(concurring):
My dissenting brothers suggest that an operational exigency exception to the Fifth Amendment modelled on the public safety exception might be “attractive” or “reasonable” in future eases. I strongly disagree.
What makes the so-called operational necessity exception so mischievous is the bedrock on which it rests; in plain words, the key to the proposed exception is the assumption that when the situation is truly serious, Constitutional protections are suspended. Yet as Justice Sutherland said in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413 (1934), if the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.
Were we to uphold a “wheels up” Air Force operational exigency exception, could it not validly be argued that there should be a “submarine under the polar ice cap” or an “82d Airborne” or a “Coast Guard fighting drugs” exception? Where should one draw the line? Furthermore, it appears incongruous to embrace such a doctrine in peacetime when no such exception to the Constitution was needed in Yiet Nam or Korea. See United States v. Jones, 26 M.J. 353, 356 (C.M.A.1988)
The parameters of the public safety exception outlined in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) are extremely narrow. There are more than 75 reported cases which address the exception. As I understand them, they deal with very, very limited situations where police officers are concerned for their own safety or that of others and the suspect has a gun or knife or supposedly possesses a bomb. See the cases gathered at Annot., 81 L.Ed.2d 990 (1988). The tightly-drawn exception expressed in those cases clearly does not cover this accused, who was disarmed and in a situation where no one who testified perceived that he posed any threat:
Q. Were you afraid when you went to talk to [the accused] to ask these questions — that he was going to grab a chain or any other article in that aircraft?
A. (SSgt Dryer) No, sir.
* * * * * *
Q. Were you afraid at any time that he was going to attack or grab any article on the aircraft?
A. No, sir.
Q. Was the flight of that aircraft or the airplane itself at any time during this flight in danger because of the accused?
A. No, sir.
In a Constitutional system, military commanders who act responsibly may not see the results of their labors admissible in a court-martial. Nonetheless, a military member may have rights which are not easily overtaken by a claim of some overreaching public interest or operational necessity. See Jones, supra, at 357, quoting Justice Marshall in New York v. Quarles, supra.
Ultimately, it is the arbitrariness of any operational necessity exception which disturbs me. That proposed exception and the rule of the Constitution cannot coexist, I believe. They are incompatible and antagonistic forces; when brought into conflict, one or the other must necessarily wither.
Chief Judge HODGSON with whom Judge HOLTE joins (dissenting):A Miranda/Tempia * and Article 31, UCMJ warning is not required every time one military member questions another. The purpose of the questioning and the function of the questioner must be considered in determining whether the request for a statement is within the purview of Article 31.
Thus, a casual conversation between two service members which results in an incriminating statement triggers no warning requirement if the questioning had a per*623sonal rather than an official motivation. United States v. Duga, 10 M.J. 206 (C.M.A. 1981).
In United States v. Henry, 21 U.S.C.M. A. 98, 44 C.M.R. 152 (1971), the Court of Military Appeals concluded that an Army officer who heard shots within a compound in Vietnam, ran to investigate, and upon seeing 8-10 persons near a hut, asked, “Who shot who?,” was not required to give a codal warning and advice as to the right to counsel to an accused who responded, “I shot him.” The Court observed that the conclusion as to criminality or suspicion in a particular case depends on the totality of the surrounding circumstances.
No one argues that questioning for the purposes of medical diagnosis must be preceded by the warning of rights. Indeed, the Court of Military Appeals stated in United States v. Fisher, 21 U.S.C.M.A. 223, 44 C.M.R. 277 (1972):
A medical doctor who questions an individual solely to obtain information upon which to predicate a diagnosis, so that he can prescribe appropriate medical treatment or care for the individual, is not performing an investigative or disciplinary function; neither is he engaged in perfecting a criminal case against the individual. His questioning of the accused is not, therefore, within the reach of Article 31.
Although the appellant’s questioner, Staff Sergeant Dryer, is not a physician there is no doubt he was concerned about the appellant’s well being.
Let us briefly consider the facts. The appellant is a loadmaster on a C-130 aircraft flying to South America over generally uninhabited jungle. Staff Sergeant Dryer, the crew chief, is told the appellant is acting in an “irrational manner, pointing and calling out to invisible persons.” He is apparently suffering from hallucinations. The appellant is unarmed, having previously surrendered his weapon to the assistant crew chief. Dryer is concerned for the security of the aircraft and the safety of the crew, and asks the appellant if he is on drugs. The appellant says no, but after further questioning by Dryer admits he had used cocaine the night before. It is this statement and the results of a later urinalysis that the majority holds were improperly admitted.
The majority opinion acknowledges that a public safety exception as enunciated in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), or some form of it is viable under military law, but declines to invoke it under the facts here. I also will not delve into a lengthy discussion of the public safety exception although the discovery of a spaced out crew member aboard an aircraft flying over a jungle might lead one to conclude that the questioning was reasonably prompted by a concern for the health of the appellant, the safety of the aircraft, and the crew’s ability to complete the mission, rather than the desire to perfect a criminal case against him.
An operational exigency exception modelled after the public safety doctrine set out in New York v. Quarles is an attractive solution and a reasonable compromise to the situation at hand. Such an exception would protect both the rights of the individual and society at large. However, my affirmance of the appellant’s conviction is not bottomed on such an exception, but rather on my conclusion that Dryer was not required under the factual scenario before us to give the appellant a threshold warning prior to questioning him about drug abuse. Dryer’s questioning of the appellant was not designed to uncover criminal behavior, but was a good faith effort to provide immediate first aid to someone who clearly needed medical attention. Knowing what was the cause of the appellant’s bizzare behavior was a vital bit of information. The trial judge correctly admitted the appellant’s statement confirming this to be so. Cf. United States v. Muniz, 23 M.J. 201 (C.M.A.1987) (Search of appellant’s desk drawer reasonable under the emergency exception to the Fourth Amendment).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).