Opinion of the Court
Robert E. Quinn, Chief Judge:
A general court-martial convicted the accused of larceny of property of a value in excess of $50.00, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He appeals to this Court for reversal of his conviction on the ground that evidence obtained as a result of a search of his locker was erroneously admitted over his objection.
The evidence shows there were two searches. The first was conducted by three military police enlisted personnel; the second was with the authorization, and in the presence, of the accused's commanding officer. On the argument on the defense objection, trial counsel outlined the issue as follows: "If the first search was illegal, then the following search made after the first search is also illegal." See United States v Ball, 8 USCMA 25, 23 CMR 249. The validity of the first search depended upon whether the accused consented to open his locker pursuant to a request by military police or merely acquiesced "to the demands of a person having the color of office." United States v Wilcher, 4 USCMA 215, 218, 15 CMR 215. After taking testimony as to the circumstances under which the accused first opened his locker, the law officer overruled the defense objection. The ruling was considered and sustained by both the convening authority and the board of review. In its opinion the board of review observed that the Government's claim of waiver by the accused "of a fundamental right must be carefully examined"; it reviewed the evidence in detail and concluded the trial ruling was correct. We are unable to say that as a matter of law there is insufficient evidence to support the conclusion. See United States v Alaniz, 9 USCMA 533, 26 CMR 313.
Appellate defense counsel challenge the factual sufficiency of the board of review's conclusion on a narrow ground. They contend the "close relationship" between the protection against an unreasonable search and seizure and the privilege against self-incrimination requires that the Government show the accused was advised of his rights under Article 31 of the Uniform Code as "an essential element" of the claim of consent. See Tedrow, Annotated and Digested Opinions of U. S. Court of Military Appeals, 1959, page 450. On the other hand, the Government contends that consent to a search is "wholly neutral" in nature, and cannot be considered a statement "regarding the offense" within the meaning of Article 31, Uniform Code of Military Justice, 10 USC § 831.
Under Article 31, a person accused or suspected of an offense has, when interrogated, the right to be informed, first, of the nature of the alleged wrong: that he need not make any statement in regard to it; and, that if he does say anything, it may be used against him in a court-martial. If he is not so advised. a statement made by him is inadmissible in evidence against him. United States v Nowling, 9 USCMA 100, 25 CMR 362. This right is entirely different from the right to be free from unreasonable search. It is reciting the obvious to say there can be an interrogation without a search, and, conversely, a search without interrogation. Where there is either interrogation or a search, the admissibility of evidence obtained therefrom is ordinarily tested by the principles applicable to the one or the other, as the case may be, but not to both. In fact, the accused at least impliedly concedes that evidence obtained as a result of a search authorized by competent authority is not inadmissible because the accused was not advised of his rights under Article 31 before the search. See United States v Davis, 4 USCMA 577, 16 CMR 151. However, he maintains that a different rule should apply to a search based upon consent. He argues that by giving consent to a search he provides a "predicate for the admission" of any incriminating evidence which may be found as a result of the search and in effect his consent incriminates him.
Consent to a search is by itself in no way incriminating. It relates only to the preliminary question of the lawfulness of the search. In that regard it is no different from any other basis for a legal search. We perceive no sound reason to set it apart from the other bases for a search by requiring that the accused be first warned of his separate and different rights under Article 31. Of course, the fact that the accused is informed of his rights under Article 31 may be considered in determining whether the accused consented to the search or merely yielded to the color of authority. See United States v Burdick, 214 F 2d 768 (CA 3d Cir) (1954). But the absence of such advice does not preclude a finding of free and voluntary consent as a matter of law. This is not to say that a consent search will never present an occasion for informing the accused of his rights under Article 31. In a number of cases we have pointed out an important distinction between the legality of a search and the admission of evidence of identification of the property by the accused as property belonging to him.
In United States v Holmes, 6 USCMA 151, 19 CMR 277, and United States v Taylor, 5 USCMA 178, 17 CMR 178, law enforcement agents suspected the accused of violating the Uniform Code. In each case they proceeded to the accused's quarters to search his belongings. In neither case was the legality of the search questioned, but in each the accused was asked to, and did in fact, identify his clothing. We held that the evidence of identification was inadmissible because it constituted a statement obtained from the accused without preliminary advice as to his rights, which is required by Article 31 of the Uniform Code. More recently we considered the same problem in United States v Bennett, 7 USCMA 97, 21 CMR 223. We there said (pages 99-100):
"It is certain enough that some of the acts performed or words spoken by the accused during the search, particularly the pointing out of his locker and clothing at the request of an official investigator, amounted to a statement. It was 'language, or its equivalent.' United States v Ball, 6 USCMA 100, 19 CMR 226. Therefore, the Government agents had a duty to warn the accused of his rights under Article 31 of the Code before eliciting the information. Under our previous holdings, had the statements or clothing been offered in evidence, an objection to that proffered evidence would have been sustained. United States v Taylor, 5 USCMA 178, 182, 17 CMR 178. However, that question is academic in this setting, for the prosecution scrupulously refrained from using any evidence that was obtained prior to warning, and it came before the court-martial solely because defense counsel elicited a recitation of the incidents from one of the investigating agents."
No issue of identification of the locker was made at the trial and none is made on this appeal. The evidence tends to show that the locker was known to belong to the accused by means other than his identification. See United States v Bennett, supra, page 100. Accordingly, we affirm the decision of the board of review.