(dissenting, with whom Wilkins, C.J., and
Abrams, J., join). This case deals with that most fundamental right, the right to counsel. The motion judge never considered that issue; he should have, but did not, allow counsel to explore areas relevant to the defendant’s right to counsel claims. The court today decides that issue, rather than remanding the case to the motion judge for a hearing on the defendant’s right to counsel claims. I respectfully dissent.
The court observes that the judge “does not appear to have considered [the Fifth Amendment and Sixth Amendment to the United States Constitution] to be distinct claims.” Ante at 542. The record is clear that the motion judge focused only on the defendant’s Fifth Amendment voluntariness claim and disregarded his Sixth Amendment claim entirely.1 It is possible that, had the motion judge considered the defendant’s right to counsel *559claims, he might have concluded that the charged and uncharged automobile thefts were not “inextricably intertwined.” But he expressly declined to permit counsel to establish the relationship between those thefts. In my judgment that was error. The record was surely sufficient to give rise to a substantial issue whether the right to counsel, which had attached at the very least to the charged September 10 automobile theft,2 carried over to the uncharged remaining offenses.
It is settled law that, once counsel has been named to represent a person charged with a crime, that person may not be questioned about that crime in the absence of counsel. See Michigan v. Jackson, 475 U.S. 625 (1986); Maine v. Moulton, 474 U.S. 159, 176 (1985); Commonwealth v. Perrot, 407 Mass. 539, 545 (1990). The court holds that in this case it was proper for a police officer to question the defendant about the uncharged automobile thefts because they were not “inextricably intertwined” with the offense already charged. I do not cavil at the choice of the phrase “inextricably intertwined”; the court correctly notes that other courts have used it. Rather, it is the application of that test to these facts with which I disagree. To tolerate, as the court does today, the interrogation that occurred here invites police questioning on matters in the forbidden zone.3 In my view, a rule that prohibits custodial interrogation of events closely surrounding the charged crime would give *560clear guidance to police officers when they question suspects about uncharged crimes, and would give full effect to the “fundamental . . . right of a person accused of a serious crime to have the aid and advice of counsel.” Guerin v. Commonwealth, 339 Mass. 731, 734 (1959). The court’s decision today fails on both counts.
The record shows the following sequence of events. On September 10, 1992, Rainwater was arrested when he attempted to flee from a stolen automobile in which he had been a passenger when it was pursued by police. Later that day, Rainwater was brought to court and arraigned. Through the Committee for Public Counsel Services (CPCS), a bar advocate was appointed to represent Rainwater. In preparation for arguing the question of his bail, she met with Rainwater for between five and ten minutes in a holding cell at the courthouse. Counsel did not have the opportunity to discuss much with her client; she testified at the motion hearing that after the bail hearing Rainwater was “whisked off to the jail rather quickly” before she could meet with him again at the courthouse.4 He was taken to the Worcester County house of correction. That same evening Officer James O’Rourke, a member of the auto theft squad of the Worcester police department, interviewed Rainwater.
O’Rourke testified at the hearing on the motion to suppress that he knew at the time that Rainwater had been arraigned and either had an attorney or had stated that he would hire one. Rainwater was brought to a conference room where, Rainwater testified, O’Rourke told him that he had come to talk “about the charges, the motor vehicles that were stolen.” Rainwater testified that he asked O’Rourke “Shouldn’t my lawyer be here?,” to which O’Rourke replied, “If you sign this paper [she] won’t need to be.” Rainwater then signed a Miranda card presented to him by O’Rourke, and O’Rourke proceeded to *561question Rainwater about a series of automobile thefts, including the theft for which Rainwater had been arraigned that same day and for which counsel already had been appointed.5 He obtained from Rainwater statements concerning seven automobiles stolen on August 27, August 30, September 7, September 8, September 9, and September 10, 1992.
In January, 1993, Rainwater was charged with six incidents of operating a motor vehicle without the authority of its owner, offenses that occurred on August 27 and 30 and September 7, 8, and 9 (two thefts).6 It is in connection with the trial of those offenses that his claims arise.
In McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), the United States Supreme Court considered the following question that previously had been certified from the Court of Appeals to the Supreme Court of Wisconsin: “Does an accused’s request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police-initiated interrogation on unrelated, uncharged offenses?”7 The Supreme Court concluded for the first time that under the United States Constitution the Sixth Amendment right to counsel is “offense specific.”8 Because the offenses in McNeil were wholly unrelated to each other (they occurred weeks *562apart and in different locations),9 the Court was not required to and did not elaborate on the term (new to constitutional jurisprudence) “offense specific.” It did not suggest that an offense is “specific” for Sixth Amendment purposes if it “could and would have to be proved separately,” the phrase used by the court today.10 Since McNeil, some United States Courts of Appeals have concluded that when the offenses are “inextricably intertwined,” the Sixth Amendment right to counsel carries over to the uncharged offenses. See United States v. Arnold, 106 F.3d 37, 41 (3d Cir. 1997); United States v. Carpenter, 963 F.2d 736, 740 (5th Cir.), cert, denied, 506 U.S. 927 (1992); United States v. Hines, 963 F.2d 255, 257 (9th Cir. 1992). Using that test the court concludes that Rainwater’s right to counsel that had attached to the September 10 theft for which he was charged did not carry over to the other thefts.
I dissent from the court’s conclusion and its reasoning in two respects. The court first observes that if the motion judge had “specifically found” that the interchange between O’Rourke and Rainwater about the presence of his lawyer had taken place, “we would not be so ready to say that the defendant’s Fifth Amendment rights articulated in Miranda v. Arizona, 384 U.S. 436 (1966), had been fully accorded.” Ante at 544 n.2. While the judge did not make any such specific finding, there was no *563testimony by O’Rourke (or anyone else) to rebut it. I conclude that there is a substantial possibility that Rainwater’s Fifth Amendment right to counsel was violated.11 Certainly his statement to O’Rourke, if made, “can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991).
I also conclude that the court misapprehends Rainwater’s Sixth Amendment claim with respect to this aspect of O’Rourke’s interrogation. There is a close relationship between the incidents about which O’Rourke sought to question Rainwater and the offense for which Rainwater already had secured counsel. Rainwater’s reference to his lawyer followed O’Rourke’s statement that he wanted to talk “about stolen automobiles.” In my view O’Rourke acted in a manner that “circumvent[ed] and thereby dilut[ed]” the protection afforded Rainwater by his right to counsel. Maine v. Moulton, supra at 171.
As to the relationship between the charged and uncharged offenses, in the wake of McNeil, courts have suggested a number of factors that may be considered in determining the scope of the Sixth Amendment protection in these circumstances. While the boundaries are not always clear, “courts have looked for similarities of time, place, person and conduct.” Arnold, supra at 41. See Whittlesey v. State, 340 Md. 30, 55 (1995), cert, denied, 516 U.S. 1148 (1996); United States v. Kidd, 12 F.3d 30, 33 (4th Cir. 1993), cert, denied, 511 U.S. 1059 (1994); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992), cert, denied sub nom. Hendricks v. Calderon, 116 S. Ct. 1335 (1996); United States v. Carpenter, 963 F.2d 736, 741 (5th Cir.), cert, denied, 506 U.S. 927 (1992). In this case all the automobile thefts occurred within days of each other, all the thefts took place within the same section of Worcester, and the modus operandi was identical in each case; the automobiles were stolen using either a screw driver or a dent puller, and were then each marked in the same distinctive manner, and subsequently abandoned. In each case the marks included the word “Kings,” *564the message, “Police, see if you can catch us,” and a number, apparently signifying the sequence in which they had been stolen. The offenses all were investigated by the same automobile theft squad of the Worcester police, the interrogating police officer considered them all as one, and all offenses but one were charged and tried together. On this record I would require the motion judge to consider whether the incriminating statements elicited by O’Rourke on September 10 were obtained in violation of Rainwater’s art. 12 right to counsel and should have been suppressed.12
If we adhere to the view under our Constitution that the United States Supreme Court has adopted with respect to the Sixth Amendment that once the right to counsel has attached all further police interrogation is not prohibited (a claim that we need not reach in this case), the impermissible area of police questioning of custodial suspects needs to be defined as clearly as possible. The reason is not because we view uncounselled police questioning, in and of itself, as a second rate or suspect state of affairs, but to avoid precisely the line blurring that occurred in this case. I believe a rule that places police officers on notice that it is constitutionally impermissible to interrogate a custodial defendant about other uncharged crimes closely connected to the crime charged unless the attorney representing the defendant on that charge consents, is a rule that most effectively protects the art. 12 guarantee of the right to counsel and the equally important interest (shared by the police and the public) of the investigation of crimes.
For example, the first time defense counsel raised a question whether the Worcester police auto theft squad was investigating stolen automobiles that had “similar manners of entry, similar markings and they were — really the same ‘M.O.,’ ” the judge responded, “It doesn’t sound like it’s relevant to me at all. We’re talking here about voluntariness of statements” (emphasis supplied). When counsel pressed the point, stating, “The reason that I think it would be important is that the incident he was arrested for on September 10th was a crime that was extremely similar to the crimes that had taken place in the days preceding it,” and that he wanted “to lay the foundation for the similarities,” the judge responded: “I acknowledge that you’re probably curi*559ous, but we are not going to go wandering into that swamp.” Later when Rainwater’s counsel again sought to raise the issue the motion judge responded, “I don’t think you can go into it this way and I’m not going to let you.” There were other similar colloquies with Rainwater’s counsel during the hearing. Moreover, in summarizing his conclusions, the judge stated: “Not only do I determine there was no violation of the Miranda rights during these custodial interrogations, but I also determine that in the general sense of voluntariness, [the defendant’s] statements were voluntary. I therefore deny the defendant’s motion to suppress.”
There is an unresolved question concerning the scope of counsel’s representation itself. At the hearing on the motion to suppress, counsel testified that, as she best remembered, at the bail hearing on September 10 the fact that Rainwater was a suspect in other automobile thefts was discussed. If counsel is correct, the interrogation by O’Rourke later that evening about the automobile thefts is even more troublesome. The motion judge said that he was unable to determine if there were such discussions on September 10. Nevertheless, the possibility of such discussions should have alerted the judge to the Sixth Amendment and art. 12 issues.
I agree with the court that the closer the relation of the uncharged offenses to the charged offense, the greater the risk that questioning about the uncharged crimes will interfere with the right to counsel as to the charged offense. I do *560not agree with the court, on this record, that there was neither the intention nor the risk that the police questioning of the defendant would disadvantage him, or interfere with his counsel’s representation of him, even in regard to the one crime for which he had been charged.
Because it is not unusual for appointed counsel to have little time to consult with a client before the client is taken back to jail, a police officer who questions a suspect represented by counsel on the same day. as the arraignment (as occurred here) should understand clearly that he or she may not question the suspect on matters that are close to the charged offense; to do so jeopardizes the protections inherent in the right to counsel, and may jeopardize prosecution of an offense that is closely related to that matter.
A “supplemental report” signed and filed by O’Rourke three days later on September 13, 1992, summarizes his interrogation of Rainwater that evening and makes this clear. At the hearing on the motion to suppress O’Rourke testified that during his interrogation of Rainwater on the evening of September 10, he did not discuss with Rainwater the theft of the Toyota Corolla that had occurred earlier that day at the Washington Heights complex. His testimony is entirely inconsistent with his own contemporaneous written record. The motion judge nevertheless found that no reference was made to the September 10 theft during the interrogation. That finding is clearly erroneous, as the Commonwealth now concedes.
On September 17, 1993, Rainwater entered a guilty plea with respect to the automobile theft on September 10, 1992, the occasion on which he had been apprehended by the police and for which he obtained counsel.
The “question presented” in McNeil was similarly phrased: “Did defendant’s acceptance of assistance of counsel and appearance with counsel at initial hearing on charged offense amount to invocation of Fifth Amendment right to counsel that precluded police-initiated interrogation on unrelated, uncharged offense while defendant was in continuous custody?” (Emphasis added.) 59 U.S.L.W. 3354 (Nov. 6, 1990).
In its ruling today the court describes the “ ‘offense-specific’ nature” of the Sixth Amendment as announced in Maine v. Moulton, 474 U.S. 159 (1985). Ante at 545. Justice Brennan, the author of the Court’s opinion in Maine v. Moulton, did not use the term “offense specific,” and had no reason to. In *562Moulton the only issue under consideration was the admissibility at trial of a statement obtained by a secret government agent from the accused after he had been indicted. I agree with this court’s discussion of the constitutional value of the rule described by Justice Brennan. My point is a different one: in Moulton the Court did not consider police-initiated interrogation on related, uncharged offenses. That is the question in this case.
McNeil was arrested in Nebraska pursuant to a warrant charging him with an armed robbery in West Allis, Wisconsin, and transported back to Wisconsin. While in custody detectives interrogated him and he was charged in connection with a murder and armed burglary that had occurred in Caledonia, Wisconsin. McNeil, supra at 173-174.
I recognize that the court intends this to be a sufficient though not a necessary condition for a violation of the right to counsel. In my view, however, it directs the inquiry in the wrong direction. Whatever phrase we use to describe our constitutional test, I prefer a rule that directs a judge to consider the factual similarities and connections between the charged offense and the uncharged offenses, rather than a rule that directs the inquiry toward what is necessary to prove the charged offense. See, e.g., State v. Sparklin, 296 Or. 85, 93 (1983) (“Once an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend”).
I agree with the court that generally there is no requirement that there be a specific finding as to each item of unsupported testimony. Ante at 544 n.2. Where, as here, it is clear that the motion judge focused his attention on the Fifth Amendment voluntariness of the defendant’s confession, not on his Sixth Amendment right to counsel claim, I believe a specific finding is warranted.
It is not clear that what happened here is permissible under the Sixth Amendment either. See, e.g., United States v. Arnold, 106 F.3d 37 (3d Cir. 1997) (Sixth Amendment prohibits police interrogation on charge of attempted murder of witness by defendant after he was indicted for intimidation of same witness). The problem here is compounded because the motion judge did not make findings on the crucial point whether the defendant inquired about having his lawyer present at the interview, and because the motion judge never considered the defendant’s Sixth Amendment or art. 12 rights.