(concurring in the result):
The lead opinion points out that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is intended to protect the privilege against self-incrimination guaranteed by the Fifth Amendment. Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, has a similar purpose. United States v. Howard, 5 U.S.C.M.A. 186, 17 C.M.R. 186 (1954); United States v. Eggers, 3 U.S.C.M.A. 191, 11 C.M.R. 191 (1953). Their concern is with interrogation, rather than with unreasonable searches and seizures.
United States v. McOmber, 1 M.J. 380, 382 (C.M.A.1976), established requirements to which military investigators are subject “when they wish to question the suspect.” (Emphasis added.) Likewise, Mil.R.Evid. 305(e) calls for notice to counsel if investigators intend “to question” a suspect. In this context, questioning, is far different from requesting consent to a search.
Indeed, interrogation is for the purpose of eliciting from a suspect communications about the matter under investigation. However, a consent to search does not of itself communicate any information about the investigated crime; and it is not a statement regarding an offense, see Art. 31(b). Therefore, requesting consent to search property in which a suspect has an interest is not prohibited by his prior request for counsel, because Edwards provides protection only as to interrogation. Denial of a suspect’s request for counsel, along with other circumstances, is to be considered in determining whether his consent was given voluntarily, but it is not a decisive fact. Cf. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, the request for counsel did not preclude the military judge from ruling that Roa’s consent to search his locker was voluntary.
A distinction must be made, however, between granting consent to search property which already has been identified by law-enforcement agents and identifying property for those agents. Thus, in United States v. Taylor, 5 U.S.C.M.A. 178, 17 C.M.R. 178 (1954), this Court ruled that Article 31(b) had been violated when, in response to a request that he point out his clothing, the suspect identified an overcoat in which two marijuana cigarettes were found.
The Supreme Court has recognized that authentication or identification of documents may constitute a testimonial utterance. Cf. United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). As observed by the Court in Fisher:
The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena.
Id. at 410, 96 S.Ct. at 1580. Therefore, Edwards precludes an investigator from asking a suspect to communicate any information as to the location of his property after he has made a request for counsel.
According to the testimony of Dennis J. Morgan, a detective with the Tucson, Arizona, Police Department, the police had received a phone call from Mr. Riesing, the manager of a local self-storage facility, who “had read in the paper of the arrest involving the Air Force personnel. He advised that he recognized both names as customers of his who had storage facilities at his business.” Morgan furnished this information to OSI Agent Myloyde, who was participating in the investigation of several burglaries of which Roa was suspected.
Myloyde then asked appellant “if he would sign a consent to search form for his residence, for his storage facility”, and for his vehicle. Ultimately Roa executed this *302form; and the three men proceeded to the self-storage facility, where they met Riesing. “We went to the facility that Airman Roa advised us was his storage facility. Airman Roa took a key and unlocked the lock and opened the door.” (Emphasis added.)
In my view, when Roa “advised” the two investigators which locker was his, Edwards was violated. Cf. United States v. Applewhite, 23 M.J. 196 (C.M.A.1987). This violation of Roa’s Fifth-Amendment rights did not vitiate the consent to search which he had already given. However, it precluded use of any tacit or express communication by appellant to link him to the locker in which ultimately the contraband was found.
Although it appears to me that appellant’s communication was used by the fact-finder to establish his proprietary interest in the locker where the stolen property was found, I conclude that this error was not prejudicial. Riesing, the manager of the self-storage facility, had originally informed the police that Roa and a confederate, Captain Reimer, each had a locker there. Riesing was present when the two investigators brought appellant to the facility; and he possessed the contracts which Roa and Reimer had signed for their respective lockers. Each of these contracts was shown to the investigators before they left the facility; and each contained the name of the renter and the number of his locker.
If Roa had not identified his locker, its location could have been determined by the investigators quite readily. They could simply have checked the number on the lease signed by Roa. Under the circumstances, I would apply a variant of the doctrine of inevitable discovery. Cf. Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); United States v. Kozak, 12 M.J. 389 (C.M.A.1982). Even if investigators initially determined the location of Roa’s locker in an impermissible manner — namely, by asking him — and even if this identification was part of the government evidence at trial, appellant was not prejudiced. His lease, the contents of which were available to the investigators at the time and later were available to the court-martial, provided all the information necessary to determine which was Roa’s locker.
Furthermore, at trial, the defense did not raise any objection that, since he had identified a particular locker, Roa’s privilege against self-incrimination was violated. If a specific objection had been made concerning admissibility of the locker identification, the Government could readily have presented other evidence to establish which locker had been rented by appellant.
Even though here we have a basis for affirming, this case demonstrates the problems that may arise if, despite a request for counsel, an investigator asks a suspect for consent to search his property. In the first place, the absence of counsel may tend to make the voluntariness of the consent more questionable. Even more importantly, it may be difficult to obtain consent without eliciting some incriminating admissions — especially in the form of authentication or identification of evidence. Thus, after a request for counsel, the safest course is for the investigator to deal with the suspect’s attorney, rather than to rely on the distinction between consent and communication.