(dissenting).
Consent, meaning of course a genuine consent is not reflected by this record. To the contrary, coercion is clearly indicated. I thoroughly agree with the statement of my associates that “in the instant case we have no open question of credibility” and I readily accept as true the version of the incident given by the narcotics agents. However, while it is. the province of a trial judge in matters-of this kind to observe the witnesses, to-appraise their credibility and to resolve-conflicts in their testimony, I do not understand that the factual conclusions he: draws from the primary facts are necessarily binding upon this court. And here-I view such conclusions as clearly erroneous and would reverse the judgment.
I am willing to assume that Martinez: was stayed by a gentle hand when he sought to walk away from the agents,, and I grant that none of the three enforcement agents afterward used further physical force. And perhaps technically the agents did not “arrest” Martinez until after they discovered the heroin concealed in his automobile, for until then they plainly had no intention to charge him with the commission of a crime. (A.L.I. Restatement Torts § 112).
But it is clearly apparent that they detained and had him under their dominion from and after the initial encounter for one of the agents, when questioned', concerning their intention regarding-Martinez, candidly testified “Maybe we-let him go depending on what we found’ in the car. Maybe we take him down for-questioning.” Such detention, depriving Martinez as it did of his personal liberty,. constituted a false imprisonment which - was an indictable offense at common law. Meints v. Huntington, 276 F. 245 (8th-Cir. 1921).
Under such circumstances, it would' appear highly unlikely that the consent given by Martinez was unrelated to the agents’ highhanded behavior and was the ■ product of his free will; a more logical conclusion, in my estimation, is that Martinez, wanting the agents to let him go-- and hoping they would not find the .cache,, took a chance in an attempt to regain;, his liberty.