(dissenting):
I must disagree with the majority as to their resolution of this matter.
I agree that this case does not fall within the purview of United States v. Lowry, 2 M.J. 55 (C.M.A.1976), and United States v. McOmber, 1 M.J. 380 (C.M.A.1976).1
My disagreement is with the majority’s failure to faithfully follow Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966) and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), in vacating this conviction. Its dependence on a rule of waiver amorphously embraced in the term “scrupulously honored,” leads to an unwarranted result in the present case and unnecessary confusion for future courts-martial.
In Miranda the Court said as to a request for attorney: *117If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n.14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation. Id. 384 U.S. at 474-75, 86 S.Ct. at 1628.
I read from the statement by the Court a four-part standard as follows:
1. The suspect must be informed of his right to consult with an attorney.
2. A request for an attorney stops the interrogation until an attorney is present.
3. If the authorities decide they will not provide an attorney for a reasonable time, they may do so, but can not question during this period.
4. If further interrogation is held without counsel and a statement obtained, a heavy burden rests upon the government to demonstrate that the suspect knowingly, intelligently and voluntarily waived his privilege.2
I would now test the facts of this case against the above standard. The appellant when first questioned was advised of his Article 31, Uniform Code of Military Justice, and Miranda/Tempia rights. He requested an attorney and the interrogation was stopped.3
The appellant was then placed in a detention cell with the three other suspects to the same crime. No attorney came to confer with the appellant. Special Agent Volk testified that nine hours later, after obtaining from another suspect a statement implicating the appellant:
A: I had occasion to come back. I was tired and I was up until 10:00 or 11:00 in the morning and I went home, slept a couple of hours, and came back in the afternoon to prepare the report, and that’s when I was in the vicinity of the MP desk and the detention cell, and I was talking with them and asked them if they were getting food, if they were being treated okay, and also had told them that we had information — that I had information, which I did, in the form of a statement, that these four people had committed a robbery, admitted by Hunter. The conversation with the people — they wanted to talk to me individually.
Q: They wanted to talk to you?
A: They wanted to talk to me individually.
Q: PFC Hill wanted to talk to you?
*118A: He was one of them. I don’t know exactly what order I took them down out of the D-cell.
The appellant was questioned a second time and advice was given under Article 31, UCMJ, and Miranda/Tempia4 The appellant gave a statement: the one in question.
Did the government in this ease meet the heavy burden of showing that the appellant knowingly, intelligently and voluntarily waived his privilege against self-incrimination? I believe the answer is yes.
As can be seen from the testimony, the request to discuss the matter the second time was initiated by the appellant. Further, the appellant now had added to his knowledge the fact that one of his co-suspects had made a statement which implicated him. One other significant factor must be weighed; when the appellant was advised of his rights the second time around, he knew what would happen if he said he wanted the advice of counsel: the interrogation would stop. He had been there just that morning.
This court implemented Article 31, UCMJ, in 1967 with the case of United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), wherein a majority accepted the rationale of this privilege to confer with counsel as set forth in Miranda.
I believe a blanket prohibition against a police officer’s subsequent communications with a suspect who has previously requested counsel is, at least under the circumstances of the present case, not consistent with the Supreme Court’s position on this matter.5 Accordingly, I would affirm the decision of the United States Army Court of Military Review.
. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).
. See also Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See Michigan v. Mosley, 423 U.S. 96, 104 n.10, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
. United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
. Michigan v. Mosley, supra 423 U.S. at 102, 96 S.Ct. 321; United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978).