezell, the commander:
must indeed be neutral and detached concerning the case in which he purports to act. Thus he may not, with respect to that case, authorize searches and seizures of persons or things while at the same time performing investigative or prosecu-torial functions.
While I find the commander’s presence in the instant case as not disqualifying, I wish to make clear that I am not now encouraging any commander to be present during the execution of a search, regardless of how pure his motives, for certainly after Ezell the risk of others imputing evil motives is far too great.
Turning to the question of personal bias or predisposition against the appellant, I find none. Granted the commander had knowledge of the appellant’s previous involvement with drugs, but this information alone did not have the effect of disqualifying him. The search was initiated as a result of the charge of quarters smelling activated marihuana in a barracks room containing six members of the command. The commander questioned whether his presence was necessary. He testified that he had no reason to suspect any particular person in the room and directed an equal search of all parts of the room. It is clear from the record that the search was never focused on the appellant.
In United States v. McCorn, 7 M.J. 46 (C.M.A.1979) (summary disposition), the Court stated that the “fact that the commander had knowledge of previous drug dealings by the accused” did not change his neutral and detached status. Similarly, in United States v. McCarthy, 7 M.J. 42 (C.M.A.1979) (summary disposition), the Court stated that merely because “the commander knew that the appellant was awaiting trial for drug charges; that he was aware of a CID report involving the appellant in other drug offenses; and that several informants had reported him as being involved in drug activities]” was insufficient to change their conclusion as to the commander’s neutral and detached status.
For the foregoing reasons I conclude that the commandér who authorized the search never ceased to act in a neutral and detached manner. I would affirm all charges and specifications.