(concurring in part and dissenting in part) :
Appellee, suspected by police and prosecutor of grand larceny and receiving stolen goods, was haled before the grand jury pursuant to its subpoena. Once he was in the presence of the jurors uncounselled, an Assistant United States Attorney read him the so-called Miranda warning from the standard form used routinely by the police department when making arrests. Appellee acknowledged the warning, signed the waiver on the back of the form, proceeded to testify and was thereafter indicted. The trial court found invalid this purported waiver of his right against self-incrimination on the ground that the warning ap-pellee had received was inadequate and therefore his waiver was neither intelligent nor knowing. The majority upholds this finding and I concur.
The trial court, after reading in camera all the testimony before the grand jury, also found, and the majority does not disagree, that:
[I]n the absence of ... [appellee’s] testimony before the Grand Jury, no competent evidence exists upon which the grand jury could rely in properly returning the instant indictment.
The trial court then dismissed the indictment, presumably exercising its discretion in reliance upon the applicable case law in this jurisdiction, Jones v. United States, 119 U.S.App.D.C. 284, 290-291, 342 F.2d 863, 869-870 (1964). See also United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964).
The majority opinion overturns the trial court’s dismissal, stating (at 102):
To permit this indictment to be challenged for inadequate evidence and require the grand jury to reconsider the matter would surely impede and frustrate the administration of the criminal laws. (Emphasis added.) (Footnote omitted.)
With all deference, to describe the evidence here merely as “inadequate” is itself inadequate; the evidence was extracted by the grand jury in violation of appellee’s Fifth Amendment right. To permit a grand, jury to violate appellee’s constitutional privilege by first improperly obtaining from him incriminatory evidence and then proceeding to indict on that evidence alone is scarcely consistent with or conducive to the proper administration of the criminal laws in this jurisdiction.
*105The case cited by the majority in concluding that this indictment, which rests only upon appellee’s testimony to the grand jury, support in my view the trial court’s dismissal rather than the majority’s conclusion. They reiterate the constraints that exist on actions by the grand jury — that body which the Supreme Court has characterized as “the grand inquest.” Hendricks v. United States, 223 U.S. 178, 184, 32 S. Ct. 313, 56 L.Ed. 394 (1912). Thus, in United States v. Dionisio, 410 U.S. 1, 11, 93 S.Ct. 764, 770 (1973), the Court stated:
This is not to say that a grand jury subpoena is some talisman that dissolves all constitutional protections. The grand jury cannot require a witness to testify against himself. . . . (Emphasis added.)
In United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), the Court pointed out:
Of course, the grand jury’s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. . . . (Emphasis added.) (Footnote omitted.)
In United States v. Blue, 384 U.S. 251, 254, 86 S.Ct. 1416, 1418 (1966), upon which the majority lays particular stress, the Supreme Court considered an order by the trial, court that, if upheld, would have ended the criminal case and exculpated the defendant rather than an order that merely “abate [d] the prosecution on account of some normally curable defect.” Here, it is not suggested that the trial court’s dismissal in this case, if affirmed, would preclude a new charge and further prosecution of appellee. Also the evidence challenged in Blue had not been acquired as a result of the grand jury’s own action as is the case here.1
I view the facts of the instant case as unusual, occurring as the result of an isolated and unlikely-to-be-repeated prosecu-torial aberration. Consequently, these unique facts remove this case from the usual rule that an indictment resting upon some incompetent evidence cannot be challenged if facially valid. Accordingly, I would affirm the trial court in all respects.
. The Court in Blue stated in dicta that dismissal of the indictment in that case would not have been justified even had the tainted evidence been presented to the indicting grand jury. United States v. Blue, supra at 255 n. 3, 86 S.Ct. 1416. This is to me simply a restatement of the accepted rule that an indictment is not invalid because it is based on some incompetent evidence. See Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F. 2d 128 (1962). The question here, on the other hand, is whether an indictment may be sustained when it is based wholly on illegally obtained evidence. The trial court concluded in the negative and I quite agree.