(concurring in the result):
The majority opinion states, “Our duty as a reviewing court is to ensure that the commander ‘had a “substantial basis for ... concluding]” that probable cause existed.’ ” 35 MJ at 56. The case cited as authority for this standard of review is Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983), which does hold that, where a search is pursuant to a magistrate’s warrant, an appellate court properly ought not determine probable cause de novo but, rather, ought to limit itself to determining whether the magistrate had a “substantial basis” for the probable-cause determination.
Where, however, the search is without a warrant, Federal courts have not been so distant in reviewing the existence of probable cause to support the search. Instead, in non-warrant cases, an appellate court properly can determine for itself, de novo, whether there was probable cause. See, e.g., United States v. McKinney, 919 F.2d 405 (7th Cir.1990).* See also United States v. Straughter, 950 F.2d 1223 (6th Cir.1991), cert, denied, — U.S.-, 112 S.Ct. 1505, 117 L.Ed.2d 643 (1992); United States v. Uribe-Velasco, 930 F.2d 1029 (2d Cir.1991). I believe the same rationale for differentiating between the two standards of review that is fully set out in McKinney applies, as well, in the military.
The difficulty, though, .is that a search pursuant to a military commander’s authorization is neither a warrant search nor a warrantless search. I believe that, after carefully considering the rationale behind the two different appellate standards of review, the standard for review of a commander’s search authorization ought to parallel the decision as to whether the commander’s authorization is entitled to the good-faith exception. See United States v. Lopez, 35 MJ 35, 49 (CMA 1992) (Wiss, J., concurring in the result).
From my viewpoint, then, if the situation is such that the commander could be the subject of a good-faith exception because the commander fulfilled the Supreme Court’s expectations of “neutral judicial officers ... [with] no stake in the outcome of particular criminal prosecutions,” see United States v. Leon, 468 U.S. 897, 917, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984), then I will review the commander’s probable-cause determination on the substantial-basis standard. That is the standard of review to which such judicial officers’ determinations are entitled. See Illinois v. Gates, supra.
On the other hand, if the realistic view of the commander reflects someone who— though qualified to have issued the authorization under United States v. Stuckey, 10 MJ 347 (CMA 1981)—does not conform to the Leon majority’s vision of an official whose authorizations are entitled to be executed in reasonable good faith, then I will review that commander’s probable-cause finding less deferentially in the nature of a de novo review.
Under the circumstances of this case, I am satisfied that execution of this commander’s authorization would have been entitled to the good-faith exception, so I agree with the majority’s limited standard of review—and, as well, with the majority’s application of that standard here.
In United States v. Spears, 965 F.2d 262, 270 (7th Cir.1992), another panel of the 7th Circuit questioned the standard used in McKinney. Reconsideration en banc was denied by a divided vote of the Circuit Judges. Id. at 282.