dissenting:
I must respectfully dissent from the majority’s conclusion that the third Miranda warning given in this case was adequate, and that incriminating statements made thereafter by Anthon were voluntary.
The majority concedes that the first two “Miranda advisements” were inadequate. But it relies upon Agent Cordova’s statement that he “again advised him [Anthon] of his rights” to find that “nothing in this record indicates that the third advisement was inadequate.” At 674. This presumption of adequacy violates the stricture of Miranda that the Government bears the heavy burden of proving the warnings were given and were knowingly and intelligently waived. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966).
*679To presume adequacy here is especially unwarranted given the circumstances. At the suppression hearing, Cordova testified that he first gave Anthon his rights at the hotel. He told Anthon that he had the right to remain silent, that anything he said could be used against him, and that he had a right to counsel. The right to appointed counsel if he could not afford one, the right to have counsel present during questioning, and the right to stop the questioning at any time were not mentioned. Cordova testified further that while he and Agent Drieto were processing and fingerprinting Anthon, “I had made a statement to Mr. Anthon that again he knew of his rights and he did not have to tell us anything, which he stated he was aware of.” Rec., vol. II, at 40. The effect of this advisement might well have been to reinforce the impression that Anthon’s rights were limited to the three read to him at the hotel. There was no mention at the suppression hearing of the third advisement the majority relies upon, or of a statement to Anthon that counsel “probably” would be appointed for him the following day if he could not afford a lawyer. Cordova merely testified at that hearing that he told Anthon “[h]e could retain counsel and proceed with the judicial proceedings. It was entirely up to him.” Rec., vol. II, at 41 (emphasis added). Only at trial did Cordova mention a third warning in which he “again advised him of his right,” Rec., vol. I, at 120, and told him that “probably the following day, he would have a Magistrate Hearing, and at that time if he couldn’t afford a lawyer, that the Magistrate would probably appoint one for him .... ” Rec., vol. II, at 121 (emphasis added).
Thus, contrary to the majority’s assertion, the record indicates that Anthon was never informed of his right to have counsel present during questioning, of his right to have counsel appointed if he could not afford one,1 and of his right to stop questioning at any time. Given Cordova’s previous failures to furnish effective Miranda advisements and the marked discrepancies between his testimony during the suppression hearing and at trial, Cordova’s alleged statement that he “again advised him of his rights” is certainly not enough to satisfy the heavy burden Miranda places upon the Government in demonstrating the adequacy of warnings. Moreover, even if we presume the accuracy of Cordova’s trial testimony, telling the suspect that counsel “probably” will be appointed if he cannot afford one does not provide the assurance of representation Miranda considered essential if both rich and poor are to intelligently deal with the compelling pressures inherent in custodial interrogation. See Miranda, 384 U.S. at 467, 473, 86 S.Ct. at 1624, 1627. And being told that counsel probably would be appointed the following day is of little value when, as here, the questioning immediately resumed.
The argument that Anthon waived his rights by failing to request the presence of counsel during Cordova’s questioning is untenable. Obviously, the Government cannot demonstrate “that the defendant knowingly and intelligently waived” his rights if he has never been fully informed of them. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. In Miranda the Court said that “failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” Id. at 470, 86 S.Ct. at 1626.
The concept of voluntary statements is no more applicable to this case than is waiver. *680The majority concludes that Anthon made his statements voluntarily in an effort to trade his cooperation for leniency in punishment. In support it cites the proviso in Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, that “[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” More fully, however, that passage in Miranda continues:
“The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warning and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”
384 U.S. at 478, 86 S.Ct. at 1630 (footnote omitted) (emphasis added). Thus, the reference to voluntary statements relates to spontaneous utterances not induced by questioning or coercion, something very different from Anthon’s statements. See, e. g., Phillips v. Attorney General of California, 594 F.2d 1288, 1290-91 (9th Cir. 1979); United States v. Grant, 549 F.2d 942, 946 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977); United States v. Savell, 546 F.2d 43, 45-46 (5th Cir. 1977).
Miranda makes clear that a statement made in response to custodial interrogation may not be deemed voluntarily made unless the suspect has previously been given his Miranda rights and has “knowingly and intelligently waived” them. Id. 384 U.S. at 475, 86 S.Ct. at 1628. The Court said:
“We have concluded that without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
Id. at 467, 86 S.Ct. at 1624 (emphasis added). In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court reiterated the Miranda focus on in-custody interrogation:
“We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”
Id. at 300-301,100 S.Ct. at 1689, 64 L.Ed.2d at 307-08 (footnotes omitted).
Under the standard set forth in Innis, it is evident that Anthon’s statements regarding the pound deal were made during a custodial interrogation. The portions of the record quoted by the majority so demonstrate. Anthon’s admissions were made in response to Agents Cordova’s and Drieto’s inquiry “if he would be interested in assisting the Albuquerque District Office.” At 673. Certainly that is a question “reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 302,100 S.Ct. at 1689, 64 L.Ed.2d at 308. The statement that the deal resulting in his arrest was his heaviest deal was in reply to the direct question “what was the heaviest deal [you have] ever done .... ” At 673. Agent Cordova himself testified that Anthon was “questioned” after being fingerprinted. Rec., vol. II, at 57.
The record demonstrates that Anthon was never informed of his right to have counsel present during questioning, of his right to have counsel appointed if he could not afford one, and of his right to stop questioning at any time. The first two *681warnings are absolute prerequisites to the use against the accused of statements made during custodial interrogation. As the Supreme Court reaffirmed in Fare v. Michael G, 442 U.S. 707, 717, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979):
“The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation.”
See United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978) (right to appointed counsel may not be excluded from advisement); United States v. Oliver, 421 F.2d 1034, 1038 (10th Cir. 1970) (each of the warnings must be given to render testimony admissible). And while there may be no express requirement to warn a suspect of his right to terminate questioning, the failure to do so is “an important factor” to be considered in determining whether the suspect voluntarily waived his Miranda rights. DiGiacomo, 579 F.2d at 1214.
Because Anthon was never given adequate Miranda warnings prior to the incriminatory statements he made during custodial interrogations, the statements should not have been admitted at trial. See Fare, 442 U.S. at 717, 99 S.Ct. at 2568. It is for the jury to determine whether there is sufficient proof of guilt to convict without Anthon’s statements about the pound deal and the other statements the majority found inadmissible but considered harmless.
Retrial and exclusion of highly probative evidence is a high price to pay for curing what are often called technical violations. But any constitutional violation appears “technical” when it results in the exclusion of evidence demonstrating guilt or in the condonation of conduct our values find abhorrent. Constitutional protections cannot be applied only when we know post-hoc that they are being used to safeguard the virtuous. The strength of constitutional principles depends upon their consistent application, for erosion sets in too easily if we begin tampering with ultimate principles to fit them to the particularities of the individual case.
Whatever its drawbacks,
“Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts. .. . ”
Fare, 442 U.S. at 718, 99 S.Ct. at 2568.
I would reverse.
. I do not agree with the majority that Anthon is not objecting to a failure to adequately inform him of his right to appointed counsel prior to the second set of admissions. See at 674. While his brief does structure the issues as the majority says, the brief elsewhere states:
“The agents further admitted that the only addition to the warnings given prior to the second set of statements was to tell the defendant that he would spend the night in jail and that the next day the magistrate would ‘probably’ appoint counsel for him if he was indigent. Under the cases cited above, these warnings were inadequate and the statements made by the defendant should have been suppressed.”
Appellant’s Brief at 9.