concurring.
As the dissenting opinion of The Chief Justice sharply illustrates, resolution of the issues in this case turns primarily on one’s perception of the facts. There is little difference of opinion, among the several courts and numerous judges who have reviewed the case, as to the relevant constitutional principles: (i) Williams had the right to assistance of coun*410sel; (ii) once that right attached (it is conceded that it had in this case), the State could not properly interrogate Williams in the absence of counsel unless he voluntarily and knowingly waived the right; and (iii) the burden was on the State to show that Williams in fact had waived the right before the police interrogated him.
The critical factual issue is whether there had been a voluntary waiver, and this turns in large part upon whether there was interrogation. As my dissenting Brothers view the facts so differently from my own perception of them, I will repeat briefly the background, setting, and factual predicate to the incriminating statements by Williams—even though the opinion of the Court sets forth all of this quite accurately.
I
Prior to the automobile trip from Davenport to Des Moines, Williams had been arrested, booked, and carefully given Miranda warnings. It is settled constitutional doctrine that he then had the right to the assistance of counsel. His exercise of this right was evidenced uniquely in this case. Williams had consulted counsel prior to his arrest, and surrendered to the police on advice of counsel. At all times thereafter Williams, to the knowledge of the police, had two attorneys: McKnight, whom Williams consulted initially and who awaited his arrival in Des Moines, and Kelly, who had represented Williams in Davenport where he surrendered. Significantly, the recognition by the police of the status of counsel was evidenced by the express agreement between McKnight and the appropriate police officials that the officers who would drive Williams to Des Moines would not interrogate him in the absence of counsel.
The incriminating statements were made by Williams during the long ride while in the custody of two police officers, and in the absence of his retained counsel. The dissent of The *411Chief Justice concludes that prior to these statements, Williams had “made a valid waiver” of his right to have counsel present. Post, at 417. This view disregards the record evidence clearly indicating that the police engaged in interrogation of Williams. For example, the District Court noted:
“According to Detective Leaming’s own testimony, the specific purpose of this conversation [which was initiated by Leaming and which preceded Williams’ confession] was to obtain statements and information from [Williams] concerning the missing girl.” 375 F. Supp. 170, 174.
In support of that finding, the District Court quoted extensively from Leaming’s testimony, including the following:
“Q. In fact, Captain, whether [Williams] was a mental patient or not, you were trying to get all the information you could before he got to his lawyer, weren’t you?
“A. I was sure hoping to find out where that little girl was, yes, sir.
“Q. Well, I’ll put it this way: You were hoping to get all the information you could before Williams got back to McKnight, weren’t you?
“A. Yes, sir.” Ibid.
After finding, upon a full review of the facts, that there had been “interrogation,” the District Court addressed the ultimate issue of “waiver” and concluded not only that the State had failed to carry its burden but also that
“there is nothing in the record to indicate that [Williams] waived his Fifth and Sixth Amendment rights except the fact that statements eventually were obtained.” Id., at 182. (Emphasis in original.)
The Court of Appeals stated affirmatively that “the facts *412as found by the District Court had substantial basis in the record.” 509 F. 2d 227, 231.1
I join the opinion of the Court which also finds that the efforts of Detective Leaming “to elicit information from Williams,” as conceded by counsel for petitioner at oral argument, ante, at 400 n. 6, were a skillful and effective form of interrogation. Moreover, the entire setting was conducive to the psychological coercion that was successfully exploited. Williams was known by the police to be a young man with quixotic religious convictions and a history of mental disorders. The date was the day after Christmas, the weather was ominous, and the setting appropriate for Detective Leaming’s talk of snow concealing the body and preventing a “Christian burial.” Williams was alone in the automobile with two police officers for several hours. It is clear from the record, as both of the federal courts below found, that there was no evidence of a knowing and voluntary waiver of the right to have counsel present beyond the fact that Williams ultimately confessed. It is settled law that an inferred waiver of a constitutional right is disfavored. Estelle v. Williams, 425 U. S. 501, 515 (1976) (Powell, J., concurring). I find no basis in the record of this case—or in the dissenting opin*413ions—for disagreeing with the conclusion of the District Court that “the State has produced no affirmative evidence whatsoever to support its claim of waiver.” 375 F. Supp., at 183.
The dissenting opinion of The Chief Justice states that the Court's holding today “conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present.” Post, at 419. I find no justification for this view. On the contrary, the opinion of the Court is explicitly clear that the right to assistance of counsel may be waived, after it has attached, without notice to or consultation with counsel. Ante, at 405-406. We would have such a case here if petitioner had proved that the police officers refrained from coercion and interrogation, as they had agreed, and that Williams freely on his own initiative had confessed the crime.
II
In discussing the exclusionary rule, the dissenting opinion of The Chief Justice refers to Stone v. Powell, 428 U. S. 465 (1976), decided last Term. In that case, we held that a federal court need not apply the exclusionary rule on habeas corpus review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.
This case also involves review on habeas corpus of a state conviction, and the decisions that the Court today affirms held that Williams’ incriminating statements should have been excluded.2 As Stone was decided subsequently to these *414decisions, the courts below had no occasion to consider whether the principle enunciated in Stone may have been applicable in this case. That question has not been presented in the briefs or arguments submitted to us,3 and we therefore have no occasion to consider the possible applicability of Stone. The applicability of the rationale of Stone in the Fifth and Sixth Amendment context raises a number of unresolved issues. Many Fifth and Sixth Amendment claims arise in the context of challenges to the fairness of a trial or to the integrity of the factfinding process. In contrast, Fourth Amendment claims uniformly involve evidence that is “typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.” Stone v. Powell, supra, at 490. Whether the rationale of Stone should be applied to those Fifth and Sixth Amendment claims or classes of claims that more closely parallel claims under the Fourth Amendment is a question as to which I intimate no view, and which should be resolved only after the implications of such a ruling have been fully explored.
Before concluding that the police had engaged in interrogation, the District Court summarized the factual background:
“Detective Learning obtained statements from Petitioner in the absence of counsel (1) after making, and then breaking, an agreement with Mr. McKnight that Petitioner would not be questioned until he arrived in Des Moines and saw Mr. McKnight; (2) after being told by both Mr. McKnight and Mr. Kelly that Petitioner was not to be questioned until he reached Des Moines; (3) after refusing to allow Mr. Kelly, whom Detective Learning himself regarded as Petitioner’s co-counsel, to ride to Des Moines with Petitioner; and (4) after being told by Petitioner that he would talk after he reached Des Moines and Mr. McKnight. By violating or ignoring these several, clear indications that Petitioner was to have counsel during interrogation, Detective Learning deprived Petitioner of his right to counsel in a way similar to, if not more objectionable than, that utilized against the defendant in Massiah [v. United States, 377 U. S. 201 (1964)].” 375 F. Supp., at 177 (footnote omitted).
I tend generally to share the view that the per se application of an exclusionary rule has little to commend it except ease of application. All too often applying the rule in this fashion results in freeing the guilty without any offsetting enhancement of the rights of all citizens. Moreover, rigid adherence to the exclusionary rule in many circumstances imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule’s deterrent purposes. Schneckloth v. Bustamonte, 412 U. S. 218, 267 (1973) (Powell, J., concurring). I therefore have indicated, at least with respect to Fourth Amendment violations, *414that a distinction should be made between flagrant violations by the police, on the one hand, and technical, trivial, or inadvertent violations, on the other. Brown v. Illinois, 422 U. S. 590, 610-612 (1975) (concurring opinion). Here, we have a Sixth Amendment case and also one in which the police deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement. Police are to be commended for diligent efforts to ascertain the truth, but the police conduct in this case plainly violated respondent’s constitutional rights.
The Stone issue was not mentioned in any of the briefs, including petitioner’s reply brief filed September 29, 1976—some three months after our decision in Stone was announced. The possible relevance of Stone was raised by a question from the bench during oral argument. This prompted brief comments by counsel for both parties. Tr. of Oral Arg., 26-27, 49-50. But in no meaningful sense can the issue be viewed as having been “argued” in this case.