Dissenting Opinion by
Hoffman, J.:I dissent from the holding of the Majority.
Initially, I continue to adhere to the views which I expressed in Commonwealth v. Richard, 233 Pa. Superior Ct. 254, 268, 336 A. 2d 423 (1975) (dissenting opinion by Hoffman, J.), and Commonwealth v. Dressner, 232 Pa. Superior Ct. 154, 160, 336 A. 2d 414 (1975) (dissenting opinion by Hoffman, J.).
Further, the Majority ignores the United States Supreme Court’s holding in Bumper v. North Carolina, 391 U.S. 543 (1968), which I believe controls the instant *78case. In Bumper, police gained access to the petitioner’s grandmother’s home after they claimed to have a search warrant. At the suppression hearing and on appeal, the State attempted to argue that regardless of the validity or existence of the search warrant, petitioner’s grandmother freely consented to the search. The Court stated: “The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
“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.” 391 U.S. at 548-49.
I see no difference here. Appellant refused to consent to a search of his automobile, an area beyond the scope of the warrant and an area for which the officer had no probable cause to search. It was only after the officer said that he would procure a warrant that appellant acquiesced and permitted the search that netted contraband. The only difference between the instant case and Bumper is that in Bumper the police represented that they already had a warrant, while in the instant case, the police claimed that they would procure a warrant. Had probable cause existed to search the automobile, I might view the police action more sympathetically. But the police realized or should have realized that they did not have the requisite probable cause to obtain the warrant. Therefore, they attempted to rely on the false, and obviously coercive, assertion that they would get a warrant if appellant refused to consent. Only after that show of supposed lawful authority did appellant acquiesce in the search. I simply cannot join the Majority’s view that appellant’s “consent” amounted to a free and *79voluntary decision. Under these facts, Bumper cannot be distinguished.
Finally, although the United States Supreme Court has held that the Federal Constitution does not require the police to inform an accused that he has the right to refuse to consent to a search, Schneckloth v. Bustamonte, 412 U.S. 218 (1973), I believe that such a holding would be a sound and logical rule. Johnson v. Zerbst, 304 U.S. 458 (1938), mandates that a waiver of a constitutional right must be knowing and intelligent. If the constitutional right is one that we as a society truly value, then we further that interest by guaranteeing a meaningful opportunity to exercise that right. New Jersey has recently held that the New Jersey constitution requires a higher standard than the totality of circumstances test announced in Schneckloth. The New Jersey Supreme Court held that “the validity of a consent to search, even in a non-custodial situation” depends on the state’s “showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.” State v. Johnson, 68 N.J. 349, 346 A.2d 66, 18 Cr.L.Rep. 2097 (1975). A requirement that the person to be searched must be informed of his right to refuse would guarantee the validity of a consent and facilitate our inquiry on that question.
In the instant case, appellant did not voluntarily consent to the search: he attempted to exercise a right to refuse; however, the police made him believe that his right to withhold consent was meaningless.
The record indicates that appellant’s “consent” was merely an acquiescence in the police’s assertion that they could legally search his automobile in the immediate future. Because that fact was false, I believe that appellant did not consent to the search, thereby rendering it illegal and requiring that the evidence seized be suppressed and a new trial ordered.
Spaeth, J., joins in this dissenting opinion.