(dissenting):
I dissent. I am unable to reconcile the majority’s arguments here and in United States v. Cone with the language of the Escobedo opinion:
“It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, and ‘any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.’ Watts v. Indiana, 338 U.S. 49, 59 [69 S.Ct. 1347, 1357, 93 L.Ed. 1801] (Jackson, J., concurring in part and dissenting in part). This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a ‘stage when legal aid and advice’ are surely needed. Massiah v. United States, supra, 377 U.S. at 204 [84 S.Ct. 1202]; Hamilton v. Alabama, supra [368 U.S. 52, 82 S. Ct. 157, 7 L.Ed.2d 114]; White v. Maryland, supra [373 U.S. 59, 83 S. Ct. 1050, 10 L.Ed.2d 193]. The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor of the right of the accused to be advised by his lawyer of his privilege against self-incrimination. See Note, 73 Yale L.J. 1000, 1048-1051 (1964).” 378 U.S. at 488, 84 S.Ct. at 1763.
“Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ Spano v. New York, 360 U.S. 315, 327 [79 S.Ct. 1202, 1209] (Stewart, J., concurring), by gathering information from witnesses and by other ‘proper investigative efforts.’ Haynes v. Washington, 373 U.S. 503, 519 [373 U.S. 503, 83 S.Ct. 1336, 1346]. We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with *116his lawyer.” 378 U.S. at 492, 84 S.Ct. at 1766.
The investigation had focussed upon Robinson, as the arrest and search, and the testimony on probable cause therefor, demonstrate. Even though the statements may have been voluntary and the result of “routine” questioning, I believe that Escobedo requires us to hold that under the Sixth Amendment they cannot be used in evidence unless Robinson had been informed of his right to counsel and had voluntarily waived that right. It is true that a factual distinction may be made since Escobedo had asked to see his lawyer, but it would seem strange doctrine to hold that the constitutional right to counsel is lost if the accused is so poorly educated as to be ignorant of its existence, but preserved if he knows enough to demand it.
The majority lays much stress on the voluntary-involuntary test, ignoring the fact that Escobedo makes this a question of a Sixth Amendment right to counsel, as well as of the privilege against self-incrimination. Mr. Justice White, in dissent, strongly criticized the rule adopted in Escobedo precisely because it did enforce the Sixth Amendment right at so early a stage in a criminal process as the point when the accused became a suspect. I would not attempt here to turn back the clock and refuse so to interpret the Escobedo rule or refuse to enforce it because some may consider it unwise. The decision on the scope of the constitutional right having been made by the Supreme Court, we merely prolong litigation and consequent uncertainty in law enforcement methods by upholding convictions vulnerable under the Sixth Amendment. I would reverse for new trial with the statements excluded.