(dissenting).
Because I feel that the record in this case conclusively indicates a violation of defendant’s right to be secure in his home from an unwarranted search, I must dissent from the majority opinion of this court.
The search of defendant’s apartment was carried out without a warrant. It is axiomatic that a “search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied. The Government has the burden of proving by clear and positive evidence that such consent was given.” Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 219-220.
At the outset, I feel that the court has taken an over-narrow view of our function in reviewing a case which raises important constitutional issues. The central question here is defendant’s alleged waiver of his Fourth Amendment rights. The majority characterizes the issue of “consent,” and the “voluntary” nature thereof, as a mere “matter of fact” which must be supported by substantial evidence. Reliance is placed on the trial court’s unique opportunity to observe and judge the credibility of defendant and other witnesses.
This description of a constrained scope of review is consistent with that enunciated in the dissent in United States v. Arrington, 7 Cir., 1954, 215 F.2d 630, 638.
However, I feel that this and other courts have stated that a legal judgment is here involved. It is not so much what the facts are but their significance that is at issue. The majority opinion in Arrington confirms that this is the proper standard: granted that defendant and his witnesses were totally impeached, that the trial court disbelieved them, and that we must entirely disregard their testimony, nevertheless, we must independently determine whether the Government has produced evidence of the nature required to demonstrate defendant’s consent to a waiver of his constitutional rights. See, United States v. Arrington, supra, 215 F.2d at page 637. For other recent concurring authority, see Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 220; Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649, 652; United States v. De Vivo, D.C.E.D.N.Y. 1961, 190 F.Supp. 483, 486.
The issue is whether the Government’s evidence, taken at its full value, is sufficient to support the constitutional and legal conclusion that defendant consented to a search. Mr. Justice Frankfurter, dissenting in Davis v. United States, 1946, 328 U.S. 582, 599, 66 S.Ct. 1256, 1264, 90 L.Ed. 1453, noted:
“The district court’s finding that Davis voluntarily surrendered the documents is not one of those findings of facts which appropriately calls for our acceptance. When such a finding involves conflicting evidence or the credibility of a witness, the advantage of having seen or heard a witness may be decisive. But here the issue is not as to what took place but as to the significance of what took place. And when a district court’s finding of a so-called fact is as interwoven as it is here with constitutional consequences, we *104cannot accept a finding whereby the constitutional issue is predetermined. We are not bound by findings that operate as cryptic constitutional determinations * *
In examining the record in this case, assuming the truth of the statements of the police officers, the Government has failed to show the requisite “free and intelligent” consent, uninfluenced by implied coercion, given by defendant to waive his Fourth Amendment rights. Officer Franklin indicated that he and Officer Marx went at night time without a warrant to Ziemer’s apartment to question him about a four-year old theft of a suit and bedclothes. After being summoned by the policeman’s knock, Ziemer appeared at his doorway, clad in underwear shorts and a T-shirt. The officers immediately displayed their badges and identified themselves as Milwaukee city police officers. Defendant stood in his open doorway and blocked entry to his room; he then slipped on a pair of trousers.
At the beginning of the conversation defendant objected to the officers coming into his room.
The police commenced interrogation regarding defendant’s relationship with Stegman, the complainant in the theft charge. Defendant said that he knew him and formerly roomed with him but that he knew nothing about the clothes alleged to have been stolen.
After Officer Franklin asked defendant if he knew whether Stegman had any relatives in the city, defendant answered that he knew of one person, but that he did not live in the neighborhood. Defendant said, “I will show you how to get there,” but the officers refused, citing police regulations against making a trip of that sort.
Officer Franklin said defendant then “became very nervous.” When asked how he observed this, the officer answered, “By his actions. His body was shaking.”
Officer Marx confirmed that defendant was nervous, and this fact aroused the officer’s suspicions. “We were there looking for this clothing; we were talking to him about it, and all of a sudden the man is very nervous. In our work, I mean when you see somebody nervous —we are questioning him regarding the theft of a suit and bed clothing — we figured it was probably in the room, and that’s why we asked for permission to search his room, and he gave it to us.”
For the second time the officers asked defendant for permission to enter. Defendant asked them why they seemed so interested in coming into his room. Officer Franklin replied that they were asking “his permission to look for the clothing; if he had no knowledge of it, he would have nothing to hide.”
At this point, defendant moved to one side and said, “You may enter my room and you may look.”
These facts indicate that defendant expressly told the police to enter. But such consent was given not voluntarily, but under the implied coercion of the police officers. The Government’s evidence shows defendant first objected to entry, tried to lead the officers away from his apartment, became so nervous that he shook, then finally acquiesced in the request that the police enter to search his room. As stated in the case of Amos v. United States, 1921, 255 U.S. 313, 317, 41 S.Ct. 266, 268, 65 L.Ed. 654, “it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.”
As Chief Judge Major said in Arrington, supra, 215 F.2d at page 637:
“It is high time that courts place their stamp of disapproval upon this increasing practice of federal officers searching a home without a warrant on the theory of consent, particularly where no reason is shown why a search warrant was not obtained. The protection afforded by the Fourth Amendment should not be made dependent upon the probity of an officer attempting to justify a search on consent. Otherwise, the rights guaranteed to the citizen by *105the Amendment will be impaired so as to become little more than an empty gesture.”
With deference to the able trial judge who found that defendant voluntarily and knowingly consented to the search of his premises, I would find such holding to be in error and would reverse the judgment of conviction.