(concurring in the result):
My reason for writing separately is that I cannot reconcile certain assumptions of the majority opinion with past decisions of this Court with which I agree. In Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983), for example, we held that it was reasonable under the Fourth Amendment to compel servicemembers to produce urine specimens so that they could be tested for evidence of drug use. Citing Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975), for the proposition that a servicemember’s expectations of privacy are fundamentally different (i.e., less) from a civilian’s, we obviously discounted the servicemembers’ interests in modesty and control over their own body fluids. Id. at 81. Further, United States v. Alleyne, 13 M.J. 331 (C.M.A. 1982), and United States v. Harris, 5 M.J. 44 (C.M.A. 1978), together indicate that installation perimeter searches are permissible under the Fourth *300Amendment. Thus, a servicemember commands precious little expectation of privacy as to his or her person and possessions when entering or exiting a military installation. Finally, in United States v. Middleton, 10 M.J. 123, 129 (C.M.A. 1981), we condoned that potentially most comprehensive of all searches, the traditional military “health and welfare” inspection, on the ground that the servicemember has no reasonable claim to privacy in his or her barracks room during the progress of such an inspection, notwithstanding the fact that contraband is recognized as a legitimate target of such activity.
With these holdings, to which I thoroughly subscribe, I am unable intellectually to harmonize the implicit assumption in the majority opinion that servicemembers generally have legally enforceable expectations of privacy, vis-a-vis their commanders, in barracks rooms. If, at virtually any time and place selected arbitrarily by the commander, servicemembers have no cognizable expectations of privacy as to their bodies, possessions, and rooms, how do they suddenly acquire it when there is a basis for suspicion? The focus of the Supreme Court’s debate has always been the accused’s state of mind, i.e. whether he has a “legitimate,” “justifiable,” or “reasonable” expectation of privacy. The state of mind of the searcher has no relevance. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Thus, if the commander or his delegee can walk through the door and search the room anytime he wants to for no reason, what sort of expectation of privacy can the servicemember reasonably claim?
Furthermore, it seems logical that the ability to search an area for no particular reason at all is broader than the power to search it only upon the occurrence of some specific, limiting predicate. Cf. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Thus, if it is permissible to accomplish the greater act, it should be equally permissible to accomplish that which is included in the greater act. Of course, the significance of all this is that, unless an accused can demonstrate that he had a legitimate expectation of privacy in the subject of the search, he has no claim to the Fourth-Amendment remedy of suppression of the evidence. See Salvucci, Rawlings, Smith, Rakas, Katz.
I recognize that this record is ill-suited to assess the actual and societally-approved expectations of privacy in military barracks. See Smith v. Maryland, supra. At least since the lead opinion in United States v. Roberts, 2 M.J. 31, 36 n.16 (C.M.A. 1976), unilaterally declared that servicemembers have “reasonable expectation^] of privacy” in their barracks rooms, discussion and factual development of this issue have effectively ceased, and this record is no exception. Therefore, notwithstanding my extreme doubt as to the validity of the basic premise upon which Roberts is founded, I am loath to make my own judgment in vacuo; hence, I reluctantly concur in the result.* Much water has passed under the bridge in a decade, and, unlikely though it may be, for all I know in the days of this all-volunteer force, military commanders have indeed transferred ownership of the barracks to the troops. In my opinion, reassessment of who does have control of barracks is long overdue, and I eagerly await receipt of an adequately developed record which will permit such reassessment.
I have also examined Mil.R.Evid. 313(b^Inspec-tions ), Manual for Courts-Martial, United States, 1984, which is touted as establishing additional restrictions on the commander’s ability to exercise dominion over his barracks. I read Mil.R.Evid. 313(b) purely as a rule of inclusion, rather than one of exclusion, and I detect no Presidential intent to erect barriers for commanders higher than those of the Constitution. See Mil.R.Evid. 311(a)(2).