Dissenting Opinion by
Hoffman, J.:The appellant claims that he is entitled to relief from a criminal conviction of illegal possession of narcotics because the judge at the suppression hearing erroneously denied his motion to suppress physical evidence seized from appellant’s automobile.
In August, 1971, the Internal Affairs Bureau of the Philadelphia Police Department (“I.A.B.”) was conducting an investigation of the mishandling of narcotics by members of the police department. During the investigation, the police arrested Carl Johnson, a police officer, who alleged that appellant, a fellow officer, had on previous occasions withheld narcotics. Pursuant to his superior’s orders to pick up the appellant, Inspector Charles Fragassi and an I.A.B. lieutenant brought appellant to I.A.B. headquarters at 3rd and *161Race Streets in Philadelphia. The officers requested specifically that appellant and the lieutenant drive to headquarters in the appellant’s automobile.
Once at headquarters, appellant was placed in an office and advised that Johnson had informed the police about appellant’s illegal retention of seized drugs. Thereafter, one of the investigating officers asked appellant whether he would permit a search of his automobile, parked on the street outside of headquarters. Appellant acquiesced in the request. No contraband was found during the initial search. Shortly thereafter, however, appellant was asked whether a further search could be made. Appellant agreed to the request. A complete search of the trunk of the automobile uncovered six bundles, each containing twenty-five bags of heroin. At no point was appellant warned that he was not obligated to consent to the search. Investigating officers made no attempt to obtain a search warrant and the appellee’s brief makes no argument that the police had probable cause to acquire a warrant.
Appellant made a pretrial motion to suppress the evidence which was denied by the hearing judge on January 4, 1973. The judge based his decision on the validity of appellant’s consent as legal authorization for the search. Appellant was found guilty by jury on May 8, 1973. He subsequently filed Motions for a New Trial and in Arrest of Judgment. The trial judge denied the motions and imposed sentence of six to twelve months on December 18, 1973. This appeal followed.
The law is clear that warrantless searches are per se unreasonable under the Fourth and Fourteenth Amendments of the United States Constitution subject to a few narrow exceptions. Katz v. United States, 389 U.S. 347 (1967). One such exception is consent to the search that is freely given. Davis v. United States, 328 U.S. 582 (1946). The burden, however, is on the Com*162monwealth to prove by clear and positive evidence that the consent was voluntarily given. Bumper v. North Carolina, 391 U.S. 543 (1968); Commonwealth v. Storck, 442 Pa. 197, 275 A. 2d 362 (1971); Commonwealth v. Davenport, 453 Pa. 235, 308 A. 2d 85 (1973) : Commomoealth v. McCloskey, 217 Pa. Superior Ct. 432, 272 A. 2d 271 (1970). In a recent case, the United States Supreme Court rejected the position adopted by the Ninth Circuit that “proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a Voluntary’ consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 232-233 (1973). While not adopting a prophylactic approach similar to the Court’s holding in Miranda v. Arizona, 384 U.S. 436 (1966), the Court held that “voluntariness is a question of fact to be determined from the totality of all the circumstances, and that the state of a defendant’s knowledge is only one factor to be taken into account in assessing the volun-tariness of a consent.” Bustamonte, supra, at 223.
In the instant case, the court below specifically found that appellant was in custody when his consent was elicited. That fact alone is so inherently coercive as to create serious doubt whether the Commonwealth could show that consent was voluntary as judged by the totality of the circumstances.
Bustamonte does not compel an affirmance in the instant case. The need to sustain police consensual searches was stated by the Court: “. . . it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.” Bustamonte, supra, at 231-232 (Emphasis supplied). In the instant case, no similar exigency existed to *163circumvent the Fourth Amendment requirement of probable cause. The police chose to ignore appellant’s rights and to press the advantage that they held over the appellant, who was in custody. The police should have tested their evidence against appellant by subjecting it to the scrutiny of a neutral magistrate.
Further, appellant alleges that he feared retaliatory disciplinary action by his superiors for any failure to cooperate with the investigation. The appellee contends that such action by the police would be unconstitutional, citing several recent United States Supreme Court decisions.1 At the same time, police have in the past been subjected to the pressure of the “City Charter warnings” based on Section 10-110 of the City of Philadelphia Home Rule Charter that, in effect, tells any police officer that he may claim his privilege against self-incrimination only on pain of losing his position. Hence, appellant confronted by his superiors, fearful that he.might be open to disciplinary sanctions, and most importantly, aware that he was in custody, did not freely consent to the search; rather, he merely acquiesced in the inherently coercive situation in which he found himself.
Judgment of sentence should be reversed and the case remanded for a new trial.
Spaeth, J., joins in this dissenting opinion.
Lefkowitz v. Turley, 414 U.S. 70 (1973) ; Gardner v. Broderick, 392 U.S. 273 (1968) ; Uniformed Sanitation Men Assoc. v. Sanitation Comm’r., 392 U.S. 280 (1968) ; Garrity v. New Jersey, 385 U.S. 493 (1967). Appellee does not suggest, however, that the appellant was aware of those decisions.