TAMM, Circuit Judge:
Appellant, William Sheard, was indicted on February 2, 1970, in connection with the brutal rape-murder of a five year old girl. The indictment included four counts: felony murder, first degree murder, rape, and taking indecent liberties with a minor. Subsequently tried and convicted of felony murder and rape, appellant was sentenced to concurrent terms of twenty years to life on the felony murder count and of ten to thirty years on the rape count. This appeal followed.
I.
On the evening of November 1, 1969, five year old Penny Sellers, together with her older sister Denise, visited the [141] apartment home of their grandfather, Robert Dennis, at 1333 Harvard Street, N.W., Washington, D.C. As they were wont to do, the girls did not restrict their visit to their grandfather’s apartment, but also frequented the rooms of several of the tenants. They visited Sheard’s apartment on more than one occasion, playing with his puppy and enjoying the candy he offered them. At approximately 9:30 p. m., when both girls were watching television in the basement apartment of a friend, Penny decided to leave by herself and return to Sheard’s apartment to play with his puppy. When considerable time had elapsed and Penny had not yet returned, her grandfather proceeded to the apartment where he was told by Sheard that Penny “had gone up the street with a man.” At the grandfather’s request Sheard then telephoned the police.
The police arrived at about 11:00 p. m., having been advised to contact “a Sheard” at 1333 Harvard Street. Upon meeting Sheard they were informed by him that a child was missing, that he had telephoned the police, and that he had been the last person to see the child.1 One hour later the dead body of the girl was discovered amid debris on the floor of a garage behind 1321 Harvard Street. The child’s genital area was exposed and bloody; the autopsy revealed that she had indeed been raped, and that asphyxia due to suffocation was the cause of death. The girl’s underpants were subsequently recovered in the alley behind 1333 Harvard Street and one of her shoes was found on the back porch of the house next door.
Under instructions from the officer in charge at the time, the police “sealed off” 1333 Harvard Street and initiated a systematic investigation — allowing no one to enter or leave the building, all male occupants were subjected to questioning and a visual search for the presence of blood in their pubic areas. During the course of this procedure two officers knocked on the door to Sheard’s apartment and were admitted by him. The officers immediately observed that Sheard had scratches on his face, that he looked as though he had just taken a bath, and that he was wearing fresh but heavily wrinkled clothing. The room was in disarray, candy was strewn about on the floor, and a large damp burned area was evident on the mattress of a bed. One of the officers immediately left to summon his superiors, and upon returning Sheard was subjected to a visual search of his pubic area (apparently there were two such searches, the first being conducted by the officer remaining at the scene before the superiors arrived) . Although both searches revealed the presence of what appeared to be blood, testimony as to the two inspections was suppressed, and hence not presented at the trial. The clothing worn by appellant at the time of arrest, a pair of dark green work, pants found lying on the top of a hamper located in the room to which the police originally gained entry, the scattered pieces of candy, and a blanket and bedspread found in the basement of the apartment house, were seized.
Sheard was taken to police headquarters where a benzidine test (a chemical test which reacts positively to the presence of the peroxidase enzyme, an enzyme present in blood and a few other substances, notably citrus fruits) was conducted. The test was positive as to his right hand and penis. Chemical analysis revealed the presence of type 0 blood (Sheard has type A blood; the victim’s was type O) on Sheard’s jacket, the dark green slacks, the blanket and bedspread, and the victim’s dress and slip. Fibers from the bedspread and blanket, which the victim’s sister testified to seeing earlier in the evening in Sheard’s room, were discovered on the victim’s dress and slip, on all of Sheard’s seized clothing, and in scrapings from the heads of both Sheard and the victim.
[142] Essentially all of the above was admitted as evidence at trial. Sheard’s defense consisted principally of his own testimony: the scratches on his face were the result of a work injury; he had taken a bath after work; he had never before seen the blanket or bedspread; the burned area on the bed was small and caused by a cigarette; he had never stated that he was the last person to see the victim; and finally, although the victim had indeed approached his room alone, instead of entering she had turned and walked away.
Appellant raises a plurality of issues on appeal, and regardless of whether all are specifically discussed, each has been accorded full consideration. We affirm.
II.
Prior to the trial, appellant moved to suppress all evidence obtained by the police as a result of their warrantless entry into his apartment, i. e., their observations which brought about his arrest, the inspection of his pubic area, the seizure of the clothes he was wearing, and the seizure of other clothing in the room. The trial judge invalidated only the pubic area inspections, relying upon the doctrine espoused in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L. Ed.2d 676 (1969).
The trial judge, weighing the admittedly contradictory testimony of the two officers who originally gained entry, held that the “entry complied with the requirements of [18 U.S.C. § 3109] and was consensual,” that shortly thereafter probable cause for arrest existed, and that the seizure of clothing was either incident to the valid arrest or a plain view seizure, and valid. Appellant attacks the trial court’s determination on four bases: (1) The entry was illegal for failure to comply with 18 U.S.C. § 3109 (1970); (2) the entry was illegal, lacking both probable cause and an effective waiver by the appellant of his constitutional rights; (3) as there existed no probable cause to arrest, the seizure of clothing worn by the appellant at the time of “arrest” was invalid; and (4) the seizure of clothing lying about the apartment, specifically the dark green work pants, was invalid since it was neither incident to an arrest nor in plain view. Thus, there is here raised the “plethora of litigable issues” with respect to the fourth amendment explicated by Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 476, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), yet the Gordian knot presented to us is really a granny, one not requiring Alexander’s cutting edge but rather only a modicum of untangling. For, assuming a valid consensual entry, the issues of § 3109 compliance, probable cause to arrest, and plain view search are easily dispatched; once inside appellant’s apartment the police conduct was manifestly proper. If, however, there was neither consent to entry nor § 3109 compliance, the latter two issues become irrelevant and the conviction must be overturned.
Obliging ourselves with a bit of backward housecleaning, we will initially assume consent in order to sweep away those issues dependent thereon, and then in part III of the opinion directly deal with the consent issue itself.
Title 18, Section 3109 of the United States Code2 requires a police officer who has been refused admittance to announce his purpose and authority prior to “breaking” into a house to execute a search warrant. In Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the validity of entry to make an arrest based upon probable cause but without a warrant was tested by criteria identical to § 3109, and in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d [143]*143828 (1968), § 3109 was held to apply to nonforeible entry. See also Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960). Appellant now asks this court to expand the protection of § 3109 to the type of entry involved in this ease, entry made during the investigation of a crime without probable cause either to arrest or search. Whatever the merits of the contention, we are not required to reach it, for effective consent to entry negates the requirements of § 3109. See United States v. Harris, 140 U.S.App.D.C. 270, 277-278, 435 F.2d 74, 81-82 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971).3
Once inside the apartment the officers possessed probable cause to make the arrest. As the trial judge stated, “[t]he scratches on the man’s face, his demeanor, the presence of the candy, the condition of the bed and the room, the recent indications of some bathing or washing, under circumstances •of this case, appear to the court to establish probable cause . . . . ” The test for probable cause, set out in Bailey v. United States, 128 U.S.App.D. C. 354, 357-358, 389 F.2d 305, 308-309 (1967), is clearly met:
It has been said that “‘[t]he substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ ” Much less evidence than is required to establish guilt is necessary. . . . The standard is that of “a reasonable, cautious and prudent peace officer” and must be judged in the light of his experience and training. (Citations omitted.)
Appellant additionally challenges the seizure of the dark green work pants lying atop the hamper. The relevant testimony of Officer Shuler at the suppression hearing follows:
I took the pants that he had on and placed them on the kitchen table that was in the next room there. And by this time, we started looking around the room, there was clothing all over the room;4 it was just like he had taken things off for the last three months and thrown them here and there and everywhere. And there was a box, I don’t know — I thought of it as a hamper at the time and laying on top of the hamper was a pair of green work pants and on closer inspection of these pants, we saw what we thought to be blood on those. We also placed those on the kitchen table.
The Supreme Court has most recently spoken to the question of the nature and scope of the plain view doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Mr. Justice Stewart, writing for the Court, stated:
It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘‘plain view” doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
403 U.S. at 465, 91 S.Ct. at 2037.
Where the initial intrusion that brings the police within plain view of an article of evidence is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, e. g., hot pursuit, search incident to arrest, or the inadvertent discovery of an incriminating object during a search not [144] concerning the accused, the seizure is legitimate. Again, Justice Stewart:
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused— and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
403 U.S. at 466, 91 S.Ct. at 2038.
The evidence submitted at the suppression hearing and uncontroverted by appellant was that clothing was scattered throughout the room to which the officers gained entry, and plainly visible. The dark green pants specifically in question were lying atop a clothes hamper located in that room. Surely the pants were “objects falling in the plain view of an officer who has a right to be in the position to have that view,” and as such were subject to seizure. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Accord, United States v. Thweatt, 140 U.S.App.D.C. 120, 433 F.2d 1226 (1970).
Appellant asserts that since “closer inspection” of the pants was required before they could be identified as evidence, this court should not place the seizure within the “plain view” exception. This clearly is incorrect. The type of crime involved, forcible rape and murder, and the very appearance of the defendant, freshly bathed and dressed in wrinkled, clean clothing, rendered every plain view item of clothing scattered about the room potentially critical evidence. We will not hold that because the police engaged in a selective process based on closer observation of the plain view evidence that the seizure was any less valid. As we stated in United States v. Thweatt, supra, 140 U.S.App. D.C. at 125, 433 F.2d at 1231, the policeman “is entitled to cooperation from the courts so that his hands are not tied by rules which are so stringent as to be unworkable.”
III.
At the hearing on the motion to suppress, contradictory testimony was given by the two officers who originally gained entry into appellant’s apartment.5 [145] Officer Shuler testified that he knocked on the door and announced that “[w]e’re police officers and that a small child had been killed and we’d like to come in.” Shuler, initially testifying that appellant’s response was something. like “Come in, come in, I’d like to do all that I can to find out,” later stated that appellant opened the door, and “he invited us in. I don’t remember what his words were, but they were like, come in, or something like that.” Both officers were in uniform at the time but neither had drawn his gun. Officer Jones, on the other hand, testified that although they did knock and the door was opened by Sheard, nothing was said by either party prior to entry. Jones in later testimony stated, however, that “I don’t remember if he [appellant] said, come in, but I was under the impression that we were to enter the room by his attitude.”
[146] The ultímate determination by a trial judge at a suppression hearing as to the issue of consent, whether it be consent to enter or consent to search, is factual in nature. As such, under the guidelines established for this court in Jackson v. United States, 122 U.S.App. D.C. 324, 353 F.2d 862 (1965), that determination must remain untouched on appeal unless it is “clearly erroneous.” See Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972); United States v. J. B. Kramer Grocery Co., Inc., 418 F.2d 987 (8th Cir. 1969); Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968), cert. denied, 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968); Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949 (1967); Villano v. United States, 310 F.2d 680 (10th Cir. 1962). A finding is not “clearly erroneous” unless the reviewing court is left with the definite and firm conviction that a mistake has been made — the finding either is not supported by or is clearly against the weight of the evidence, or induced by an erroneous view of the law. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
The conclusions by the trial judge as to factual matter should be given utmost deference especially when, as here, there is conflicting testimony. The trial judge, with the advantage of live confrontation and the ability to view the mien of the witnesses, is in a position far superior to that of an appellate court to determine credibility and assess the correspondent weight to be given each witness’ testimony. This goes to the very heart of our appellate system, and the respect given to factual determinations is responsible in no small part for the orderly system of appellate review, and justice, that we in all our strivings hope to foster. Discrepancies in the testimony of the two police officers do not require its rejection. As Chief Justice [then Judge] Burger stated in Coates v. United States, 134 U.S. App.D.C. 97, 99, 413 F.2d 371, 373 (1969):
We have often noted . . . that the fact of inconsistencies among witnesses does not require that the testimony be rejected by a trier or triers of fact, but is simply a factor to be considered.
Recognizing the heavy burden shouldered by the prosecution when seeking to show a waiver of specific constitutional rights, Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), we cannot say that the trial judge’s decision to accept Officer Shuler’s testimony and find the entry consensual is unsupported by or clearly against the weight of the evidence, or based on an erroneous application of the law. On the record there is shown no coercion or duress, and the consent was decidedly more than silent acquiescence. The testimony of both officers, considered in conjunction with appellant’s original friendly behavior toward the police in calling and talking with them,6 amply supports a conclusion that the consent to entry was unequivocal and specific, freely and intelligently given, thus meeting the test enunciated in Judd v. United States, 89 U.S.App.D. C. 64, 66, 190 F.2d 649, 651 (1951).
Appellant alleges that the trial judge was mistaken in two specifics regarding the requirements of an intelligent waiver. He argues (1) that he could not intelligently waive his constitutional rights because he did not know, when he allowed the officers to enter his bedroom, that they were under orders and intended to search his pubic area; and (2) that a prerequisite to intelligent waiver of fourth amendment rights is a warning, specifically enumerating one’s rights regarding the amendment (parallel to Miranda v. Arizona, 384 U.S. 436, [147] 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and that such a warning was not given.
Appellant makes much of the fact that the police subjectively intended to do more than gain entry and talk, that they actually desired to search his pubic area. Had evidence of the pubic area, inspections been admitted at trial it undoubtedly would have constituted error (unless the searches were validated as incident to arrest7) for appellant’s consent went only to the question of entry, not of search. The extent of appellant’s waiver was limited by the breadth of the objective manifestations of the police— namely, limited to entry. However, the evidence necessary to establish probable cause was garnered upon entry alone.
The appellant’s position, which would make “withholding” of an iota of subjective intent fatal to any waiver of constitutional rights, is unworkable and unacceptable. It seeks to put the judiciary in the position of a clairvoyant, assessing the subjective motives of the officer and engaging in a game of subjective-objective comparison. We frown upon police tactics which can at best be described as “sneaky” — those actions where misrepresentation is used to gain entry, then extensive searches are undertaken supposedly with the dweller’s consent. We protect against such not by the adoption of unworkable rules, but by: (1) Recognizing the prosecution’s burden in proving a waiver of a constitutional right; (2) requiring that any waiver be unequivocal and specific, freely and intelligently given; (3) limiting each waiver’s breadth to objective, measurable standards; and (4) recognizing the duress and coercion concomitant to such tactics. See Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954); Robbins v. MacKenzie, 364 F.2d 45 (1st Cir. 1966), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
This court has consistently been a watchdog regarding waivers of constitutional rights. We have yet to hold, however, and specifically refuse to do so here today, that when dealing with fourth amendment waivers a warning paralleling that of Miranda is necessary. We are not unaware that with the advent of Miranda a movement has been afoot to so require, and that several courts have in fact adopted such a requirement,8 but we respectfully disagree. Such a fourth amendment warning should no more be an automatic necessary element than it should be an automatic sufficient one.
Rather than blanket adherence to the equations that “recitation of formula warning equals intelligent waiver” and “intelligent waiver requires formula warning,” we opt for a more flexible, more realistic approach. In this opinion we have restated our strong adherence to the requirement of proof of a voluntary and intelligent waiver. The prosecution’s burden is an admittedly heavy one. In many instances quite possibly it will not, indeed cannot, be carried absent proof of specific warnings. While the burden remains constant, the requisite evidence necessary to meet it varies with the innumerable variables of each particular situation. Whether consent has been made át a time when the accused is under arrest, whether made when entry has already been gained and a further [148] search requested, and whether the consent is limited to entry, or given for an extensive search,9 are among the factors having a significant bearing on the degree and quality of evidence necessary to show a true constitutional waiver. Case by case analysis of each individual situation may be burdensome, but a waiver of a constitutional right is a serious affair, one deserving of our utmost attention.
All of us recognize the liberties secured by the Bill of Rights, and the fourth amendment right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is cherished among those Rights. We all strive to protect the fourth amendment, to shore its erosion, and to maintain it as the viable protector of individual liberty that the past 200 years have proven it to be. Its might is best protected by our continual focusing on the waiver requirements of specific, unequivocal, voluntary, and intelligent, thus measuring each purported waiver on its own merits and not on the presence or absence of a formalizable utterance.
Finding no erroneous application of the law and ample evidence supporting the trial judge’s conclusion that the entry was consensual, the conclusion cannot be clearly erroneous, and we will not now overturn it.
IV.
Two additional issues are raised that warrant discussion. In the first of these appellant alleges that the trial judge erred in denying his motion to suppress testimony concerning the benzidine test given to him following arrest. Three separate grounds are cited:
(1) The test constituted an invalid search, not being incident to a valid arrest and without a warrant. There is no longer any validity to this argument.
(2) He was denied his right to an attorney during the administration of the test. We find the similarity between a benzidine test and a blood test, Schmer-ber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or a handwriting test, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), conclusive on this issue. No right to counsel exists, for in the language of United States v. Wade, 388 U. S. 218, 228, 87 S.Ct. 1926, 1933, 18 L. Ed.2d 1149 (1967), “there is minimal risk that his counsel’s absence at such stages might derogage from his right to a fair trial.” See United States v. Smith, 152 U.S.App.D.C. 229, 470 F.2d 377 (1972). (3) The results of the ben-zidine test should have been suppressed, even though relevant, because of their lack of probative value and tendency to mislead the jury. Appellant asserts that a benzidine test is reliable only to show that blood is not present, for a positive reaction shows only that the peroxidase enzyme is present, and the enzyme is present in substances other than blood. Taking into consideration the specific areas of the body that reacted positively to the test, and the type of substances other than blood that react positively, e. g., citrus fruits and potatoes, we do not feel that the trial judge abused his discretion in finding that the evidence’s probative value was not outweighed by the danger of unfair prejudice. Griffin [149] v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990 (1950).10
The second issue relates to the trial judge’s refusal to enter into evidence two statements taken by the police on the night of the rape-murder. Henry White, a chronic alcoholic, was found on the night of the crime sleeping in the basement of the apartment next to the blanket and bedspread seized by the police. After some difficulty he was aroused from his sleep, evidently soundly intoxicated, and a pubic area inspection* was conducted, failing to show the presence of any blood. White was taken to the police station, where between 4:45 and 5:45 a. m. he gave two statements to the police. The first indicated that he had seen a young girl earlier in the evening when she had come to the basement, while the second denied ever seeing either of the sisters. As to the blanket and bedspread, the first statement indicated that he had brought the blanket from the first floor at about 6:30 p. m., but had not seen the bedspread, while the second statement indicated that he had in fact brought both from the apartment of the girls’ grandfather earlier in the evening.
At a hearing to determine his capacity to testify, White on the advice of counsel pled the fifth amendment, which plea was sustained by the trial judge. When appellant then sought to offer one or more of the statements into evidence at trial as declarations against penal interest, the trial judge rejected the evidence, relying both on Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L. Ed. 820 (1913), and the fact that in any event the statements were not against penal interest.
In United States v. Alexander, 139 U. S.App.D.C. 163, 430 F.2d 904 (1970), we decline to “overrule” Donnelly, the 1913 Supreme Court decision which gave the stamp of approval to the common law’s refusal to recognize declarations against penal interest as exceptions to the hearsay rule. We must do so again today. The mental condition of the declarator, both normally — White was described as a chronic alcoholic, highly susceptible to leading questions, with a deteriorating, incomplete, and sporadic memory — and specifically on the night in question — highly intoxicated — when taken together with the type of statement involved, which the trial judge determined was actually not against the declarant’s penal interest,11 render highly suspect the trustworthiness of the statements and the ability of the declarant to realize that the statement was against his penal interest. The foundation of the hearsay exceptions, trustworthiness, is not the trustworthiness of transmission, but rather the trustworthiness of emission.12 Thus, appellant’s [150] assertion that this is an ideal situation for overruling Donnelly since “there is no doubt of the essential accuracy of the statements in describing what was said” is ill-taken.
For the foregoing reasons, the conviction of William Sheard is
Affirmed.