(dissenting).
I respectfully dissent.
The record in the instant ease represents a conviction obtained in flagrant disregard of an individual’s constitutional rights. I do not agree with the majority that the appellant’s incriminating statements were “freely, spontaneously and voluntarily given without any semblance of compelling influence.” An examination of the circumstances surrounding the facts as conceded by appellant for purposes of this appeal show a violation of the defendant’s Fifth Amendment rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
It is important to examine initially the circumstances surrounding the appellant’s in-custody statements mindful of the Supreme Court’s pronouncements in Miranda. Chief Justice Warren, speaking for the Court, said:
[T]he prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial inter*1268rogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. * * * Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.
* * * * * *
For those unaware of the privilege, the warning is needed simply to make them aware of it — -the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.
* * * * * *
After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. [384 U.S. at 444, 468, 479, 86 S.Ct. at 1612, 1624, 1630 (footnotes omitted.)]
The prosecution concedes the police furnished Haire no Miranda warnings from the time of his arrest on a Sunday afternoon until he was taken before the prosecuting attorney the next morning. The trial testimony discloses that sheriff’s deputies took appellant’s wife, Norma Jean Haire, into custody following an investigation concerning the victim’s disappearance. The appellant, accompanied by two other “boys”, followed his wife to the jailhouse about thirty minutes later. Upon their arrival, officers arrested and incarcerated all three men on “suspicion”. Sheriff’s deputies interrogated Norma Jean concerning the victim’s disappearance and quickly learned that his body might be found in a wheat field in a rural area known as “Sweet Home Bottoms”. The same sheriff’s deputies then took appellant’s wife to the “Bottoms” area to search for the victim’s body. After the three deputies and appellant’s wife searched unsuccessfully, Chief Deputy Hill, in charge of the search, ordered two other deputy sheriffs to bring the appellant from the jail to the search scene. Appellant, in handcuffs, arrived after dark. When asked why the appellant had been taken from the jail to the rural area, Deputy Sheriff McDaniel testified that Haire “was brought out there to show us the body.” Deputy Sheriff Lewis, who later obtained Haire’s incriminating statements, testified as follows:
Q Where did you go looking for the body?
A Down at Sweet Home Bottoms, about three miles east of Sweet Home, northeast.
Q Just tell us what you did when you got down there?
A We got down there and we looked for the body.
Q Who is “we?”
A McDaniel and the Chief — Chief Hill, Officer McDaniel and Chief Hill.
Q That is Deputy Sheriff McDaniel ?
A Yes, sir.
Q Did you find the body?
A No. After looking for the body a while, the Chief sent back and had L. V.* brought out to the scene.
Q Did L. V. come out there?
A He came out with two more deputies.
*1269Q Tell us what happened.
A Then I asked Mrs. Haire what she had said about where the body was.
Q Was L. V. there?
A L. V. was standing there then.
* X * * -X *
A And she said it was on the right-hand side going from — I mean coming from Sweet Home, and L. V. said, “No, Honey, on the left.”
•X X X -X X X
Q Now, did you look on the left?
A We looked on the left.
Q What else did you do ?
A Then I asked Mrs. Haire where she said the gun was. She said the gun was-
X X X X X X
Q * * * She said the gun was where now?
A Under the bed.
Q What else happened?
A He said, “No, it’s * * * ”
Q (Interposing) Who is that now?
A L. V. said, “No, it’s up in the fireplace.”
Q And he corrected her again?
A Yes, sir.
Q And he said, “No, it’s in the fireplace,” all right.
A And then he asked me could he get in the ear with his wife.
Q L. Y. did?
A Yes, sir.
The officers discovered the victim’s body the next day, Monday, May 8, 1967, on the left side of the county road. They also searched appellant’s home and found the gun. On the same morning, sheriff’s deputies took appellant to the county prosecuting attorney’s office who then first warned Haire of his constitutional rights. Appellant immediately refused to make any statement and requested counsel which was furnished him.
This night-time excursion by the officers in order that Haire might “show xxx [them] the body” and Haire’s subsequent in-custody responses fall squarely within the proscription of the Miranda rules. In Miranda, Chief Justice Warren stressed the evils of “incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” 384 U.S. at 445, 86 S.Ct. at 1612. Such an atmosphere produces compelling pressures upon the defendant to speak where he would otherwisé remain silent and “carries its own badge of intimidation.” 384 U.S. at 457, 86 S.Ct. at 1619.
Relying upon the testimony of Deputy Sheriff Lewis, previously recited, and upon his further conclusionary, and somewhat incredible, testimony that the appellant “automatically told us where the body was”, the Arkansas courts and the federal district court concluded that appellant’s statements were not produced as a result of police interrogation and thus fell outside the dimensions of Miranda. Lewis’ testimony furnishes but a slender reed to support the conclusion that Miranda is inapplicable in this case. On the other hand, the record clearly discloses the following circumstances surrounding the obtaining of appellant’s incriminating statements which, considered together, carry their own “badge of intimidation” : (1) Sheriff’s deputies initially separated Haire from his wife and took her into custody for interrogation; (2) Police arrested Haire and his two friends without a warrant immediately upon their arrival at the jailhouse; (3) Three deputies took Haire’s wife to the rural “Bottoms” area to search for the victim’s body; (4) Approximately four hours after his arrest, sheriff’s deputies brought Haire, then handcuffed, to the “Bottoms” to help find the body; (5) The search took place at night with a search party consisting of five policemen and a friend of one of them; (6) Haire remained in handcuffs throughout this entire nighttime excursion; (7) The sheriff’s officers interrogated Mrs. Haire in Haire’s presence; and (8) Haire requested per*1270mission to join his wife in an automobile immediately after making the incriminating statements.
It is most significant upon the issue of whether Haire spoke voluntarily or under compulsion that the record discloses that upon being advised of his constitutional rights by the prosecuting attorney on the following morning, the accused immediately demanded and received counsel. I think it immaterial that Deputy Sheriff Lewis testified that Haire responded to questions directed at his wife, rather than himself. Miranda renders compelled disclosures inadmissible into evidence. The Miranda decision (384 U.S. at 456, 86 S.Ct. 1602), in citing Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), recognizes the proposition that an arrested person will likely respond to pressures or threats directed to his family. Here, questions directed at either one of the beleaguered pair would likely demand responses from either. The circumstances presented in the instant case are easily distinguishable from examples of spontaneous, voluntary statements or confessions to which Miranda is inapplicable : those of persons not in custody who enter a police station and confess, Bowman v. Peyton, 287 F.Supp. 863 (W.D.Va.1968), statements given by persons not under restraint during general police investigation, United States v. Hamlin, 432 F.2d 905 (8th Cir. 1970); United States v. Tobin, 429 F.2d 1261 (8th Cir. 1970); Cohen v. United States, 405 F.2d 34 (8th Cir. 1968), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969), or statements voluntarily or spontaneously given after police furnished all Miranda warnings, Barnhill v. United States, 429 F.2d 340 (8th Cir. 1970); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). See Miranda, supra, 384 U.S. at 477-478, 86 S.Ct. 1602.
Upon reviewing this record, I believe that the Arkansas courts, as well as the federal district court and the majority, misinterpret the scope of Miranda. The issue is not solely whether an accused in custody speaks without responding to a specific question, but whether the inherent pressures of an interrogation atmosphere compelled that response. The circumstances in the instant case constituted the very evil which Chief Justice Warren decried in Miranda: “incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” 384 U.S. at 445, 86 S.Ct. at 1612. Of course, the coercive environment surrounding custodial interrogation may extend beyond the walls of the police station. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Responses elicited under such pressures are, absent appropriate Miranda warnings, excluded from evidence.1
In Bosley v. United States, 138 U.S.App.D.C. 263, 426 F.2d 1257 (1970), the court enunciated what I believe to be the proper interpretation of Miranda:
[A]t some point in time during the course of the arrest it could no longer be contended that the police were without opportunity to give the Miranda warning. We believe that Miranda does require the police to warn an arrested suspect of his rights as immediately as practicable after arresting him. A heavy burden rests on the Government to prove any contention that the arrested suspect volun*1271teered a statement without any “interrogation,” explicit or implicit, on the part of the police and before he could be warned of his rights. [426 F.2d at 1261]
I would apply that rule to this case. Sheriff’s deputies had more than ample opportunity to advise the appellant of his constitutional rights as required by Miranda, but chose not to do so. Moreover, I am unconvinced that the prosecution has sustained its heavy burden of proving that appellant’s incriminating statements were made without any interrogation, either express or implied.
Turning to the search and seizure claim, again, I am unable to subscribe to the majority’s view on this issue. Based solely upon testimony of Deputy Sheriff Lewis that he and his partner had obtained a search warrant and then retrieved the gun from the Haire residence, the Arkansas state trial court received the exhibit over defendant’s objections. On appeal, the Arkansas Supreme Court rejected appellant’s contentions regarding the admissibility of the gun, concluding that: “The record contains neither a specific objection nor a showing that the exhibits were seized without a warrant.” Haire v. State, 432 S.W.2d 828, 830 (1968). The federal district court, pursuant to the stipulation set forth in the majority opinion, concluded that the officers had seized the weapon without a warrant, but justified the seizure as consensual by reasoning that appellant’s statements in the wheat field operated as an invitation to the officers to obtain the gun in his home. In effect, at least in regard to obtaining a search warrant, the federal district court found witness Lewis’ testimony to be untrue.
A consent to search, in order to be voluntary, must be unequivocal, specifically and intelligently given and uncontaminated by any duress or coercion and such consent is not lightly inferred. Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir. 1968). When the prosecution seeks to rely on consent to justify the lawfulness of the search, it assumes the burden of proving that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The majority concludes that the appellant’s night-time statements to the officers operated as a consent to search his home. Since the Supreme Court, in Bumper, supra, has ruled that the prosecution has the burden of proving that consent to search was freely and voluntarily given, I am of the opinion that the prosecution in the instant ease has failed to sustain that burden.
The State of Arkansas, in its brief, suggests that if Haire did not in fact consent to the search, his wife did. Such consent, it asserts, validates the seizure of the gun. In upholding the district court, the majority apparently adopts this view as an alternative ground for affirmance on this issue and cites Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965), which holds that a defendant’s wife may consent to a search of her home. This alternative contention has never been presented to the Arkansas state courts or to the federal district court and it should be first examined in an appropriate state evidentiary hearing.
In summary, I would reverse the district court and direct that the writ of habeas corpus issue, unless the State of Arkansas elects to retry Haire within a reasonable period of time.2 While I concur in the majority’s statement that the object of a criminal trial is to determine guilt or innocence, I do not believe that such an objective justifies the infringement of rights guaranteed an accused by the Constitution of the United States. In 1952, J. Edgar Hoover, Director of *1272the Federal Bureau of Investigation, observed :
Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet by so doing, destroy the dignity of the individual, would be a hollow victory.3
These observations hold true today and, I believe, are particularly applicable in this case.
L. V. Haire.
. In considering the Miranda issue, I note that testimony was offered on Haire’s behalf that he returned from the Sunday night excursion badly bruished, cut and bleeding. The prosecution offered no rebuttal to this evidence, other than to show the incarcerated status of witnesses who described Haire’s physical condition following this night search. The introduction of such evidence may suggest the necessity of a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing on the voluntariness of Haire’s statements. See Hizel v. Sigler, 430 F.2d 1398, 1401 (8th Cir. 1970); United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967).
. It should be pointed out that a reversal of a conviction based upon unconstitutional evidence leaves the State free to retry the defendant on the same charge without the tainted evidence. Orozco v. Texas, 394 U.S. 324, 327, n. 4, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
. Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177 (1952).