(dissenting):
The majority finds that the military judge was right when he found no probable cause for the search and wrong when he allowed appellant’s contraband ration cards into evidence by applying the good faith exception to the exclusionary rule (Mil.R. Evid. 311(b)(3)(C)). I disagree and dissent.
The probable cause question is a close one, and I fully acknowledge that the judge’s decision on that issue is quite supportable. Although I believe the judge was wrong, had that problem been standing alone, I might very well have deferred to him and to the majority and concurred. The majority’s refusal to apply the good faith exception, however, impels me to register my disagreement. The very closeness of the question, in my opinion, supports application of the good faith exception.
*932I PROBABLE CAUSE
Cashiers at the Torrejon Air Base commissary told a security policeman by the name of Sergeant Stewart on 4 April 1989, that Sergeant Lopez was buying numerous cartons of cigarettes several times per week, and that he was using different cards, and that some of them had been issued and signed by Sergeant Lopez. This information found its way to Sergeant McKinnon a security police investigator, who interviewed the cashiers and then presented the information to appellant’s commander, Major Harrison, and asked him for a search authority, the military equivalent to a warrant.
Major Harrison added this intelligence to his own knowledge that Lopez had been in financial difficulty, and that his job in the orderly room was to issue ration cards. After consulting his chief legal advisor, the base staff judge advocate, who advised him that probable cause existed, the commander thereupon issued the requested authority. The investigators secured Lopez’s “consent,” then, armed with both the commander’s authorization and the consent, they proceeded to search and find the contraband, the extra ration cards.
The military judge correctly decided that Lopez’s agreement to this procedure was more acquiescence than consent. However, he concluded further that the information presented to the commander was insufficient to constitute probable cause. The majority’s agreement with this decision is the first part of my dissent.
The military judge’s ruling that probable cause did not exist was a legal conclusion, not a factual determination. United States v. Wood, 25 M.J. 46 (C.M.A.1987). In reaching this result, the judge misapplied the law. Initially I note that in his questioning, and explicitly in his findings, the judge made much of the failure of the police to convey any information to the commander concerning the names or “reliability” of the two cashiers who had complained about Lopez’s lavish use of a number of ration cards. While reliability remains a factor to be considered, it was not in issue here and it appears that the judge was putting the cashiers into the category of underworld informants rather than “a concerned citizen reporting an illegal act to a policeman.” United States v. Wood, supra; United States v. Watford, 14 M.J. 719 (A.F.C.M.R.1982); United States v. Ozanich, 27 M.J. 585 (A.F.C.M.R.1988).
The military judge found that the security police investigator, “Tech Sergeant McKinnon, said that this activity by the accused had been going on for a long period of time, but did not state how many times, any general or specific time period, and did not, more significantly, indicate when the last time was that the accused allegedly used a suspected bogus card.”
Sergeant McKinnon had transferred to Florida and did not testify in the trial. (There was a short stipulation of his testimony which related to the issue of consent, and the chronology of the complaint and investigation.) The only person who gave testimony in this trial concerning what the commander was told by McKinnon was the commander. This same commander testified explicitly that he had been briefed that Lopez’s unlawful activity was still going on.
If the military judge was making a finding that the evidence of appellant’s wrongdoing was too “stale” to constitute probable cause, I have to disagree. Even if a few weeks had gone by since the last hard evidence of unlawful ration card activity, there is no dispute that Lopez’s enterprise had gone on for a long period of time. The law is clear that evidence of a continuing enterprise such as this will support a finding of probable cause for a longer period of time than a single instance of misconduct.
“Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.”
United States v. Johnson, 461 F.2d 285 (10th Cir.1972); 2 LaFave Search and Seizure, § 3.7(a) (2d ed. 1987).
*933In short, two cashiers observed Lopez using several ration cards, some issued by himself, to buy an unreasonable amount of cigarettes over a long period of time. This information was conveyed to Lopez’s commander who put it together with his own knowledge that Lopez had been in financial difficulty, and that his job gave him access to ration cards. Whatever the period of time between the complaint and the briefing to the commander, it was in my opinion sufficiently recent to warrant the commander’s conclusion that the instrumentalities of the crime, the ration cards, would still be in Lopez’s possession.
Finally, it was reasonable to search for the cards in the barracks room where Lopez lived. “Using the ‘totality-of-the-circumstances analysis’ authorized by Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983) ... [I] am satisfied that the evidence made available to the commander who authorized the search was sufficient to constitute probable cause....” United States v. Johnson, 23 M.J. 209 (C.M.A.1987).
II THE GOOD FAITH EXCEPTION
If I had agreed with the judge that the search lacked probable cause, I would agree with him also in allowing the evidence discovered during the search into evidence (denying a defense motion to suppress). If probable cause had fallen short, this would be the perfect case to apply the “good faith exception” to the exclusionary rule embodied in Mil.R.Evid. 311. This exception provides:
(3) Evidence that was obtained as a result of an unlawful search or seizure may be used if:
(C) The officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith shall be determined on an objective standard.
MiLR.Evid. 311(b)(3)(C).
Finding that the commander had “a clear, direct interest in this investigation and in the outcome of the search,” the majority finds Major Harrison was not sufficiently “neutral and detached” to allow application of the exception. They also pile onto the scale other factors relating to the commander, such as the level of his command (unit commander, “the lowest level of command”), and the absence from the record of any reflection of formal “Fourth Amendment training.” I would note initially that if the commander lacks neutrality and detachment, he is disqualified from issuing a search authority in the first place, and we do not even get to the question of any exceptions, “good faith” or otherwise. United States v. Ezell, 6 M.J. 307 (C.M.A.1979).
As the majority points out, the Supreme Court gaveth the exclusionary rule to deter police misconduct. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). It now taketh away the rule in cases where there is no police misconduct, and all are operating in good faith. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The President has blessed application of the rule to military law. Mil.R.Evid. 311(b)(3)(C). Although there is as yet a dearth of military case law dealing with application of the good faith exception to searches under military law, it would appear that the Court of Military Appeals would include search authorizations issued by commanders within the scope of this rule. See United States v. Morris, 28 M.J. 8, 19 (C.M.A.1989), (Sullivan, J., concurring in part and in the result), United States v. Brothers, 30 M.J. 289, 293 (C.M.A.1990).
It seems that the majority’s hesitation to allow Staff Sergeant Lopez to suffer the legal consequences of his unlawful activity is founded upon subjective concerns that the good faith exception would “swallow” the exclusionary rule if applied in cases such as this. Significantly, however, their opinion does not contradict the judge’s finding that both the police and the commander were operating in good faith.
*934The majority is concerned that the commander was not told precisely when the last time Lopez was seen using a bogus card, and, that he authorized a search of all areas under appellant’s control. I believe the commander was provided sufficient information. If there was any doubt, what should a reasonable commander have done under these circumstances? He should do exactly what Major Harrison did here. He checked with his “general counsel,” the staff judge advocate, who told him that he had probable cause and to go ahead. It is difficult to conceive of a case where good faith more palpably exists.
The answer to the majority’s concerns about the continued viability of the exclusionary rule after application of the “good faith exception,” can be found both within Leon, and the rule itself. The Supreme Court makes it clear that if either the police or the magistrate do not have a substantial basis for their actions, the exception will not be applied. It is incumbent upon the prosecution to establish “good faith.” This they have done. I would affirm.