(concurring) :
This case involves determination of the voluntariness of consent to a search obtained in response to an agent’s statements concerning his procuring of a search warrant. I concur in the Court’s opinion affirming the convictions because the decision to affirm is no more than an application of controlling precedents of this Circuit to the issues presented. However, the case is for me a close one, and I think additional words are appropriate to indicate the seriousness of defendant’s claim and to suggest that in cases of this sort, the line surrounding permissible governmental statements about search warrants should be drawn not one whit beyond the facts of this ease.
It has become a frequent practice for courts to state as a general rule the Government’s heavy burden to establish the voluntariness of consent to a search and then to find that burden met. Assessment of the “totality of the circumstances,” United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973), and a reluctance “lightly” to overturn trial court fact-finding on the issue of consent, United States v. Bracer, 342 F.2d 522, 524 (2d Cir. 1965), have combined to produce a rarely broken line of cases in which findings of consent have been upheld. See, e. g., cases collected in Annot.: Validity of Consent to Search Given by One in Custody of Officers, 9 A.L.R.3d 858 (1966). Neither consideration, however, should insulate cases of this sort from careful scrutiny. The Supreme Court has recognized that despite abundant evidence of willingness to permit a search, consent sufficient to validate a warrantless search is not properly found when obtained in response to certain representations by law enforcement officei’s on the subject of *496warrants. Bumper v. North Carolina, 391 U.S. 543, 38 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper consent was found wanting because obtained in response to an officer’s statement that he had a search warrant — a warrant whose validity the State declined to defend. The effect of the officer’s statement was deemed sufficiently coercive to undermine the trial court’s finding of consent, a finding based on a totality of circumstances that included virtual eagerness by the householder to permit the search.1 Moreover, as Bumper also indicates, trial court fact-finding concerning the underlying facts does not insulate from review the conclusion as to whether the underlying facts constitute sufficient consent to validate a warrantless search.
In this case, the District Judge made the following finding of fact as to what the agent said to the defendant concerning a search warrant:
Egan further stated that if Faruolo did not consent to a search, a search warrant would be applied for, and he conveyed to Faruolo the belief that a warrant would be obtained.
The danger inherent in predicating consent upon a defendant’s response to such a statement is perhaps more clearly discernible if the facts are transposed to the analogous context of waiver of an indictment. Both the warrant and the indictment procedures are designed to assure that a neutral fact-finder intervenes to determine whether probable cause has been established before a home can be searched or a defendant placed on trial. The requirement of a warrant can be obviated if there is voluntary consent; an information can be filed if the accused waives indictment. Generally, waiver of indictment occurs only after a meticulous inquiry of the defendant by the trial judge, in which the defendant is told (a) what a grand jury is, (b) that he has a right to have his case considered by a grand jury, (c) that a grand jury may either indict or decline to indict, and (d) the consequences of each alternative action. One may speculate whether an accused would be considered to have validly waived indictment if the waiver proceeding consisted solely of the prosecutor’s telling him that if he did not consent to a prosecution by information, an indictment would be applied for and, in the prosecutor’s view, an indictment would be obtained.
The analogy is not exact, but it does highlight the dangers involved. Were the slate clean, I would be inclined to reject a finding of voluntariness obtained in response to statements about the obtaining of a warrant that did not in some way affirmatively communicate the discretionary aspect of the warrant-issuing process. If a person is confronted with only the choice of permitting an immediate search without a warrant or waiting the brief interval necessary for a warrant to be obtained, he is misled into believing that the only variable in the choice is time, rather than the far more important variable of whether the warrant will be issued at all. If he consents because he has been led to believe that obtaining a warrant is a virtually automatic formality, then regardless of his apparent willingness to permit the search, he has responded to a situation as “instinct with coercion” as the one in Bumper, where the officer gained entry not with the assurance that a warrant could be obtained, but with the statement that he had already obtained one. Bumper v. North Carolina, supra, 391 U.S. at 550, 88 S.Ct. 1788. If the waiver on which consent to a search is premised is really to be the “intentional relinquishment . . . of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), there ought to be some indication that the warrant-issu*497ing process is not automatic and that resort to it affords the householder the protection that a warrant will not issue unless a magistrate has found the existence of probable cause.
On two occasions this Court has left open the significance of an agent’s statement concerning the likelihood of obtaining a search warrant. In United States v. Jordan, 399 F.2d 610 (2d Cir. 1968), the defendant heard one agent say to another that a warrant could be obtained in any event. This Court upheld a finding of consent because “[e]ven if this last statement were held to be coercive,” it did not vitiate the oral consent that had preceded it. Id. at 614. In United States v. Curiale, 414 F.2d 744 (2d Cir. 1969), the defendant himself said to the agent, “If I don’t sign this, you are going to get a search warrant,” to which the agent replied, “I don’t want you to sign [the consent to search form] on that basis. If you are going to sign it, do it voluntarily.” Id. at 746. Perceiving the dangers lurking in such conversations, this Court specifically declined to decide whether the voluntariness of the consent “would have been compromised by the agents’ complete failure to respond to the appellant’s statement.” Id. at 747.
Two other decisions, however, uphold a finding of consent in response to statements no more coercive than what was said here. In United States v. Bracer, 342 F.2d 522 (2d Cir. 1965), consent was found notwithstanding that it was given “with knowledge that the agents could or would obtain a warrant.” Id. at 525. In United States v. Kohn, 495 F.2d 763 (2d Cir. 1974), consent was found notwithstanding the agent’s statement that they “had the ‘right’ to get one, and that since it was so late they would have to ‘secure’ the premises, leave a guard, and return with a warrant in the morning.” United States v. Kohn, 365 F.Supp. 1031, 1033 (E.D.N.Y.1973).
I agree with Judge Mulligan that these decisions permit a finding of consent to be made notwithstanding an agent’s having expressed his well-founded view that a warrant can be obtained. But two qualifications ought to be emphasized.
First, the agent should be permitted to do no more than give his prediction. Even if he need not explain the discretionary aspect of issuing warrants, he surely should not be permitted to convey the idea that no discretion exists. Any intimation that the warrant will automatically be issued should be considered as coercive as the announcement of an invalid warrant in Bumper. Drawing the line at this point admittedly makes validity of consent turn in some instances on subtle shifts of wording by the agent. But words spoken in the process of obtaining consent to waiver of a constitutional right ought to be chosen with care. The officers are not proceeding in haste to make a split-second decision of their authority to apprehend a fleeing suspect. They face a situation that normally calls for the delay necessary to obtain a search warrant. If they are to forego this requirement, it should not be too much to ask that they take care not to confront the accused with a choice that totally obliterates the important protective function of the warrant-issuing process. The agent can always be on the safe side of the line by plainly indicating that he will apply for a warrant and believes one will be issued, but that the decision whether to issue the warrant rests with the judge or magistrate to whom the agent will apply. Here, according to the District Court’s finding, the agent stated he would apply for a warrant and predicted its issuance. Whether the prediction was reasonable should not be determinative. That inquiry focuses on what was in the mind of the agent. But determination of consent must focus on the effect of the agent’s words upon the defendant. While the words used here did little to convey the discretion*498ary aspect of issuing warrants, they at least did not conceal it.
Secondly, trial courts considering the voluntariness of consent obtained in response to statements about procuring warrants need not rush to find consent whenever the agent’s verbal formula falls within the ambit of language approved in Bracer, Kohn, and this case. If consent is really to be determined upon a totality of the circumstances, then the extent to which an agent minimizes the nature of the choice confronting a householder ought to weigh significantly against a finding of consent. Nearly fifty years ago Judge Learned Hand urged District Judges considering search and seizure questions to “search the testimony in such cases with care, remembering that the protection of defendants must in most cases rest finally with them.” Marsh v. United States, 29 F.2d 172, 173 (2d Cir. 1928).
. The householder’s testimony included the following: “I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to . . . I let them search, and it was all my own free will.” Bumper v. North Carolina, supra, at 547, n. 8, 88 S.Ct. at 1791.