(concurring in part and dissenting in part).
To the extent that the opinion of Chief Judge Swygert rests upon a per se rule that would exclude confessions when counsel is not notified of or present at the interrogation, I dissent from the opinion.
In my opinion, the authorities cited in Judge Castle’s dissenting opinion correctly state the law that notwithstanding the existence of counsel, either appointed or retained, a defendant may waive the presence and assistance of that counsel, provided it very clearly appears that the accused deliberately and understandingly chose to forego that assistance. I cannot agree, however, with Judge Castle’s opinion that the record demonstrates that Durham did so here.
The factual context in which the continuing interviews were conducted is far different than that involved in United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), and in that case we observed “[o]n the basis of the particular factual situation before us, and we go no farther than that, we are of the opinion that the confession of May 18 was properly received into evidence.” Id. at 1352.
In Springer an extensive evidentiary hearing was held. In the present case the matter was not explored. While it is true that there are overtones of waiver of the issue vis-á-vis trial tactics emphasis on denial of any confession at all, I conceive the right to effective assistance of counsel to be such a fundamental constitutional guarantee that when the interrogation takes place after knowledge of the existence of counsel the situation calls for a ventilated determination that there was a deliberate and knowledgeable waiver. The burden in this factual situation on the prosecutor is a heavy one but I do not agree with the implicit premise of Judge Swygert’s opinion that it is an impossible accomplishment.
Inasmuch as I do not find that the confession was necessarily involuntarily given, its admission as evidence in the trial may not have been improper. I therefore would remand for a hearing on the matter of voluntariness. If it is determined that the confession was voluntary, i. e., that the defendant understandingly waived the presence of counsel and otherwise was not coerced, the conviction should stand. If the confession was not voluntary, then a new. trial is necessary, Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
I find no other error requiring reversal if the confession is determined to be voluntary. However, if the opposite result is reached, the testimony regarding *213the black Chevrolet would have had no proper basis for admission.