¶ 82. (concurring).
In 2000 the Wisconsin Supreme Court interpreted the Sixth Amendment right to counsel in the following circumstances: (1) the defendant had been charged with a crime; (2) counsel had been retained to represent the accused on that charge; (3) counsel informed law enforcement authorities about the representation and admonished them not to question the accused about the charge; and (4) both the law enforcement officers involved and the accused knew of the representation and discussed it. In these circumstances, the law enforcement officers continued to question the accused, administering Miranda warnings1 three times, then interrogating the accused about the charge. Each time they elicited incriminating information. The accused later attempted to suppress this information. See State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.
¶ 83. The Dagnall court did not determine whether the accused's statement to the officers — "My lawyer told me that I shouldn't talk to you guys" — was sufficient to "invoke" his Sixth Amendment right to counsel after he received a Miranda warning. Id., ¶¶ 56-57. Rather, the court determined that the defendant was not required to "invoke" the right of counsel in the circumstances presented:
We hold that Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge. Because Dagnall was an accused person under the Sixth Amendment who had an attorney to represent him on the specific crime charged, and because the attorney had informed the police of his representation of Dagnall and *664admonished them not to question his client about that crime, any subsequent questioning about that crime was improper.
Dagnall, 236 Wis. 2d 339, ¶ 4.
¶ 84. The court added in its conclusion:
We hold that the Sixth Amendment right to counsel protected Dagnall from police interrogation about the homicide once Dagnall was formally charged and once an attorney represented him on that charge. Because the detectives went to Florida knowing that counsel had been retained on the charge and because Attorney Connors had notified authorities that he represented Dagnall and did not want Dagnall questioned about the homicide, the detectives had no authority to question Dagnall about that crime.
Id., ¶ 67.
¶ 85. The Dagnall decision was this court's attempt to synthesize and explain United States Supreme Court decisions on the right to counsel, under the Sixth Amendment, as of mid-2000. The decision affirmed a unanimous decision of the court of appeals, State v. Dagnall, 228 Wis. 2d 495, 596 N.W.2d 482 (Ct. App. 1999), that concluded that Dagnall's "[m]y lawyer" statement to the officers — in the wake of Attorney James Connors' retention, notice of retention, and admonition to law enforcement — effectively invoked Dagnall's right to counsel. The court of appeals stated that right-to-counsel invocations by accused persons under the Sixth Amendment appeared to be afforded "greater leeway" than that given to "uncharged suspects (under the Fifth Amendment) during custodial questioning." Id. at 504-05.
¶ 86. The Dagnall decision did not eliminate the need to invoke the right to counsel for "a charged *665defendant in custody who does not have counsel." Dagnall, 236 Wis. 2d 339, ¶ 48 (emphasis added). The court said that the Sixth Amendment right to counsel "must be 'invoked' by the accused to terminate police questioning before an attorney has been retained or appointed for those specific charges," provided that the accused has been properly informed of his right to have an attorney and his right not to answer questions. Id., ¶ 52 (emphasis added).
¶ 87. But once a person has been charged and an attorney has been retained or appointed for that charge, "an accused who has [ ] counsel. .. need not make a 'real request' [an unambiguous invocation of the right to counsel] as required by the Fifth Amendment." Id., ¶ 50.
¶ 88. These statements constitute the law of Wisconsin on and after July 6, 2000. They were the law of Wisconsin on May 16, 2008, when a detective for the Sheboygan County Sheriffs Department questioned Brad E. Forbush about the attempted sexual assault and false imprisonment charges filed against him eight days earlier.
¶ 89. On May 8, 2008, the Sheboygan County District Attorney's office had charged Forbush with two felonies and secured a warrant for his arrest. On that day, Forbush was arrested on the warrant in Michigan. He thereafter appeared at an extradition hearing in a Michigan court where he was represented by his brother, Scott Forbush, a Michigan attorney.
¶ 90. Forbush waived extradition and was transported to Wisconsin on May 15, 2008. The following morning he was questioned — after receiving a Miranda warning — by Detective Cory Norlander before his scheduled appearance in Sheboygan County Circuit Court.
¶ 91. There is no dispute that during the week between Forbush's arrest in Michigan and his return to *666Wisconsin, someone close to Forbush retained the Mastantuono Law Office to represent Forbush on his Wisconsin charges and the Mastantuono Law Office immediately notified the Sheboygan County District Attorney's office of this representation. Attorney Rebecca Coffee of the Mastantuono Law Office was present for Forbush's 11 a.m. initial appearance in court on May 16.
¶ 92. In short, Forbush's Sixth Amendment right to counsel was triggered by the filing of a criminal complaint. Counsel was present for Forbush in Michigan, and counsel was retained for Forbush in Wisconsin. The District Attorney's office was promptly notified of Forbush's Wisconsin representation, and counsel for Forbush appeared timely for the first court hearing. There is simply no basis for disconnecting the facts of this case from the clear law established in Dagnall because under the law in Dagnall, Forbush was not required to personally, unambiguously, and unequivocally "invoke" his right to counsel when he spoke to Detective Norlander.
¶ 93. Accordingly, the detective's questioning was not proper. Any incriminating statements obtained from Forbush on the morning of May 16 should have been suppressed under then controlling Wisconsin law. The circuit court was correct when it applied this law and suppressed Forbush's statements on September 19, 2008.
MONTE JO AND GANT
¶ 94. In 2009, while the State's appeal was pending in the court of appeals, the United States Supreme Court handed down two important criminal law deci*667sions: Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079 (2009), and Arizona v. Gant, 556 U.S._, 129 S. Ct. 1710 (2009).
¶ 95. In Montejo, the Supreme Court overruled its holding in Michigan v. Jackson, 475 U.S. 625, 636 (1986), that once the Sixth Amendment right to counsel is asserted, an accused may not validly waive that right in a police-initiated custodial interrogation. Montejo, 129 S. Ct. at 2091. The Court, in an opinion by Justice Scalia, conducted a cost-benefit analysis, ultimately concluding that the "three layers of prophylaxis" outlined by the Court's decisions in Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477 (1981), and Minnick v. Mississippi, 498 U.S. 146 (1990), were sufficient to protect the right to counsel under the Sixth Amendment. Montejo, 129 S. Ct. at 2090.
¶ 96. In overruling Jackson, the Court undercut many of the major underpinnings of Dagnall, which relied heavily on Jackson's reasoning. See Dagnall, 236 Wis. 2d 339, ¶¶ 42, 48. The Montejo Court held that where a defendant has been read his Miranda rights, is represented by counsel, and waives his rights, no presumption of invalidity attaches to the waiver. Montejo, 129 S. Ct. at 2085. As a practical matter, the Court's holding in Montejo constricted the rights of criminal defendants who have been charged with an offense and are represented on that offense.
¶ 97. The Court implicitly recognized, however, that its changed interpretation of the Sixth Amendment right to counsel is not the only constitutionally acceptable approach. "If a State wishes to abstain from requesting interviews with represented defendants when counsel is not present, it obviously may continue to do so." Montejo, 129 S. Ct. at 2089. In making this statement, the Court not only acknowledged the viabil*668ity of other, more protective, procedures in the Sixth Amendment context but also belied any interpretation that its Montejo ruling must be applied retroactively.
¶ 98. The second important criminal case in 2009 was Arizona v. Gant. In Gant, the Court narrowed the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement. By clarifying and narrowing the holding in New York v. Belton, 453 U.S. 454 (1981), the Court limited police searches of the passenger compartments of motor vehicles to situations in which the persons arrested are unsecured and within reaching distance of the compartments at the time of the search. Gant, 129 S. Ct. at 1719.
¶ 99. Many courts, including courts in Wisconsin, had interpreted Belton expansively, see, e.g., State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and law enforcement officers had relied on these rulings in conducting certain automobile searches incident to arrest.
¶ 100. When this court was confronted with the holding in Gant, we immediately accepted the Gant interpretation as controlling for future searches but declined to apply the remedy of exclusion retroactively to searches conducted prior to Gant. See State v. Dearborn, 2010 WI 84, ¶¶ 3-4, 327 Wis. 2d 252, 786 N.W.2d 97; State v. Littlejohn, 2010 WI 85, ¶ 5, 327 Wis. 2d 107, 786 N.W.2d 123. We recognized that the search conducted by the officers in Dearborn was clearly lawful at the time,2 and occurred in reasonable reliance on existing Wisconsin precedent. Id., ¶ 28.
*669¶ 101. Because there was no question that the officers were acting in good faith, we applied the good faith exception to the exclusionary rule and declined to apply the remedy of exclusion. Id., ¶ 49. We noted that in this context, where officers act in objectively reasonable reliance on settled precedent later deemed unconstitutional, the deterrent benefit of excluding the evidence seized would be nonexistent. Id.
¶ 102. In many ways, the Forbush case presents the opposite of the good faith reliance exemplified in Dearborn. When Forbush was questioned on the morning of May 16, 2008, he had been charged with two crimes and was represented by counsel. The law of Wisconsin did not require Forbush to "invoke" his right to counsel under these circumstances. Rather, it precluded law enforcement officers from initiating questions to the accused about these crimes. The law in Wisconsin was not ambiguous. The Department of Justice's own training materials clearly stated that, under Dagnall, a represented defendant charged with a crime need not invoke his Sixth Amendment right to counsel to prevent police questioning. Wisconsin Department of Justice, Training and Standards Bureau, The Miranda Primer: A Handbook for Law Enforcement (2004). In a publication written specifically for law enforcement, the Department of Justice instructed:
[I]f a suspect who has been charged responds to the Miranda warning by making references to an attorney even though she does not clearly express a wish for counsel, this would likely be considered an assertion of the 6th amendment right. .. . The court jealously protects the 6th amendment right to counsel.
The Miranda Primer, 9 (citing Dagnall, 236 Wis. 2d 339).
*670¶ 103. At the time of Forbush's interrogation, the advent of the Montejo ruling was barely a glimmer in Justice Scalia's eye. The Supreme Court would not grant certiorari in Montejo until almost five months later (October 1, 2008), Montejo v. Louisiana, 129 S. Ct. 30 (2008), and it would not render a decision until May 26, 2009. It is therefore impossible to contend, as did the officers in Dearborn, that they acted in good faith reliance on existing law.
¶ 104. Law enforcement should not be disadvantaged for its "objectively reasonable reliance" on settled law. Dearborn, 327 Wis. 2d 252, ¶ 44. When officers follow "the clear and settled precedent of this court," they are doing what officers should do. Id. Applying the exclusionary rule to these officers simply because the "settled" law is subsequently changed would not deter misconduct. Conversely, law enforcement should not be rewarded for disregarding settled law in anticipation that someday it may be overruled. Evidence obtained in clear violation of the constitutional principles announced by this court should be suppressed.
¶ 105. The good faith exception to the exclusionary rule evolved from a recognition that where law enforcement acts in good faith, the purpose of deterrence is not served by suppressing reliable evidence. Illinois v. Krull, 480 U.S. 340, 349-50 (1987). The corollary to rewarding good faith is sanctioning bad faith. Applying the exclusionary rule and suppressing evidence where law enforcement has not complied with constitutional law promotes deterrence. While this court concluded that deterrence was not served by the retroactive application of Gant, it is served here. Ordinarily, law enforcement must comply with existing law, even though that law is later changed.
*671FUTURE CASES
¶ 106. The principles stated above should determine the outcome of this case and may affect other cases where law enforcement officers conducted inappropriate questioning of accused defendants before Montejo was decided. The principles stated above do not address the future. It is, however, important to note that the Supreme Court invited the states to preserve existing law that police-initiated questioning of accused persons charged with crimes and represented by counsel is presumed invalid and will lead to exclusion of incriminating evidence.
¶ 107. The Wisconsin Department of Justice was correct when it stated that this court "jealously protects the 6th amendment right to counsel." The Miranda Primer, 9. As we indicated in Dagnall, the Sixth Amendment right to counsel arises after adversary judicial proceedings have been initiated by the filing of a criminal complaint or the issuance of an arrest warrant, Dagnall, 236 Wis. 2d 339, ¶ 30, and it includes pretrial interrogations after either of these events has occurred, id.
¶ 108. Interpreting the cases in 2000, this court said that "a charged defendant in custody who does not have counsel must invoke, assert, or exercise the right to counsel to prevent interrogation." Id., ¶ 48.
¶ 109. The upshot of Montejo is that a charged defendant in custody must invoke, assert, or exercise the right to counsel, clearly, to prevent interrogation, even after counsel has been hired or appointed, so long as a proper Miranda warning has been provided.
¶ 110. Justice Scalia acknowledged in Montejo that a "bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible *672by badgering-induced involuntary waivers are ever erroneously admitted at trial." Montejo, 129 S. Ct. at 2089. But he discounted the value of such a rule, writing:
[T]he Court has already taken substantial other, overlapping measures toward the same end. Under Miranda's prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. Under Edwards' prophylactic protection of the Miranda right, once such a defendant "has invoked his right to have counsel present," interrogation must stop. And under Minnick's prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, "whether or not the accused has consulted with his attorney."
Id. at 2089-90 (citations omitted).
¶ 111. According to Justice Scalia, "a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings." Id. at
2090.
¶ 112. This blueprint for interrogation will inevitably raise questions about whether a particular accused's statements "say as much" as necessary to terminate interrogation in the absence of counsel. It raises questions about whether an attorney present at the jail and demanding to see her client will be permitted to confer with the accused unless the accused personally asks to confer with his attorney.
¶ 113. An accused's waiver of counsel must be knowing and intelligent and voluntary, and the state will have the burden of showing all three in every case. This is significant when we acknowledge that not all *673defendants are equal in their capacity to understand and appreciate their rights, and not all post -Miranda admissions will automatically pass muster.
¶ 114. Whether rights afforded by the Sixth Amendment will require additional protection in this state remains to be determined.
¶ 115. The law is ever changing. At first glance, Montejo presents a dramatic shift in direction for Sixth Amendment jurisprudence. If there is anything to be learned from a study of constitutional law, however, it is that even the most momentous decisions rarely escape some refinement over time. The Court's holding in Belton was perceived to be very broad when it was issued, but the decision was not clarified and narrowed until almost 30 years later. Gant, 129 S. Ct. at 1718-19.
¶ 116. Montejo is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel. But neither this court nor law enforcement currently has the benefit of the inevitable explanation, application, and modification of the principles that Montejo so recently announced. It is unnecessary here to expound on what additional protections, if any, may be needed in the future. It is enough now to uphold the protections that were in place when Brad Forbush was questioned in violation of settled law.
¶ 117. For the foregoing reasons, I respectfully concur.
Miranda v. Arizona, 384 U.S. 436 (1966).
The search in question occurred on April 9, 2006. State v. Dearborn, 2010 WI 84, ¶ 5, 327 Wis. 2d 252, 786 N.W.2d 97. Arizona v. Gant was argued on October 7, 2008, and decided on April 21, 2009.