(dissenting) :
In my judgment the evidence viewed and seized as a result of the post-midnight entry by Officers Shuler and Jones into Sheard’s room should be suppressed. The record in this case indicates to me that the Government has not met its burden of showing that the war-rantless entry into Sheard’s room by the police was clearly based on appellant’s consent.
“Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.” Dorman v. United States, 140 U.S.App.D.C. 313, 317, 435 F.2d 385, 389 (1970) (en bane). “The right of officers to thrust themselves into a home is * * * a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). See also Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971) (opinion of Mr. Justice Stewart); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). No claim is made here that the police had a warrant, or even probable cause, to justify a search. Nor is there any suggestion of probable cause to arrest Sheard. Thus, as the majority agrees, the only possible legal basis for the police entry of Sheard’s apartment in the circumstances of this case was with his consent. The majority opinion argues that the trial judge’s conclusion that Sheard consented to the police entry, and thus waived his Fourth Amendment right to be free of unwarranted police intrusion, should not be disturbed. I respectfully disagree.
I
In a host of cases the Supreme Court has stated again and again that a waiver of constitutional rights is not easily found. The classic test for such waiver was announced by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938):
“ * * * It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver * * * must depend, in each case, upon the particular facts and circumstances surrounding that ease * *
(Footnotes omitted.) More recently, the Court has indicated its awareness that people are often thrust into circumstances where truly informed and voluntary waiver, while perhaps superficially apparent, may not actually occur. See, e. g., Miranda v. Arizona, 384 U.S. 436, 457, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In some situations where constitutional rights are, at first glance, apparently waived, police may in fact have utilized subtle coercion or capitalized on a person’s terror or incomprehension arising from an unanticipated encounter with the authorities.1 Even where clear evidence of overt coercion is absent, courts must be on their guard for what *151can be understood only as irrational acts of bravado by a suspect in waiving his rights and consenting to an otherwise unjustified police entry or search.2
In dealing with consents to search or to entry of premises protected under the Fourth Amendment, the burden is therefore rightly on government to prove “that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). As this court said more than two decades ago:
“* * * [S]uch a waiver or consent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. * * * The Government must show a consent that is ‘unequivocal and specific [,]’ •» * * ‘freely and intelligently given.’ * * * ”
Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951). See also Higgins v. United States, 93 U.S. App.D.C. 340, 209 F.2d 819 (1954).
The majority does not argue that this rigorous standard for testing waiver is inappropriate. But it concludes that, since “conclusions by the trial judge as to factual matter should be given utmost deference,” the trial judge’s finding of consent in this case must be upheld. With respect I submit the majority has applied the wrong standard of review in this case, and application of the wrong standard of review has produced the wrong result.
Where a waiver of fundamental constitutional rights is alleged, the duty of appellate judges is not to show “utmost deference” to the trial judge’s finding of waiver, but rather to “make an independent examination of the evidence in the record,” Brookhart v. Janis, 384 U. S. 1, 4 n. 4, 86 S.Ct. 1245, 1247, 16 L. Ed.2d 314 (1966) (emphasis added); see also Blackburn v. Alabama, 361 U.S. 199, 205 n. 5, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), and then determine whether the findings of the District Court are clearly erroneous. Jackson v. United States, 122 U.S.App.D.C. 324, 327, 353 F.2d 862, 865 (1965). My view is that the evidence in the record does not meet the requirement that consent to entry was unequivocal, specific, and freely and intelligently given. See Judd v. United States, supra.
II
As I read the record, this ease appears to be practically on all fours with Johnson v. United States, supra. There the Government attempted to validate, on the basis of consent, a warrantless entry by police into a hotel room occupied by the defendant. Mr. Justice Jackson, writing for the majority, described the scene this way:
“* * They knocked and a voice inside asked who was there. ‘Lieutenant Belland,’ was the reply. There was a slight delay, some ‘shuffling or noise’ in the room and then the defendant opened the door. The officer said, T want to talk to you a little bit.’ She then, as he describes it, ‘stepped back acquiescently and admitted us.’ He said, T want to talk to you about this opium smell in the room here.’ She denied that there was such a smell. Then he said, T want you to consider yourself under arrest because we are going to search the room.’ * * » * ”
333 U.S. at 12, 68 S.Ct. at 368. The Court concluded that these facts could not support a finding of consent:
“Entry to defendant’s living quarters, which was the beginning of the search, was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. * * * ”
Id. at 13, 68 S.Ct. at 368.
*152Here the facts are only slightly different. Officer Shuler testified that he knocked on the door and identified himself as a police officer and advised Sheard that a small child had been killed and that he and his partner, Officer Jones, would like to come inside. As to Sheard’s behavior at this point, there is little firm indication as to what he actually said. At one point Officer Shuler testified that Sheard was “friendly” and had said, “Come in, come in, I’d like to do all I can to find out.” Later, however, Officer Shuler testified that he did not remember exactly what Sheard had said. Officer Jones, on the other hand, testified:
“Well, he just stepped back. And I don’t remember if he said, come in, but I was under the impression that we were to enter the room by his attitude.”
On the basis of this police testimony, I submit, there is little to distinguish this case from Johnson. Entry was requested under “color of office” and it “was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” To me, it taxes credulity to suggest that appellant here intentionally and intelligently waived his Fourth Amendment rights and invited the police into his room to see in plain view evidence that would send him to jail for murder for life. Indulging, as we must, “ ‘every reasonable presumption against waiver’ of fundamental constitutional rights,” I find it simply impossible to conclude that there was a waiver in this case.
Even if it could be held that the facts of this case support a facial claim of consent, the police conduct in gaining entry to appellant’s apartment vitiated that facial consent. The record makes quite clear that the purpose of Officers Shuler and Jones in going to Sheard’s apartment was not merely to talk to him further about his knowledge of the victim’s whereabouts earlier that evening. Rather, they were acting on orders of a superior officer to conduct a dragnet, warrantless search, without probable cause, of the pubic area of every male in the building. And they did, in fact, conduct such a search on Sheard after entering his apartment. Yet no mention of this blatantly unlawful purpose, see Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L.Ed.2d 676 (1969), was made when they knocked on the door. Instead, the police indicated that they meant nothing extraordinary, for the most we are told is that Officer Shuler, when he knocked, said merely, “We’re police officers and * * * a small child had been killed and we’d like to come in.” In reviewing a Fourth Amendment waiver finding, courts have long focused on the question of official deceit. See Bumper v. North Carolina, supra, 391 U.S. at 548-550, 88 S.Ct. 1788; Robbins v. MacKenzie, 1 Cir., 364 F.2d 45, 48-49, cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966); United States v. Como, 2 Cir., 340 F.2d 891, 894 (1965); see generally Note, Effective Consent to Search and Seizure, 113 U.Pa.L.Rev. 260, 271 (1964). In my judgment, this focus is clearly proper since it may be inferred that, had the police been straightforward about their purposes, the suspect might well have been alerted to claim his rights and to withhold consent. Moreover, under elementary principles of law consent obtained by misrepresentation is no consent at all. Thus I would find the police behavior here yet another factor compelling rejection of the trial judge’s finding.
Nor do I believe that Sheard’s prior contact with the police that evening in the hall of the apartment building, including the fact that he called the authorities to report the victim’s absence from the apartment building, detracts from my finding. The majority argues that this prior contact and call somehow suggest that Sheard was sufficiently receptive to the police when they knocked on his door after midnight to justify a finding of consent to enter. In my view, this argument will not stand analysis. For one thing, the police, when they knocked on Sheard’s door, gave no *153indication that they wanted to continue their earlier conversation with him. Quite the reverse, they were cryptic, saying only that they wanted to “come inside.” And, in fact, discussion was not on their minds at all, but rather an illegal search of his person, about which they even withheld warning. Certainly consent to enter obtained for an undisclosed illegal purpose cannot be construed as an intentional relinquishment of a known constitutional right. Moreover, in the circumstances of this case it strains credulity to argue that just because Sheard talked with the police earlier in the evening, he was likely to invite them into his room when they called again after midnight. In my mind, ordinary human experience dictates the reverse: most people are not used to any encounters with the police after dark and the normal human reaction to an unanticipated second visit after midnight, even for one with no consciousness of guilt, is likely to be considerable surprise and shock, not exactly the frame of mind conducive to a free, knowing and intelligent waiver.
Finally, the majority suggests that since the trial judge suppressed the direct product of the unlawful police purpose — the observation of blood on Sheard’s pubic area — we must view this case as if the pubic search never occurred and was never contemplated. While this neat post hoe reconstruction of events has a certain logic-chopping allure, I believe it is deeply misleading. The actual purpose of the two officers in gaining entry to appellant’s room is, in my view, extremely relevant to a consideration of the waiver question, although it is not necessarily central to my conclusion. It suggests, to me at least, that the atmosphere surrounding the entry — certainly a factor one must consider in judging whether there is a valid waiver — was very possibly deceptive, coercive, and not conducive to the kind of freely given and intelligent consent the Constitution requires. With the body of the child just discovered, the police were under unmistakable, flat orders to gain entry to Sheard’s apartment and to check his pubic region. Although the record does not indicate the tone of voice Officer Shuler used, I believe it is blinking reality to suggest that his behavior, even at the point when he was merely knocking at the closed door, was likely to be conducive to a free choice on Sheard’s part. Rather, in view of their extraordinarily illegal purposes and the doubtless emotional atmosphere in which they went to Sheard’s room, the circumstances of this case compel no less than the conclusion reached by the Supreme Court in Johnson v. United States, supra: that the consent to entry was at most a “submission to authority rather than * * * an understanding and intentional waiver of a constitutional right.” 333 U.S. at 13, 68 S.Ct. at 368.
Ill
Since the police observations of Sheard, the subsequent arrest, the seizure of evidence from his room, and the administration of the benzidine test to him at the police station were all based on what I believe was an unlawful entry into his room, I would suppress all those items of evidence. Wong Sun v. United States, 371 U.S. 471, 484-487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Since there is no suggestion that the admission of this evidence at appellant’s trial was not crucial to his conviction, I would reverse that conviction.
I respectfully dissent.
. See Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
. See Judd v. United States, 89 U.S.App. D.O. 64, 66, 190 F.2d 649, 651 (1951); Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 Colum.L. Rev. 130, 131 (1967).