dissenting.
I cannot support this court’s independent determination that Fitzgerald voluntarily accompanied the four officers to the police station. He contends that the initial contact constituted an arrest without probable cause. The State concedes that there was no probable cause for arrest but justifies the detention as one for investigative purposes.1 Most importantly, the record reflects that the trial judge did not consider the question of whether Fitzgerald voluntarily accompanied the officers. He found only that the inculpatory statements were voluntarily made. Notwithstanding this omission, this court avoids application of principles pertaining to search and seizure that are well established by decisions of the Federal Supreme Court,2 as well as our own court,3 by resorting to a “presumption” that *1023the trial court found that Fitzgerald accompanied the officers of his own free will.
In Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), the United States Supreme Court made the following observation concerning Fourth-Amendment rights:
“ ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).”
In Dunaway v. New York, —- U.S.-, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), a case which I consider most pertinent to the disposition of the case at bar, the Court carefully and exhaustively considered the question of the legality of custodial questioning on less than probable cause. The Court stated:
“[Detention for custodial interrogation— regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.” -U.S. at-, 99 S.Ct. at 2258.
In that case the county court as well as the Supreme Court of the United States found that Dunaway had been “seized.” -U.S. at-, 99 S.Ct. at 2252, 2253, 60 L.Ed.2d at 830, 831. This court distinguishes Dunaway on the issue of voluntariness, supporting that distinction by its own finding that Fitzgerald’s appearance at the Buffalo police station was voluntary.4 However, I must point out that the factual situation of the two cases is virtually identical, except for what was in the mind of the officer, an attitude which this court expressly recognizes as not determinative of the question.5 I therefore consider the decision authoritative in the case before us.
In Dunaway, three detectives of the Rochester police force located Dunaway at a neighbor’s house and requested that he accompany them to the local police station for questioning. He agreed and was transported to the police station in a patrol car. After arriving at the police station he was not “booked” but was placed in an interrogation room. While he was not placed under arrest, neither was he told that he could leave at any time. Officers testified that he would have been restrained from leaving had he attempted to do so.
In the case at bar Fitzgerald and a companion were having a drink at the Crossroads Inn, preliminary to eating dinner which they had ordered. They were approached by two agents of the Wyoming Division of Criminal Investigation and two Buffalo police officers. D.C.I. Agent Dug-gan told the two men that he desired to speak to them about a murder investigation, and asked if they would accompany the officers to the police station for this purpose. Although the court postulates that Fitzgerald “chose a stance of eager cooperation” when he was asked to talk to the officers, Fitzgerald’s initial response *1024was to ask if he could finish his dinner. Agent Duggan told Fitzgerald that he wished to talk with the men immediately, and offered to buy their dinner after the interview. Neither of the men was told that he did not have to accompany the four officers, nor was either at that time told that he was not under arrest. Duggan testified that on the way to the officers’ car Fitzgerald asked if he was under arrest and Duggan replied that he was not. Duggan further testified that he would have let the men go had they refused to accompany him to the station. This feeling was not communicated to either of the two men.
The two situations track one another except in one respect. In Dunaway the officers had the mental attitude, not expressed to the defendant, that they would have restrained defendant had he attempted to leave. In the case at bar the principal officer had the mental attitude, not expressed to Fitzgerald, that he would not have restrained him had he attempted to leave.6
I agree with my Brothers that “it is Fitzgerald’s head that we must look into — not the heads of the policemen.” Since the trial judge never reached the Fourth-Amendment issue of whether Fitzgerald voluntarily consented to accompany the police, Fitzgerald’s attitude concerning the “request” remains the unsettled question in the case. But rather than remanding the case for a properly focused, factual determination on the issue of the voluntariness of the detention, this court assumes that Fitzgerald was aware of the fact that he was not obligated to accompany the police. They further speculate that Fitzgerald may have accompanied the police in hopes of persuading the police of his innocence. This hardly seems a reasonable base for the court’s holding that the trial court “could reasonably conclude * * * that defendant left the restaurant voluntarily.”
As I have already indicated, to me Duna-way is indistinguishable in its facts. In another state case, Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237, 239 (1974),7 the initial police contact with Daniels was almost identical to the present case. Daniels and his girlfriend were in the process of preparing dinner when the police came to the door and requested that Daniels accompany them to headquarters for questioning concerning a murder. The officer testified that Daniels was not given time to finish cooking his dinner. In light of this fact, the Supreme Court of Pennsylvania stated that “[t]o us, this indicates that appellant was subject to the will of the officers.”
To the same effect is the Commentary on Art. 110, A.L.I., A Model Code of Pre-Ar-raignment Procedure, Proposed Official Draft No. 1, § 110.1 (1972):
“The motives that lead one to cooperate with the police are various. To put an extreme case, the police may in purely precatory language request a person to give information. Even if he is guilty, such a person might accede to the request because he has been trained to submit to the wishes of persons in authority, or because he fears that a refusal will focus suspicion, or because he believes that concealment is no longer possible and a cooperative posture tactically or psychologically preferable. Regardless of the particular motive, the cooperation is *1025clearly a response to the authority of the police.” (Emphasis added.)
In the present case Fitzgerald asked the officer if he could finish his dinner. Dug-gan testified that Fitzgerald
“was quite cooperative, but he seemed nervous and apprehensive initially. * * Mr. Fitzgerald raised the issue if they could stay for dinner, and I was afraid to leave him there.”
While Duggan denied that this fear was an indication that Fitzgerald was not free to leave, this has no bearing on Fitzgerald’s state of mind.
Gerald H. Abrams, writing on Constitutional Limitations on Detention for Investigation, 52 Ia.Law Rev. 1093,1104, poses this problem:
“Several detention for investigation situations raise difficult problems as to whether there is a restraint of freedom. Consider, for example, the case of a policeman who approaches a citizen who is walking on a public sidewalk. The policeman does not announce any coercive order, but his uniform and inherent authority will surely affect the individual. The citizen may feel entirely free and willing to stop and answer questions. Thus, should the citizen stop, it would be difficult to discern whether the “stop” was coerced or volunteered. This is, and should be, a question for the trier of the facts.” (Emphasis added.)
I ask, what would the ordinary citizen do when suddenly confronted with four police officers, representing the full majesty of the law, who “request” him to come to the police station for questioning about a murder? When considering such a question and making a factual determination of volun-tariness, a court must consider the vulnerability of the person to psychological coercion and also “ ‘the possibility of “subtly coercive police questions.” ’ ” Whitman v. State, 25 Md.App. 428, 336 A.2d 515, 529 (1975), quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). As the Maryland Court stated, quoting from United States v. Rothman, 6th Cir., 492 F.2d 1260, 1265 (1973),
“ ‘ * * * [t]he psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness.’ ” 336 A.2d at 529.
Although Fitzgerald eventually agreed to accompany the four officers, I cannot agree that his consent was freely given.
Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), a Fifth-Amendment case, is cited to support the court’s conclusion that “[t]he issue of whether or not Fitzgerald went voluntarily to the police station may be resolved by a preponderance-of-the-evidence standard.” More pertinent to our inquiry concerning Fourth-Amendment rights are these statements from Judd v. United States, 89 U.S.App.D.C. 64, 65-66, 190 F.2d 649, 650-651 (1951):
“Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such 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.”,
and from Bumper v. State of North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968):
“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”
The applicable principles are summarized by a federal district court in United States v. Roche, 36 F.R.D. 413, 414-415 (D.C.Conn.1965):
“Mindful of the necessity to preserve those fundamental safeguards requisite for a free society, courts indulge every reasonable presumption against waiver of basic constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 *1026L.Ed. 1461 (1938). Thus the government has the burden to prove by clear and positive evidence that the consent to the search was unequivocal and voluntary, free from duress or coercion. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); United States v. Rivera, 321 F.2d 704 (2 Cir. 1963); United States v. Smith, 308 F.2d 657 (2 Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716. No precise rules capable of automatic application are available. However, it is now generally accepted that courts will view with disapprobation claims of waiver when the consent to search ‘was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.’ Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Some cases hold that, except in extraordinary circumstances, consent to a search after officers of the law have identified themselves or after the defendant is placed under arrest is not a voluntary consent, because it is not in accord with common experience and can only be explained by physical or mental coercion. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951); Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954); United States ex rel. Holloway v. Reincke, 229 F.Supp. 132 (D.C.Conn.1964); United States v. Gregory, 204 F.Supp. 884 (S.D.N.Y.1962). A review of these cases and similar cases which hold that voluntary consent had not been given, indicates the defendants, although verbalizing a consent to search, were in actuality submitting or acquiescing in an orderly way to the police officials’ power and influence.” (Emphasis added.)
I also cannot agree that the present case must be disposed of according to the appellate rule that “we view the evidence most favorably to the party who prevailed below.” When an appellate court is faced with a constitutional issue it is
“ * * * required to examine the entire record and to make an independent, reflective constitutional judgment on the facts. Davis v. North Carolina, 384 U.S. 737, 741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Walker v. State, 12 Md.App. 684, 280 A.2d 260 (1971).” Whitman v. State, 25 Md.App. 428, 336 A.2d 515, 519 (1975).
Childs v. State of Tennessee, Tenn., 584 S.W.2d 783 (1979) is cited as concurring authority for the view that Fitzgerald did voluntarily accompany the officers. Childs’ first appearance at the police station was in response to a telephone call merely asking if he could come down and talk. He did go to the police station, without police escort of any kind, but was unable to contact the officers who were involved. They subsequently contacted him where he lived and there is every indication that subsequent interviews were on an equally voluntary basis. However, the significant difference is that it was only after a factual hearing and decision by the trial court, unequivocally directed to the question of voluntariness, affirmed by the Court of Criminal Appeals, that the Supreme Court of Tennessee approved the conviction. This is consistent with the principle announced in Davis v. North Carolina, supra, cited in Whitman v. State, supra, 336 A.2d at 519. However, in making such a review the appellate court should not ignore the trial court’s independent, reflective judgment of the facts. Such a procedure has not been followed in this case and there has been no independent, reflective decision by the trial court upon the factual question. Nevertheless, this court speaks to what the trial court could have found, not what it did find. It is contrary to the philosophy of appellate practice to affirm on the basis of what the trier of fact might have found.
I would remand the case to the district court for a full evidentiary hearing so that the trial court could render an informed decision as to whether Fitzgerald voluntarily accompanied the officers. In Dunaway the United States Supreme Court first vacated the lower court judgment and remanded the case to the New York Court of Appeals for further consideration in light of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Dunaway v. *1027New York, 422 U.S. 1053, 95 S.Ct. 2674, 45 L.Ed.2d 705 (1975). In a memorandum decision remanding the case to the Monroe County Court for a factual determination, the Court of Appeals referred to the motion to suppress and pointed out that the trial court had ruled
“ * * * only that the statements were voluntarily given after proper Miranda warnings and therefore were not excluda-ble on Miranda grounds. The Appellate Division affirmed that decision without opinion (42 A.D.2d 689, 346 N.Y.S.2d 779). “Specifically, no findings were made as to the nature of the detention, if that it was, and, if it was, whether there was probable cause for the detention * * *. Accordingly, this case must be remitted to the Monroe County Court for a factual hearing and such other proceedings as may be necessary to determine the issues * * People v. Dunaway, 38 N.Y.2d 812, 382 N.Y.S.2d 40, 345 N.E.2d 583 (1975).
The finding of the trial judge in the case at bar was identical to the first holding of the trial judge in Dunaway. The trial judge in our case never considered whether Fitzgerald accompanied the police voluntarily, nor did Fitzgerald take the stand to describe his reaction to the officer’s request. The trial judge considered that defendant’s statements were admissible only because proper Miranda warnings were given and ignored the Fourth-Amendment question whether defendant voluntarily accompanied the officers to the police station. As expressed by counsel at the suppression hearing, the basis of the motion to suppress was that
“ * * * defendant was illegally brought into custody without probable cause therefor, and that the statement which was given was the product of an illegal search * *
He also argued that there had been no knowing and intelligent waiver and that the statement was not voluntary. In the course of the argument the trial judge made this observation:
“ * * * As I understand your motion, it goes to the basis of the thing, that it was not an informed statement or that it was not one in the absence of coercion or undue influence,”
to which defense counsel replied:
“My view, your Honor, was just to challenge it on a constitutional basis and then if it’s admitted or whatever, we may have to take further steps. * * * Well, your Honor, the burden on the prosecution is to show that the statements were made voluntarily.
“THE COURT: Yes, that’s all we are discussing here today.
* * * * * *
“THE COURT: The motion will be denied as to the statements, one on September 27th and one on September 29th, as to the point we were here today, as to whether or not they were voluntary statements.” (Emphasis added.)
This court has consistently emphasized the importance of initial decisions by the trial court on questions of fact. As we have stated, “[i]t is not [the court’s] function to determine the facts and the law in a case in the first instance. That must be done by the trial court.” Buckman v. United Mine Workers of America, 80 Wyo. 199, 213, 339 P.2d 398, 402, reh. denied 342 P.2d 236 (1959). “[W]e prefer not to decide questions of this kind until they have first been decided by the trial court,” Tranel v. Gilkey, Wyo., 524 P.2d 580, 584 (1974), and we will not “substitute our judgment for that of the trial court on a question of fact.” Tri-State Oil Tool Industries, Inc. v. EMC Energies, Inc., Wyo., 561 P.2d 714, 717 (1977). Furthermore,
“[i]t is the rule ‘that where the evidence justified either of two reasonable inferences, one favorable to the party having the burden of proof and the other favorable to his opponent, the trier of the facts should be allowed to determine which, if either, of the two inferences is more reasonable or probable, and make his finding accordingly. * * *’ White v. Maverick Production Co., 63 Wyo. 452, 182 P.2d 818, 822.” Bocek v. City of Sheridan, Wyo., 432 P.2d 893, 895 (1967).
*1028However, in this case this court has not allowed the district court to make the initial determination.
While I would not at this stage of the proceedings reverse and require a new trial without use of the inculpatory statements, I would vacate the conviction and remand the cause for further proceedings to determine if Fitzgerald voluntarily submitted to detention and interrogation. Should the trial court conclude that defendant did voluntarily accompany the police, the conviction would be reinstated subject to the usual review by this court. If it found no such voluntary conduct, a new trial without use of the statements would be required.8
. The question of whether the police officers may justify their detention of a person on the basis that it was for investigatory purposes appears to me to be disposed of in Dunaway v. New York, - U.S. -, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The opinion of the court does not appear to accept this argument so I see no need for further discussion of the point.
. These cases include Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1967); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, supra n. 1; and Brown v. Texas,-U.S.-, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); as well as our own decision in Rodarte v. Town of Riverton, Wyo., 552 P.2d 1245 (1976). In Terry v. Ohio, supra, 392 U.S. at 16, 88 S.Ct. at 1877, we find this much-quoted statement: “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Section 210.1 of the Official Draft No. 1 of A Model Code of Pre-Arraignment Procedure defines “seizure” as “the taking of any person or thing or the obtaining of information by an officer pursuant to a search or under color of authority.” (Emphasis added.)
.Rodarte v. Town of Riverton, supra n. 2, 552 P.2d at 1250. This case deals with an arrest, and I quote in part from our definition: “ ‘An *1023arrest is the taking, seizing, or detaining of the person of another, * * * (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest * * *.* ”
. In Mollett v. City of Tacoma, 53 Wash.2d 729, 337 P.2d 48, 49 (1959) it is said: “Webster’s International Dictionary defines ‘involuntary’ as ‘Not proceeding from choice; done, given, etc., unwillingly or under compulsion; * * ” Shilling v. State, 143 Miss. 709, 109 So. 737, 739 (1926) refers to Bouvier’s Law Dictionary: “ ‘An involuntary act is that which is performed with constraint, or with repugnance, or without the will to do it. An action is involuntary which is performed under duress.’ ”
. “We do not consider that what the police would have done had Fitzgerald refused to accompany them has a great deal of probative value on the issue of whether or not Fitzgerald voluntarily agreed to go. As we analyze the evidence to determine whether it is sufficient to support the court’s judgment of voluntariness, it is Fitzgerald’s head that we must look into— not the heads of the policemen.” Ante, n. 1. I object to this statement only as it assumes without basis in the record that the trial court expressed a judgment of voluntariness on this issue of the case.
. See n. 5, supra.
. After remand a hearing was held on motion to suppress. The State filed a stipulation that the identities of certain witnesses had been obtained as a result of the statement which the Supreme Court had suppressed (317 A.2d 237). The Supreme Court first held that the testimony of these witnesses did not represent the fruit of the poisonous tree and at first sustained admission thereof. However, a supplemental opinion was then issued remanding the case to the trial court for an evidentiary hearing and determination whether the stipulation was valid and enforceable. Commonwealth v. Daniels, 470 Pa. 523, 368 A.2d 1279, 1284 (1975). On remand the trial court entered an order setting aside the stipulation and this action was affirmed and the cause remanded for new trial as ordered in the first Supreme Court opinion, Commonwealth v. Daniels, 479 Pa. 114, 387 A.2d 861 (1978). As I read this history, it leaves in effect the Supreme Court’s determination that Daniels’ confession had been obtained as the result of the illegal arrest, but permitted the other evidence to come in.
. Such action on the part of an appellate court is not unusual, as witnessed by the proceedings in Dunaway. In other cases before the United States Supreme Court a similar procedure has been followed. For example, in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) the Supreme Court found that defendant had been denied counsel at preliminary hearing but remanded the case to the state court for a determination whether such denial of counsel was harmless error. See also, Hoffa v. United States, 387 U.S. 231, 234, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967); Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, reh. den. 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475 (1969).