dissenting:
When defendant was arraigned on the initial burglary charge, an attorney was appointed to represent him. By accepting this appointment, defendant invoked his fifth amendment right to counsel. (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 126, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240.) As long as defendant remained in continuous physical custody, the police were therefore barred from initiating any further interrogation of him outside the presence of his lawyer. (.Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885.) This does not mean simply that they were precluded from inquiring about the initial burglary for which defendant had been arrested. It means that they should not have questioned him about any crime, including the second burglary. Arizona v. Roberson (1988), 486 U.S. 675,_, 100 L. Ed. 2d 704, 716-17, 108 S. Ct. 2093, 2100-01.
The majority holds that defendant’s fifth amendment right to counsel was waived. I disagree. Although there is no dispute that defendant offered certain information to the police on his own initiative, that information pertained exclusively to the crime with which defendant had already been charged. Defendant volunteered nothing about the second burglary. The second burglary was discussed by him only after the police specifically questioned him about it sometime later.
The majority simply assumes that because defendant was willing to waive his rights with respect to the first crime, he was willing to waive those rights generally. Such a view cannot be sustained. A court must presume that an individual has invoked the full extent of his right to counsel. (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 123, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240.) It cannot indulge in any presumption that this right has been waived. For there to be a valid waiver of counsel, the waiver must not only be voluntary, but must also constitute a knowing and intelligent abandonment of a known right (Edwards v. Arizona (1981), 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884), and the burden of establishing a valid waiver rests with the State (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 123, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240, citing Michigan v. Jackson (1986), 475 U.S. 625, 633, 89 L. Ed. 2d 631, 640, 106 S. Ct. 1404, 1409).
In this case I believe that the circuit court could properly have found that the State did not meet its burden. I would therefore affirm its order suppressing defendant’s statements regarding the second burglary. Accordingly, I dissent.