dissenting:
I do not believe that the appellant abandoned the hashish. This issue was not litigated at trial and was raised for the first time by the Government at this level. At trial, the Government had a tripartite theory of admissibility: (1) The appropriate commander properly authorized the search of the locker based on probable cause; (2) The German police properly entered the locker in accordance with regulations, a copy of which was posted next to the locker; (3) The police conducted the search incident to a lawful apprehension. The judge suppressed ten of the eleven plates of hashish without giving a reason for his ruling. The defense position before us, as at trial, is that the initial search of the locker was illegal and tainted the subsequent search and seizure. The Government on appeal in addition to the abandonment theory contends that the evidence is admissible as the result of a search incident to a lawful apprehension. The argument is that as the apprehension was based on previously existing probable cause, any taint from the earlier search was dissipated.
The initial search of the locker was clearly illegal. The commander not only did not authorize that search but had no authority to do so. The Government relies on United States v. Ball, 8 U.S.C.M.A. 25, 23 C.M.R. 249 (1957), in support of its theory of admissibility by reason of search incident to a lawful apprehension. Bali, under facts similar to those in the instant case, held that an illegal search and seizure “does not render the subject matter forever immune from search and seizure,” so long as the evidence could be independently seized. 8 U.S.C.M.A. at 30, 23 C.M.R. at 254. The Court found that the search conducted incident to the appellant’s apprehension was legitimate notwithstanding an earlier illegal search because it was based on an independent source.
Like Ball, the facts in the instant case support the conclusion that there was an independent source of probable cause to apprehend the appellant. Unlike Ball, the facts do not support a search of the locker incident to the apprehension. The search cannot be based on the need of the military police to secure weapons. They knew there were no weapons in the locker. Nor can the search be justified on the basis of preventing the removal or destruction of evidence. The appellant was surrounded by a phalanx of military and German policemen four or five feet from the locker. He could not have reached into the locker under the circumstances. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).1 Accordingly, I agree with the implicit holding of the majority that the only way to overcome the illegal search and seizure is if the appellant can be considered to have abandoned the property.2
*933Abandonment, of course, is a recognized principle in the area of search and seizure. A person who has abandoned property has removed himself and his property from the protections of the Fourth Amendment and cannot complain if the property is thereafter acquired by law enforcement authorities and produced in evidence at his trial. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); United States v. Harper, 8 M.J. 708 (A.C.M.R.1979).
A person who has abandoned property in the context of a search and seizure situation has abandoned his expectation of privacy, which is what the Fourth Amendment is designed to protect. One danger in considering the abandonment issue is to view it strictly in terms of property law rather than as a voluntary relinquishment of an expectation of privacy. In the search and seizure sense “what is abandoned is not necessarily the defendant’s property but his reasonable expectation of privacy.” City of St. Paul v. Vaughn, 306 Minn. 337, 343, 237 N.W.2d 365, 371 (1975). (Citations omitted.) See United States v. Colbert, 474 F.2d 174 (5th Cir. 1973); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971). Thus, unlike the majority, I do not find it particularly significant that the lease of the locker may have expired. Likewise, the presence of the German language sign next to the locker cannot, in my opinion, be used to demonstrate the appellant’s knowledge of the conditions of rental or anything else. If the appellant had seen the sign, a fact undeveloped at trial, in all probability he never proceeded beyond the heading.3
As I view the facts relating to abandonment, which indeed are sparse in view of the fact the issue was not litigated, I cannot conclude the appellant intended to abandon the hashish. Nothing significant happened in the few seconds that elapsed after the appellant opened the locker door, uttered his scatological imprecation, and slammed the door to warrant a conclusion that he intended to abandon his expectation of privacy. He was angry, to be sure. But it is more reasonable to conclude that he wished to retain the remnants of his cache rather than lose the whole amount. Even the fact that he had moved four to five feet from the locker is not determinative. He could just as well have been leaving to obtain 50 pfennigs to relock the locker or to call his supplier to find out what happened. The important point is that by leaving temporarily he does not necessarily relinquish his expectation of privacy. In sum, I am not satisfied that the Government has established that the appellant abandoned the property. Accordingly, I would set aside the conviction and dismiss the charges.4
. Ball, it will be noted, was decided before Chimel.
. The Government likewise cannot prevail on the exigent circumstances theory in view of the number of policemen available to secure the locker pending receipt of a valid authorization to search. Moreover, the locker could be easily secured by renting it for another 24 hours by the minor expenditure of 50 pfennigs (or the *933economy plan of 72 hours for one Deutsche mark).
. “Benutzungsbedingungen fur das Vermieten von Gepack-Schliessfachern.” (Umlauts omitted.)
. Even if it could be concluded that the appellant intended to abandon the property, it appears that he did so in the face of the illegal search and seizures previously conducted by the law enforcement authorities. This, of course, is not voluntary abandonment justifying the subsequent seizure by the police. United States v. Robinson, 6 M.J. 109 (C.M.A.1979).