(dissenting). I respectfully disagree. I would reverse for the reason that the incriminating statement made by the defendant to Officer Daniels (in the absence of retained counsel), as testified to by Officer Daniels, was erroneously received in evidence.
This statement occurred during the mix-up, or confusion, as Daniels testified, that prevailed when the defendant was traveling between the office of the district attorney and the magistrate (both in the Milwaukee County Safety Building).
While the group of seven described in the majority opinion was making one of these trips, Officer Daniels engaged the defendant in conversation. Defendant’s counsel was not within earshot.
“Well, the conversation was about this Spinella, how he — the talk was about this Spinella, how he involved Chabonian and I told his [defendant’s] dad he should talk to his son because his son was on probation now and if he didn’t tell the truth, he was going to be hurt by it and all [the defendant] would say was that he — at the *586time lie knew the car was stolen, he didn’t say he stole it but he said that he knew the automobile was stolen when he bought it from Tuszkiewicz.”
Officer Daniels further testified he did not have occasion to ask the defendant how he knew the car was stolen when he bought it and that the defendant at no time elaborated on the subject. No one else heard the alleged admission and defendant stoutly denied ever making it. The only evidence in the record relating to the “conversation” is the above-quoted testimony of Detective Daniels.
In its decision, on motions after verdict, the trial court stated:
“. . . The admission was not the result of interrogation, not the result of eavesdropping, not the result of deceit or artifice but was volunteered. The defendant denied making the admission and only he and Officer Daniels testified concerning it. Because of the voluntary nature of the admission made after the Miranda, warnings were given, and actually in the immediate vicinity of counsel, I find that the defendant’s right to counsel as defined by the Sixth Amendment of the Federal Constitution has not been violated and that the admission was properly received.”
The majority agrees with the trial court: the admission was volunteered, Miranda does not affect volunteered statements; hence this statement was admissible.
As I see it, this reasoning is faulty for three reasons:
1. There is no evidence to support the conclusion that the statement was volunteered.
2. There is no evidence that the defendant waived his right to have his retained counsel present.
3. Massiah 1 and subsequent cases applying the rule of Massiah clearly show that defendant’s sixth amendment right to counsel under the United States Constitution was violated.
*587 Statement not volunteered.
Miranda is crystal clear that once a defendant requests counsel all “in-custody interrogation” is to cease. Admittedly, Miranda is limited to in-custody interrogation but this does not mean that it was concerned only with formal question-and-answer interrogation of a suspect. In Miranda the court was well aware of the many techniques used by police to elicit information from a defendant,2 and it noted that it was its desire to assure counsel, or at the least, the opportunity for counsel, to every accused. Miranda notes that the presence of counsel will benefit not only the accused but the police as well. Such presence will not only inhibit police coercion or at least permit it to be exposed at trial, but will also “mitigate the dangers of untrustworthiness” both in the statement itself and in the reporting of it at trial by the prosecution.3 Admittedly “volunteered statements of any kind are not barred by the Fifth Amendment.” However, not only the absence of physical or mental coercion constitutes a statement “volunteered.” The dictionary defines “volunteered” as “to offer . . . voluntarily or without solicitation or compulsion.” 4 Miranda, in discussing what is necessary to establish a waiver, expressly states: “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive” his rights.5 This is further evidence that the court, aware of the many and various police techniques for eliciting information from an accused, did not look only to the absence of *588coercion or formal question-answer questioning of a defendant. The statement must be “volunteered,” and the examples of “volunteered” statements set out by the court indicate they were to be initiated by the defendant, spontaneous and unsolicited.6
Here, the only evidence presented as to the circumstances surrounding the disputed “conversation” was that of Officer Daniels himself that the “conversation” was about how defendant became implicated and Detective Daniels’ own admission that he urged defendant’s father to tell his son to talk since defendant was on probation and it would go hard on him if he didn’t. This testimony not only does not support a finding that the admission was “volunteered” within the meaning of Miranda, but compels the opposite conclusion — that Detective Daniels actively and deliberately sought the admission.
No waiver.
There is no evidence in this record which supports a waiver theory of defendant’s right to have his retained counsel present when he made the statement to Officer Daniels. Where admissions are made by a defendant, Miranda requires that the state have the burden of establishing that the accused “knowingly and intelligently” waived his fifth and sixth amendment rights, and this is a “heavy burden.”
The trial court and the majority state that this admission would not be excluded if defendant were not represented by counsel and therefore express concern that representation by counsel should make it inadmissible. *589The cases discussed infra indicate that the incriminating admission, under the circumstances here involved, should have been excluded because of the absence of defendant’s counsel. However, the assumption that the admission would not be excluded had defendant not been represented by counsel is unwarranted. To conclude this is to find a waiver of his constitutional rights by the defendant.
Miranda states:
“. . . But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or sirwply from the fact that a confession was in fact eventually obtained.” (Emphasis added.) 7
“. . . No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense.” 8
Massiah and subsequent cases.
The precise issue presented on this appeal and on which there is disagreement, is whether defendant’s sixth amendment right to counsel as construed by Massiah v. United States 9 and subsequent United States Supreme Court decisions applying that ease, has been violated. The conclusion is inescapable that under any permissible reading of these cases, the alleged incriminating statement here involved was improperly admitted against defendant.
The majority dismisses the sixth amendment challenge by citing this court’s decision in Davis v. State,10 ° which erroneously interprets Massiah as applicable only to situations involving police trickery and deception, and a *590Fifth Circuit Court of Appeals decision, United States v. De Loy,11 which takes a restrictive view of Massiah but even under which view I think the incriminating admission was improperly admitted.
In Massiah, the defendant was indicted with another person for a violation of federal narcotics laws; Massiah retained an attorney, entered a plea of not guilty, and was released on bail. While free on bail, defendant had a conversation with a codefendant in an automobile, unaware that government agents, with the codefendant’s cooperation, were monitoring the conversation by means of an electronic eavesdropping device. The agent testified to incriminating statements made by the defendant during the conversation.
The United States Supreme Court reversed, finding that defendant’s sixth amendment right to counsel had been violated. The holding of the court was clearly stated:
“. . . We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano case [Spano v. New York, 360 U. S. 315] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, ‘if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. ...” (Emphasis supplied.) 12
Some courts thereafter pointed to the concluding sentence of the Massiah opinion to reach the conclusion reached by this court in Davis v. State:
*591“. . . All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him [original emphasis] at his trial.” (Emphasis added.) 13
In light of the express language of the holding, supra, however, it is clear that “the circumstances here disclosed” was not to be limited to deception only. And apparently the majority of courts did not so limit it.14
Any doubt as to the invalidity of such an interpretation was dispelled in McLeod v. Ohio.15 In McLeod the defendant, under indictment for murder, made certain oral incriminating statements to police while helping them look for a gun used in a robbery. Testimony of the police regarding these statements was admitted against defendant at trial. The Ohio Supreme Court affirmed, finding no constitutional question involved.16 The United States Supreme Court granted certiorari and reversed without opinion, remanding for further consideration in light of Massiah.17 The Ohio court distinguished Massiah, holding that McLeod had made the incriminating statements voluntarily, before he was represented by counsel or had even requested any, and that there was no deception involved since defendant was knowingly and willingly cooperating with police officers. 18 This position, which is the same as that adopted by the majority here, was summarily rejected by the *592United States Supreme Court when it again granted certiorari and reversed without opinion, citing Massiah.19
The majority apparently ignores McLeod. However, it seems to imply that because Massiah was decided before Miranda, it has little vitality today. If there was any doubt about such a view, it was removed by the United States Supreme Court’s post-Miranda, decision in Beatty v. United States. 20
In Beatty the defendant, under indictment for selling firearms in violation of the National Firearms Act, was represented by counsel and free on bail. The defendant notified one Sirles, the person to whom he had sold the guns, and requested a meeting with the purpose of persuading Sirles not to testify for the prosecution. Sirles notified federal agents who told him to go ahead with the meeting. In addition a federal agent was secreted in the trunk of the car where the conversation was held. At trial, both the informer Sirles and the federal agent testified as to the incriminating statements voluntarily made by the defendant.
On appeal, defendant contended the testimony of both Sirles and the agent should have been excluded under Massiah. The Fifth Circuit Court of Appeals rejected the argument, and affirmed. In doing so it noted that Massiah would exclude incriminating statements where “deliberately elicited” by police in the absence of retained or appointed counsel. It then cited the last sentence of the Massiah majority opinion and stated:
“. . . We interpret this language as meaning that the exclusionary rule does not apply to all incriminating statements made under any circumstances by an accused after his indictment, but such rule only applies to those statements induced or deliberately elicited by officers or their agents from the accused after his indictment while he is without assistance of counsel. . . .” 21
*593The court then went on to distinguish Massiah, noting that in Beatty the government did not in any way set up the meeting, but that it was suggested by the defendant; that defendant clearly needed no inducement of any kind since he wanted to assure that Sirles would not aid the prosecution; and that although an agent was secreted in the trunk of the car, Sirles’ testimony was clearly admissible and sufficient with other evidence to convict defendant.
The United States Supreme Court reversed without opinion, citing Massiah.
In addition to McLeod and Beatty, a 1968 dissenting opinion of four members of the United States Supreme Court, in Miller v. California,22 sheds considerable light on this area. In Miller a police informant was placed in defendant’s cell to give oral reports of anything she might say with regard to the murder of her husband with which she was charged. At trial the informant testified as to certain unsolicited statements made by defendant. The California Court of Appeals recognized the validity of defendant’s constitutional argument under Massiah, but also noted defendant’s failure to object to the testimony in the trial court. The controlling factor, however, was that the court concluded the statements were not incriminating.23
The United States Supreme Court granted certiorari, but subsequently withdrew it as improvidently granted.24 Four members of the court dissented. They viewed an objection made at trial as adequate to preserve the question on appeal, and further disagreed that the statements were not incriminating. As pertinent here, they stated :
“Respondent also contends that petitioner’s constitutional rights were not violated, because [the informant] *594engaged in no ‘process of interrogations,’ Escobedo v. Illinois . . . designed to obtain a confession from petitioner, or that statements from her had not been ‘deliberately elicited,’ Massiah v. United States .... In the state’s view, so long as [the informant] acted simply as a listening post, she could testify as to any statements made to her by petitioner. That view was, however, rejected in Massiah itself. The government in that case pointed to the fact that the record did not reveal that its agent had induced the defendant by persuasion (there based on friendship) to discuss his activities, and urged that ‘providing a defendant an opportunity to talk’ [citing the government’s brief in Massiah] did not violate his right to counsel. See also Beatty v. United States " 25
Under these United States Supreme Court cases the majority’s view regarding the interpretation to be given Massiah is erroneous.
In addition, the majority of federal courts which have addressed themselves to the question have held that once counsel has been retained or appointed, any deliberate attempts on the part of the police or their agents to elicit information from a defendant in the absence of his counsel or a “clear and explicit” waiver of the right to have him present, are prohibited, and that any incriminating statements so obtained may not be used against him at trial.26 The vast majority of state courts have so held also.27 This is the “restrictive” view noted by the Fifth Circuit in De Loy, supra.
In addition, those courts considering the question who h »ve considered McLeod and/or Beatty, have gone further and held that Massiah commands that all oral communications between defendant and the police made after *595indictment in the absence of counsel are inadmissible.28 This is the “broader” interpretation of Massiah referred to in De Loy.
I have no doubt that the present case comes clearly within the purview of even the “restrictive” reading of Massiah as stated by the Fifth Circuit itself,29 and by other courts that apparently adopt the restrictive view.30 While there may not have been any “interrogation” in the sense of formal question-and-answer sessions, there is little doubt that the testimony of Detective Daniels himself indicates his “conversation” with defendant was aimed at getting incriminating information from defendant. Under any of the readings of Massiah discussed above, the admission should have been excluded.
I agree with the majority that “the administration of criminal justice is to be in fact a search for the truth . . . .” However, I cannot agree with the implication that the mere presence of a defendant’s counsel will somehow prevent the truth from being determined. This argument was expressly considered and rejected in Miranda. The essential problem in all these cases is not so much a question of right to counsel as a waiver of that right. The entire line of supreme court cases in this area, *596including Spano,31 Gideon,32 Massiah,33 Escobedo34 Miranda,35 etc., lead to the inescapable conclusion that the presence of counsel will best effectuate the truth-finding process and do so consistently with constitutional principles. These cases indicate a continuing concern with the precise situation here involved: a swearing match between a police officer who states the defendant made an incriminating statement in a manner consistent with his constitutional rights, and a defendant saying either that he did not make the statement at all, or that it was made in response to unconstitutional methods of reaching the “truth.” This court is duty bound to abide by the provisions of the constitution and the mandates of the United States Supreme Court interpreting these provisions. To do so here requires that the alleged incriminating admission here involved be excluded. The failure to do so in the trial court in this case requires reversal.
I am authorized to state that Mr. Chief Justice Hallows and Mr. Justice Heffernan join in this dissenting opinion.
Massiah v. United States (1964), 377 U. S. 201, 84 Sup. Ct. 1199, 12 L. Ed. 2d 246.
Miranda v. Arizona (1966), 384 U. S. 436, 445-456, 86 Sup. Ct. 1602, 16 L. Ed. 2d 694.
Id. at page 470.
Webster’s New International Dictionary (3d ed., unabridged), p. 2564. (Emphasis added.)
Miranda v. Arizona, supra, footnote 2, at page 476. (Emphasis added.)
“. . . There is no requirement that police stop a person who enters a police station and states that he wishes to confess to 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 . . . .” Id. at page 478.
Id. at page 475.
Id. at page 476.
Supra, footnote 1.
(1967), 33 Wis. 2d 682, 148 N. W. 2d 53. This decision interpreted Massiah as applicable only to situations involving police trickery or deception.
(5th Cir. 1970), 421 Fed. 2d 900.
Massiah, supra, footnote 1, at page 206.
Id. at page 207.
See, e.g., Commonwealth v. Coyle (1967), 427 Pa. 72, 233 Atl. 2d 542. For an analysis and summary of some of these cases, see Anders v. State (Tex. Crim. App. 1969), 445 S. W. 2d 167, 176-180 (concurring-dissenting opinion).
(1965), 381 U. S. 356, 85 Sup. Ct. 1556, 14 L. Ed. 2d 682.
State v. McLeod (1962), 173 Ohio St. 520, 184 N. E. 2d 101.
McLeod v. Ohio (1964), 378 U. S. 582, 84 Sup. Ct. 1922, 12 L. Ed. 2d 1037.
State v. McLeod (1964), 1 Ohio St. 2d 60, 203 N. E. 2d 349.
McLeod v. Ohio, supra, footnote 15.
(1967), 389 U. S. 45, 88 Sup. Ct. 234, 19 L. Ed. 2d 48.
Beatty v. United States (5th Cir. 1967), 377 Fed. 2d 181, 189.
(1968), 392 U. S. 616, 88 Sup. Ct. 2258, 20 L. Ed. 2d 1332.
People v. Miller (1966), 245 Cal. App. 2d 112, 53 Cal. Rptr. 720.
Miller v. California,, supra, footnote 22.
Id. at pages 625, 626.
United States v. Garcia (2d Cir. 1967), 377 Fed. 2d 321; Beatty v. United States, supra, footnote 21; United States v. Gardner (7th Cir. 1965), 347 Fed. 2d 405.
Supra, footnote 14.
Hancock v. White (1st Cir. 1967), 378 Fed. 2d 479; United States ex rel. O’Connor v. New Jersey (3d Cir. 1969), 405 Fed. 2d 632; People v. Milani (1968), 39 Ill. 2d 22, 233 N. E. 2d 398. The Seventh Circuit Court of Appeals seems to have adopted this position as well. United States ex rel. Milani v. Pate (7th Cir. 1970), 425 Fed. 2d 6.
Supra, footnote 21, 377 Fed. 2d at page 191; De Loy, supra, footnote 11, 421 Fed. 2d at page 902.
While some state courts have excluded statements obtained, in the absence of counsel, when the result of “interrogation,” it is clear that they are willing to look at the true nature of any “discussions” or “conversations” which give rise to the incriminating statements. See, e.g., State v. Gallagher (1964), 97 Ariz. 1, 396 Pac. 2d 241; People v. Paulin (1969), 25 N. Y. 2d 445, 306 N. Y. Supp. 2d 929, 255 N. E. 2d 164.
Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. 2d 1265.
Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. 2d 799.
Supra, footnote 1.
Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. 2d 977.
Supra, footnote 2.