with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.
The respondent in this case killed a 10-year-old child. The majority sets aside his conviction, holding that certain *430statements of unquestioned reliability were unconstitutionally obtained from him, and under the circumstances probably makes it impossible to retry him. Because there is nothing in the Constitution or in our previous cases which requires the Court’s action, I dissent.
I
The victim in this case disappeared from a YMCA building in Des Moines, Iowa, on Christmas Eve in 1968. Respondent was seen shortly thereafter carrying a bundle wrapped in a blanket from the YMCA to his car. His car was found in Davenport, Iowa, 160 miles away on Christmas Day. A warrant was then issued for his arrest. On the day after Christmas respondent surrendered himself voluntarily to local police in Davenport where he was arraigned. The Des Moines police, in turn, drove to Davenport, picked respondent up and drove him back to Des Moines. During the trip back to Des Moines respondent made statements evidencing his knowledge of the whereabouts of the victim’s clothing and body and leading the police to the body. The statements were, of course, made without the presence of counsel since no counsel was in the police car. The issue in this case is whether respondent—who was entitled not to make any statements to the police without consultation with and/or presence of counsel1—validly waived those rights.
The relevant facts are as follows. Before the Des Moines police officers arrived in Davenport, respondent was twice advised, once by Davenport police and once by a judge, of his right to counsel under Miranda v. Arizona, 384 U. S. *431436 (1966). Respondent had in any event not only retained counsel prior to the arrival of the Des Moines police, but had consulted with that counsel on the subject of talking to the police. His attorney, Mr. McKnight, spoke with him from the Des Moines police office when respondent was in the Davenport police office. He advised respondent not to talk to the Des Moines police officers during the trip back to Des Moines, but told him that he was “going to have to tell the officers where she [the victim] is” when he arrived in Des Moines. Respondent also consulted with a lawyer in Davenport, who also advised him against talking to the police during the ride back to Des Moines. Thus, prior to the arrival of the Des Moines police, respondent had been effectively informed by at least four people that he need not talk to the police in the absence of counsel during his trip to Des Moines. Then, when the Des Moines police arrived, one of them advised respondent, inter alia, “that he had a right to an attorney present during any questioning.” The Des Moines police officer asked respondent: “[D]o you fully understand that?” Respondent said that he did. The officer then “advised him that [the officer] wanted him to be sure to remember what [the officer] had just told him because it was a long ride back to Des Moines and he and [the officer] would be visiting.” Respondent then consulted again with the Davenport attorney, who advised him not to make any statements to the police officers and so informed the officers—directing them not to question him. After this series of warnings by two attorneys, two sets of police officers, and a judge, the trip to Des Moines commenced.
Sometime early in the trip one of the officers, Detective Learning, said:
“I want to give you something to think about while we’re traveling down the road. . . . Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visi*432bility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.”
Respondent asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl’s body, and Leaming responded that he knew the body was in the area of Mitchellville—a town they would be passing on the way to Des Moines. Leaming then stated: “I do not want you to answer me. I don’t want to discuss it any further. Just think about it as we’re riding down the road.” On several occasions during the trip, respondent told the officers that he would tell them the whole story when he got to Des Moines and saw Mr. McKnight—an indication that he knew he was entitled to wait until his counsel was present before talking to the police.2
*433Some considerable time thereafter,3 without any prompting on the part of any state official so far as the record reveals, respondent asked whether the police had found the victim's shoes. The subject of the victim’s clothing had never been broached by the police nor suggested by anything the police had said. So far as the record reveals, the subject was suggested to respondent solely by the fact that the police car was then about to pass the gas station where respondent had hidden the shoes. When the police said they were unsure whether they had found the shoes, respondent directed them to the gas station. When the car continued on its way to Des Moines, responded asked whether the blanket had been found. Once again this subject had not previously been broached. Respondent directed the officers to a rest area where he had left the blanket. When the car again continued, respondent said that he would direct the officers to the victim’s body, and he did so.
II
The strictest test of waiver which might be applied to this case is that set forth in Johnson v. Zerbst, 304 U. S. 458, 464 (1938), and quoted by the majority, ante, at 404. In order to show that a right has been waived under this test, the State must prove “an intentional relinquishment or abandonment of a known right or privilege.” The majority creates no new rule preventing an accused who has retained a lawyer from waiving his right to the lawyer’s presence during questioning. The majority simply finds that no waiver was proved in this case. I disagree. That respondent knew of his right not to say anything to the officers without advice and presence of counsel is established on this record to a moral *434certainty. He was advised of the right by three officials of the State—telling at least one that he understood the right—and by two lawyers.4 Finally, he further demonstrated his knowledge of the right by informing the police that he would tell them the story in the presence of McKnight when they arrived in Des Moines. The issue in this case, then, is whether respondent relinquished that right intentionally.
Respondent relinquished his right not to talk to the police about his crime when the car approached the place where he had hidden the victim’s clothes. Men usually intend to do what they do, and there is nothing in the record to support the proposition that respondent’s decision to talk was anything but an exercise of his own free will. Apparently, without any prodding from the officers, respondent—who had earlier said that he would tell the whole story when he arrived in Des Moines—spontaneously changed his mind about the timing of his disclosures when the car approached the places where he had hidden the evidence. However, even if his statements were influenced by Detective Leaming’s above-quoted statement, respondent’s decision to talk in the absence of counsel can hardly be viewed as the product of an overborne will. The statement by Leaming was not coercive; it was accompanied by a request that respondent not respond to it; and it was delivered hours before respondent decided to make any statement. Respondent’s waiver was thus knowing and intentional.
The majority’s contrary conclusion seems to rest on the fact that respondent “asserted” his right to counsel by retaining and consulting with one lawyer and by consulting with another. How this supports the conclusion that respondent’s later relinquishment of his right not to talk in the *435absence of counsel was unintentional is a mystery. The fact that respondent consulted with counsel on the question whether he should talk to the police in counsel’s absence makes his later decision to talk in counsel’s absence better informed and, if anything, more intelligent.
The majority recognizes that even after this “assertion” of his right to counsel, it would have found that respondent waived his right not to talk in counsel’s absence if his waiver had been express—i. e., if the officers had asked him in the car whether he would be willing to answer questions in counsel’s absence and if he had answered “yes.” Ante, at 405. But waiver is not a formalistic concept. Waiver is shown whenever the facts establish that an accused knew of a right and intended to relinquish it. Such waiver, even if not express,5 was plainly shown here. The only other con*436ceivable basis for the majority’s holding is the implicit suggestion, ante, at 400-401, that the right involved in Massiah v. United States, 377 U. S. 201 (1964), as distinguished from the right involved in Miranda v. Arizona, 384 U. S. 436 (1966), is a right not to be asked any questions in counsel’s absence rather than a right not to answer any questions in counsel’s absence, and that the right not to be asked questions must be waived before the questions are asked. Such wafer-thin distinctions cannot determine whether a guilty murderer should go free. The only conceivable purpose for the presence of counsel during questioning is to protect an accused from making incriminating answers. Questions, unanswered, have no significance at all. Absent coercion6—no matter how the *437right involved is defined—an accused is amply protected by a rule requiring waiver before or simultaneously with the giving by him of an answer or the making by him of a statement.
III
The consequence of the majority’s decision is, as the majority recognizes, extremely serious. A mentally disturbed killer whose guilt is not in question may be released. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk of injury to society and that such conduct should be deterred. However, the officers’ conduct did not, and was not likely to, jeopardize the fairness of respondent’s trial or in any way risk the conviction of an innocent man—the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. Powell v. Alabama, 287 U. S. 45 (1932) ; Johnson v. Zerbst, 304 U. S. 458 (1938); Hamilton v. Alabama, 368 U. S. 52 (1961); Gideon v. Wainwright, 372 U. S. 335 (1963); White v. Maryland, 373 U. S. 59 (1963); United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Coleman v. Alabama, 399 U. S. 1 *438(1970); and Argersinger v. Hamlin, 407 U. S. 25 (1972). But see Massiah v. United States, supra. The police did nothing “wrong,” let alone anything “unconstitutional.” To anyone not lost in the intricacies of the prophylactic rules of Miranda v. Arizona, the result in this case seems utterly senseless; and for the reasons stated in Part II, supra, even applying those rules as well as the rule of Massiah v. United States, supra, the statements made by respondent were properly admitted. In light of these considerations, the majority’s protest that the result in this case is justified by a “clear violation” of the Sixth and Fourteenth Amendments has a distressing hollow ring. I respectfully dissent.
It does not matter whether the right not to make statements in the absence of counsel stems from Massiah v. United States, 377 U. S. 201 (1964), or Miranda v. Arizona, 384 U. S. 436 (1966). In either case the question is one of waiver. Waiver was not addressed in Massiah because there the statements were being made to an informant and the defendant had no way of knowing that he had a right not to talk to him without counsel.
The record does not make it crystal clear that these statements, or some of them, followed the above-quoted statements by Detective Leaming. However, the record reveals that Leaming’s statement was made not long after leaving Davenport and that respondent’s statement that he would tell the whole story when they arrived in Des Moines was made “several times.” It is reasonable to infer that respondent’s statement followed that by Leaming. During some of the rest of the trip respondent asked questions of the officers about the investigation, about how they would treat him, and about a number of subjects unrelated to the case.
The trip was 160 miles long and was made in bad weather. Leaming’s statement was made shortly after leaving Davenport. Respondent’s statements about the victim’s clothes were made shortly before arriving in Mitchellville, a near suburb of Des Moines.
Moreover, he in fact received advice of counsel on at least two occasions on the question whether he should talk to the police on the trip to Des Moines.
The Courts of Appeals, in administering the rule of Miranda v. Arizona, have not required an express waiver of the rights to silence and to counsel which an accused must be advised about under that case. Waiver has been found where the accused is informed of those rights, understands them, and then proceeds voluntarily to answer questions in the absence of counsel. United States v. Marchildon, 519 F. 2d 337, 343 (CA8 1975) (“Waiver depends on no form of words, written or oral. It is to be determined from all of the surrounding circumstances. Addressing ourselves to this issue we held in Hughes v. Swenson, 452 F. 2d 866, 867-868 (CA8 1971), that: "The thrust of appellant’s claim is that a valid waiver cannot be effective absent an expressed declaration to that effect. We are cited to no case which supports appellant’s thesis and independent research discloses none. To the contrary, the Fifth, Seventh, Ninth, and Tenth Circuits have held in effect that if the defendant is effectively advised of his rights and intelligently and understanding declines to exercise them, the waiver is valid’ ”); United States v. Ganter, 436 F. 2d 364, 370 (CA7 1970) (“[A]n express statement that the individual does not want a lawyer is not required if it appears that the defendant was effectively advised of his rights and he then intelligently and understandingly declined to exercise them”); United States v. James, 528 F. 2d 999, 1019 (CA5 1976) (“ ‘All that the prosecution must show is that the defendant was effectively advised of his rights and that he then intelligently and understandingly declined to exercise them’ ”); Blackmon v. Blackledge, *436541 F. 2d 1070, 1072 (CA4 1976) (“[H]e was reasonably questioned only after having been fully informed of his rights and permitted to make a telephone call. Under such circumstances, a suspect’s submission to questioning without objection and without requesting a lawyer is clearly a waiver of his right to counsel, if, indeed, he understands his rights”); United States v. Boston, 508 F. 2d 1171 (CA2 1974); United States v. Johnson, 466 F. 2d 1206 (CA8 1972); Mitchell v. United States, 140 U. S. App. D. C. 209, 434 F. 2d 483 (1970); Bond v. United States, 397 F. 2d 162 (CA10 1968).
There is absolutely no reason to require an additional question to the already cumbersome Miranda litany just because the majority finds another case—Massiah v. United States—providing exactly the same right to counsel as that involved in Miranda. In either event, the issue is, as the majority recognizes, one of the proof necessary to establish waiver. If an intentional relinquishment of the right to counsel under Miranda is established by proof that the accused was informed of his right and then voluntarily answered questions in counsel’s absence, then similar proof establishes an intentional relinquishment of the Massiah right to counsel.
There is a rigid prophylactic rule set forth in Miranda v. Arizona that once an arrestee requests presence of counsel at questioning, questioning must cease. The rule depends on an indication by the accused that he will be unable to handle the decision whether or not to answer questions without advice of counsel, see Michigan v. Mosley, 423 U. S. 96, 110 n. 2 (1975) (White, J., concurring), and is inapplicable to this case *437for two reasons. First, at no time did respondent indicate a desire not to be asked questions outside the presence of his counsel—notwithstanding the fact that he was told that he and the officers would be “visiting in the car.” The majority concludes, although studiously avoiding reliance on Miranda, that respondent asserted his right to counsel. This he did in some respects, but he never, himself, asserted a right not to be questioned in the absence of counsel. Second, as is noted in the dissenting opinion of Mr. Justice Blackmun, respondent was not questioned. The rigid prophylactic rule—as the majority implicitly recognizes—is designed solely to prevent involuntary waivers of the right against self-incrimination and is not to be applied to a statement by a law enforcement officer accompanied by a request by the officer that the accused make no response followed by more than an hour of silence and an apparently spontaneous statement on a subject—the victim’s shoes—not broached in the “speech.” Under such circumstances there is not even a small risk that the waiver will be involuntary.