¶ 118.
{dissenting).
I lament the fact that three justices, each in a separate written opinion, take three divergent avenues in a futile effort to uphold the Dagnall rule and suppress statements Forbush voluntarily made to police. These varying approaches leave more questions than answers. Justice Roggensack, in her effort to save the Dagnall *674rule, employs an extremely narrow reading of Montejo, ignoring an entire section of that decision, in order to extract only the language and principles that support her position. Her attempt to minimize the effect of a United States Supreme Court decision rings hollow because Montejo clarified that the focus on retained versus appointed counsel is a distinction without a difference. After Montejo, retaining or appointing counsel does not, by itself, serve to invoke the Sixth Amendment right to counsel prohibiting a subsequent police-initiated interrogation. Both Justice Prosser and Chief Justice Abrahamson note as much in their writings. Justice Prosser, in his effort to save the Dagnall rule, invents an anomalous bad faith corollary to the good faith exception to the exclusionary rule. Chief Justice Abrahamson, in her effort to save the Dagnall rule, relies on the Wisconsin Constitution but pays scant attention to the fact that Dagnall was based entirely on the United States Constitution. I would follow the clear mandate in Montejo and overrule Dagnall. This result follows the letter and the spirit of Montejo, protecting a defendant's right to counsel while ensuring that justice will be done by the admission of voluntary statements of a defendant such as Forbush.
¶ 119. I disagree with the decisions of these justices to depart from well-reasoned federal constitutional law, and thus I respectfully dissent. Part I analyzes the United States Supreme Court's decision in Montejo v. Louisiana, 556 U.S. _, 129 S. Ct. 2079 (2009). Part II explains the effect of Montejo on the Sixth Amendment right to counsel and the law in Wisconsin. In Part III, I note, as I did in my dissent in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, that the concerns echoed by the United States Supreme Court in Montejo and the lack of legal *675support for distinguishing between the Fifth and Sixth Amendment rights to counsel strongly support following the United States Supreme Court's approach in Montejo. Part IV briefly concludes my dissent.
I.
¶ 120. I begin by clarifying the effect of Montejo to demonstrate that Justice Roggensack's interpretation lacks any foundation in the language of that decision. Her opinion gives far too little credence to the United States Supreme Court's careful examination of the Sixth Amendment right to counsel and the rationale underlying the Jackson rule. Montejo's clear and emphatic rejection of the Jackson rule effectively overrules Dagnall, as the court of appeals appropriately concluded. State v. Forbush, 2010 WI App 11, ¶ 13, 323 Wis. 2d 258, 779 N.W.2d 476. Montejo also clarified that only a clear, unequivocal request for counsel will invoke the Sixth Amendment right to counsel.1
¶ 121. Under Jackson, a waiver of the right to counsel was presumed invalid where it was obtained during police-initiated questioning after the State was notified that a charged defendant had secured representation by counsel. Montejo, 129 S. Ct. at 2083. In Jackson, the defendant affirmatively requested the appointment of counsel. Michigan v. Jackson, 475 U.S. 625, 627 (1986). The Montejo Court explicitly overruled *676Jackson, concluding that it produced an unworkable, "fact-intensive and burdensome" rule for law enforcement and courts. Montejo, 129 S. Ct. at 2084.
¶ 122. The Montejo Court's holding encompassed two distinct but related Sixth Amendment right to counsel issues. The Court first rejected Montejo's attempt to expand Jackson to allow the mere appointment of counsel, without any request by the defendant, to serve as an invocation of the Sixth Amendment right to counsel. Id. at 2083-88. Going a step further, the Court overruled Jackson outright. Id. at 2088-91.
¶ 123. In rejecting the expansion of Jackson to the facts in Montejo, the United States Supreme Court noted that the only rationale for the Jackson rule was protection from police badgering. Id. at 2085-86. When a defendant has not actually requested the assistance of an attorney during custodial interrogation, the Court concluded that it was and is wholly unnecessary to place these constraints on law enforcement. The Court explained:
No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance.
Id. at 2086-87.
¶ 124. The United States Supreme Court then put the entire Jackson rule in its sights. After weighing the costs and benefits of the Jackson rule, the Court concluded that Jackson lacked compelling reasoning. *677Id. at 2089-91. The Court highlighted the absurdity of protecting a defendant from his own election to talk to law enforcement without counsel when other safeguards ensure that such a decision is knowing and voluntary. Id. at 2089-90. Little additional protection is gained from the Jackson rule considering the many prophylactic layers that exist to prevent police from obtaining involuntary or coerced statements.2 Id. The cost of the Jackson rule, on the other hand, is substantial, given that it could often be used to invalidate an entirely voluntary confession and may deter law enforcement from even trying to obtain confessions. Id. at 2090-91. Ultimately, the Court overruled Jackson, holding that its limited benefit to constitutional protections came at too great a cost. Id. at 2091.
¶ 125. Montejo also clarified that an unequivocal request for counsel is required to invoke both the Fifth and Sixth Amendment right to counsel.3 The United *678States Supreme Court has long required an unequivocal and unambiguous request to invoke the Fifth Amendment right to counsel. Davis v. U.S., 512 U.S. 452, 459 (1994). Prior to Montejo, the Court had not directly addressed the clarity with which a defendant was required to request counsel to invoke the Sixth Amendment right. However, the Court did not state that any different standard applied to post-charging interrogations either. While only the Fifth Amendment right to counsel was implicated in Davis, nothing in that case indicated that the standard was applicable only to pre-charging interrogations, and its reasoning is equally applicable to interrogations after a defendant has been charged. Id. at 458-62.
¶ 126. In Montejo, after rejecting his argument under the now-defunct Jackson decision, the United States Supreme Court ordered a remand to allow Montejo to argue that he "made a clear assertion of the right to counsel," which under Edwards would invalidate any statements obtained after such an invocation if police initiated the subsequent interrogation. Montejo, 129 S. Ct. at 2091-92 (citing Davis, 512 U.S. at 459). The Court noted that "[e]ven if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an 'unequivocal election of the right.'" Id. at 2091 (quoting Texas v. Cobb, 532 U.S. 162, 176 (2001)).
¶ 127. At one time, the Wisconsin court of appeals had suggested "that the strict requirements for 'un*679equivocally and unambiguously1 asserting one's right to counsel under the Fifth Amendment are somewhat less stringent under the Sixth Amendment." State v. Hornung, 229 Wis. 2d 469, 478-80, 600 N.W.2d 264 (Ct. App. 1999) (relying on distinctions between the Fifth and Sixth Amendment right to counsel in Jackson). This court extended that statement in a footnote in State v. Ward, even though the Sixth Amendment was not at issue in that case, by noting that "in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right." State v. Ward, 2009 WI 60, ¶ 43 n.5, 318 Wis. 2d 301, 767 N.W.2d 236 (citing Hornung, 229 Wis. 2d at 477-78 and Patterson v. Illinois, 487 U.S. 285, 290-91 (1988), and similarly relying on such distinctions). The United States Supreme Court has now erased the distinctions between pre- and post-charging interrogations in Montejo and clarified that an unequivocal request is required to invoke the right to counsel under both Amendments. The Ward footnote is now clearly in error.
¶ 128. Significantly, in its decision overruling Jackson and clarifying that only an unequivocal request can invoke the Sixth Amendment right to counsel, the United States Supreme Court disposed of the distinctions between the Fifth and Sixth Amendment right to counsel in Montejo. In support of its abrogation of the Jackson rule, the Court explained that "[s]ince the right under both sources is waived using the same procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver." Montejo, 129 S. Ct. at 2090 (internal citations omitted). Even more directly, the Court explicitly provided that "there is no reason categorically to distinguish an unrepresented defen*680dant (Fifth Amendment) from a represented one (Sixth Amendment)." Id. at 2092 (parentheticals added).
II.
¶ 129. I emphasize these tenets of Montejo because the United States Supreme Court's definitive interpretation of the Sixth Amendment right to counsel in Montejo clearly invalidates Justice Roggensack's reasoning for upholding Dagnall and provides the appropriate outcome in this case. The heart of Justice Roggensack's rationale is based on three erroneous legal arguments: (1) requesting counsel in out-of-state extradition proceedings invokes the right to counsel for a subsequent interrogation in Wisconsin, (2) Montejo is limited to its facts, and (3) Dagnall interpreted the Wisconsin Constitution or created constitutional principles severed from the Sixth Amendment. These assertions lack any legal support.
¶ 130. There is also a fourth and quite critical factual flaw in Justice Roggensack's reasoning. Even if Montejo and Dagnall could be reconciled into a rule prohibiting the police-initiated interrogation of a charged defendant "who has affirmatively invoked his right to counsel by securing the services of an attorney for the crimes charged," Justice Roggensack's op., ¶ 27, there is no evidence that Forbush in fact did so in this case. While Forbush secured a Michigan attorney as counsel for his extradition hearing, there is no evidence that he secured counsel in Wisconsin or even knew that he was represented by counsel when the interrogation took place in Wisconsin. Justice Roggensack makes much of the parties' stipulation that Forbush was represented by counsel when interrogated by Detective Nor-lander and the circuit court's finding that Norlander knew of that representation. Justice Roggensack's op., *681¶¶ 52-53. Montejo rejected the idea that retaining counsel was sufficient to invoke the Sixth Amendment right to counsel. Justice Roggensack asserts that the Dagnall rule that survives Montejo applies to a defendant who affirmatively requests counsel, but the record does not support a conclusion that Forbush did so. More than conflicting with Montejo, allowing the retention of counsel by a family member or other person to invoke a defendant's right to counsel is contrary to this court's statement in Ward that only the defendant can invoke his right to counsel. Ward, 318 Wis. 2d 301, ¶ 38. There is nothing in the record to show that Forbush, himself, "affirmatively invoked his right to counsel by securing the services of an attorney for the crimes charged" in Wisconsin. Thus, Justice Roggensack's opinion is unveiled as nothing more than an endeavor to salvage Dagnall.
¶ 131. Despite the lack of evidence in the record that Forbush affirmatively requested counsel in Wisconsin, Justice Roggensack makes the novel assertion that Forbush's retention of counsel for his extradition hearing in Michigan invoked his Sixth Amendment right to counsel for these Wisconsin charges. Justice Roggensack's op., ¶¶ 26, 39-40. Justice Roggensack provides no relevant support for this claim.4 Indeed, as *682was recently reaffirmed in Montejo, the United States Supreme Court has "in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.'" Montejo, 129 S. Ct. at 2091 (quoting McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)). No decision by this or any court provides that Forbush's assistance from Michigan counsel in a procedural, not substantive, extradition hearing in Michigan could serve to invoke his right to counsel for the purposes of an interrogation on criminal charges in Wisconsin.5
*683¶ 132. Additionally, it simply is not possible to read Montejo as narrowly as Justice Roggensack desires. Justice Roggensack insists that Montejo is limited to the "certain circumstances" presented in Montejo, which she vaguely asserts as "a charged defendant for whom counsel had been appointed by the court, but for whom the Supreme Court could not determine whether he had actually invoked his right to counsel and the protections that would then flow from Edwards. "6 Jus*684tice Roggensack's op., ¶ 34 (citing Montejo, 129 S. Ct. at 2091-92). Justice Roggensack does not provide a single case from any court that has interpreted or limited Montejo in this way. I also found none. To the extent Justice Roggensack attempts to limit Montejo based on the Court's decision to remand to allow Montejo to make an argument that he "made a clear assertion of the right to counsel when the officers approached him," that is merely a reference to the legal standard after Montejo: a defendant cannot "invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.' "7 Montejo, 129 S. Ct. at 2091 (quoting McNeil, 501 U.S. at 182 n.3) (emphasis added).
¶ 133. Federal and state courts around the country have recognized that after Montejo, neither requesting nor being appointed nor receiving the services of counsel serves to invoke the Sixth Amendment right to counsel. United States v. Johnson, No. 09-752, 2010 WL 4910889, at *3-4 (E.D. Pa. Dec. 2, 2010); United States v. Veals, No. 08-2235, at 6, 2010 WL 145110, (7th Cir. Jan. 15, 2010); People v. Vickery, 229 P.3d 278, 281 (Colo. 2010); Hughen v. State, 297 S.W.3d 330, 335 (Tex. Crim. *685App. 2009); Williams v. State, 38 So. 3d 188, 190-92 (Fla. Dist. Ct. App. 2010). Commentators have also noted that Montejo foreclosed any rule allowing representation by or the retention of an attorney to serve as an invocation of the Sixth Amendment right to counsel. Sixth Amendment — Right to Counsel — Interrogation Without Counsel Present, 123 Harv. L. Rev. 182, 183 (2009) ("Justice Scalia held that neither of the two proposed approaches to Jackson — applying it only when the defendant affirmatively requests counsel or applying it as soon as the defendant is granted counsel even if there is no affirmative request — is workable."). The writings of Justice Prosser and Chief Justice Abraham-son both recognize that Montejo repudiated this court's interpretation of the Sixth Amendment right to counsel in Dagnall. Justice Prosser's op., ¶¶ 96, 109; Chief Justice Abrahamson's op., ¶ 64.
¶ 134. A closer look at the context of the Court's language in Montejo illuminates the fact that the "certain circumstances" are much broader, including both the facts of this case and the Dagnall rule. In summarizing the issue presented, the Court stated, "The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances." Montejo, 129 S. Ct. at 2085. Thus, "certain circumstances" refers to those in Jackson, where the defendant had affirmatively requested counsel. Jackson, 475 U.S. at 627. It could not be more clear that the Jackson rule — upon the attachment of the Sixth Amendment right to counsel, a waiver is presumed invalid if obtained in a police-initiated interrogation by a defendant who has previously secured counsel for those charges — was what the Court categorically rejected in Montejo. Montejo, 129 S. Ct. at 2091.
*686¶ 135. The decision did not conclude upon the United States Supreme Court's explanation that the Jackson rule did not include a charged defendant who had "previously been appointed a lawyer." Id. at 2088. The Court proceeded to vitiate the Jackson rule and explained that it had "never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.'" Id. at 2091 (quoting McNeil, 501 U.S. at 182 n.3). The Court could not have provided a more complete rejection of the Sixth Amendment interpretation espoused in Jackson, adopted by this court in Dagnall, and advanced in Justice Roggensack's opinion.8
¶ 136. Dagnall's holding "that the Sixth amendment right to counsel protected Dagnall from police interrogation . .. once Dagnall was formally charged and once an attorney represented him on that charge," directly conflicts with Montejo and thus should no longer be the law in Wisconsin. Dagnall, 236 Wis. 2d 339, ¶ 67; see State v. Jennings, 2002 WI 44, ¶ 3, 252 Wis. 2d 228, 647 N.W.2d 142 ("[T]he Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of *687federal law, although it means deviating from a conflicting decision of this court.").9
¶ 137. On a deeper level, Montejo rejected not only this court's holding in Dagnall, but also our reasoning in that case. Dagnall's10 departure from the more defined Fifth Amendment right to counsel standards was based, in part, on purported distinctions between the Fifth and Sixth Amendment rights to counsel. I dissented in Dagnall because there is no basis for deriving different standards from the Fifth and Sixth Amendment rights to counsel. 236 Wis. 2d 339, ¶¶ 74-76 (Crooks, J., dissenting). As explained above, the United States Supreme Court has now expressly rejected the premise that it is more difficult to waive the Sixth Amendment right to counsel than it is to waive the Fifth Amendment right. Montejo, 129 S. Ct. at 2090, 2092.
*688¶ 138. Montejo rejected this court's interpretation of the Sixth Amendment right to counsel in Dagnall, and it cannot survive without those Sixth Amendment underpinnings. We explicitly stated in Dagnall that our decision was based solely on the United States Supreme Court's interpretation of the Sixth Amendment right to counsel and not on any interpretation of the Wisconsin Constitution. In fact, the Dagnall majority referred to the Sixth Amendment 69 times and referred to the Wisconsin Constitution only in a footnote, which was added to make absolutely clear that our decision was not based on Article I, Section 7. 236 Wis. 2d 339, ¶ 28 n.7 ("The State does not raise the issue whether Dagnall properly invoked his right to counsel under the state constitutional provision. Therefore, we do not address it.") (emphasis added).
¶ 139. While Justice Roggensack insists that Montejo's interpretation of the Sixth Amendment does not conflict with Dagnall, she nevertheless suggests that Dagnall created a "fundamental constitutional principleO" underlying Article I, Section 7 that is unencumbered by Sixth Amendment jurisprudence. Justice Roggensack's op., ¶¶ 41-51. As noted in Justice Roggensack's opinion, ¶ 42, we have generally interpreted the right to counsel under Article I, Section 7 consistent with that in the Sixth Amendment. See State v. Polak, 2002 WI App 120, ¶ 8, 254 Wis. 2d 585, 646 N.W.2d 845; State v. Sanchez, 201 Wis. 2d 219, 226-27, 548 N.W.2d 69 (1996); State v. Klessig, 211 Wis. 2d 194, 202-03, 564 N.W.2d 716 (1997). In a convoluted inversion of that premise, Justice Roggensack essentially concludes that when we interpreted and applied the Sixth Amendment right to counsel in Dagnall, we created "fundamental constitutional principles" separate and independent from the federal constitution on *689which they were based.11 Justice Roggensack's op., ¶¶ 42, 50. This is a novel and unsupported interpretation. In both Sanchez and Klessig, our conclusion equating the right to counsel in Article I, Section 7 with that in the Sixth Amendment led us to adopt the United States Supreme Court's definitive interpretation of the Sixth Amendment right to counsel as the rule in Wisconsin. Sanchez, 201 Wis. 2d at 226-36; Klessig, 211 Wis. 2d at 201-03. Applying that rationale here should similarly lead Justices Roggensack and Prosser and Chief Justice Abrahamson to accept and follow the Court's interpretation of the Sixth Amendment in Montejo.
¶ 140. Justice Roggensack's reference to Wisconsin's historically vigorous protection of the right to counsel does not require a different result. Her writing correctly notes that Wisconsin has long protected a robust right to counsel but fails to provide a single case interpreting the right to counsel in Article I, Section 7 to provide the specific embellishments at issue in this case. Nor is there an explanation as to how the right to counsel, as interpreted by the United States Supreme Court in Montejo, is inconsistent with Wisconsin's commitment to protecting the right to counsel. Instead, Justice Roggensack rewrites our previous interpretations of the Sixth Amendment right to *690counsel in Dagnall into a constitutional rule that is, inexplicably, independent of the constitutional provision from which it was derived.
¶ 141. Using another unique tactic to uphold the exclusion of Forbush's statements, Justice Prosser invents a bad faith corollary to the good faith exception to the exclusionary rule. We recently discussed the good faith exception in State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W2d 97. We noted in Dearborn that the good faith exception was adopted from United States Supreme Court decisions and has been extensively developed through Fourth Amendment precedent. Id,., ¶¶ 33-43. Conversely, to my knowledge, this bad faith corollary has never been recognized by any other court, nor has the good faith exception ever before been applied in the Sixth amendment context.
¶ 142. Most importantly, Justice Prosser fails to heed our warning in Dearborn upon which our decision not to exclude critical evidence was based: deterrence should not be put ahead of the interest of justice. Id., ¶ 36 ("To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.") (quoting Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 702 (2009)). It simply cannot be said in this case that Detective Norlander's conduct was so deliberate and culpable that exclusion is warranted when, in light of Montejo, there was no Sixth Amendment violation.
¶ 143. Taking further liberties with United States Supreme Court precedent, Justice Prosser suggests that because it is unclear how Montejo, "the current controlling law on the subject of the Sixth Amendment right to counsel," will be refined in the future, this court *691can wait and see how the law develops before we decide whether to follow it. Justice Prosser's op., ¶¶ 115-16. This ignores the maxim that "this court is bound by the interpretations which the United States Supreme Court has given" to provisions of the federal constitution. State v. Pitsch, 124 Wis. 2d 628, 632, 369 N.W.2d 711 (1985). We may not elect whether to follow current constitutional law when applying the Sixth Amendment or defer until it develops into a rule we find more palatable.
¶ 144. Two of our previous decisions illustrate the consequences of misinterpreting and misapplying United States Supreme Court precedent. In State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), I dissented, in part, because the majority misread Ross v. Oklahoma, 487 U.S. 81 (1988), to accord with its result. We noted as much in State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, overruling Ramos because it was neither practically nor legally sound in light of the Court's decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000), explicitly rejecting this court's reading of Ross in Ramos. Lindell, 245 Wis. 2d 689, ¶¶ 87-90, 131. Rather than waiting for the Court to explicitly reject Justice Roggensack's reading of Montejo, it would be wise to employ the only interpretation consistent with Montejo's reasoning: neither equivocally requesting, nor having appointed, nor receiving the services of an attorney invokes the right to counsel for the purposes of a custodial interrogation. It takes an unequivocal invocation of such right.
¶ 145. To reach their desired result, Justices Roggensack and Prosser need not misapply our precedent and that of the United States Supreme Court, as they have done here, because, as we have done in certain unique circumstances, there are established *692methods through which we may depart from federal constitutional rulings. For example, we may examine a parallel provision of the Wisconsin Constitution to determine whether it provides protections not afforded under the United States Constitution. See e.g., State v. Hansford, 219 Wis. 2d 226, 241-43, 580 N.W.2d 171 (1998) (holding that Article I, section 7 required a 12-person jury trial despite the United States Supreme Court's decision that the Sixth Amendment jury trial right did not) (citing Williams v. Florida, 399 U.S. 78 (1970)). However, I would note that there are limitations on this avenue, as there should be on any attempt to depart from federal constitutional standards. Any "upward departure from the federal constitutional standards adopted by the United States Supreme Court for purposes of our own state constitutional law must itself be grounded in requirements found in the state constitution or laws." Jennings, 252 Wis. 2d 228, ¶ 39 (citing State v. Agnello, 226 Wis. 2d 164, 180-181, 593 N.W.2d 427 (1999)); see also State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977). Unfortunately, Justice Roggensack's and Justice Prosser's departures from the Court's definitive interpretation of the Sixth Amendment right to counsel in Montejo does not rest on any solid ground.
¶ 146. Chief Justice Abrahamson's opinion follows the well-established method of examining whether the Wisconsin Constitution provides greater protections than the federal constitution. While I do not quibble with her approach, for the reasons set forth in this dissent, I strongly disagree with her result. I do not believe that there are any requirements in our Wisconsin Constitution or laws upon which an attempt to salvage the Dagnall rule may be founded.
¶ 147. The Dagnall rule is without any legal footing after Montejo. This rule should not survive for *693several practical reasons as well. In its decision rejecting the Jackson rule, based in part on a cost-benefit analysis of its practical application, the United States Supreme Court explained that it "deters law enforcement officers from even trying to obtain voluntary confessions." Montejo, 129 S. Ct. at 2091. Allowing equivocal requests for counsel to serve as an invocation of the right to counsel is similarly imprudent. As I noted previously, in Davis, when proclaiming the standard that only an unequivocal and unambiguous request can invoke the right to counsel, the Court noted that anything less "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity." Davis, 512 U.S. at 460 (quoting Michigan v. Mosley, 423 U.S. 96, 102 (1975)). The amorphous concept of what constitutes an equivocal request for counsel provides almost no guidance to law enforcement officers and courts and thus is not a wise standard to impose.
¶ 148. As a result of the opinions of the three justices, statements Forbush made to police voluntarily after carefully considering whether to waive his right to counsel and tell his side of the story are held to be inadmissible. The justification for this result is unclear in light of the fact that, consistent with established Fifth Amendment law, had police questioned Forbush before charges were formally filed, his waiver would be valid and his statements would be admissible. However, since charges had been filed, they find his waiver invalid, even though if they followed the decision in Montejo, the waiver would be valid. Based on the clear holding of the United States Supreme Court in Montejo, I believe that there is no basis whatsoever for the rule set forth today.
*694¶ 149. Any interpretation of the right to counsel must strike a balance between protecting a defendant's rights and allowing law enforcement to seek justice. See Montejo, 129 S. Ct. at 2089. The other opinions clearly fail to strike such a balance.
¶ 150. For the above reasons, we should follow the United States Supreme Court and make it clear that Dagnall is no longer the law in Wisconsin. Dagnall relied solely on the Sixth Amendment to the federal constitution, and given the Court's clear decision in Montejo, I believe that the Supremacy Clause dictates this outcome. See Jennings, 252 Wis. 2d 228, ¶ 3. Justice Roggensack strives to salvage Dagnall's holding by restricting Montejo and attempting to convince the reader to believe that Dagnall created a rule unmoored to the Sixth Amendment. Despite this unsupported rationale, Dagnall cannot survive Montejo. Since Montejo also clarified that an unequivocal request for counsel is required to invoke both the Fifth and Sixth Amendment right to counsel, we should recognize that as the law in Wisconsin.
III.
¶ 151. I believe it is also important to highlight that, in my dissent in Dagnall, I raised many of the same concerns addressed by the United States Supreme Court in its rejection of the Jackson rule in Montejo. One such concern is the limited support for applying different standards to the Fifth and Sixth Amendment rights to counsel. I dissented in Dagnall because "[i]n most significant respects, the Fifth and Sixth Amendments have been accorded similar treatment in regard to the right to counsel." 236 Wis. 2d 339, ¶ 74 (Crooks, J, dissenting). I further explained that the United States Supreme Court's decision in Patterson, 487 U.S. *695285, "made it clear that while different policies are involved in the Fifth Amendment and Sixth Amendment right to counsel, one right is not superior to the other, and it is not more difficult to waive the Sixth Amendment right than the Fifth Amendment right." Dagnall, 236 Wis. 2d 339, ¶ 76. I also noted problems with such distinctions in practice. The "bright-line rule . . . prohibiting police interrogation where there has been an ambiguous or equivocal Sixth Amendment invocation, or no invocation at all by the accused, could be disastrous for law enforcement officials in Wisconsin." Id., ¶ 84 (Crooks, J., dissenting). As discussed above, the United States Supreme Court agreed, noting that deterring law enforcement officers from trying to obtain confessions would seriously interfere with investigations. Montejo, 129 S. Ct. at 2090-91.
IV
¶ 152. Therefore, I would affirm the court of appeals' decision and remand this case for trial. In so doing I would make it clear that Dagnall is no longer the law in Wisconsin and hold that the Sixth Amendment does not prohibit law enforcement from questioning a charged and represented defendant, assuming Miranda warnings and a knowing, voluntary, and intelligent waiver. I would also hold that a defendant may invoke the Sixth Amendment right to counsel only through an unambiguous and unequivocal request for the assistance of counsel.
¶ 153. I have emphasized in previous dissents and continue to emphasize here that when different rules apply to charged and uncharged defendants there may be a temptation to manipulate the timing of charging in a manner inconsistent with the interests of justice. Additionally, a bright-line rule prohibiting law enforce*696ment from initiating questioning with a charged and represented defendant will unduly restrict law enforcement's ability to obtain voluntary confessions. The result in this case comes at a serious cost. When law enforcement is prevented from obtaining voluntary confessions, "crimes go unsolved and criminals unpunished." Montejo, 129 S. Ct. at 2091.
¶ 154. For the reasons set forth herein, I respectfully dissent.
¶ 155. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.The central focus of Montejo was "the scope and continued viability of the rule announced by [the United States Supreme Court] in Michigan v. Jackson. Montejo v. Louisiana, 556 U.S. _, 129 S. Ct. 2079, 2082 (2009). After overruling Jackson, the Court also clarified that upon remand, Montejo could establish a violation of his Sixth Amendment right to counsel only if he proved that he clearly and unequivocally requested counsel when the officers approached him. Id. at 2091-92.
The Montejo Court elaborated that there are three key layers of protection which adequately shield a defendant from an involuntary confession. 129 S. Ct. at 2089-90. Miranda v. Arizona, 384 U.S. 436, 474 (1966), prevents compelled self-incrimination by providing defendants with a number of rights in custodial interrogations, including the right to have an attorney present and the right to be notified of that right. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), ensures that law enforcement respects the Miranda right by prohibiting further interrogation after a defendant invokes the right to counsel. In a similar vein, Minnick v. Mississippi, 498 U.S. 146, 153 (1990), adds to the protection provided by Edwards by prohibiting any interrogation outside the presence of counsel once a defendant has invoked the right to counsel.
Justice Roggensack's failure to address Forbush's argument that he equivocally requested counsel and that such a request is sufficient to invoke the right to counsel implicitly recognizes that this argument lacks merit after Montejo. Chief *678Justice Abrahamson's opinion recognizes that Montejo clarified that a clear, unequivocal request for counsel is required to invoke both the Fifth and Sixth Amendment right to counsel, though she concludes that equivocal requests are sufficient to invoke the right to counsel under the Wisconsin Constitution. Chief Justice Abrahamson's op., ¶¶ 64 n.6, 71.
Justice Roggensack primarily relies on two decisions from other states, neither of which lend her any support. The Appellate Court of Illinois, relying on Jackson, since overruled in Montejo, held that police could not question a defendant who had requested counsel at an extradition hearing related to the crimes charged. People v. Maust, 576 N.E.2d 965, 971 (Ill. App. Ct. 1991). In a very different factual scenario in State v. March, No. M2007-53-CCA-R3-CD, 2011 WL 332327 (Tenn. Crim. App. Jan. 27, 2011), the defendant retained Tennessee counsel for the purposes of the pending criminal charges in Tennessee *682while still in California. However, this was not during or for the purposes of his extradition hearing. Id. at 19, 25. The court did, in passing, suggest that this invoked his Sixth Amendment right to counsel for the Tennessee charges, id. at 25; however, this conclusion was completely irrelevant to the court's ultimate decision that the defendant's Sixth Amendment rights were not violated because he initiated the conversation with police, id. at 27.
Justice Roggensack's reliance on several United States Supreme Court cases is similarly misplaced. Both Davis and Smith v. Illinois deal with the sufficiency of a request for counsel made during a custodial interrogation after being notified of the right to have an attorney present. Davis, 512 U.S. at 454-55, 459; Smith v. Illinois, 469 U.S. 91, 94-97 (1984). Massiah v. United States, 377 U.S. 201, 202-03, 206 (1964), did not involve a waiver at all, but rather the propriety of a clandestine interrogation by a third party without notice that the defendant was entitled to have an attorney present.
The extradition hearing in an asylum state, in this case, Michigan, is distinct from any criminal proceedings that flow from the charges in the demanding state, in this case, Wisconsin. An extradition hearing, codified in the Michigan statutes at Mich. Comp. Laws § 780.14 (2009), follows the issuance of a fugitive compliant under § 780.12. See also Wis. Stat. § 976.03(13), (15) (2009-10). Pursuant to Mich. Comp. Laws § 780.12, the fugitive complaint must be on the oath of a *683credible person, must assert that the defendant committed a crime in another state, and must charge that the defendant has fled from justice. Then, at the extradition hearing, a judge in the asylum state determines whether "it appears that the person held is the person charged with having committed the crime alleged" and whether it appears "that he has fled from justice." § 780.14. At the extradition hearing, the defendant may exercise his right to waive further extradition proceedings and be willingly transported back to the demanding state.
In this case, Forbush secured his brother as counsel for his extradition hearing, waived extradition, and was willingly transported back to Wisconsin. As a practical matter, it is often the case that for purposes of representation at the extradition hearing, the court will have a public defender present or may appoint counsel, or, as was the case here, the defendant might wish to retain his own counsel. However, as the above statutory procedures make clear, a fugitive complaint and an extradition hearing are by no means a trial on the underlying charges in the demanding state. Accordingly, contrary to Justice Roggensack's suggestion, the fact that Forbush secured his brother as counsel for his extradition hearing in Michigan does not mean that Forbush affirmatively invoked his right to counsel for the crimes charged in Wisconsin.
Justice Roggensack's opinion asserts that, as a result of Montejo, Dagnall no longer requires courts to presume that a waiver by a charged and represented defendant is invalid. This begs the question: What then is left of the Dagnall rule that Justice Roggensack strives so mightily to hold onto? Justice *684Roggensack suggests that the Dagnall rule now means a defendant may invoke the Sixth Amendment right to counsel by "retaining and receiving the services of a lawyer" and need not "re-invoke" the right to counsel during custodial interrogation. Justice Roggensack's op., ¶ 35. Without the presumption, is there really anything meaningful left of the Dagnall holding?
Justice Roggensack's reliance, in part, on Montejo's approval of the Edwards rule, which protects defendants from police "badgering," is misguided. Justice Roggensack's op., ¶ 33. The Court addressed the anti-badgering rationale in the section overruling Jackson, concluding that it did not justify the Jackson rule because other prophylactic rules adequately protect against so-called police badgering. Montejo, 129 S. Ct. at 2089-90.
Justice Roggensack's reliance on Massiah, 377 U.S. 201, is misplaced. Justice Roggensack's op., ¶¶ 38, 40. Massiah was not a waiver case; indeed, Massiah was never advised of his right to counsel at all. 377 U.S. at 202-03. In Montejo, after citing Massiah and several other tangentially related Sixth Amendment cases, the Court noted, "Since everyone agrees that absent a valid waiver, Montejo was entitled to a lawyer during the interrogation, those cases do not advance his argument." Montejo, 129 S. Ct. at 2088. Massiah is similarly unavailing on the precise issue here.
I would also highlight that our decision in Jennings dealt with a conflict similar to the one presented in this case. That led us in Jennings to overrule conflicting Wisconsin precedent.
Our decision in Walkowiak was tethered to the Fifth and Fourteenth Amendments and Miranda/Edwards jurisprudence up to that point. Davis was decided a month later. The following year, we acknowledged the conflict between Walkowiak and Davis, but did not explicitly overrule Walkowiak. We now do so.
Jennings, 252 Wis. 2d 228, ¶ 35 (internal citations omitted).
We should similarly overrule Dagnall, and clarify the conflicting footnote in Ward, as both were "tethered" to now overruled United States Supreme Court precedent.
We should not lose sight of the fact that our decisions have real consequences. As a result of the majority's decision in Dagnall, his "statements detailing his involvement, with co-defendant Christopher E. Murray, in beating a man to death with baseball bats [was not] allowed in evidence. His conviction of first degree intentional homicide by use of a dangerous weapon, party to a crime, [was] set aside." Dagnall, 236 Wis. 2d 339, ¶ 70 (Crooks, J., dissenting).
To the extent that Justice Roggensack's citation to Sparkman v. State, 27 Wis. 2d 92, 133 N.W.2d 776 (1965), and characterization of the Dagnall rule as a "fundamental constitutional principle[]" suggests that the rule she applies rests upon a constitutional common law, I note that there is no support for such a claim. Sparkman — a procedural, not constitutional right-to-counsel case — does not support the development of a constitutional common law rule detached from the constitution. Id. at 97-101.
In this case, law enforcement acted in direct contravention of clear, then-existing law under State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. I do not condone that action. However, given the Supreme Court's subsequent decision in Montejo v. Louisiana, 556 U.S. _, 129 S. Ct. 2079 (2009), there is no recourse for law enforcement's violation of Dagnall.