dissenting.
“[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was . . . freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U. S. 491, 497 (103 SC 1319, 75 LE2d 229) (1973).
I must reluctantly conclude that this burden was not met in the present case. While the State’s evidence establishes that the appellant offered no resistance to the officers, made no effort to terminate their discussion with him, and responded in the affirmative when asked to consent to the search of his luggage, there is no evidence which would suggest that he knew or believed he was free to do otherwise. Moreover, the State’s evidence also shows that the appellant was so nervous by the time he gave his consent that his hands and stomach were shaking visibly. Although such behavior no doubt implied that he had something to hide, it also implied rather strongly that he believed he had no practical alternative but to cooperate with the officers.
“ ‘ “Courts indulge every reasonable presumption against waiver” of fundamental constitutional rights.’ Coercion is implicit in situations where consent is obtained under color of the badge, and the government must show that there was no coercion in fact. United States v. Page, 302 F2d 81, 83-84 (9th Cir. 1962) (footnotes omitted).” Shaibu v. United States, _ F2d _ (9th Cir. 1990). Accord Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975).
Where the issue would otherwise be in doubt, evidence that an accused was informed of his right to refuse to give his consent will often “assuage the fear of a court that [he] was intimidated into [doing so]. . . .” United States v. Berry, 670 F2d 583, 598 (5th Cir. 1982). Unfortunately, there is no such evidence in the present case. Toles conceded that he never advised the appellant of his right to refuse to permit the search, even though he was carrying in his wallet a “consent to search” card containing the following admonitions to be read under precisely such circumstances: “You have the right to allow or refuse to allow a search to be made of your person and personal property that you have with you. You have the right to consult with an attorney before deciding whether you wish to allow or refuse to allow the searches. If you consent to the searches, any illegal objects *639found can be used against you in court proceedings. Do you understand?”
Decided April 19, 1990 Rehearing denied May 15, 1990 Maloy & Jenkins, W. Bruce Maloy, for appellant. Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.There is, of course, no absolute requirement that a suspect be given such advice before being asked to consent to a search. “The test is merely a question of voluntariness under the totality of the circumstances.” Code v. State, supra, 234 Ga. at 95, fn. 1. Accord Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). However, where consent searches have been upheld in the absence of such advice, there have normally been other circumstances indicative of voluntariness on the defendant’s part. See, e.g., Castro v. State, 186 Ga. App. 248 (1) (367 SE2d 42) (1988) (where defendant acknowledged in open court that he had given his consent freely and voluntarily); Noland v. State, 178 Ga. App. 486 (343 SE2d 763) (1986) (where idea for search originated with defendant). Because no such circumstances were shown in the present case, I would hold that the trial court erred in denying the appellant’s motion to suppress. Accord Miranda v. State, 189 Ga. App. 218 (375 SE2d 295) (1988).
I am authorized to state that Judge Cooper joins in this dissent.