dissenting.
I must respectfully dissent.
The majority opinion fails to follow longstanding precedents of this court and controlling Supreme Court precedent. Equally alarming is the majority’s failure to address the central issue raised and its facile reliance on the plain error rule in making its analysis. In this regard Judge Gibson’s opinion fails to follow procedural rules of this circuit and ignores a controlling en banc opinion.
It will be readily discernable to all parties that the majority fails to address the basic legal issue raised. The majority says the sole issue is the adequacy of warning. The record is to the contrary. The issue relating to adequacy of the warnings is simply part of the fundamental question addressed by the magistrate and the district court: whether Caldwell knowingly and intelligently waived his fifth amendment rights. The magistrate held that Caldwell had not knowingly and intelligently waived his fifth amendment rights; the district court did not reach this issue since it found there was no custodial interrogation and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), did not apply. The majority disagrees with the district court’s findings of custodial interrogation, but then fails to address the waiver issue even though it was focused upon in the evidentiary hearing and is now raised on appeal.
The issue of waiver is clearly raised by appellant’s brief.1 To discuss waiver in terms of a knowing waiver, one must know what rights exist and then intelligently and knowingly waive them. Detective Up-church neither informed Caldwell of his full rights, nor asked him whether he waived his rights. The magistrate’s findings should be sustained.
Perhaps the majority’s holding that defendant’s fifth amendment privilege against self-incrimination is not violated arises from the majority’s erroneous reliance on the plain error rule. The opinion acknowledges the plain error rule should be used sparingly and then only to correct “egregious errors” of law affecting the fairness and integrity of the proceedings. This discussion seemingly puts a gloss on a violation of the defendant’s fifth amendment privilege against self-incrimination into the cliché of technical or harmless error. The Miranda rule is fundamental to the protection of the unknowing and often innocent suspect. It is a rule which the *506Supreme Court has continued to recognize and enforce to protect the individual rights of every citizen. Clearly, the rule has been violated here. Every Supreme Court decision from Miranda to date has reinforced the principle that “to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right ... to have counsel, retained or appointed, present during interrogation.” Fare v. Michael C., 442 U.S. 707, 717, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979).
The Supreme Court, as late as 1989, reaffirmed this principle in Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166 (1989). There can be little doubt in the present case that Caldwell, an eighteen-year-old youth with no prior criminal experience, was not informed that he had a right to consult with a lawyer before questioning and to have a lawyer present during questioning. He clearly could not make an intelligent and knowing waiver of rights of which he was not aware. In Miranda, the Court stated “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S.Ct. at 1628.
Unlike the warnings administered in several cases relied upon by the majority, the statement read to Caldwell by Detective Upchurch did not offer him the opportunity to make a telephone call from which the right to consult a lawyer could be inferred. Cf Evans v. Swenson, 455 F.2d 291 (8th Cir.), cert. denied, 408 U.S. 929, 92 S.Ct. 2508, 33 L.Ed.2d 342 (1972); Sweeney v. United States, 408 F.2d 121 (9th Cir.1969). It clearly did not provide an inference that counsel could be consulted before and present during questioning. It is one thing to say that a particular ritual need not be followed and that only an equivalent warning need be made. See, e.g., California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981) (per curiam). However, no case equates one part of the Miranda warning into the equivalence of any other part. Each of the four-part warnings relate to a different cautionary concern set out in Miranda to protect an accused’s fifth amendment right against self-incrimination. To inform someone he has the right to remain silent does not tell him he has a right to counsel. To warn someone he has a right to have counsel appointed does not inform the accused he can consult with counsel before questioning and have counsel present at the interrogation. See cases cited infra.
One must assume the majority analysis as to the Miranda warning is directly related to the court’s analysis of plain error. If not, why has the court belabored such discussion? Although it is somewhat dubious, surely, I hope the court is not holding that as a matter of law the Miranda warnings given were adequate. If that is the intent of the majority opinion, then clearly the court has erred. Such a holding would be contrary to specific holdings of the Supreme Court, this court and the overwhelming majority of the court of appeals of this country. See, e.g., Duckworth, 492 U.S. at 204, 109 S.Ct. at 2880 (holding that Miranda requires “the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.”); Prysock, 453 U.S. at 361, 101 S.Ct. at 2810 (holding that the warnings given were adequate under Miranda since the defendant “was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one.”); United States v. Bland, 908 F.2d 471, 474 (9th Cir.1990) (warnings given were held to be inadequate since they did not advise the defendant of his right to have an attorney present during questioning); Guam v. Snaer, 758 F.2d 1341, 1343 (9th Cir.1984) (warning which informed defendant of his right to consult a lawyer and his right to have a lawyer present during questioning “meets the minimum requirements of the Constitution,” though “it would not be amiss for Guam to revise its form to more clearly warn of the *507right to consult with counsel before questioning.”), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985); United States v. Noti, 731 F.2d 610, 614-615 (9th Cir.1984) (warning held to be inadequate where it failed to inform the defendant that he had a right to counsel during questioning as well as before questioning); United States v. Contreras, 667 F.2d 976 (11th Cir.) (warning held to be sufficient since it informed the defendant of his right to consult with an attorney prior to questioning, to have an attorney present during questioning, and to have counsel appointed), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United States v. Anthon, 648 F.2d 669, 673 (10th Cir.1981) (warnings held to be inadequate since the defendant was not advised that his right to counsel encompassed the right to have counsel present during any questioning and the right to have an attorney appointed if he could not afford one), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982); United States v. Stewart, 576 F.2d 50, 54 (5th Cir.1978) (same); United States v. Fowler, 476 F.2d 1091, 1093 (7th Cir.1973) (warnings held to be insufficient because they failed to warn the defendant that he had the right to counsel before answering questions); Sanchez v. Beto, 467 F.2d 513, 515 (5th Cir.1972) (confession inadmissable since defendant was not advised that he had a right to have counsel present during interrogation), cert. denied, 411 U.S. 921, 93 S.Ct. 1548, 36 L.Ed.2d 314 (1973); United States v. Rizzo, 418 F.2d 71 (7th Cir.1969) (had defendant raised his objection prior to appeal, his incriminating statements would have been suppressed since the warning he was given failed to inform of the right to have an attorney present during any interrogation), cert, denied, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260 (1970); Gilpin v. United States, 415 F.2d 638, 640-41 (5th Cir.1969) (warning held to be insufficient since it did not indicate that the defendant had the right to have appointed counsel present during the interrogation); Caparossa v. Government of Canal Zone, 411 F.2d 956 (5th Cir.1969) (defendant not adequately advised of his constitutional rights when police failed to inform him that he had a right to have counsel present during his interrogation); Atwell v. United States, 398 F.2d 507 (5th Cir.1968) (advising defendant that he was entitled to consult with an attorney, retained or appointed, “at anytime” did not comply with Miranda directive that an individual held for questioning must be clearly informed that he has the right to consult counsel before and during questioning); Groshart v. United States, 392 F.2d 172, 175 (9th Cir.1968) (warning administered by customs agents held to be constitutionally inadequate since it failed to warn defendant of his right to the presence of an attorney during questioning and his right to have an attorney appointed if he could not afford one); Chambers v. United States, 391 F.2d 455 (5th Cir.1968) (incriminating statements held to be inadmissable because defendant was not advised that he was entitled to the presence of counsel during the interrogation); Windsor v. United States, 389 F.2d 530, 533 (5th Cir.1968) (same); Fendley v. United States, 384 F.2d 923 (5th Cir.1967) (per curiam) (warnings held to be insufficient since they did not advise of the right to have appointed counsel present during the interrogation).
The court urges that its analysis must be made under the plain error doctrine because no objection was made at the trial. This thesis is based on the conclusion that Caldwell did not (1) address this issue in his motion to suppress and (2) if he did, then he effectively waived the issue by not renewing his objection at trial. With all due respect, the first premise ignores the clear record, the second premise ignores the clear law.
The record shows that Caldwell raised the issue of the sufficiency of the warning in his motion to suppress. The motion reads that Caldwell was not “apprised and informed of his constitutional rights to an attorney and against self-incrimination as required under Miranda v. Arizona, 384 U.S. [436] 443, 86 S.Ct. 1602 [1611, 16 L.Ed.2d 694] (1966).” (Def.’s Mot. Suppress at 1). *508The magistrate’s findings which were based on his assessment of the totality of circumstances found no intelligent and knowing waiver by Caldwell of any of the statements.2 The government appealed. The district court disagreed with the magistrate’s findings only as to the second statement made to Upchurch. The district court did suppress Caldwell’s initial statement given to Officer Washington. The majority opinion states that the district court’s reasoning is confusing. I find it very clear. In its order denying Caldwell’s motion to suppress the statements elicited by Detective Upchurch, the district court observes:
The Court finds that these circumstances [officer Upchurch’s interrogation] do not “rise to the level of compulsion or coercion to speak,” Illinios v. Perkins, [496] U.S. [292, 299], 110 S.Ct. 2394, 2397, [110 L.Ed.2d 243] (1990), and so “are not within Miranda’s concerns.” Id. Moreover, “[t]he prophylactic Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.... The inquiry is simply whether the warnings reasonably ‘conveyfy] [sic] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, [492] U.S. [195, 203], 109 S.Ct. 2875, 2880, [106 L.Ed.2d 166] (1989). See, also, United States v. Filiberto, 712 F.Supp. 482, 486-87 (E.D.Pa.1989). Accordingly,
IT IS FURTHER ORDERED that defendant’s motion to suppress statements made to Officer Washington be and it is granted.
IT IS FURTHER ORDERED that defendant’s motion to suppress statements made to Detective Upchurch be and it is denied.
United States v. Caldwell, No. 90-12-CR(6) at 2 (E.D.Mo. Aug. 2, 1990) (Ord. Denying in part Def.’s Mot. Suppress).
*509Notwithstanding its clarity, the district court’s findings are clearly erroneous. The district court overlooked the fact that when Caldwell came back in the house, Upchurch had inspected the package and had determined it contained crack cocaine. Caldwell was told by Washington that it would be in his best interest to be cooperative with Upchurch. There was no question the investigation had focused on Caldwell and that his interrogation was custodial in nature. The district court accepted the magistrate’s finding that the earlier statement to Officer Washington had to be suppressed. This was based on a custodial examination. The government did not cross-appeal this finding. Thus, the government is bound by the district court’s finding that Washington’s interrogation was custodial. If Caldwell was under custody when Washington examined him, it is hardly reasonable to urge the subsequent questioning by Upchurch was not custodial. Upchurch certainly viewed his interrogation as custodial; he attempted to give Caldwell the Miranda warnings. The majority disagreed with the district court and finds “the facts persuade us that Caldwell was in custody for Miranda purposes.... ” (Op. at 499).
I recite the above because it demonstrates that both the magistrate and the district court judge recognized that within the issue of waiver the adequacy of warnings were specifically addressed by Caldwell’s motion to suppress. There is no question that the district court understood this issue when it wrote in its order “[t]he inquiry is simply whether the warnings reasonably ‘eonvey[y] [sic] to [a suspect] his rights as required by Miranda.’ ” Caldwell at 2 (quoting Duckworth, 492 U.S. at 203, 109 S.Ct. at 2879). This court should not so grudgingly and technically assess the record below. This is especially true when the motion to suppress, as well as the magistrate’s and district court’s reviews, explicitly recognizes the issue being raised. The fact that the magistrate sustained the motion on grounds that Caldwell did not knowingly and voluntarily waive his rights does not negate the fact that petitioner addressed the adequacy of the warning. The waiver issue clearly subsumes the question of the inadequate warning. To urge otherwise exalts form over substance — technicality over reality — and completely eviscerates an individual’s fifth amendment privilege by judicial oversight.
The majority opinion states even if Caldwell raised the issue in the motion to suppress, he nevertheless did not preserve the issue for appeal because he failed to renew his objection to the statements at trial. Thus, the majority bottoms its analysis on the plain error rule because of the defendant’s failure to renew his objection to the admission of the statement at trial. The majority relies on United States v. Udey, 748 F.2d 1231 (8th Cir.1984), to hold that the failure to object at trial does not preserve the ruling on the motion to suppress. Udey clearly does not hold this. I authored the Udey opinion. Nothing in Udey can be read to mean this. In Udey there was no motion to suppress and no later objection at trial. Under those circumstances, this court held the issue was not preserved. The majority does not address United States v. Neumann, 887 F.2d 880 (8th Cir.1989) (en banc), a case in which Judge Gibson joined, where we held that once a motion to suppress is made it is not necessary to renew such a motion before trial. Relying on Supreme Court precedent, Neu-mann held as follows:
By motion before trial, a criminal defendant is permitted to raise any objection “capable of determination without the trial of the general issue,” but motions to suppress evidence must be raised prior to trial. Fed.R.Crim.P. 12(b). We note, in addition, that such a mandatory pretrial motion to suppress, filed on constitutional grounds in a criminal case, if denied, does not ordinarily have to be renewed by way of objection at trial. The failure to raise an objection which must, under the Rule, be made prior to trial, effects a waiver of the objection. Fed.R.Crim.P. 12(f).
Id. at 885 (emphasis added).
Thus, I respectfully submit that analysis of this case under the plain error rule is wrong. The defendant did raise the ade*510quacy of the Miranda warning in his motion to suppress. This is all he needed to do. Notwithstanding the absence of objection at the trial, the issue was clearly preserved for our consideration.
Overwhelming authority holds that Caldwell was not given proper warnings. This court settled this issue in 1972. Judge Ross then wrote:
While it is true it is the substance of the warnings, not the form, that is important, Evans v. Swenson, 455 F.2d 291, 293 (8th Cir.1972); Tucker v. United States, 375 F.2d 363, 369 (8th Cir.), cert. denied, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189 (1967), the warnings given must be complete and meaningful to the accused. As stated by the Ninth Circuit, in Smith v. Rhay, 419 F.2d 160, 163 (1969), warnings are inadequate where the accused, although advised he had the right to an attorney, was not advised that “he had the right to the presence of an attorney and that, if he could not afford one, a lawyer could be appointed to represent him prior to any questioning."
South Dakota v. Long, 465 F.2d 65, 70 (8th Cir.1972).
It is difficult for me to understand how the majority can override, without en banc approval, this clear statement of the law.
I would find as did the experienced magistrate (who held the evidentiary hearing, heard the witnesses and was able to assess the credibility of Caldwell and the officers) that the defendant did not voluntarily, knowingly and intelligently waive his rights to remain silent and to have counsel present before and during the questioning by the police officers.3
I add one other commentary. This case involves the conviction of an eighteen-year-old youth, without any prior criminal experience, who made a serious mistake of judgment. He now faces a ten year prison sentence for his immature judgment. If this sentence is carried out, his life will be ruined. His family is devastated. It is difficult for me to believe Congress by its mandatory minimum penalty condones such punitive sanction to a young lad of eighteen. I wonder if Congress knows the injustice it creates by such laws. A civilized society should protest. The President of the United States should grant clemency. In my twenty-five years as a circuit judge I have never encountered such a miscarriage of justice. This gross injustice further emphasizes why denial of this young man’s fifth amendment rights should require a reversal of his conviction.
I respectfully dissent.
. Appellant’s brief states:
The Magistrate correctly concluded that the government failed to meet its heavy burden to prove that the Defendant voluntarily, knowingly and intelligently waived his right to remain silent and to counsel. "The court must look to the totality of the circumstances to determine if the suspect’s conduct manifests a knowing and intelligent relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). U.S. v. Filiberto, 712 F.Supp. 482, 487 (E.D.Pa.1989). In light of the inadequacies of the Miranda warnings, the mental condition of the Defendant, the psychological ploys utilized by the police officers, the lack of any prior criminal history, and the lack of sophistication on the part of the eighteen year old defendant, manifest injustice will result if the verdict and conviction are not reversed.
Brief for Appellant at 14.
. The magistrate found:
After defendant quickly returned involuntarily to the apartment, the circumstances in the apartment were such that defendant was in a custodial environment. Washington immediately questioned defendant about the package. Defendant’s mother was openly very upset. Everyone knew and disapproved of his admitted involvement with the package. Defendant remained in the apartment until Det. Upchurch arrived. Because Officer Washington did not advise defendant of his Miranda rights, the statements defendant made to him before Det. Upchurch arrived should be suppressed. Miranda, supra, 384 U.S. at 479, 86 S.Ct. at 1630.
The next issue is whether the government bore its heavy burden of proving that defendant's statements to Det. Upchurch were preceded by defendant’s voluntary, knowing and intelligent waiver of his rights to remain silent and to counsel. Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628; Tague v. Louisiana, 444 U.S. 469, 470-71, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). The undersigned concludes that the government did not sustain its heavy burden in this case.
After he arrived and determined that the package contained cocaine and before he asked defendant any questions, Det. Upchurch properly advised him of his Miranda rights. Defendant only nodded that he understood them. Because the defendant’s mother was so upset, the detective took defendant into the living room to be interviewed. Again, before asking him any questions, Upchurch asked defendant whether he still understood his rights. Defendant hesitatingly said that he did understand them. Defendant repeated the story he had told Washington.
Defendant did not voluntarily and intelligently waive his rights in the apartment, because his mental state at the time was very upset, his mother remained very upset with the whole situation, and his age and experience were not shown to have been sufficient to deal with the pressures of the investigation by his mother and neighbors and the direction from Officer Washington to cooperate with Det. Upchurch. Although he was asked whether he understood his rights, there was no evidence that he was then expressly asked whether he would waive them. He had previously given incriminating statements and he may have felt compelled to repeat the same statements in the presence of the narcotics detective.
The circumstances of the police station interrogation by Det. Upchurch remained such that defendant was not shown to have intelligently waived his rights to remain silent and to counsel. Although he was again advised of his Miranda rights and stated that he understood them, he was not asked expressly whether he would waive them. Further, the police station interview closely followed the apartment interviews and their pressure packed circumstances. When he was asked whether or not he would give a written statement, defendant angrily said that he would not and that he would say no more.
(Mag. Ord. and Rec. at 8-10).
. The magistrate concluded as follows:
[The] issue is whether the government bore its heavy burden of proving that defendant’s statements to Det. Upchurch were preceded by defendant's voluntary, knowing and intelligent waiver of his rights to remain silent and to counsel. Miranda, supra, 384 U.S. at 475 [86 S.Ct. at 1628]; Tague v. Louisiana, 444 U.S. 469, 470-71 [100 S.Ct. 652, 652-53, 62 L.Ed.2d 622] (1980); North Carolina v. Butler, 441 U.S. 369, 373 [99 S.Ct. 1755, 1757, 60 L.Ed.2d 286] (1979). The undersigned concludes that the government did not sustain its heavy burden in this case.
(Mag. Ord. and Rec. at 9).