dissenting.
Without question, there was ample cause for investigation and inquiry concerning the luggage which the dog had targeted. Had Watkins and his luggage not been detained, he would have departed for Car-bondale, Illinois, in the taxicab.
However, the State does not argue that seizure of the cocaine was authorized pur*1157suant to an exigent circumstance search. The State premises its argument solely upon validity of the consent. It may be of further import, with regard to any exigent circumstance argument, that the cocaine was not found in the luggage which the dog had indicated, but rather in the personal carry-on bag possessed by Watkins. See Robles v. State (1987) Ind., 510 N.E.2d 660.
In any event, I find no authority which would authorize an arrest based upon the targeting of certain luggage by a trained narcotics dog. Such might well justify further investigation or issuance of a search warrant but not an arrest or even a war-rantless search. See 31 A.L.R.Fed. 9831 and 31 A.L.R.Fed.Supp. (1987).
The appellant accurately states that at the time he signed the consent form, he was in the presence of several uniformed and armed police officers, one or two dogs and a deputy prosecutor. He had already been advised of the dog's discovery and of his Miranda rights. A custodial setting, in which Watkins was not free to leave, clearly existed. See Dunaway v. State (1982) Ind., 440 N.E.2d 682; Barber v. State (1981) 4th Dist. Ind.App., 418 N.E.2d 563. Watkins was told that if he did not consent, the police could obtain a search warrant. The consent signature was unmistakably a submission to the authority of the law in a full custodial situation. See Bumper v. North Carolina (1968) 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.
The majority opinion here relies upon Peterson v. State, (1987) Ind., 514 N.E.2d 265, to distinguish Sims v. State (1980) 274 Ind. 495, 413 N.E.2d 556, and Pirtle v. State (1975) 263 Ind. 16, 323 N.E.2d 634. Peterson did in fact distinguish Pirtle in that Pirtle involved an interrogation which took place after a formal arrest and after the defendant had requested an opportunity to consult with an attorney. Peterson, however, did not purport to overrule the principle enunciated in Sims and in Pirtle that when a custodial interrogation as opposed to a limited investigatory stop is involved, the defendant must be afforded the right to consult with an attorney with regard to executing a search consent.
The Miranda warning does not validate the search consent. The investigation target must be advised that he has the right to consult with an attorney before executing any such consent. See Sims v. State, supra; Pirtle v. State, supra. Without such warning and under the circumstances presented here, the trial court was within its prerogative to determine that the consent was not shown to have been given freely and voluntarily.
The case before us is analogous to State v. Thrall (1984) lst Dist. Ind.App., 470 N.E.2d 749, trans. denied, in which the First District affirmed suppression of evidence obtained during a custodial interrogation. In Thrall, as here, an incriminating statement was made after defendant had been given a Miranda warning and had signed a written waiver.
The inculpatory statement here was not, in my view, volunteered. It was clearly the product of what had occurred immediately before-the custodial investigation, interrogation and the resulting consent to a luggage search,. Without the threatened and imminent search, there would have been no inculpatory statement. Given the invalidity of the consent, the inculpatory statement, which was a product of the preceding events, was also correctly suppressed.
The ruling on the Motion to Suppress was correct and should be affirmed.