(concurring in result).
No matter if a defendant is guilty, it is basic to our system of justice that the procedure leading to conviction must meet the requirements of due process, and as has been said, “ * * * the police must obey the law while enforcing the law * * * ”, Spano v. New York, 360 U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265. I doubt if that was done here. As I read the record, the police had no probable cause for arrest of the defendant and had no legal basis for the search of his closet and coat, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. The complaining witness told the police she could not identify her assailant, that she was not able to see him, but she was almost certain it was a colored man. The police testified they were looking for defendant because the complaining witness was acquainted with him, he had cut her grass a time or two. At the most these facts showed the defendant, who was colored, was of the same race as the person who assaulted the woman and was acquainted with her. The facts known to the officers did not in any way indicate defendant’s guilt. This is a case where an illegal search and seizure led to the arrest, not a. case where a lawful arrest was followed by a lawful search and seizure. The evidence seized could have been suppressed if defendant’s counsel had investigated and made a timely motion.
Was it the plea, or the deprivation of constitutional rights which brought about the conviction? Did the admissions defendant made to the officers, culminating in the signed statement, stem from the illegally seized evidence, or was it because defendant voluntarily wanted to make a clean breast of things?
*285I am unable to agree that defendant, because he pleaded guilty on advice of counsel, or knew the meaning of the charge, what acts amount to being guilty, and the consequences of pleading guilty, is foreclosed from going into these questions. Rather as set forth in United States ex rel. Ross v. McMann (2 Cir. 1969) 409 F.2d 1016, I think the rule should be that where there has been a violation of the defendant’s constitutional rights before the plea is taken, the violation is not necessarily irrelevant to the issue of the volun-tariness of the plea, but becomes a factor to be taken into account in determining its voluntariness. This seems to be the rule in six of the federal judicial circuits.1
However, in the present case, the trial court has found against defendant after an evidentiary hearing, on all the grounds on which defendant offered evidence. At the hearing, defendant attributed his oral admissions and signed statement to slap-pings from the arresting officers and warnings he had better start talking, threats that if he did not he would be turned over to two other officers, and his fear that they were going to beat him “pretty bad”. He testified he told his appointed counsel about the violence and threats. There was evidence to the contrary on all these points by the police and by the lawyer. The trial court resolved these fact issues against the defendant and it cannot be said these findings were clearly erroneous. There was no evidence offered that the reason defendant made the admissions to the officers was because of the coercive effect of the evidence they uncovered in the illegal search and seizure, although this was one of the grounds alleged in the motion. Having failed to present any such evidence (which I believe would have been material and relevant under the rule as I think it should be), I see no basis on which the court could otherwise have granted relief, and I therefore concur in the result reached in the main opinion.
. United States ex rel. Ross v. McMann, supra; United States ex rel. Collins v. Maroney (3 Cir. 1967) 382 F.2d 547; Smith v. Wainwright (5 Cir. 1967) 373 F.2d 506; Reed v. Henderson (6 Cir. 1967) 385 F.2d 995; Shelton v. United States (7 Cir. 1961) 292 F.2d 346, cert. den. 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280; Doran v. Wilson (9 Cir. 1966) 369 E.2d 505. This also seems to be the purport of Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.