(dissenting):
I am forced to dissent from a portion of the majority opinion and would affirm the district judge’s orders to suppress the handguns. It is necessary to state some additional facts to crystallize the issues.
First, official investigation of Can-della was based upon information obtained from his brother-in-law in August, 1970. This information specifically included the fact that Candella had illegally purchased guns and had those guns in his residence. The federal agents did not obtain an arrest warrant for Candella until February 10, 1971. This was based partly upon the information previously supplied by Candella’s brother-in-law. The arrest warrant was not executed until one week after it was obtained, February 17, 1971, amply supporting the district court’s finding that “this case was not at any time one that could be called urgent or exigent or one that called for sudden action or precipitous action.”
Second, Candella’s vision is very much impaired and he is unable to read. While Candella was read a card purporting to explain his Miranda, rights, the district court raised a question as to whether or not the statement read adequately explained that the appellee had a right to have an attorney present during questioning.
The majority finds that the search was consented to even though the issue was not presented to the district court. Indeed, the United States Attorney said, “Your Honor, we are not advocating a consent search here.” While the district court did make a full fact-finding on the circumstances of the seizure, it never has been given an opportunity to consider the inferences to be drawn from the facts on the question of consent. Judge Mansfield objected in dissent in United States v. Rothberg, 460 F.2d 223, 225 (2d Cir. 1972), to this court’s substituting its findings of fact for those of the district court even though the district court’s findings are not “clearly erroneous.” Here, the intrusion on the sphere of the district court seems even more serious as that court has not had an opportunity to pass upon the issue at all. There might be additional inquiries made or facts found on the consent issue had the Government presented its claim below. Here an appellate court based solely on the “cold transcript,” United States v. Rothberg, supra at 225 (dissenting opinion), is making a finding on the issue of consent without benefit of the district court’s consideration of the matter.
The Government justifies its failure to raise the issue below on the basis that Rothberg had not yet been decided. But even if Rothberg were directly in point there were many cases which dealt with the doctrine of consent in this circuit that predated it. E. g., United States ex rel. Lundergan v. McMann, 417 F.2d 519 (2d Cir. 1969); United States v. Smith, 308 F.2d 657 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963). Thus the Government was certainly not unaware that a consent claim could be made.
Even assuming that the consent issue were properly before the court, it should be noted that the burden is on the prosecutor to show the consent was “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Otherwise we would undermine the general requirement that the police obtain a warrant and interpose the judgment of an impartial magistrate before they invade a person’s privacy. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
*177Here the specific Miranda warnings given to the appellee were of questionable utility in making him aware that he had legal rights under the circumstances. He was surely frightened by the presence of three strangers in his house, whose credentials he could not check, claiming authority to arrest him. While it is true that the fact of arrest has been held not to negate the possibility of voluntary consent, United States ex rel. Lundergan v. McMann, supra, 417 F.2d at 521, the fear and confusion of an individual, particularly of a nearly blind person, that results from being confronted with authority must be taken into account. Indeed, it might be argued that a warrantless search cannot be validated by consent absent a specific warning to the individual that he has a right not to have his premises searched.
In United States v. Rothberg, supra, the court found that a defendant consented to a search of his basement. There was testimony in that case, however, which to be sure the trial court rejected but the appellate court apparently credited, that the defendant asked the police to go to the basement and get his jacket because it was cold outside. See 460 F.2d at 224. In other words, Roth-berg can be limited to the circumstance where the defendant, without any police prompting, authorizes the invasion of his privacy. Here, the appellee’s gestures pointing to the location of the guns was done at the behest of the arresting officers. To find consent when the defendant acts with police solicitation would encourage the police not to obtain search warrants and to rely on trying to coax frightened and handicapped individuals in a perplexing situation to waive their constitutional rights.
Here, the grounds for not obtaining a search warrant will not withstand scrutiny. As the district court found, there was no emergency or other exigent circumstance. The agents knew that they were looking for illegally-purchased guns and that the guns were likely to be in appellee’s apartment. The principal justification offered by the Government for not obtaining a warrant was that the seven-month-old information from Can-deila’s brother-in-law was too stale to support it. See, e. g., Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173, 177 (1963) (107-day-old information held too stale). But the information was paradoxically not too stale to justify an arrest warrant. What the Government tried to do was convert the stale information on which the arrest warrant was based into a search warrant it apparently thought it could not otherwise obtain. No good reason appears why the Government did not simply try to update the information from Candel-la’s brother-in-law. There was no showing, for example, that they did not know the brother-in-law’s whereabouts. The Government should not be rewarded for sloppy detective work by the admission of this evidence.
As indicated above, the agents did not have a good reason for not obtaining a search warrant. I think under Coolidge such a justification is a prerequisite to the “plain view” exception applied by the majority here. Exceptions to the warrant requirement of the fourth amendment are “jealously and carefully drawn,” and there must be a showing of exigent circumstances to justify a war-rantless search. 403 U.S. at 455, 91 S.Ct. 2022, 29 L.Ed.2d 564. There are none here.
The same argument can be reformulated another way. Under Coolidge, a “plain view” seizure must be “inadvertent” to be justified. If “the discovery is anticipated,” and “the police know in advance the location of the evidence and intend to seize it,” id. at 470, 91 S.Ct. at 2040, the discovery is not inadvertent. Here, the agents had information the guns were in Candella’s apartment and intended to seize them if they came upon them. Thus the discovery of the guns was not inadvertent and the agents should have obtained a warrant.
The district court’s suppression order as to the handguns should be affirmed.