(dissenting):
I agree with the majority that we should not revisit or disturb our holding in United States v. Quillen, 27 MJ 312 (1988). I also agree that we should assume for purposes of this appeal that under Quillen, the AAFES security personnel were required to advise appellant of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831. I do not agree with the majority, however, that the security personnel were not required to give Article 31 warnings because they did not interrogate appellant.
A. Interrogation of Appellant
1. Background
AAFES store detective Rodarte testified that she saw appellant place merchandise under his clothes and leave the post exchange. After calling for her supervisor as backup, they stopped appellant near the PX parking lot about 35 or 40 feet from the building. They identified themselves as store security personnel and invited appellant to come to the manager’s office to talk. Appellant complied.
Ms. Rodarte testified that if appellant had not agreed to go with them to the office, she “would have followed him to his car, taken *147down his [license] plate number, and called the base DODs [Department of Defense (DoD) police].” The AAFES personnel did not use handcuffs or any other kind of physical restraint, and they did not touch appellant in any manner. Ms. Rodarte stated that appellant “could get up and walk out at any time. I’m not gonna touch him.” The AAFES personnel did not tell appellant that he was “under arrest,” in custody, under detention, or that “in any way, shape, or form” he could not leave. Ms. Rodarte noted that, in the past, she had permitted people to “walk out on” her. In such circumstances, AAFES security personnel would simply follow the person, take down the license plate number, and call the DoD police.
Ms. Rodarte testified that after appellant accompanied her and her supervisor to the office, she made the following comment to appellant: “There seems to be some AAFES merchandise that has not been paid for.” According to Ms. Rodarte, appellant responded, “You got me,” and removed various items of merchandise from “under his clothing” and his pocket. DoD police arrived shortly thereafter. Appellant testified that he carried all the merchandise in open view and that nothing was hidden on his person. He denied making the incriminating statement.
During litigation on appellant’s motion to suppress Ms. Rodarte’s testimony regarding his incriminating statement, Ms. Rodarte testified that the store security personnel were trained not to initiate questions, but to make the precise statement at issue in this case: “There seems to be some AAFES merchandise that has not been paid for.” When trial counsel asked her whether she “was expecting any type of response” to the statement at issue, Ms. Rodarte stated that she “hope[d] to get a response”.
The record is devoid of any evidence that the AAFES security personnel were trained to make the statement at issue in order to facilitate arrest, custody, or detention, or that it served any purpose other than to provoke an incriminating response. Instead, the record makes clear that the store detectives were trained to make the statement specifically in hopes of provoking a verbal or non-verbal incriminating response. As Ms. Rodarte testified, the statement at issue was designed to give a suspect “a chance to voluntarily place it [the merchandise in question] on the desk if they want to.”
The military judge ruled that evidence of appellant’s statement was admissible. She concluded that the facts of this case were distinguishable from Quillen, that Rodarte was not a person subject to Article 31’s warning requirements, and that her statement to appellant was not an interrogation. She expressed concern that if Rodarte’s statement was viewed as an interrogation, “security personnel would be precluded from even informing a suspected shoplifter why they were being detained.”
2. Discussion
As the majority opinion recognizes, “[I]nterrogation involves more than merely putting questions to an individual” and it includes “ ‘any formal or informal questioning in which an incriminating response is sought or is a reasonable consequence of such questioning.’ Mil.R.Evid. 305(b)(2).” 54 MJ at 141. Indeed, commentators have observed that Mil.R.Evid. 305(b)(2) “was purposefully drafted in a broad fashion to thwart ‘attempts to circumvent warnings requirements through subtle conversations.’” 54 MJ at 141, quoting S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 225 (4th ed.1997). When government personnel who are required to give Article 31 warnings against self-incrimination make the type of comment that is attendant to events such as arrest or custody, rights’ warnings are not required. See Rhode Island, v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
In the present case, if the store had a detention policy that required agents to make a statement reasonably designed to facilitate detention, no rights’ warnings would have been required. The record in the present case, however, not only fails to demonstrate that there was any such policy, but also makes it quite clear that appellant was not detained and that the comment had no *148purpose other than to hopefully provoke an incriminating response, rather than merely communicating information. See United States v. Byers, 26 MJ 132, 135 n. 2 (CMA 1988).
Under the principles of law set forth in the majority opinion, with which I agree, the record establishes both the subjective and the objective measures of an interrogation found in Mil.R.Evid. 305(b)(2). In making her comment to appellant, Ms. Rodarte sought to provoke an incriminating response and an incriminating response was a reasonable consequence of her comment.
B. Prejudice
1. Background
Appellant’s incriminating statement was an important focal point of the prosecution’s case. In trial counsel’s brief opening statement to the members, there were two references to appellant’s incriminating statement. During the prosecution’s case-in-chief and rebuttal, Ms. Rodarte repeatedly testified about the statement. The military judge specifically addressed the incriminating statement in her instructions, charging the members that they could consider the statement on the issue of appellant’s guilt if they were convinced beyond a reasonable doubt that, in fact, appellant had made the statement.
Trial counsel made appellant’s incriminating statement the focal point of his closing argument. At the very outset of his argument to the members, trial counsel said:
“You got me.” That was the culmination of the events on the 23rd of November 1996.
Trial counsel concluded his closing argument on the same note with a final reference to appellant’s incriminating statement:
“You got me.” Yes, yes, we do. We’ve got you, and we ask that you convict him.
Likewise, in trial counsel’s argument in rebuttal, he twice more quoted appellant’s incriminating statement.
2. Discussion
The Government asks us to sustain the military judge’s conclusion that even if the statement was inadmissible, any error in failing to provide rights’ warnings was harmless. The Government notes that the DoD police, who arrived shortly after appellant’s stop in response to the store detective’s call, would have had probable cause to apprehend appellant and to search him incident to his apprehension. In the course of that process, the merchandise hidden on appellant’s person would have been discovered. The Government contends that Ms. Rodarte’s observations of appellant, coupled with the physical evidence of the merchandise that would have been found on his person during a search incident to apprehension, sealed appellant’s doom, regardless of his incriminating statement.
The Government’s position does not address the critical role that appellant’s statement played in the case against him. Appellant disputed all testimony suggesting that he had surreptitiously concealed any merchandise in an attempt to steal it. The prosecution relied heavily on appellant’s incriminating statement to undermine his testimony at trial. The prosecution made frequent and obvious use of the statement in its opening remarks, during its case-in-chief, during rebuttal on the merits, during its closing argument, and during the rebuttal argument. In this context, the error clearly was prejudicial.