dissenting:
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity.... There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.
Miranda v. Arizona, 384 U.S. 436, 542-43, 86 S.Ct. 1602, 1663, 16 L.Ed.2d 694 (1966) (White, J., dissenting).
Today, these poignant and prophetic words lose their abstract quality as the prison doors that closed behind Ricardo H. Robinson in 1982 are unlocked. But my quarrel here is not with Miranda itself; it is with the manner in which Miranda and its progeny are applied by my respected colleagues to the facts and legal circumstances of this case. In that connection, this case as I see it is mostly about the prophylactic rules and remedies designed by the judiciary “to promote sensitivity to constitutional values through [their] deterrent effect.” 1 Duckworth v. Eagan, — U.S. -, 109 S.Ct. 2875, 2882, 106 L.Ed.2d 166 (1989). (O’Connor, J., concurring). Thus, it is appropriate in my view for the judiciary to be mindful of Justice White’s concerns and to monitor carefully the costs of these rules as they are applied to the cases that come before us. Lest we lose sight of these costs, I begin with a description of Robinson’s unspeakable conduct, for which a California jury found him guilty of murder with the special circumstances of torture and murder for financial gain, mayhem, assault with a caustic substance, and conspiracy to commit the above.
In 1980, Robinson’s codefendant Gilman (a law school graduate) fell out with his fiancee, Patricia Worrell (a law student). Later that year, Gilman decided on revenge. He located a “hit man,” Bobby Savage, through a prostitute in Las Vegas. Savage, a pimp and a bounty hunter for a bail-bondsman, was paid $750 to “beat up” Ms. Worrell. Savage stalked Ms. Worrell in Los Angeles, but eventually returned to Las Vegas without earning his fee. Shortly thereafter, Savage telephoned Gilman and put Robinson (a drug dealer) on the line. “Robinson demanded an extra $1,000 for the job. Gilman eventually agreed to the increase in money and told Robinson he wanted them to throw lye or acid on Ms. Worrell. Gilman also told Savage and Robinson to rough Gilman up too, to make it ‘look good.’ ” People v. Gilman and Robinson, 156 Cal.App.3d 760, 763, 203 Cal. Rptr. 6 (1984).
On August 14, 1980, Robinson and Savage knocked on Ms. Worrell’s door. When *1395she responded, Savage threw lye in her face. Gilman, who was in the house at the time, drove a crying and screaming Ms. Worrell — and her son — to the hospital.
“Ms. Worrell’s upper body and face were severely disfigured by the lye. She was blinded in her left eye. Some of the lye entered her mouth, burned through her esophagus and eventually burned through a [major] artery. This eventually caused a massive hemorrhage that caused her death on August 24, 1980.” Id. at 764, 203 Cal. Rptr. 6.
Robinson was arrested for these crimes, and he confessed to his role in assaulting and killing Ms. Worrell.
I
My analysis of the Miranda issues in this case begins with the pre-interrogation advisement of rights Detective True administered to Robinson. The advisement was thorough, and its thoroughness reveals that the two detectives scrupulously respected the instructions of the Supreme Court. Detective True and his partner Officer Guarino focused directly on Robinson’s right to have “an attorney present during our questioning right now” and did not leave the subject until it was clear to them that Robinson understood and chose to answer questions voluntarily.
The exact colloquy was as follows:
Detective True: All right, before we start the interview, we wanna advise you of your rights ...
Petitioner: O.K.
Detective True: ... constitutional rights, O.K.? You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to speak with an attorney and to have an attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning. O.K.? Do you understand each of these rights that I’ve explained to you?
Petitioner: Yeah.
Detective True: Do you wish to give up the right to remain silent?
Petitioner: No. I mean ... No, I’ll speak now and I’ll answer questions without an attorney.
Detective True: O.K. So you do wish to give up the right to remain silent?
Petitioner: Yeah.
Detective True: And talk to me?
Petitioner: Right.
Detective True: O.K. Do you wish to give up that right to speak to an attorney and to have him present during questioning?
Petitioner: This questioning right ... right here, right now? No, / don’t see why not, you know ... (unintelligible).
Officer Guarino: What do you mean? You don’t, you don’t want, you don’t need an attorney here now, right now, while we talk?
Petitioner: I mean for ... I was, see I ain’t did nothin’. I can answer everything you want me to.
Officer Guarino: Well, this is why we wanta understand.
Detective True: This, this is what I’m asking you. Do you give up the right to have an attorney present during our questioning right now.
Petitioner: If I say yea, I’d want an attorney then I’d have to get one here, is that right? (Unintelligible) Yeah. I give it up yeah, yeah.
Detective True: O.K.
Transcript of Interrogation of Petitioner-Appellant Ricardo H. Robinson (emphasis added).
The Supreme Court’s purpose in Miranda was to affect police conduct during interrogations and to promote sensitivity to constitutional values. This case, along with thousands of others, provides proof it has succeeded. Moreover, the police here, by tape recording this interview, willingly exposed their behavior to close scrutiny. This is inconsistent with conduct designed to subvert Robinson’s rights. Neither does it show an intent to engage in coercive or improper behavior. The discourse is all there, on tape and in print, to listen to, to study, and to dissect.
*1396II
Robinson’s attorney claims Robinson’s waiver was defective because the Miranda colloquy indicates that Robinson believed he was responsible for obtaining an attorney himself, whether he could afford it or not. Robinson has never so testified, and I am not persuaded that this strained attempt to read meaning into the exchange has merit. True told Robinson he could have an attorney "without charge before questioning,” and Robinson’s answer was clear: “I’ll speak now and I’ll answer questions without an attorney.” Under the “totality of the circumstances surrounding the interrogation” test, see Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986), I find a clear waiver.
III
The finding of an express waiver sheds considerable light not only on Robinson’s original decision to talk, but also on (1) the meaning of Robinson’s references to an attorney in the questioning that followed, references on which the majority opinion focuses in reversing the district court, and (2) what the police should have done when confronted with the references. The majority opinion finds these references to constitute an unequivocal invocation of the present right of counsel, requiring all questioning to cease at the moment the “invocation” occurred. I respectfully disagree with this analysis.
As I read the record, Robinson alluded to counsel on several occasions during questioning, but he never expressed either (1) a clear change of heart vis-a-vis his earlier waiver, or (2) a decision to stop talking with the police until he got an attorney or, for that matter, to stop talking period. The statements “I have to get me a good lawyer man. Can I make a phone call?” may mean exactly that, but in context they require interpretation; this is the essence of ambiguity. Had these statements been made during the initial advisement, their meaning would no doubt have been different and — because of context and juxtaposition — might have constituted an unequivocal request for an attorney. These statements, however, were made in the midst of a continuing conversation 'preceded by a waiver and an express willingness to talk. I see them as calling for interpretation or clarification.
When the person being questioned has already expressly declined to secure the services of an attorney and is talking freely to the police, the logical response would be to follow-up on such statements with clarifying questions, such as, “Does that mean you don’t want to talk to us anymore until you get an attorney?” 2 Ordinary people, including ordinary police officers, see Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987), would understand Robinson’s words not as a clear invocation of a present right to an attorney, but as an ambiguous reference to an attorney that required clarification. What Robinson said does not necessarily mean he had changed his mind about talking to the police.
But another crucial aspect of Robinson’s compound statement about an attorney and a phone call weighs heavily on what he meant, and whether it was ambiguous. Immediately following the statement, the police asked questions about who he wanted to call. His ultimate answer? “I want to call Mom; that’s my mother.” The exchange was as follows:
Robinson: I have to get me a good lawyer, man. Can I make a phone call?
Ferrand: Sure. We’ll let you make a phone call ... local? Hey, you wanta call Mr. Monday?
Robinson: No.
Ferrand: Do you know where ... he is located?
Robinson: I wish I did.
Ferrand: I know where he’s located. I know where this guy is located, too.
Guarino: It’s just a matter of time. It’s just a matter of going there and *1397gettin’ ’em. You have a good opportunity....
Robinson: .... I guess these two guys have track records, or sunapin’, huh?
Guarino: _to give us your (unintelligible). Hey ... well, we’re givin’ you the opportunity to give us your side of the story right now, uh ...
Robinson: I understand that.
Guarino: _ You’re, uh ... I, I don’t think we could be any more ...
Ferrand: You wanta call your uncle?
Robinson: I wanta call Mom; that’s my mother, man.
Guarino: Where’s she, Pittsburgh?
Robinson: Yeah, Pennsylvania. (Unintelligible)
Guarino: Well, we can’t ...
Robinson: Can’t do that, huh?
Ferrand: That’s kinda far ...
Guarino: Rick,- we can’t, we can’t ...
Robinson: I’ll call collect.
Guarino: ... Pittsburgh (unintelligible)
Robinson: I’ll call collect. (Unintelligible).
Ferrand: You can call collect?
Robinson: I can call collect.
Guarino: Well, if you can, you can call.
Ferrand: Rick, tell her that you’ve been used ... set up, set up by two paddies and that you don’t have enough sense ...
Transcript of Interrogation of Petitioner-Appellant Richard H. Robinson (emphasis added).
Even though the police used a name and a relationship — “Mr. Monday” and “your uncle” — in asking Robinson who he wanted to call, their questions were no different than saying, “sure you can make a phone call, who do you want to call?” The police did not drop the subject brought up by Robinson. The transcript reveals that Officer Ferrand kept it alive, and he was within constitutional bounds in so doing. Under such circumstances, the law permits the police to ask questions devised to clarify the request3 as well as to respond naturally to the request in a manner reasonably calculated to enable the request to be effectuated. Such questions hardly amount to interrogation, much less interrogation designed to produce incriminating evidence. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The police are not required by the Constitution when a suspect asks to make a phone call— even to an attorney — to clam up and escort the suspect to his cell without uttering another syllable. The only activity guarded against is further interrogation. Robinson's answer to Ferrand’s inquiry — “my mother, man” — renders the complete exchange clearly ambiguous as to whether he was requesting the presence of an attorney. The judgment we are required to make on this issue cannot be an informed one unless we look at the entire exchange. Contrary to the majority’s claim, Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) does not prohibit this approach. Smith was concerned with an accused’s “post request responses to further interrogation.” 469 U.S. at 100, 105 S.Ct. at 495 (emphasis added). Officer Fer-rand’s question, “[y]ou want to call your uncle?”, was not “further interrogation”— it was merely a natural response to Robinson’s request to make a phone call. As such, it was not a “post request response to interrogation” but an integral part of the exchange on the subject of the phone call. Thus, Ferrand’s question and Robinson’s answer may be looked at in deciding whether what he said was equivocal. And, in fact, the proof of the pudding was in the eating: The phone call he made — within minutes of the request and with the assistance of the police — was to his mother in Pennsylvania. After his discussion with her, he continued to talk willingly to the police, without making any references to an attorney.
The majority opinion comes to a screeching halt in its analysis with the word “lawyer,” an incomplete approach that skews the inquiry, slights the law, and produces *1398an incorrect result. Bruni v. Lewis, 847 F.2d 561 (9th Cir.1988), teaches us that the word “attorney” has no talismanic qualities; the mere use of it by a suspect such as Robinson does not abruptly bring the curtain down on all further questioning. See also United States v. Jardina, 747 F.2d 945, 949 (5th Cir.), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985). Bruni also held, Edwards notwithstanding, “a defendant may selectively waive his Miranda rights, deciding to respond to some questions but not to others.” 847 F.2d at 564.4 This reasoning is consistent with Connecticut v. Barrett, which permits police to question a suspect who says he will not make a written statement without a lawyer but will answer questions orally for the police. As the use of the word attorney did not bar further questioning in Barrett and Bruni, so it should not here either. Certainly it should not prohibit Officer Ferrand from asking Robinson if he wants to call his uncle. Thus, unlike my respected colleagues, I see Robinson’s references to an attorney during the questioning as equivocal.5
IV
This conclusion takes me down a different analytical road than the majority has taken. The next issue I must address is the effect of an equivocal request for counsel and the response required of interrogating police officers.
The leading case in this circuit on the subject of midquestioning equivocal references to an attorney is United States v. Fouche, 776 F.2d 1398 (9th Cir.1985) (“Fouche I ”).6 Fouche I held that “where a suspect makes an equivocal assertion of [the right to] counsel, the police must cease all questioning, except that they may attempt to clarify the suspect’s desire for counsel.” 776 F.2d at 1404 (emphasis added). Prior to Fouche I, Edwards v. Arizona, 451 U.S. 477, 101 .S.Ct. 1880, 68 L.Ed.2d 378 (1981), required police conducting a properly Mirandized interrogation to cease questioning when confronted by an unequivocal invocation of rights. It was not until Fouche 1, however, that this circuit, following the Fifth Circuit in United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984), advised law enforcement of the proper procedure when confronted with post-waiver equivocation. Had Robinson’s interrogation occurred after 1985, Fouche I would have controlled, but it did not. Thus, the question is whether Fouche I applies retroactively to Robinson. Based on the well-reasoned recommendation of the magistrate, the district court ruled that Fouche I did not apply retroactively.
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), states the test for retroactivity. In Teague, the Supreme Court held that “new rules” are not to be applied retroactively in collateral habeas corpus proceedings unless they decriminalize conduct or are necessary to ensure an accurate verdict — two exceptions that are not relevant to this case. How has the court defined a “new rule”? It has defined it as a holding that breaks new ground or imposes a new obligation on the states or the federal government. Id.; see also, Penry v. Lynaugh, 492 U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
This test was refined in Butler v. McKellar, — U.S. -, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), where the court, holding that Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), announced a “new rule,” remarked that a decision announces a new rule “ ‘if the result was not dictated by precedent exist*1399ing at the time the defendant’s conviction became final.’ ” Id. at 1216 (emphasis in original) (citation omitted).
The court went on to point out:
[T]he fact that a court says that its decision is within the “logical compass” of an earlier decision, or indeed that it is “controlled” by a prior decision, is not conclusive for purposes of deciding whether the current decision is a “new rule” under Teague. Courts frequently view their decisions as being “controlled” or “governed” by prior opinions even when aware of reasonable contrary conclusions reached by other courts. In Roberson [Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (if an in-custody suspect invokes the right to counsel as to one investigation, police are barred from interrogating as to a separate investigation) ], for instance, the Court found Edwards controlling but acknowledged a significant difference of opinion on the part of several lower courts that had considered the question previously.
110 S.Ct. at 1217 (citation omitted).
I see Fouche I as creating a “new rule,” and I do so for four reasons. First, the Supreme Court made it clear in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), that the Miranda rules are not “themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected....” Id. at 444, 94 S.Ct. at 2364. Tucker also teaches that if the procedure or treatment complained of, measured by the historical circumstances underlying the privilege against compulsory self-incrimination, did not deprive a petitioner of a constitutional right, then we are dealing with “only the prophylactic rules developed to protect that right.” Id. at 439, 94 S.Ct. at 2361 (emphasis added). An examination of the record in the instant case demonstrates that what we face is not compulsory self-incrimination, but an alleged violation of the rules of engagement established by Miranda and its progeny. This is not to relegate the rules to insignificance, but the distinction between rights themselves, on the one hand, and “suggested safeguards ... not intended to ‘create a constitutional straightjacket,’ ” on the other, id. at 444, 94 S.Ct. at 2364 (citation omitted), is one of considerable substance.
Constitutional rights are constant; prophylactic rules by comparison are less permanent and reflect the federal judiciary’s judgment of what is necessary to protect those rights. Of course, these rules are important and must be respected,7 but they are nonetheless transient rules as compared to constitutional rights.8 Tucker demonstrates this difference. When the Tucker court concluded it was not facing an abridgement of a constitutional principle, it applied the Miranda rules less stringently.
Second, I see the Fouche I rule as “new” in this context because, when it was articulated in 1985, it addressed an area of Miranda for which this circuit had issued no definitive prescription. We noted in Fouche I that the Supreme Court has “not addressed what constitutes a valid assertion of the right to counsel,” 776 F.2d at 1404, commenting that Edwards addresses only “a right to counsel that has been *1400‘specifically invoked.’ ” Id. Judge Tang also stated in Fouche I: “No Ninth Circuit cases provide guidance.” Id. Indeed, in 1984 the Supreme Court explicitly declined to articulate a standard for determining whether equivocal statements constitute invocation of the right to counsel: “We do not decide the circumstances in which an accused’s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself, nor do we decide the consequences of such ambiguity or equivocation.” 469 U.S. at 99-100, 105 S.Ct. at 494-95. The court noted that “courts have developed conflicting standards for determining the consequences of such ambiguities.” Id. at 96, 105 S.Ct. at 493.9
Third, I do not believe the rule established in Fouche I was "dictated” by precedent. It is not impossible to conceive of a different ruling on this issue, one that focuses on the deterrent purpose of the exclusionary rule and the recognized need for the questioning of suspects with respect to serious crimes. See Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973). A plausible different rule, such as the rule recently announced by the Virginia Supreme Court in Eaton v. Commonwealth, — Va. —, 397 S.E.2d 385 (Va.1990), is that once a suspect has been advised of his rights and waives them, questioning that does not run afoul of the Constitutional prohibition against self-incrimination may continue until the suspect clearly changes his mind and clearly revokes the waiver of his present right to counsel. In Eaton, the Virginia Supreme Court had before it a defendant who, while in custody for multiple homicides, was advised of and waived his Miranda rights, and then began to discuss the case with his interrogators. When the interrogation turned to the shooting of a state trooper, the suspect responded by asking, “You did say I could have an attorney if I wanted one”? The police answered his question in the affirmative and told him he did not have to tell them anything. The suspect fell silent. After a brief time, and without any attempt to clarify his thinking on the subject of an attorney, the interrogation resumed, and the suspect made incriminating statements that were used to convict him. In discussing whether the rule of Edwards v. Arizona was triggered under these circumstances, the Virginia Supreme Court rendered the following analysis:
We agree with the trial court that Eaton’s utterances concerning his right to counsel were equivocal. Authorities in other jurisdictions have adopted differing standards with respect to the specificity with which a request for counsel must be expressed. Some courts require a clear and unambiguous request, some prohibit all further questioning when the subject of counsel is mentioned in any way, while others permit further questioning only for the purpose of resolving the ambiguity. The United States Supreme Court has not expressly decided the question, Smith v. Illinois, 469 U.S. 91, 95-96 [105 S.Ct. 490, 492-93, 83 L.Ed.2d 488] (1984), but has expressed a preference for “bright-line rules” for the guidance of the police who must conduct custodial interrogatories [sic]. Fare v. Michael C., 442 U.S. 707, 718 [99 S.Ct. 2560, 2568, 61 L.Ed.2d 197] (1979).
The trial court, relying on Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, cert. denied, 474 U.S. 888 [106 S.Ct. 189, 88 L.Ed.2d 158] (1985) and Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271, cert. denied, 464 U.S. 977 [104 S.Ct. 414, 78 L.Ed.2d 352] (1983), concluded that the standard prevailing in Virginia is that a request for counsel must be “unambiguous and unequivocal” in order to trigger the Edwards rule. We distinguished the facts in Bunch from those in Edwards by pointing out that “where *1401Edwards involved an unequivocal statement by the accused that he wanted counsel, Bunch’s statement ... was couched in ambiguous terms to the effect that he might want to talk to a lawyer.” Bunch, 225 Va. at 433, 304 S.E.2d at 276 (emphasis in original). We noted a further distinction: in Edwards, the defendant was told that he had to talk to the police. Bunch, like Eaton, was told that he need not do so. Id.
The circumstances in Poyner were remarkably close to those of the present case. After police officers had given Poyner Miranda warnings, they summarized the information in their possession linking Poyner with one of the murders charged against him. At that point, Poy-ner asked, “Didn’t you say I have the right to an attorney?” The officers said, “Yes.” Citing Bunch, we held that the defendant’s statement was not a request for counsel. “At most, it sought to clarify one of the rights of which he had already been advised.” Poyner, 229 Va. at 410, 329 S.E.2d at 823. The trial court’s view that we have required a clear request for counsel was, therefore, well-founded.
We share the U.S. Supreme Court’s preference for “bright-line” rules for the guidance of those who must conduct and evaluate custodial interrogations. In further explication of the views expressed in Bunch and Poyner, we hold that the Edwards rule is invoked, and that custodial interrogation must cease, when the accused, having received Miranda warnings and having begun to respond to the questions of the authorities, “has clearly asserted his right to counsel,” Edwards, 451 U.S. at 485 [101 S.Ct. at 1885] (emphasis added). Because Eaton’s words and conduct fell short of that standard, we hold that he failed to invoke his right to counsel and that the Edwards rule did not come into play on February 24.
From the foregoing, I conclude that the rule established in Fouche I was a logical extension of Edwards and its progeny, but I do not think it was “dictated” by it.
Fourth and finally, if the judiciary takes it upon itself to guide the police with rules, as it has, it must do so fairly. When we penalize the police, and thereby society, we should do so only for not following the published rules, not for failing to anticipate what the next rule will be. To apply rules retroactively is to punish the police for failure to follow somebody who is not yet leading. This serves no deterrent purpose. It is a counterproductive practice that should be avoided as it breeds public disrespect for both the courts and the Constitution. The public understands that consequences attach when rules are broken, but the public’s sense of fair play is offended by changing the rules after the game is over. This process differs materially from the process of interpreting the Constitution and applying its mandates to a given situation. In such an exercise, the rule is not being created; it already exists in the Constitution itself and is simply being impressed upon the circumstances of the case.
In sum, I conclude that Fouche I and its new rule cannot be applied to Robinson’s interrogation, which occurred five years earlier.
Robinson’s counsel argues that Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), and not Teague v. Lane should control the issue of whether Fouche I should be applied retroactively. I disagree. Even if Stumes were controlling, however, I do not believe the Fouche I rule would be imposed retroactively. In Stumes, the Supreme Court held that the Edwards rule — once a suspect has “clearly invoked” his right to counsel, only the suspect may initiate subsequent conversation — did not apply retroactively, and it so held for four reasons. First, the Edwards rule does not significantly promote the court’s truth-finding function, but rather is a prophylactic rule. 465 U.S. at 645, 104 S.Ct. at 1342-43. Second, although Edwards did not overrule a prior decision or transform standard practice, it established a new per se rule that was not a necessary consequence of Miranda.
We do not think ... police can be faulted if they did not anticipate its per se ap-proach_ [I]t could be justifiably be*1402lieved that a waiver of the right to counsel following its invocation could be voluntary even if the police initiated the conversation.
465 U.S. at 647-48, 104 S.Ct. at 1344. Third, judicial guidance was lacking; the courts were in conflict on the issue. Fourth, retroactive application might affect numerous convictions, thereby disrupting the administration of justice.
The reasons given by the Court in Stumes are applicable to the present case: (1) This is a prophylactic rule that does not promote truth-finding; (2) the police cannot be faulted for failure to anticipate Fouche I; (3) judicial guidance — as pointed out earlier — was lacking; and (4) retroactive application might affect numerous convictions. Thus, under either Stumes or Teague, the result would be the same. Fouche I cannot govern Robinson’s interrogation. Accordingly, the police failure to follow up on ambiguous references to an attorney did not violate the Miranda rules in place at the time, and is not a basis for granting Robinson’s petition for a writ of habeas corpus.10 To alter slightly a thought from Justice Cardozo, the constable did not blunder, thus the criminal should not go free.11
V
California suggests we should refuse to hear Robinson’s Miranda complaints on the ground that the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), should foreclose collateral review of these issues. Although we rejected this argument in Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.), cert. denied, 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982), Justice O’Connor in a concurring opinion in Duckworth v. Eagan, — U.S. -, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (O’Connor, J., concurring), makes a persuasive case that this issue should be revisited.
I quote Justice O’Connor:
In Stone v. Powell this Court held that claims that probative evidence should have been excluded at trial because of police conduct alleged to have violated the Fourth Amendment would not be entertained in a federal habeas proceeding where a full and fair opportunity to litigate the claim had been made available in the state courts. The Stone Court noted that the exclusionary rule “ ‘is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.’ ” 428 U.S., at 486, 96 S.Ct. at 3048, quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). The costs of such a rule are high: highly probative and often conclusive evidence of a criminal defendant’s guilt is withheld from the trier of fact in the hope of “encouragpng] those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.” Stone, supra, 428 U.S., at 492, 96 S.Ct. at 3051. The exclusionary rule is a structural device designed to promote sensitivity to constitutional values through its deterrent effect. As such, the rule’s utility must, as this *1403Court has long recognized, be weighed against other important values in its application. Where the rule’s deterrent effect is likely to be marginal, or where its application offends other values central to our system of constitutional governance or the judicial process we have declined to extend the rule to that context. See, e.g., United States v. Leon, 468 U.S. 897, 920-921, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984) (refusing to apply exclusionary rule where police rely in good faith on a warrant issued by a neutral magistrate); Calandra, supra, 414 U.S., at 349, 94 S.Ct. at 620-21 (refusing to extend the rule to grand jury proceedings because its application “would seriously impede the grand jury”); Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954) (exclusionary rule does not create “a shield against contradiction of [the defendant’s] untruths” and evidence seized in violation of the Fourth Amendment may be used for impeachment purposes).
In Stone, we found that application of the exclusionary rule to Fourth Amendment violations on federal habeas was likely to have only marginal effectiveness in deterring police misconduct, while offending important principles of federalism and finality in the criminal law which have long informed the federal courts’ exercise of habeas jurisdiction. In my view, this same weighing process leads ineluctably to the conclusion that the suppression remedy should not be available on federal habeas where the state courts have accorded a petitioner a full and fair opportunity to litigate a claim that Miranda warnings were not given or were somehow deficient. Indeed, the scales appear to me to tip further toward finality and repose in this context than in Stone itself.
The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” The Amendment has its roots in the Framers’ belief that a system of justice in which the focus is on the extraction of proof of guilt from the criminal defendant himself is often an adjunct to tyranny and may lead to the conviction of innocent persons. Thus, a violation of the constitutional guarantee occurs when one is . “compelled” by governmental coercion to bear witness against oneself in the criminal process. See Colorado v. Connelly, 479 U.S. 157, 163-164, and n. 1, 107 S.Ct. 515, 520-21, and n. 1, 93 L.Ed.2d 473 (1986); Malloy v. Hogan, 378 U.S. 1, 6-8, 84 S.Ct. 1489, 1492-94,12 L.Ed.2d 653 (1964). The suppression remedy is quite possibly contained within the guarantee of the Fifth Amendment itself.
The Miranda rule is not, nor did it ever claim to be, a dictate of the Fifth Amendment itself. The Miranda Court implicitly acknowledged as much when it indicated that procedures other than the warnings dictated by the Court’s opinion might satisfy constitutional concerns, see Miranda, 384 U.S., at 444, 86 S.Ct. at 1612, and what was implicit in the Miranda opinion itself has been made explicit in our subsequent cases. See, e.g., Oregon v. Elstad, 470 U.S. 298, 306-310, 105 S.Ct. 1285, 1291-94, 84 L.Ed.2d 222 (1985) (noting that the Miranda rule “sweeps more broadly than the Fifth Amendment itself” and “may be triggered even in the absence of a Fifth Amendment violation”); accord New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Michigan v. Tucker, 417 U.S. 433, 442-446, 94 S.Ct. 2357, 2362-2365, 41 L.Ed.2d 182 (1974). Like all prophylactic rules, the Miranda rule “overprotects” the value at stake. In the name of efficient judicial administration of the Fifth Amendment guarantee and the need to create institutional respect for Fifth Amendment values, it sacrifices society’s interest in uncovering evidence of crime and punishing those who violate its laws. While this balance of interests may be perfectly justified in the context of direct review of criminal convictions, in my view the balance shifts when applied to a presumptively final criminal judgment which is collaterally *1404attacked in a federal habeas corpus proceeding.
— U.S. at -, 109 S.Ct. at 2882-83.
In the instant case, the courts of California afforded Mr. Robinson a full and fair opportunity to litigate his Miranda claims. The record shows that the state trial court conducted a full evidentiary hearing on Robinson’s motion to suppress. The superior court judge listened to the tape recording of the interrogation, reviewed the transcript, took live testimony, and heard argument. Robinson then appealed to the California Court of Appeal, which ruled that the trial court’s denial of the motion to suppress was amply supported by the record.12 The California Supreme Court denied Robinson’s petition for a hearing, which failed to mention any Miranda issue. Two subsequent petitions for writs of habe-as corpus, which did raise the issues now before this court, were also denied.
To apply the reasoning of Justice O’Con-nor’s concurring opinion, numerous state and federal judges have considered Robinson’s claims. No one has raised any doubt as to his guilt, the voluntariness of his incriminating statements, or their substantive value. It will accomplish nothing to discipline now behavior that occurred in 1980 on the basis of a case decided in 1985. “[I]t is absurd to think that this added possibility of exclusion [of the evidence] years after the police conduct at issue will have any appreciable effect on police training or behavior.” Id. at 2884. Fouche I is firmly in place. It has been controlling the activities of police for five years. It will do nothing to confirm the status quo or to promote progress to apply it to this case.
Accordingly, I would affirm the district court.
. The majority points out that their opinion does not "foreclose the possibility of a new trial.” Majority opinion at 1394. This may come as little solace to Patricia Worrell’s family, to those responsible for reassembling for retrial the components of a stale case now ten years old, to those who relied on the admissibility of Robinson’s confession in structuring the evidence-gathering aspect of the investigation of this case, and to those who believe that a system of “justice" must strive to bring litigation to an appropriate conclusion in less than a decade.
. For this case, the most appropriate example of "clarifying questions" is found in True’s advisement of Robinson quoted earlier. Why a procedure that is commendable at the beginning of questioning becomes something we condemn if it is appropriate later escapes me.
. See United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985); United States v. Nordling, 804 F.2d 1466, 1470 (9th Cir.1986); Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir.1988).
. Bruni responded to a Mirandized request that he answer questions by saying "not without my attorney.” He then added, "well, ask your questions and I will answer those I see fit.” Id.
. This conclusion is bolstered by the state court’s factual findings. See 28 U.S.C. § 2254(d). The trial judge hearing the matter found the following: "[T]here was an alluding to an attorney on a couple of occasions ... but again, basing my feelings on the totality of circumstances prior to and subsequent to, there was never really an asking by Mr. Robinson for an attorney.” Report and Recommendation of United States Magistrate Charles F. Eick, filed July 19, 1988.
.Fouche I came before this court for a second time on appeal. United States v. Fouche, 833 F.2d 1284 (9th Cir.1987) (“Fouche II").
. See Collazo v. Estelle, 884 F.2d 1168, 1171 en banc reh'g granted, 898 F.2d 87 (9th Cir.1989) (Trott, J., dissenting) ("As long as [Miranda ] is the law of the land, it must be respected.”).
. This is exemplified by the comments of Justice Blackmun in his concurring opinion in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), albeit in a case involving the Fourth Amendment and the good-faith exception to the exclusionary rule:
What must be stressed, however, is that any empirical judgment about the effect of the exclusionary rule in a particular class of cases necessarily is a provisional one. By their very nature, the assumptions on which we proceed today cannot be cast in stone. To the contrary, they will now be tested in the real world of state and federal law enforcement, and this court will attend to the results. If it should emerge from experience that, contrary to our expectations, the good faith exception to the exclusionary rule results in a material change in police compliance with the Fourth Amendment, we shall have to reconsider what we have undertaken here.
Id. at 928, 104 S.Ct. at 3423.
. Our court also noted this lack of guidance in 1987 in Fouche II. Citing Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987), and Smith v. Illinois, 469 U.S. 91, 96, 105 S.Ct. 490, 493, 83 L.Ed.2d 488 (1984), Judge Nelson said, "the Supreme Court has twice explicitly declined to rule on the permissible limits of interrogation following equivocal requests.” 833 F.2d at 1287, n. 3.
. Counsel for Robinson suggests that this issue has already been decided in favor of retroactivity, citing Bruni v. Lewis, 847 F.2d 561 (9th Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988); Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir.1989) cert. denied, - U.S. -, 110 S.Ct. 1483, 108 L.Ed.2d 619 (1990); Norman v. Ducharme, 871 F.2d 1483 (9th Cir. 1989), cert. denied, - U.S. -, 110 S.Ct. 1483, 108 L.Ed.2d 619 (1990). Although these cases applied Fouche retroactively, the issue was not discussed or presented in those cases. Thus they are not controlling as the law of the circuit on this question.
. This case provides an opportunity to reaffirm "the need for police questioning as a tool for effective enforcement of criminal laws.” Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973). Society currently needs all available and civilized tools to protect itself from crime, not just those available in a laboratory. To quote Schneck-loth: “At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal law. Without such investigations, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.” 412 U.S. at 225, 93 S.Ct. at 2046 (citations omitted).
. The unpublished opinion of the Second Appellate District of the Court of Appeal, 2d Crim. No. 42532, filed May 4, 1984, reveals that Robinson, although represented by distinguished counsel, did not raise the issue which is now central to his case. The only Miranda issue discussed related to the validity of his initial waiver on being advised of his rights.