(dissenting).
There can be little doubt that the defendant was under arrest and in custody of the F.B.I. when devastatingly damaging admissions were obtained from him and a search conducted of his apartment. As summarized in the majority opinion, Agent Phillips admits that the defendant while in his own apartment “asked the agents to step outside a few minutes.” The agent testified, incredibly, that he advised the defendant that they could not do so. In later testimony, *532Agent Phillips admits that the reason the defendant was not left alone as he requested was because they feared “he had something he wanted to dispose of and he just wanted us to step outside a minute or two for this to be accomplished.”
When the agents for the F.B.I. refused to permit the defendant his freedom to the privacy of his home, he was in every sense of the word “under arrest.” Under a somewhat similar factual situation in which a suspect was closely guarded and refused permission to leave the presence of federal officers during a search, it was logically concluded by the Court that such “restraint . and restriction of . liberty of movement constituted an arrest.” United States v. Hooper, D.C.Tenn., 320 F.Supp. 507. Our Supreme Court has long recognized this principle of law:
It is well settled by the law of arrest that it is not necessary to effect an arrest that there be a manual touching of the body or a formal declaration of arrest; it is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence. 4 Am.Jur., § 2, pp. 5, 6; Robertson v. State, 184 Tenn. 277, 284, 198 S.W.2d 633. There are numerous cases holding that “requisite control may be assumed without force, or without any visible physical restraint.” 6 C.J.S., Arrest, § 1, p. 571. Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979.
It is not surprising that the defendant was under close arrest and supervision by the F.B.I. agents. They had a lawful right, as well as a duty, to arrest him, having more than probable cause to believe he had committed the felony for which he now stands convicted. The only problem is that at that time and during the subsequent events when the agents asked the defendant to show them the drugs he produced at their direction, he had not been advised by them of his basic rights. After detailing the advice given the defendant, which did not include his right to have counsel appointed for him, Agent Phillips testified that no further advice was given up to and including the time the damaging admissions against interests were made.
It is quite clear, in spite of the F.B.I. agent’s assertion to the contrary, that the defendant, as a matter of fact, was in custody. Counsel for the State relied during the hearing to suppress on the agent’s assertion that no arrest had taken place to excuse the failure to adequately warn the defendant of his Miranda rights. Inasmuch as arrest had occurred, the failure to give the warnings was fatal error.
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
Even had the warnings given the defendant at a time when the finger of accusation was unerringly pointed directly at him been full and complete, at the moment the defendant asked the F.B.I. agents to cease and desist in their subtle intimidation by leaving his home this request canceled all consent to further interrogation. For:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda v. State of Arizona, supra.
In Martin v. State, 1 Tenn.Cr.App. 282, 440 S.W.2d 624 the arresting officer gave the same limited advice as did Agent Phil*533lips in this case. In reversing a conviction obtained by the use of incriminating admissions made by the defendant, Judge W. Wayne Oliver recounted the circumstances and reached the proper conclusion of law in his opinion:
In the presence of the jury, the . officer testified:
“Q State to the Court and jury just what you told him.
A We advised him that he could remain silent, he didn’t have to make a statement. That any statement that he made could be used in a Court of law, we advised him that he could get an attorney, or talk to his attorney, or either get him an attorney.”
He then related to the jury the oral incriminating statement made by the defendant in which he related some of the inculpatory details of the fatal encounter.
Unquestionably, the trial judge committed prejudicial error in holding that the defendant was adequately advised of his constitutional rights by the arresting officer prior to interrogating him, and in admitting the defendant’s oral statements made to that officer during that in-custody interrogation. Martin v. State, supra.
Perhaps it is time to retreat from relatively recent defined principles heretofore considered binding on arresting officers and the courts of this State and Nation. But unless we are in a position to overrule the United States Supreme Court’s holding in the landmark case of Miranda v. State of Arizona, supra, and such opinions as Martin v. State, supra, applying these principles in Tennessee, this conviction cannot stand.
In the present status of the law, I am compelled to respectively dissent from the majority opinion.