(dissenting):
At trial, the accused challenged the admissibility of evidence obtained in a search on the ground that probable cause did not exist to justify Captain Moncure’s' authorization to search. Neither directly nor indirectly did the accused assert that Captain Moncure was disqualified to issue an authorization because he had become “personally involved ... in the investigative or prosecutorial process against the accused.” United States v. Ezell, 6 M.J. 307, 318 (C.M.A.1979). In my opinion, the failure to interpose objection at trial to Captain Moncure’s actions on the ground of personal disqualification precludes the accused from urging that objection, for the first time, in this Court as a ground for reversal of his conviction. See my opinion in United States v. Ezell, supra at 332, 335.
Turning to the merits, as the principal opinion refers extensively to United States v. Guerette, 23 U.S.C.M.A. 281, 49 C.M.R. 530 (1975), and United States v. Staggs, 23 U.S.C.M.A. 111, 48 C.M.R. 672 (1974), I assume that the majority have not repudiated the Staggs declaration that the decision in that case was not “intended to invalidate this long-standing practice” that permitted a commanding officer to issue a warrant, although he might concurrently have been required, by his responsibilities for the maintenance of order and discipline in his command, to “participate in investigations into criminal activities.” United States v. Staggs, supra at 114, 48 C.M.R. at 675. To me, the Staggs declaration recognizes that a commanding officer is not eo instante disqualified from authorizing a search because he has earlier taken an action that could be described as investigative. A second factor must be considered before a determination of disqualification can be made; that factor is whether, because of his investigative action, the commander is likely “not to hold the balance nice, clear, and true between the State and the accused.” Connally v. Georgia, 429 U.S. 245, 249, 97 S.Ct. 546, 548, 50 L.Ed.2d 444 (1977), cited in my opinion in United States v. Ezell, supra at 331. An important element in a decision on that issue is the motivation and intention of the commander at the time of an action that could be regarded as investigative. I am certain that, had the accused challenged Captain Moncure’s qualification at trial, more direct evidence as to the Captain’s motivation and intention would have been introduced than presently appears in the record. Based on what I find in the record, I am satisfied that Captain Moncure did not abandon his role of a commander concerned with the order and discipline of his command to adopt the character of a criminal investigator. United States v. Smallwood, 22 U.S.C.M.A. 40, 46 C.M.R. 40 (1972). I conclude, therefore, that he was qualified to issue the authorization to search.
I would affirm the decision of the Court of Military Review. In doing so, I think it appropriate to comment briefly on the statement in Judge Felder’s opinion, for a unanimous court, that “[a] commanding officer need not be a neutral and detached magistrate.”
One of the accused’s assignments of error before the Court of Military Review was that the search had been “authorized by a commander who was not a neutral and detached magistrate.” The argument in support of the assignment was to the effect that the duties and responsibilities of any commander are such as to disqualify him as a person constitutionally able to authorize a search. Accused’s counsel called attention to the pendency of the Ezell cases in this Court, as follows:
*63The question of a commander’s disqualification to issue search warrants due to the nature of his position qua commander is currently under review by the United States Court of Military Appeals. United States v. Ezell, 6 M.J. 307 (petition granted 23 December 1975); United States v. Hunter, 7 M.J. 287 (petition granted 20 August 1976). Appellant submits that that review will surely result in the disqualification of such commanders as “neutral and detached magistrates.”
Appellate Government counsel countered the defense argument with the contention that the battery commander “was not per se rendered partial by virtue of being a commanding officer.” Among the cases cited in support was Guerette, which, as noted earlier, confirmed a commander’s inherent qualification to authorize a search, but recognized that personal participation in police and prosecutorial processes could disqualify him in a particular instance.
In the context of the respective arguments on the accused’s contention before the Court of Military Review, it is clear to me that Judge Felder’s remark was not a declaration of principle opposed to disqualification of a commander because of his pri- or action as an investigator or prosecutor, but was simply a rejection of the contention that the scope and variety of a commander’s duties and responsibilities automatically preclude him from authorizing a search. The Ezell cases, which were decided almost four months later, also rejected that contention. Yet, the majority seem to view Judge Felder’s remark as indicating that the Court of Military Review decided the question of Captain Moncure’s qualification to authorize a search on the basis of an erroneous principle of law. I do not believe it did so; after the statement, the court’s opinion went on to examine what the commander did, and it pointed out that, among other things, “he commendably sought the advice of a judge advocate.” In any event, if the court did err in its statement, the facts of record still speak for themselves; and, as I earlier indicated, the message they convey to me is that Captain Moncure was not disqualified.