(dissenting):
I dissent.
There may be merit in the concept that, in the ordinary situation, a mere request that an accused person consent to a lawful search of his belongings does not require he be preliminarily advised of his rights as set forth in United States v Tempia, 16 USCMA 629, 37 CMR 249. But, in my view, when such consent is obtained as part and parcel of a criminal interrogation while the accused is in custody, it constitutes a statement, the introduction of which, requires proof of the necessary warning as in the case of any other declaration made by the accused to interrogating officers. In this particular case, not only was the warning omitted, but the evidence also demonstrates the accused’s will was overborne and that he merely acquiesced in the officer’s demand to search his belongings. In my opinion, these matters constitute a violation of his rights which demand reversal of the conviction.
I
Special Agent Philip J. Curley testified that, acting on the basis of information received from an Air Force investigative agency that accused had been involved in marihuana activities on Okinawa, he caused the accused to report to his office for interview. Accused reported at 9:00 a.m. He was advised of his rights under Uniform Code of Military Justice, Article 31, 10 USC § 831, at that time and questioned concerning his activities in Okinawa and California before reporting to Camp Lejeune, North Carolina. He was not advised of his right to counsel. Among other things, Rushing was exhorted to tell the truth and that he would not be there for inters view unless his command thought .there was something to the allegations. He was constantly admonished not to withhold information and to cooperate with the authorities so that Curley might go to accused’s command and inform it that Rushing was, in effect, a good Marine who was willing to stand up and take his medicine like a man. Curley conceded he had made these comments and also harped on the importance of accused’s cooperation as to any decision which the command might make in the case. In addition, accused was not permitted to leave the interview room for the noon meal, and, when he mentioned a hospital appointment which he had, Cur-ley stated he would have it cancelled. He emphasized it was important that this matter be settled before the interview was terminated.
Finally, shortly after 2:00 p.m., accused was asked to complete a form *310which granted Curley the right to search his belongings on a consensual basis. According to Curley, before this was done, he carefully explained to the accused that he did not have to consent to the search and, if he did not, the process could not be carried out.
Accused’s story in part follows that related by Agent Curley but differs in other material particulars. He emphasized the influence of Curley’s declarations that his cooperation would ease his path with command and his inability to leave the investigator’s office. Thus, he was not permitted to leave for lunch, and, on one occasion, when he actually attempted to depart the building, was ordered back into the interrogation room. Rushing admitted signing the form consenting to the search in the belief that, “just the way he made it sound all morning long,” he would be kept at the office until he did so and that, in any event, Curley could obtain permission to search from the proper authorities.
After leaving the office with Curley and proceeding to his barracks, accused immediately attempted twice to reach his wall locker in advance of the agent but was turned back by a noncommissioned officer posted for the specific purpose of preventing such action. He even unsuccessfully resorted to use of the fire escape for this purpose. The subsequent search turned up the presence of marihuana, concealed among his clothing.
II
Turning first to the question of the necessity of a preliminary warning in this case, I suggest that no extension of Miranda v Arizona, 384 US 436, 16 L ed 2d 694, 86 S Ct 1602 (1966), is involved when a statement of consent is obtained from the accused during the course of a criminal interrogation and used to establish a predicate for the admissibility of incriminating evidence. First, I disagree with the principal opinion’s attempt to segregate the Fourth Amendment’s protections and insist that they must be considered separately from the shield of the Fifth against self-incrimination and that of the Sixth guaranteeing the right to counsel. To the contrary, they are intertwined, and the existence of the protections in one is inescapably involved with that of the others. Thus, in the landmark decision of Boyd v United States, 116 US 616, 29 L ed 746, 6 S Ct 624 (1886), the Supreme Court long ago declared, at page 633:
“. . . [The two amendments] throw great light on each other. For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man ‘in a criminal case to be a witness against himself,’ which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendment.”
Secondly, Miranda v Arizona, supra, does not deal solely with the rights of an accused under the Fifth Amendment to be protected against self-incrimination. While that salutary protection forms a portion of its rationale, it should be never forgotten that the Miranda decision is also an extension of the Court’s prior views in Escobedo v Illinois, 378 US 478, 12 L ed 2d 977, 84 S Ct 1758 (1964), dealing with the Sixth Amendment right to counsel. Miranda, supra, in order to effectuate a suspect’s privilege under the Fifth Amendment, took the right to counsel involved in Esco-bedo and moved it back to the station house door, with the concomitant requirement that an effective warning as to that right be delivered at the outset of any period of custodial interrogation. Indeed, the Supreme Court itself noted in Miranda, supra, at page 440:
“We dealt with certain phases of this problem recently in Escobedo v Illinois, 378 US 478. . . .
“This case has been the subject *311of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions. A wealth of scholarly material has been written tracing its ramifications and underpinnings. Police and prosecutor have speculated on its range and desirability. We granted certiorari in these cases, 382 US 924, . . . in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow.”
Escobedo, supra, therefore, delineates the right of an accused to counsel in connection with custodial interrogation by the police. Miranda, supra, extends that right and interprets it to mean that the accused must, at the threshold of any such interrogation, be advised not only of his Fifth Amendment right to remain silent, but also of his Sixth Amendment right to have counsel present during his questioning. Moreover, Miranda, supra, explicitly makes compliance with the warning requirements therein laid down the necessary predicate for the receipt of any statement made by the accused during the course of his in-custody interrogation.
To emphasize the reliance which the Supreme Court placed on enforcing an accused’s Sixth Amendment right to counsel, reference need only be made to its more recent décisions in United States v Wade, 388 US 218, 18 L ed 2d 1149, 87 S Ct 1926 (1967), and Gilbert v California, 388 US 263, 18 L ed 2d 1178, 87 S Ct 1951 (1967). In those eases, the Supreme Court specifically found no violation of the accused’s Fifth Amendment rights from being compelled to speak in a lineup. It said, at page 221, that “Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination” which “ ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. . . .’ Schmerber v California, 384 US 757, 761, 16 L ed 2d 908, 86 S Ct 1826, 1830.”
Nevertheless, these cases were reversed on the basis that the accused had been denied counsel through the failure of the police to notify their attorneys and permit their attendance at the lineups. At the same time, the Court left no doubt as to the applicability to lineups of Miranda, supra, pointing out the need to guarantee to the accused “that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Wade, supra, at page 226. What it there said of lineups applies with peculiar force to the situation now before us:
“. . . But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. ‘Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on. . . .’ Miranda v Arizona, supra, 384 US at 448.”
Taken together, then, these eases mark out for me the principle that, in all areas of critical pretrial confrontation, the accused must be advised of his right to have an attorney present or, if he is already provided with counsel, that an opportunity must be afforded that individual to be present. In Wade, supra, and related cases, that critical confrontation was an identification parade. In Miranda and Escobedo, both supra, it was an interrogation by police officers who held the accused in custody. In the case before us, it seems to me the same rationale must apply.
First, the accused was undoubtedly held in Agent Curley’s custody, for he was forbidden to leave the office and, when he attempted to do so, was foiled, regardless of whether he sought *312merely to leave and terminate the interview; or to obtain food; or to meet his hospital appointment. There is likewise no doubt that he was subjected to constant interrogation, though, on account of the failure to comply with Miranda, supra, his answers as such were not received into evidence. Nevertheless, during that period of interrogation, he was confronted with a written statement and his signature obtained as evidence that he was consenting to a search of his belongings. Could there be any more critical confrontation than that in a narcotics case? Here, the agent clearly sought evidence of accused’s previously admitted participation in marihuana activities. He well knew that he could not obtain such through a search unless the accused consented thereto and he admitted his determination not to end the interview until he had closed the matter out. This is precisely the sort of “critical confrontation” with which the Supreme Court has been concerned in all these cases. It is the obtaining of communicative matter from an accused during a period of secret questioning which “ ‘results in a gap in our knowledge as to what in fact goes on. . . ” United States v Wade, supra, at page 230. It was to protect the accused in this duel of wits with the police — so well exemplified here — that the court demanded he be warned of his right to have counsel present, as well as to eliminate the consequent argument at trial over whether the matters which the police obtained during that interview were freely given or extorted from one ignorant of his right to the constitutional protection of counsel. As in the case of pretrial lineups and confessions, consent obtained during a police interrogation gives rise to the same conflict and difficulty in reconstructing what occurred, with the officers on the one side suavely denoting full protection of the individual’s rights, and the accused on the other telling his tale of pressure and coercion. Thus, I would conclude that, in the case of consent to search obtained during an in-custody interrogation, there is that sort of critical confrontation between the police and the accused which demands the Miranda warning.
Moreover, there is no doubt that, in this case, a statement was obtained from the accused and used against him, without the necessary warning of his right to counsel. Thus, there was introduced into evidence, a document signed by the accused in which he admitted he had been fully advised of his rights in the premises and freely and voluntarily consented to the search of his belongings by Agent Curley. That this is evidence of a testimonial nature cannot be gainsaid, for there is no doubt on this record the law officer relied on the document in finding that consent was freely given for the search. Unlike Schmerber v California, 384 US 757, 16 L ed 2d 908, 86 S Ct 1826 (1966), and United States v Wade, supra, we deal here not with scientific evidence obtained from the accused or declarations made only for the purpose of voice identification, but with the written, communicative recordation of consent — a testimonial act designed to prove the accused agreed to the search and to permit the introduction of evidence seized during the subsequent examination of his effects. But Miranda, supra, states that no statement obtained from an accused during an in-custody interrogation may be received in evidence for any purpose in absence of the necessary warning, even though, indeed, it be entirely exculpatory in nature. If such be the law — and it clearly is — how then can we, by judicial fiat, except from the operation of that carefully constructed doctrine an evidentiary declaration by the accused obtained during such an interrogation without the proper warning? I conclude that we cannot and that, for this reason as well, the case must fall.
Ill
Finally, turning again to the facts of the case, it likewise seems to me the Government has in this instance failed to carry its heavy burden of proving the accused freely consented to the search here involved. As the Chief *313Judge notes, on such constitutional questions, it is our right and duty independently to examine the facts on this level and make our own conclusion as to whether an accused’s constitutional rights have been invaded. Ker v California, 374 US 23, 10 L ed 2d 726, 83 S Ct 1623 (1963). So viewed, I believe it clear that accused did not freely and voluntarily agree to an examination of his property. First, it is not controverted that Rushing was subjected to six hours of custodial interrogation prior to his consent being obtained. During that period, Agent Curley made it clear he was not to be released until the matter was finished. Not only was this evidenced by his refusal to allow him to leave to visit the mess hall, but another agent specifically prevented him from leaving when he sought to do so. Indeed, upon pleading a hospital appointment, accused was told it would be cancelled. Throughout the entire period, Curley referred constantly to the need for the accused to satisfy his superiors that he had cooperated with the authorities and that he had stood up like a man and a Marine when confronted with the accusations against him. Curley himself did not deny these matters, and admitted he had informed Rushing he would tell his commander of his cooperation. The measures which Curley used during the interrogation period were such that the board of review itself stated “we . . . would be naive in the extreme were we to conclude that the interview of this type and comments made throughout were not designed to ‘induce’ the accused to confess or to consent to the search” and to refer to the interrogation as conducted in “a police dominated atmosphere.” Finally, if the consent was freely given, it is strange indeed that the accused, knowing of the presence of the contraband, immediately sought to reach his locker and prevent its discovery. Had he freely consented, it would appear that he would thereafter have continued to cooperate with Cur-ley. To the contrary, however, it seems, while he acquiesced in the agent’s strongly put demand for consent, the moment he obtained his freedom, he took measures, however unsuccessful, to prevent that consent from being fruitful. To me, the inference is almost inescapable that accused never freely gave his consent to have his locker and belongings examined.
We have many times pointed out that mere acquiescence in the desires of the police do not constitute consent that one’s effects be searched. United States v Wilcher, 4 USCMA 215, 15 CMR 215; United States v Berry, 6 USCMA 609, 20 CMR 325; United States v Westmore, 14 USCMA 474, 34 CMR 254. Thus, in United States v Justice, 13 USCMA 31, 32 CMR 31, we said, at page 33:
“When consent to a search is asserted, it must be shown by ‘clear and positive testimony.’ United States v Berry, 6 USCMA 609, 20 CMR 325. The burden of proof is upon the Government. It is an especially heavy obligation if the accused was in custody at the time he purportedly gave his consent. Judd v United States, 190 F2d 649 (CA DC Cir) (1951); United States v Wallace, 160 F Supp 859 (DC) (1958), cited with approval in United States v Alaniz, supra. Mere submission to the color of authority of law enforcement officers, or acquiescence in the officers’ announced or indicated purpose to search, is not consent.”
Similarly, in United States v Page, 302 F2d 81 (CA 9th Cir) (1962), the court declared, at page 83:
“. . . The government must prove that consent was given. It must show that there was no duress or coercion, express or implied. The consent must be ‘unequivocal and specific’ and ‘freely and intelligently given.’ There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. ‘ “Courts indulge every reasonable presumption against waiver” of fundamental constitutional rights.’ Coercion is implicit in situations where consent is obtained under color of the badge, *314and the government must show that there was no coercion in fact. The government’s burden is greater where consent is claimed to have been given while the defendant is under arrest.”
And in Judd v United States, 190 F2d 649 (CA DC Cir) (1951), wherein the defendant allegedly consented to a search of his apartment after being held in custody for four hours, the court, in reversing, declared, at page 651:
“This burden on the Government is particularly heavy in cases where the individual is under arrest. Nonresistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found. ... In fact, the circumstances of the defendant’s plight may be such as to make any claim of actual consent ‘not in accordance with human experience’, and explainable only on the basis of ‘physical or moral compulsion’. Ray v United States, 5 Cir, 84 F2d 654, 656.”
The Government simply has not met this standard in the case before us. The accused was in custody for a number of hours. During that period, he was bombarded with demands that he cooperate and faced with thinly veiled threats as to what “command” would think if he did not. He knew that he would not leave the office until the matter had been concluded to the agent’s satisfaction and there is small wonder that he finally acceded to Curley’s bullying tactics and acquiesced in the demand to search his belongings. That “consent” is explicable only on the basis of the compulsion generated by the surrounding circumstances, Ray v United States, 84 F2d 654 (CA 5th Cir) (1936), and I would so find. Accordingly, I would conclude there was no freely given consent in this case and reverse also on this basis.
In sum, then, I am of the view that my brothers err when they deem the doctrines of Miranda v Arizona and companion cases inapplicable to an in-custody interrogation resulting in obtaining “consent” to search rather than a confession or admission as such. In my view, such is a critical confrontation between the accused and the police. United States v Wade, supra. The accused should be entitled to be advised that he may have legal counsel during such questioning in order that he may know the legal consequences of the action the police desire him to take. In addition, a statement of consent obtained during a period of interrogation is clearly evidentiary in nature and, lacking a Miranda warning, can no more be used against the accused than any other statement. Finally, I am convinced by an independent examination of the evidence that there was no consent in fact given by this accused and that, on this basis, the evidence of the search should likewise have been excluded. As Judge Washington said, in Judd v United States, supra:
“. . . Standards of this sort must be maintained and enforced by the trial and appellate courts. If they are not, the guarantees of the Bill of Rights can quickly disappear through tacit nullification.”
In light of the failure to comply with Miranda v Arizona, supra, and the purported obtaining of the accused’s consent to search in what the board itself admitted was “a police dominated atmosphere,” I would reverse the decision of the board of review and remand the case for a rehearing.