dissenting.
I am compelled to dissent from the majority’s conclusion that the appellant’s confession during the post-polygraph test interview was involuntarily given because “Fields did not knowingly and intelligently waive his right to have counsel present” at that interrogation. It is well established “that waivers of counsel must not only be voluntary, but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). However, accepting the basic facts presented in the majority opinion, it seems clear that Fields must be viewed as having waived his rights to have counsel present at the interrogation in accordance with this standard.
On September 25, 1974, when Fields was arrested and charged with the rape he was given his Miranda warnings. He admitted in his suppression hearing that he understood the meaning of these rights when he stated that “I understand it to be that I didn’t have to make any statements, do anything without my counsel being present.” Fields thereupon consulted with both privately retained and military counsel, and consented to a polygraph examination. Prior to undergoing the polygraph on December 4, 1974, Fields was again fully advised of his rights. He was given and signed a written consent document which informed him of his rights under the Uniform Code of Military Justice and the Eighth Amendment. In addition, the agent read the defendant the following detailed statement of his “rights”:
“Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used as evidence against you in a criminal trial. You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he’s reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?” Defendant answered, “No.”
State v. Fields, 538 S.W.2d 348, 350 n.1 (Mo.Ct.App.1976) (emphasis added). It is important to note that Fields was clearly advised that he could stop answering questions at any time or speak .to a lawyer even if he signed the waiver certificate. After Fields had made his confession to consensual sexual intercourse with the victim to Agent Bourne, he was again given his Miranda warnings before he repeated his confession to the police.
Thus, it is clear that Fields was given full warnings concerning his rights at least twice before he made his confession to Agent Bourne. Furthermore, there is absolutely no indication that Fields did not fully comprehend those rights and the consequences of any statement that he made. To the contrary, Fields’ admission that he understood what his Miranda rights meant, even if made in reference to post-arrest warnings, strongly supports the conclusion that Fields still understood what those rights meant when he was advised of them again prior to the polygraph, especially in light of the fact that Fields had been ad*163vised by counsel prior to taking the polygraph. There is simply nothing in the stated facts which would cast doubt as to Fields’ continuing comprehension of his rights at the time he took the examination. Moreover, although the majority opinion notes that Fields’ waiver of Miranda rights immediately after his confession to Agent Bourne but prior to his repeated confession to the police are not timely as to that first confession, Fields’ continuing waiver of those rights is at least indicative of his continued comprehension and desire to waive those rights.
If continued waiver of counsel after numerous clear warnings is not sufficient to show voluntary, knowing and intelligent waiver, I am somewhat perplexed as to what would be sufficient in the circumstances of this case. As I read the majority’s opinion, only two things would have made the confession voluntary: (1) the presence of Fields’ counsel at the polygraph, or (2) giving Fields another set of Miranda warnings after the polygraph had been turned off but before any further questioning. As the court notes in its opinion, contacting Fields’ counsel, in the absence of a request by Fields to do so, is not constitutionally required. Furthermore, it is difficult to understand, in the circumstances of this case, how one more recitation of Miranda warnings would prove knowing and intelligent waiver if waiver of two prior sets of warnings, one of which was given minutes before, does not.
Moreover, I cannot agree that the line drawn between the interrogation undertaken during which the polygraph was attached and the questioning following the polygraph is not an artificial and hypertech-nical one. The substance of the entire transaction was interrogation to which Fields clearly consented as indicated by his waiver. Although the results of the polygraph could not be used against Fields under Missouri law, it is not clear that any admission made by Fields during the course of that examination would also be inadmissible. There is substantial support for the rule that the mere fact that a confession was made in anticipation of, during, or following a polygraph examination does not render the confession involuntary and inadmissible. See 89 A.L.R.3d 230, 236 (1979), and cases cited therein.
I do not believe that Henry v. Dees, 658 F.2d 406 (5th Cir. 1981) supports the requirement of additional Miranda warnings after the polygraph examination but before further interrogation. As noted by that court, the question is whether a waiver can be viewed as voluntary, knowing, and intelligent in the total circumstances of a case. However, the factual circumstances in Dees are clearly distinguishable from those in the present case. It seems apparent upon reading the Dees opinion that the court’s conclusion that the confession obtained was involuntary rested very heavily on the fact that the defendant in the case was mentally retarded. Id. at 411. Moreover, unlike the waiver and consent to a polygraph which was signed in the instant case where Fields could at any time during the examination stop the questioning and request counsel, the waiver in Dees precluded the presence of the defendant’s counsel at the polygraph. Id. at 408. This factor was also critical in the court’s determination that the initial waiver was not valid when the examiner shifted from the polygraph to a general interrogation. See id. at 409-10. Finally, it must be noted that the lie detector examination upon which the examiner based his statement that the defendant had failed the examination was never completed. Id. at 410. The Fifth Circuit clearly noted the relevance of such a hint of deception by the police in obtaining a confession. Id. In the instant case there is no evidence of any mental subnormality on the part of Fields; it is clear that Fields had a right to the presence of counsel during all phases of the examination and knew he did; and there is no evidence that the completed polygraph examination was used as a ruse to interrogate Fields outside the presence of his counsel.
In addition to the fact that I believe that Henry v. Dees does not support the majority’s conclusion, I cannot agree that the majority’s opinion is not inconsistent with this *164court’s decision in United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978) (Lay, Bright and Ross). In Little Bear the defendant was questioned by BIA agents concerning her husband’s death the previous night. She was advised of her rights and signed a waiver form. Two months later she was again questioned, this time by an FBI agent who decided to give Little Bear a polygraph examination. Prior to taking the polygraph she was given a “Consent to be Interviewed with Polygraph” form which she signed. She was also advised by the agent of her constitutional rights and she signed that form’s waiver provision. During the polygraph examination Little Bear was asked if she stabbed her husband. She responded in the affirmative and said she wanted to talk about it. At this point she was not reminded of her right to an attorney or to remain silent. Upon further interrogation, Little Bear signed a written confession. On appeal, Little Bear contended that the confession should have been suppressed because it was not voluntarily given under the circumstances. This court held that Little Bear had voluntarily confessed.
The factors upon which the majority distinguishes Little Bear are not convincing. First, the fact that Little Bear had not retained counsel seems to be of little relevance to the instant case, since Fields, although retaining counsel, had not asserted his right to deal with the authorities through counsel. If anything, the absence of counsel in Little Bear would seem to require a closer scrutiny of the voluntariness of the confession. Secondly, there is nothing to indicate that this court’s holding in Little Bear even remotely turned on the fact that the polygraph form which the defendant signed might be construed to consent to a broader interview than just a polygraph. In fact, the court, in arriving at the conclusion that Little Bear’s confession was voluntary, knowing, and intelligent, relied explicitly on the reasoning of the Ninth Circuit in Keiper v. Cupp, 509 F.2d 238 (9th Cir. 1975), which is factually very similar to the instant case. In rejecting Keiper’s ha-beas claim that he should have been given an additional Miranda warning after the polygraph, but before interrogation resulting in a confession the Ninth Circuit stated Keiper “had been advised many times of his rights prior to, and at the time of the polygraph test, there is no reason to believe that he was not fully aware of those rights during the crucial period when his final story was taped.” 509 F.2d at 238.
Similarly, in the dispositive passage of Little Bear this court stated:
This case somewhat parallels Keiper in that Ms. Little Bear also signed a waiver of rights form before a polygraph examination, indicated at some subsequent point that she wanted to offer a statement, and later claimed her statement was made involuntarily. Additionally, in the instant case, as in Keiper, the district court found Ms. Little Bear had voluntarily confessed and knowingly and intelligently waived her rights even though no second, post-polygraph Miranda warning was given.
United States v. Little Bear, 583 F.2d at 414. The reasoning expressed in Keiper and Little Bear appears to be generally followed. See People v. Barreto, 256 Cal.App.2d 392, 64 Cal.Rptr. 211 (1967); State v. Henry, 352 So.2d 643 (La.1977); Turner v. State, 76 Wis.2d 1, 250 N.W.2d 706 (1977).
In summary, Little Bear and the apparent weight of authority would seem to support a holding that under the totality of the circumstances, Fields’ waiver and confession was voluntary, knowing, and intelligent when he was clearly advised of his rights on numerous occasions prior to his confession. This seems especially true in light of the fact that this court found a voluntary, knowing and intelligent waiver and confession in Little Bear, a case involving an unsophisticated, uncounseled, and emotionally distraught Indian woman. Finally, I would note that I can find nothing in Edwards v. Arizona, supra, a case clearly distinguishable from the instant case on its facts and the legal principles involved, which dictates the result reached in the majority’s opinion in this case.
*165For the foregoing reasons, I would affirm the district court’s denial of the appellant’s petition for habeas corpus relief.