(concurring):
The dissent in this ease lends emphasis to the problem we face: A question that need not have been raised could invalidate all the questions that were properly resolved. An issue that should have been avoided at trial could cause the case to be reversed on appeal.
The suppression motion relates solely to a razor that was seized in a search of the appellant’s purse. The trial judge and the lead opinion say the government proved by clear and convincing evidence this was a consensual search, not merely acquiescence. I fully agree. I write separately, however, to stress the problems that can be created by conditional pleas.
The suppression motion raises an interesting legal point—in the abstract. Review of the record, however, makes it clear that this issue was never important to the disposition of this case. Regardless how the judge ruled on the motion, the outcome of the trial would not have been different. Without resort to the razor, I’m satisfied that the government had abundant independent evidence to charge, try, and convict the appellant.
The appellant had been exceptionally cooperative with investigators. The defense does not contest the fact that she provided a fully admissible confession and that she voluntarily consented to a search of her home, automobile, and urine specimen. There is no issue whether the confession and searches were tainted, since they all occurred before the disputed search of the purse. Cf. Mil.R.Evid. 304(e)(3). If the case had been litigated, the government apparently also had several witnesses available to testify about the charged offenses.
When the defense made its suppression motion, the prosecutors could have neatly mooted the issue by stating they had no intention to introduce the evidence seized from the purse. As the lead opinion makes clear, the relevance of the disputed evidence is very questionable under any scenario. In fact, the government did not introduce that evidence even after the judge’s ruling permitted them to do so!
*958This issue can be perceived in these terms: Since the evidence was of questionable relevance, since it was not needed and in fact not used, why did the government agree to a conditional plea when that procedure could render the entire trial a nullity if an appellate court determines the military judge decided wrongly?
I join Judge James and urge trial counsel and staff judge advocates to exercise care in this area. Unless resolution of the issue would be case-dispositive, the value and propriety of a conditional plea are extremely dubious.