OPINION OF THE COURT
Fletcher, Chief Judge:
The issues in this case concern the admissibility of the fruits of a search and seizure and of statements made by the accused when confronted with the results of the search. The Government maintains the search was legal because it was done with the freely obtained consent of the accused and that, in any event, the search was conducted solely by British police officers in connection with a British police investigation. The accused, on the other hand, contends he did not consent to the search but merely acquiesced in a police assertion of authority and that, as a matter of fact, the search was a joint venture executed by American and British officers to which our constitutional standards should be applied. We refer to the evidence in order to place the contentions of the respective parties in context.
Several burglaries had occurred in off-base, British-owned housing occupied by American service personnel in Bicester, England. Detective Sergeant Anthony Miller of the local police was in charge of the investigation. He received information which led him to believe that a black and white automobile with a noisy exhaust was involved. On April 18, 1974, he observed such a vehicle driving in the housing area in which the burglaries occurred. It was operated by the accused. Sergeant Miller stopped the vehicle and questioned the accused. He then looked into the vehicle and observed a rock and a black glove.. Miller cautioned the accused and took him into custody.
Miller interrogated the accused at the Bicester police station and determined [526]*526that he lived at the hospital on the air base. He told the accused that he intended to search his room and asked if he had any objection. The accused replied that there was nothing there, and Miller "asked him if he minded if I went and had a look.” Accused requested permission to make a telephone call. As accused would not state to whom the call would be made, Miller refused to permit him to do so. Miller again asked accused "if I could look in his room and he replied, 'Yes, I can’t really stop you.’ ”
Detective Sergeant Miller secured the accused’s keys and, accompanied by Constable Leadbetter, proceeded to the air base. There, he went to the air police office "out of courtesy, to let them know that I was conducting an inquiry; that I wished to search a particular room.” Sergeant Hanson and Sergeant Hoard of the air police accompanied the British officers to the accused’s room.
There, the accused’s belongings were searched. According to Miller, the air police took no part in the search other than to unlock a padlock on the accused’s locker and to look around the room.
According to the accused, Miller stated it was his intention to search his room and "asked my permission.” Miller refused to allow the accused to make a telephone call and told the accused "it would be easier if I went ahead and gave my consent; if not, he could get a warrant.” Accused replied that "there was nothing I could do.” At no time did he convey the impression that he agreed to the search.
The search disclosed the presence of property stolen from the burglarized premises. It was photographed by an Air Force photographer summoned at Miller’s request and turned over to the British officers. Miller returned to the local police station and, confronting the accused with the seized items, obtained a statement from him.
From the foregoing, it is obvious that there was no real consent on the part of the accused to the search of his room. Both his testimony and that of Detective Sergeant Miller establishes that he, then in custody, replied to the requests for permission to search with nothing more than a statement that he was powerless to prevent it. This was no more than acquiescence to police authority. As we stated in United States v Decker, 16 USCMA 397, 401, 37 CMR 17, 21 (1966):
Consent to a search is not presumed. It must be proved by the Government "by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied.” . . . Special caution is required when the consent is obtained from a person in police custody. United States v Justice, 13 USCMA 31, 34, 32 CMR 31.
Not even the police were able to state that the accused agreed to the search. Miller’s own testimony establishes only that the accused stated, "I can’t really stop you.” This is hardly the free and voluntary consent required. United States v Vasquez, 22 USCMA 492, 47 CMR 793 (1973); United States v Watkins, 22 USCMA 270, 46 CMR 270 (1973). Accordingly, if the search is to be governed by American constitutional standards, we must of necessity find that it was not consensual and that its fruits, including the accused’s subsequent statement, should not have been received in evidence.
This is the real problem presented. The Government basically urges that the search in this case was purely a British search and, under our decision in United States v DeLeo, 5 USCMA 148, 17 CMR 148 (1954), it matters not whether it complied with the Fourth Amendment. The accused rejoins that DeLeo is no more than an application of the "silver platter” doctrine to actions of foreign policemen and, as that principle was abandoned in Elkins v United States, 364 US 206 (1960) and Mapp v Ohio, 367 US 643 (1961), this Court should likewise no longer follow it.
DeLeo upheld a search by French officers in which there was a substantial degree of American participation. Judge Brosman, writing for the majority, upheld the reception in evidence of items seized during that search for a number of reasons. The underlying philosophical consideration which led the Court to its [527]*527conclusion, however, was the desirability of having American personnel participate in foreign searches in order to protect the rights of the accused and to implement our treaty obligation to assist host nations "in the carrying out of all necessary investigations into offences, and in the collection and production of evidence.”1
Competing with these considerations is the no less important doctrine that the Constitution of the United States applies to the exercise of federal power over a United States citizen wherever he may be located. Some federal courts have held that the Constitution’s exclusionary rule need not be applied when evidence is seized by foreign police, at least when there is no American participation. Stonehill v United States, 405 F2d 738 (9th Cir 1968), cert. denied, 395 US 960 (1969); Birdsell v United States, 346 F2d 775 (5th Cir 1965); Johnson v United States, 207 F2d 314 (5th Cir 1953). Indeed, this Court so held on the basis that the exclusionary rule is designed to deter wrongful activity by the United States Government. United States v Seiber, 12 USCMA 520, 31 CMR 106 (1961). But even the leading federal case distinguishes those situations in which "the United States itself was acting abroad, as a result of military occupation or treaty, their reasoning . . . [being] that the United States is bound by the Bill of Rights wherever it acts.”2
The difficulty with these opinions, and particularly those of this Court, is that at the time of the decision in DeLeo, the exclusionary rule was, as noted in Seiber, no more than an evidentiary device designed to require federal officers to adhere to the command of the Fourth Amendment.
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OPINION OF THE COURT
Fletcher, Chief Judge:
The issues in this case concern the admissibility of the fruits of a search and seizure and of statements made by the accused when confronted with the results of the search. The Government maintains the search was legal because it was done with the freely obtained consent of the accused and that, in any event, the search was conducted solely by British police officers in connection with a British police investigation. The accused, on the other hand, contends he did not consent to the search but merely acquiesced in a police assertion of authority and that, as a matter of fact, the search was a joint venture executed by American and British officers to which our constitutional standards should be applied. We refer to the evidence in order to place the contentions of the respective parties in context.
Several burglaries had occurred in off-base, British-owned housing occupied by American service personnel in Bicester, England. Detective Sergeant Anthony Miller of the local police was in charge of the investigation. He received information which led him to believe that a black and white automobile with a noisy exhaust was involved. On April 18, 1974, he observed such a vehicle driving in the housing area in which the burglaries occurred. It was operated by the accused. Sergeant Miller stopped the vehicle and questioned the accused. He then looked into the vehicle and observed a rock and a black glove.. Miller cautioned the accused and took him into custody.
Miller interrogated the accused at the Bicester police station and determined [526]*526that he lived at the hospital on the air base. He told the accused that he intended to search his room and asked if he had any objection. The accused replied that there was nothing there, and Miller "asked him if he minded if I went and had a look.” Accused requested permission to make a telephone call. As accused would not state to whom the call would be made, Miller refused to permit him to do so. Miller again asked accused "if I could look in his room and he replied, 'Yes, I can’t really stop you.’ ”
Detective Sergeant Miller secured the accused’s keys and, accompanied by Constable Leadbetter, proceeded to the air base. There, he went to the air police office "out of courtesy, to let them know that I was conducting an inquiry; that I wished to search a particular room.” Sergeant Hanson and Sergeant Hoard of the air police accompanied the British officers to the accused’s room.
There, the accused’s belongings were searched. According to Miller, the air police took no part in the search other than to unlock a padlock on the accused’s locker and to look around the room.
According to the accused, Miller stated it was his intention to search his room and "asked my permission.” Miller refused to allow the accused to make a telephone call and told the accused "it would be easier if I went ahead and gave my consent; if not, he could get a warrant.” Accused replied that "there was nothing I could do.” At no time did he convey the impression that he agreed to the search.
The search disclosed the presence of property stolen from the burglarized premises. It was photographed by an Air Force photographer summoned at Miller’s request and turned over to the British officers. Miller returned to the local police station and, confronting the accused with the seized items, obtained a statement from him.
From the foregoing, it is obvious that there was no real consent on the part of the accused to the search of his room. Both his testimony and that of Detective Sergeant Miller establishes that he, then in custody, replied to the requests for permission to search with nothing more than a statement that he was powerless to prevent it. This was no more than acquiescence to police authority. As we stated in United States v Decker, 16 USCMA 397, 401, 37 CMR 17, 21 (1966):
Consent to a search is not presumed. It must be proved by the Government "by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied.” . . . Special caution is required when the consent is obtained from a person in police custody. United States v Justice, 13 USCMA 31, 34, 32 CMR 31.
Not even the police were able to state that the accused agreed to the search. Miller’s own testimony establishes only that the accused stated, "I can’t really stop you.” This is hardly the free and voluntary consent required. United States v Vasquez, 22 USCMA 492, 47 CMR 793 (1973); United States v Watkins, 22 USCMA 270, 46 CMR 270 (1973). Accordingly, if the search is to be governed by American constitutional standards, we must of necessity find that it was not consensual and that its fruits, including the accused’s subsequent statement, should not have been received in evidence.
This is the real problem presented. The Government basically urges that the search in this case was purely a British search and, under our decision in United States v DeLeo, 5 USCMA 148, 17 CMR 148 (1954), it matters not whether it complied with the Fourth Amendment. The accused rejoins that DeLeo is no more than an application of the "silver platter” doctrine to actions of foreign policemen and, as that principle was abandoned in Elkins v United States, 364 US 206 (1960) and Mapp v Ohio, 367 US 643 (1961), this Court should likewise no longer follow it.
DeLeo upheld a search by French officers in which there was a substantial degree of American participation. Judge Brosman, writing for the majority, upheld the reception in evidence of items seized during that search for a number of reasons. The underlying philosophical consideration which led the Court to its [527]*527conclusion, however, was the desirability of having American personnel participate in foreign searches in order to protect the rights of the accused and to implement our treaty obligation to assist host nations "in the carrying out of all necessary investigations into offences, and in the collection and production of evidence.”1
Competing with these considerations is the no less important doctrine that the Constitution of the United States applies to the exercise of federal power over a United States citizen wherever he may be located. Some federal courts have held that the Constitution’s exclusionary rule need not be applied when evidence is seized by foreign police, at least when there is no American participation. Stonehill v United States, 405 F2d 738 (9th Cir 1968), cert. denied, 395 US 960 (1969); Birdsell v United States, 346 F2d 775 (5th Cir 1965); Johnson v United States, 207 F2d 314 (5th Cir 1953). Indeed, this Court so held on the basis that the exclusionary rule is designed to deter wrongful activity by the United States Government. United States v Seiber, 12 USCMA 520, 31 CMR 106 (1961). But even the leading federal case distinguishes those situations in which "the United States itself was acting abroad, as a result of military occupation or treaty, their reasoning . . . [being] that the United States is bound by the Bill of Rights wherever it acts.”2
The difficulty with these opinions, and particularly those of this Court, is that at the time of the decision in DeLeo, the exclusionary rule was, as noted in Seiber, no more than an evidentiary device designed to require federal officers to adhere to the command of the Fourth Amendment. It could have been altered by statute or, in the military, perhaps by amendment of the Manual for Courts-Martial then in effect. See Wolf v Colorado, 338 US 25 (1949). But with the subsequent decision in Mapp v Ohio, supra, this was no longer the case. What had been a mere evidentiary device became a positive command of the Constitution, i.e., that no evidence be admitted that was not seized in compliance with the Amendment’s conditions.
It is true, of course, that this Court has no authority to infringe upon the sovereignty of another nation by attempting to impose American constitutional standards on their legitimate methods of securing evidence. It is likewise true that our treaties — part of the "supreme law of the land” — impose the duty on our military authorities as well as those of the receiving state to assist in the investigation of offenses. From the foreign police standpoint, these investigations presumably would be done in compliance with local law for the purpose of any prosecutions. From the military standpoint, we see nothing burdensome in also requiring for American prosecutions that the military authorities comply with our constitutional standards. This is a measure we believe not only required by the Fourth Amendment in order to make evidence admissible in a Federal prosecution, but also one which will enhance protection of the accused’s rights in a foreign milieu far better than the holding in DeLeo.
In sum, then, we hold that evidence obtained by search and seizure in a foreign country must meet Fourth Amendment standards in order to be admitted in evidence in a trial by court-martial, regardless of whether it is obtained by foreign police acting on their own or in conjunction with American authorities. The extent of an American’s constitutional protections in an American court should not be lessened or removed by virtue of the fact that he is ordered to an overseas post for service. It is American judicial power that is being exerted against him and in such a case, it is by American constitutional standards that he should be judged. To the extent that United States v DeLeo, supra, and similar cases are inconsistent with our holding in this case, they are hereby overruled.
[528]*528As the evidence was seized in this case without the accused’s freely given consent and as his statements were the fruit of that illegal search, reversal must necessarily follow.
The decision of the US Air Force Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the United States Air Force. As the record reveals no admissible substitute for the excluded evidence, the charges are ordered dismissed.
Senior Judge Ferguson concurs.