(concurring in the result):
I join the result reached by Chief Judge Everett as to the specified issue.
I respectfully disagree, however, with his opinion regarding appellant’s statements because I conclude they were the product of appellant’s unfettered willingness to provide them, coupled with the appropriate warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831.
Determining if a confession has been given voluntarily is a question of law. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). Similarly, in deciding whether warnings were required at a given moment, we have not regarded ourselves bound by “findings of fact” to the effect that an accused was not then a suspect. United States v. Lee, 25 M.J. 457, 459, 460 (C.M.A.1988), and at 465 (Cox, J., concurring in part and dissenting in part). Cf. United States v. Sutton, 794 F.2d 1415, 1425, 1426 (9th Cir.1986) (Court of Appeals “review[s] \de novo ] the totality of the circumstances to determine whether there was” sufficient basis for finding suspicion to stop defendant’s vehicle). Rather, we have independently determined when warnings were required and have never hesitated to use this review authority to reverse a case. United States v. Lee, supra. This does not preclude us from reaching the opposite conclusion — that an accused was not a suspect at a given time such that warnings were required.
In my view the police did everything right here. They quickly and responsibly advised appellant of his rights as soon as they had a reasonable idea that he might be implicated in an offense under the Code. Under the circumstances, there is no taint to be attenuated. Thus, there is no question of the voluntariness of the subsequent statements. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).*
In any event, I am of the opinion that the principles announced in Oregon v. Elstad, supra, apply equally to statements under Article 31, and it appears that the Court of Military Review correctly applied them.
Like the Chief Judge, I heartily agree, in the abstract, that we should “ ‘hesitate[ ]’ to use ... [our] review authority to hold admissible a statement which the court below had ruled was inadmissible, so as to affirm a conviction which otherwise would have been reversed.” Lead op. at 350. Of course, in this case, the statements in issue — the post-warning statements — were ruled admissible by both the military judge and the Court of Military Review. My opinion is merely that I do not have to decide whether taint was attenuated because I see no taint. I make out no evidence to be admissible which was inadmissible, and I affirm no conviction that would otherwise have been reversed — by application of the law of the case, or any other, doctrine.
The law of the case, incidentally, when received by us, was the Court of Military Review’s holding that failure to warn appellant of his rights after he uttered the magic words “full nelson,” while error, did not preclude admission of the subsequent post-waiver statements because the taint had been attenuated. Judge Sullivan agrees with the court below, and I don’t even think the issue needs to be reached. Thus, as I count, the law of the case now is that at least a majority of this Court regards the question of attenuation to be closed.