(dissenting):
I disagree with the majority’s conclusion that Ms. Rodarte’s statement to appellant, “There seems to be some AAFES merchandise that has not been paid for[,]” did not amount to an interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); United States v. Quillen, 27 MJ 312 (CMA 1988).
Ms. Rodarte (the AAFES store detective) testified as follows at appellant’s suppression hearing to questions by the defense:
Tidal Defense Counsel (DC): Are you expecting any type of response [to the statement, “There seems to be some AAFES merchandise that has not been paid for”]?
A: Well, we would hope to get a response. A lot of times we don’t.
❖ ❖ *
Q: And you also stated that when you made that statement, you were hoping to get a response?
A: Well, sure.
R. 22,29 (emphasis added).
Later the military judge asked:
[Tjrial counsel was posing a question and when he asked that question, you were pretty quick at stating that you didn’t ask a question. In your training, do they talk to you about whether you can ask questions or not of people?
A: We don’t interrogate people or ask people questions.
Q: And that’s what they’ve told you not to do?
A: Yes.
$ $
Q: What in any of your training have you been told about asking questions or not? Have they told you at all about rights’ advisements or any of those things, when you’ve had any training?
A: They’ve just told us we don’t ask questions.
Q: And did they tell you that so you don’t have to get into rights’ advisements or those things?
A: I would presume so.
Q: Okay. But they have never really said that. They just said, “Don’t ask questions.”
A: Right.
R. 33, 36 (emphasis added).
This Court has already decided that AAFES store detectives are persons subject to the code, thus requiring them to give Article 31 rights’ warnings before they may “interrogate, or request any statement from, an accused or a person suspected of an offense.” Article 31(b); see United States v. Quillen, supra; see also United States v. Raymond, 38 MJ 136, 144 (1993) (Sullivan, C.J., dissenting).
The outcome in Quillen is just as applicable to appellant’s case. In Quillen, an AAFES store detective escorted the accused to the manager’s office, where she then asked the accused “if he had a receipt for” items in plain view of the detective, as well as a few more particularized questions. In finding that the store detective was required to read the Article 31 warnings to the accused, this Court stated: “We are also persuaded that appellant perceived that Mrs. Holmes’ inquiries involved more than casual conversation” and that it was “of great significance that questioning of appellant did not occur at the original stop but after he was escorted to the manager’s office by store employees.” 27 MJ at 315.
Ms. Rodarte’s statement to appellant was not simply the equivalent of asking for a *146receipt for merchandise. Cf United States v. Quillen, supra. At the time he was taken into the Post Exchange (PX) office, appellant was not carrying any merchandise visible to others, so there would be no merchandise for which Ms. Rodarte could ask for a receipt. Ms. Rodarte’s statement was designed to elicit an incriminating response from appellant. See Rhode Island v. Innis, 446 U.S. at 303 n. 9, 100 S.Ct. 1682 (noting that a conversation between two police officers in the presence of the accused did not amount to the functional equivalent of interrogation because, among other reasons, there was no evidence in the record to suggest that the conversation was “designed to elicit a response”); see also 2 Rudstein et al, Criminal Constitutional Law ¶ 4.02(3)(b)(iii)(1999)(noting various comments that have been held by courts to be the functional equivalent of interrogation).
It appears that Ms. Rodarte was trained not to ask questions in order to avoid implicating Article 31, but the trainers obviously did not understand that interrogation can mean more than explicit questioning. See Rhode Island v. Innis, 446 U.S. at 301, 100 S.Ct. 1682. The military judge, in making her ruling, likewise did not understand this broader definition of interrogation. See Appellate Exhibit II at 2 (Ruling on Defense Motion to Suppress Out-of-Court Statement of the Accused). Article 31 warnings cannot be avoided simply by transforming a question into a statement designed to elicit a confession. See Rhode Island v. Innis, 446 U.S. at 301,100 S.Ct. 1682.
Any reasonable person in appellant’s position would understand that Rodarte’s statement was more than a casual remark or routine booking statement. See id.; United States v. Quillen, supra at 315. The practice that store detective Rodarte was trained to employ (making the statement, “There seems to be some AAFES merchandise that has not been paid for”) was one which Ms. Rodarte knew was “reasonably likely to evoke an incriminating response” from appellant and therefore amounted to the functional equivalent of interrogation. See 446 U.S. at 302 n. 7,100 S.Ct. 1682. During oral argument, the Government even conceded that had the statement been made by a law enforcement officer, Article 31 would have been violated. Oral Argument, United States v. Ruiz, No. 99-0509 (December 10, 1999).
I further believe that allowing the prosecution to use appellant’s incriminating statements was prejudicial to his defense. See Article 59(a), UCMJ, 10 USC § 859(a). Appellant’s defense was that he was still in the PX when Ms. Rodarte stopped him and that he was going to the layaway counter with the merchandise which was not hidden in his jacket. R. 206-09. Appellant’s admission to Ms. Rodarte — “You got me” — was in direct conflict with the story he told at trial. If the unwarned admission was suppressed, as it should have been, appellant’s explanation may have been believed by the members. I would reverse under our case law.