that they were the fruit of an illegal search. The only evidence bearing on the legality of the search was the testimony of the air policeman who made the search to the effect that he had the permission of the base commander and that this permission had been obtained by having the provost sergeant call the base commander. On cross-examination he admitted he did not personally obtain the authority and did not of his own personal knowledge know who the provost sergeant was speaking to when he called to obtain the authority for the search. Held: The confessions were properly considered by the court since the burden of proving the illegality of the search rests upon the party asserting such illegality and the evidence presented herein is insufficient to establish that the search was illegal. While the evidence fails to affirmatively disclose whether the request for authority to make the search was granted, on the other hand it does not suggest that such authority was not granted. (Citing Jarabo v. U. S., 158 F2d 509; Nardone v. U. S., 308 U. S. 338, 84 L ed 307, 60 S Ct 266; U. S. v. Daniels, 10 FRD 225; U. S. v. Dupree (No. 364), 1 USCMA 665, 5 CMR 93, and other cases. Distinguishing CM 364998, Wilcher, 12 CMR 581; ACM S-6534, Guest, 11 CMR 758; CM 354324, Heck, 6 CMR 223; ACM 4283, Cook, 1 CMR 850.) ACM 8310, Wharton (1954) 15 CMR 808. Consent to search and seizure on belief that warrant could be secured as not affecting legality of search, see United States v. Marrelli, WITNESSES § 43.27. Failure to show that confession was induced by evidence obtained by illegal search and seizure, see CM 366399, Edwards, EVID § 127.5. §3.1. Generally. § 3. Search Warrants Worthless checks used to obtain merchandise as "instrumentalities" used to commit a "criminal offense" so as to justify issuance of a warrant to search for such objects under the authority of Rule 41 of the Federal Rules of Criminal Procedure, see United States v. Marrelli, WITNESSES § 43.27. § 7. Propriety of Search or Seizure; Unreasonableness § 7.6. Search of buildings or dwellings. On a trial for larceny of a wristwatch and a cigarette lighter, the evidence showed that the accused was acquainted with a German girl who maintained a room in Berlin and that he brought her a wristwatch and a cigarette lighter, both of which articles were identified as the missing property of another airman. The air police recovered the lighter from the girl and also obtained from her a claim check for the watch, which she had taken to a repair shop, and picked up the watch and returned both articles to the rightful owner. The girl turned the claim check and cigarette lighter over to the police on separate occasions, but on neither did she question their authority to search her room. When asked whether she believed at the time that the air police had authority to search her place without a warrant she replied, "I didn't think of it." When confronted with the articles which had been obtained from the girl, the accused confessed that he had stolen the property. The watch, cigarette lighter and the accused's confession were admitted in evidence over the objection of the defense. There was no claim that the accused had at any time occupied the room or that he had full use of it for any purpose. Held: In the absence of lawful proprietary interest in the premises searched or in the property seized, the accused cannot assert that the search and seizure was unreasonable. (Citing ACM 1254, McKinney (BR), 1 CMR (AF) 625, 633; 47 Am Jur, Searches and Seizures § 11; Armstrong v. United States, 16 F2d 62, cert den 273 US 766; Kitt v. United States, 132 F2d 920; ACM 6187, Tomes, 9 CMR 679; distinguishing U. S. v. Jeffers, 342 US 48, 96 L ed 59, 72 S Ct 93.) The defense recognized that the rule excluding evidence which is the product of an unlawful search was provided for the protection of an individual's right to privacy and, being personal in nature, must be asserted by the person whose rights have been infringed (Kitt v. U. S., supra; Goldstein v. U. S., 316 US 114, 86 L ed 1312, 62 S Ct 1000; ACM 6187, Tomes, supra; ACM 5408, Howard, 7 CMR 553; ACM 5168, Trolinger, 5 CMR 447; U. S. v. Dupree (No. 364) 1 USCMA 665, 5 CMR 93), but, relying upon United States v. Jeffers, 342 US 48, 96 L ed 59, 72 S Ct 93, argued that nevertheless the accused could assert that the seizure was unreasonable. In that case the United States Supreme Court held the exclusionary rule applicable where certain quantities of contraband narcotics were seized in a hotel room occupied by relatives of the defendant. That case may be distinguished from the present case in that the Jeffers case turned squarely on the proposition that the seized property, although contraband, belonged to Jeffers while in this case the accused did not make and did not have any claim either to the premises searched or to the property seized. Indeed the record affirmatively shows that by giving the watch and lighter to the German girl, the accused completely relinquished any right which he conceivably might have had to claim the articles. ACM 6411, Ewing (1953) 10 CMR 612. Lack of proprietary interest of accused in his attorney's office, see United States v. Marrelli, WITNESSES § 43.27. § 11. Persons or Property under Military Control or in § 11.1. Generally. Authorized guard personnel may, if so ordered and directed by the appropriate commander and while in the performance of assigned duty, search employees and visitors entering or leaving facilities over which the Army has responsibility for continuing protection, if such search is reasonably necessary to protect national defense material, national defense premises, and national defense utilities from loss, injury, or destruction. Because of the important constitutional questions involved, however, the instructions of commanders regarding such searches should be specific and complete. As a minimum, for example, guards should be instructed that an incoming person may not be searched over his objection but may merely be denied the right to enter the facility, and all persons who enter should be advised in advance (a notice prominently displayed will suffice) that they are liable to search upon departure. Consent to a reasonably justified search may be made a condition precedent to entry upon a military reservation. Incoming persons, including employees, should not be searched over their objection, but they may be denied the right to enter the installation. As pointed out above, all persons who enter should be advised in advance (by a prominently displayed notice or otherwise) that they are subject to search upon departure. Military authorities legally may require civilian employees to consent in writing to reasonable searches when they enter or leave military installations where they are employed, as a condition to entry into such installation. Such authorizations would serve the purpose of insuring that the employees in question understand that they are subject to search upon entry or departure. This office is not in a position to state whether search of Army employees or visitors on entering or leaving military installations conflicts with established policy. It is suggested that inquiry in this regard be directed to the Assistant Chief of Staff, G-1, the Provost Marshal General, and the chiefs of technical services concerned. (Citing JAGA 1952/4398, 13 June 1952; JAGA 1952/3135, 16 April 1952; SPJGA 1942/4353A, 20 September 1942; JAG 1942/ 59, 6 January 1942.) JAGA 1953/1738. 20 February 1953. The accused was charged with larceny. The evidence showed that he was given a sum of money representing profits from a show staged on behalf of the Consolidated Non-Appropriated Welfare Fund, and was given the key to a safe intended for safekeeping of the money. Although several conversations occurred concerning a transfer of the funds from the accused to the proper officer, the accused departed on a leave without effecting such transfer. Thereafter the custodian of the fund requested the official custodian of the safe to open the safe and turn in the funds to him. This officer discussed the opening of the safe with a superior officer of the accused and, after obtaining his approval, opened the safe and obtained certain checks, money, and tickets. Evidence of what was found in the safe was admitted against the accused over defense objection. Held: It is doubtful that the action in opening the safe, under the circumstances, constituted a search and seizure at all, since the safe entered was government property and was entered by the official custodian, in accordance with officially recognized procedures and after authorization by the supervisory officer, and the items obtained from the safe were not the personal property of the accused but were held by him in an official capacity. However, assuming that a search and seizure did take place, the accused had no such proprietary interest in either the safe or the items removed therefrom as to entitle him to protection against an unlawful search and seizure. (See ACM 6187, Tomes, 9 CMR 679, and authorities cited.) Even if it be further assumed that he did have such an interest in the safe and its contents as to entitle him to protection against an unlawful search and seizure, the search of the safe and the seizure of its contents were reasonable under the circumstances and therefore must be regarded as lawful. (Citing U. S. v. Rhodes (No. 1809), 3 USCMA 73, 11 CMR 73.) ACM 6822, Francis (1953) 12 CMR 695. See also JAGA 1952/8326, POSTS, ETC § 23.1. § 11.3. Permission or authorization to make search. The accused was a claims officer in a staff judge advocate's office. The CID informed the latter that they had received advice that the accused was engaged in illegal transactions and information concerning such transactions could be secured from a diary kept by the accused in his office desk. During the accused's absence, the staff judge advocate took the diary from the accused's desk, and turned it over to the CID authorities. They made photostatic copies of portions thereof, and then returned it to the accused's desk. Held: The search and seizure in the instant case were, under all of the circumstances, including the exigencies of the military service, entirely reasonable, hence were not unlawful. (Citing United States v. Doyle (No. 265), 1 USCMA 545, 4 CMR 137.) In reaching such conclusion it is not necessary to determine whether the staff judge advocate fell within the designation "officer in charge," as used in par 152, MCM, 1951, which authorizes such a person to make or order an inspection or search of personnel and property under his control. The desk in question was military property safely within the ambit of the direct responsibility of the staff judge advocate, who was the superior officer of the accused. He had been reliably informed that there was good reason to believe that the accused was engaged in an unlawful enterprise. If he had taken no action after having received information of the accused's alleged misconduct, disciplinary proceedings might probably have been placed against him. Held also: The argument that the search and seizure were unlawful because the diary secured constituted evidence of crime merely, and not the fruits or the instrumentality thereof is without merit, inasmuch as the diary in question constituted the accused's means of preserving the records of his nefarious activities and was purely a part of his unlawful undertakings. (Citing Gouled v. U. S., 255 US 298, 65 L ed 647, 41 S Ct 261, and other cases.) United States v. Rhodes (No. 1809), 3 USCMA 73, 11 CMR 73, affirmed CM 354858, Rhodes, 8 CMR 336. Following an alleged theft of $73.00 in a unit's bivouac area, the first sergeant called a formation of the company and informed the men that if the person responsible for the theft threw the money to the ground as the group dispersed the matter would not be pursued further. When this failed to produce the missing money he ordered an inspection of the men. During the inspection, the missing money was found in the accused's helmet liner. While these events were occurring, neither the battery commander nor any of the officers were present and were not expected to return for an appreciable length of time. Held: Without determining whether the general authority of the commanding officer to order searches of government property descended upon the first sergeant in view of the absence of the unit's officers, the first sergeant had the authority to order a search when immediate action was demanded to prevent the removal of criminal goods. Accordingly, inasmuch as the thief was put on notice that the crime was discovered and that any delay would afford him greater opportunity to conceal the money, a search conducted in the manner described was the only course reasonably open. Hence, the products of the search were admissible in evidence. United States v. Swanson (No. 2570), 3 USCMA 671, 14 CMR 89. On disembarkation from a naval transport, the accused's person and effects were searched and some marihuana was found in his effects. The search of the accused was ordered by the Commander Submarine Squadron Seven. Certain prosecution exhibits indicated that the accused by standard transfer orders was ordered to Commander Submarine Squadron Seven for duty with the naval transport as the only intermediate station and that he so reported on the date of the search. The Standard Transfer Order contained the following specific proviso: "Personnel under orders, including authorized delay, are considered to be attached to be the ultimate destination or the next designated intermediate station as the case may be." Held: The law officer properly overruled an objection to the search and seizure of the accused since the accused had completed travel via the transport and was therefore deemed to be attached to Submarine Squadron Seven and subject to the authority of its commanding officer including the authority to order his apprehension and search upon reasonable and probable cause. NCM 258, Stockdale (1953) 13 CMR 540. In the course of an investigation of a theft of money, a CID agent called at the accused's billet. The accused's first sergeant informed him that no officers were present, and after the agent "explained what he wanted of the accused," the sergeant took the agent to the accused. The agent was identified to the accused as a CID agent, and he asked the accused if he "might check his personal belongings." The agent testified that the accused said, "Yes, . . . it was alright with him." However, on cross-examination, the agent admitted that he could not tell exactly how the accused conveyed his permission, but asserted that "permission was present." The accused took the agent to his room and the stolen money was discovered upon search thereof. Held: Considering the evidence as a whole, including the fact that the agent did not demand the right to search, that he did not tell the accused he had come to make a search, that the accused was not in his room at the time the request to search was made but he granted permission and took the agent to his room, and the fact that the property found was not incriminatory in its nature nor readily identifiable, the evidence is sufficient to support a finding that the accused gave his consent to the search. (See Ruhl v. U. S., 148 F2d 173; Hodges v U. S., 35 F2d 594; Dillon v. U. S., 279 F 639; cf. U. S. v. Marra, 40 F2d 271; see also Higgins v. U. S., 209 F2d 819; Ray v. U. S., |