(dissenting). I respectfully dissent. I believe the motion judge misapplied the constitutional standards to the fact-finding process from the start.1
It seems to me that while the judge made passing application of the "scrupulously honored” standard, he in fact employed it interchangeably with "waiver” analysis. Not only is this mode of analysis, in my view, wrong, but it has provided a continual source of difficulty and confusion in the trial courts; consequently, our appellate courts’ analyses of circumstances such as those presented here must in the future be more carefully defined. There is great need to address this important question, providing as much clarity as possible, because Miranda v. Arizona, 384 U.S. 436 (1966), and Michigan v. Mosley, 423 U.S. 96, 100 (1975), stand squarely for the proposition that even though a statement may eventually be volunteered,2 it is not admissible if the defendant’s rights were not *568scrupulously honored. Therefore, the proper sequence of inquiry must be: first, and principally, did the police scrupulously honor the defendant’s rights? The focus must be on the police’s behavior and intent, not on the conduct of the defendant. Then, only after that question is answered in the affirmative, should we reach the question whether the defendant waived his rights. This issue is somewhat cloudy because Commonwealth v. Taylor, 374 Mass. 426, 432-435 (1978), employs the scrupulously honored standard; Commonwealth v. Jackson, 377 Mass. 319, 325-329 (1979), in fact employs that standard but also mentions in passing the waiver/voluntariness standard as though both were on equal footing; and Commonwealth v. Watkins, 375 Mass. 472, 484 (1978), rests on waiver analysis. This court’s decision in Commonwealth v. Andujar, 7 Mass. App. Ct. 777, 784-785 (1979), implies that waiver is the “crucial issue.”3
The motion judge here, understandably unsure of the proper standard, employed both the "scrupulously honoring” and the waiver standard, hence conflating constitutional principles which I believe must remain distinct.
*569Moreover, although the motion judge correctly recognized that the defendant’s Sixth Amendment rights as well as his Fifth Amendment rights may have been violated, his interpretation of the legal principles applicable to such circumstances was, in my view, also erroneous. See e.g., Miranda v. Arizona, 384 U.S. at 444-445,469-470, 474 & n.44; Michigan v. Mosley, 423 U.S. at 104; Brewer v. Williams, 430 U.S. 387, 403-406 (1977). Cf. Oregon v. Hass, 420 U.S. 714 (1975) (implies that where suspect was told of his rights and asked for a lawyer, yet police questioning continued in violation of Miranda, the statements that resulted could not be used in the prosecution’s case in chief). The decision in Commonwealth v. Taylor, 374 Mass. at 435-436 provides the most illustrative guidance in circumstances such as the present. See United States v. Barnes, 432 F.2d 89, 91 (9th Cir. 1970). See also Commonwealth v. McKenna, 355 Mass. 313, 323-325 (1969); Commonwealth v. Murray, 359 Mass. 541, 545-546 (1971). But see Brewer v. Williams, 430 U.S. at 405-406.
There is a critical difference between "scrupulously” honoring a suspect’s rights after he has indicated a desire merely not to respond to questions by law enforcement officials and honoring his rights after he has indicated that he does not wish to answer any questions unless an attorney is present.4 See Brewer v. Williams, supra at 405 n.10; Michigan v. Mosley, 423 U.S. at 104 n.10 and at 109-110 (White, J., concurring in result). Cf. United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (Friendly, J., dissenting), cert, denied, 400 U.S. 1022 (1971). See also *570Miranda v. Arizona, 384 U.S. at 474 ("the interrogation must cease until an attorney is present”).
Here, unlike Commonwealth v. Watkins, 375 Mass. at 484, the motion judge found that the defendant "already had an attorney appointed to represent him” (compare Commonwealth v. Williams, 378 Mass. 217, 226-227 & n.9, and cases cited therein [1979]), and the law enforcement officials knew this, as well as the attorney’s name. Nevertheless, immediately following Brant’s assertion of his rights they initiated a tactic “designed to undermine” his decision (Commonwealth v. Jackson, supra at 326), which, although not interrogation per se, when viewed in context is analogous to that conduct in Commonwealth v. Taylor, supra at 430, which was proscribed for being a “subtle” attempt to get the defendant to talk.5
Although the majority opinion, in distinguishing this case from Taylor, correctly characterizes the proscribed police behavior in that case as "persuasion,” it does not appreciate the full implications of Taylor. Taylor in fact *571stands for the proposition that subtle police behavior which manifests a desire to encourage a defendant to relinquish his once-asserted rights is inconsistent with "scrupulously honoring” a suspect’s rights. Consequently, I believe this case and Taylor are on all fours. Moreover, the reasoning in Jackson is in accord.
The judge specifically found here that "the police, in permitting Brant to speak with [the codefendant], hoped and expected that Brant would change his mind and make a statement.” See United States v. Barnes, 432 F.2d at 91. The majority conceded this point.6 See majority opinion note 6, supra.
There is no point in having a "right” to have an attorney present during interrogation7 if law enforcement officials persist in attempting to obtain a statement during the temporary absence of appointed counsel, thereby causing the defendant to "waive” that right. See Michi*572gan v. Mosley, 423 U.S. at 110 n.2 (White, J., concurring in result). See generally Escobedo v. Illinois, 378 U.S. 478, 484-492 (1964).
Furthermore, I believe, as the motion judge impliedly ruled, that once counsel has been appointed, a showing of "waiver requires not merely comprehension but relinquishment.” Brewer v. Williams, 430 U.S. at 404. No such showing has been made on this record. The subsidiary findings of the motion judge provide insufficient affirmative evidence that in this context the defendant freely relinquished his right to counsel.8 See Commonwealth v. Murray, 359 Mass. at 546.
While I would not find that the defendant’s waiver was a "spontaneous declaration” (compare Commonwealth v. Watkins, 375 Mass. at 484) or that it was permissible in this context for the law enforcement officials to tell the defendant that his codefendant had made an inculpatory statement (compare United States v. Barnes, supra; but see Commonwealth v. Jackson, 377 Mass. at 327 n.7 [1979]), both are to some degree beside the point because "the defendant had an attorney at the time he made the alleged statements.” Cf. Commonwealth v. Williams, 378 Mass. at 226. Consequently, once Brant asserted his right to counsel all communication regarding the charges should have ceased until he was given a real opportunity to speak with his attorney.9I buttress this view with the additional facts that the defendant’s attorney was known by name to the police, and that this was not the initial *573confrontation, but an attempt to take up questioning (i.e., regive Miranda warnings) in circumstances where earlier no questioning had taken place because of Brant’s request to speak with an attorney.10 See Commonwealth v. Taylor, supra at 435-436; Michigan v. Mosley, 423 U.S. at 101 n.7. Cf. Commonwealth v. McKenna, supra at 324. Contrast Commonwealth v. Santo, 375 Mass. 299, 305 (1978) (the defendant expressly stated that he did not want to speak to an attorney who had represented him in other actions). Contrast also Commonwealth v. Watkins, supra at 478 (where the defendant was indeed given an opportunity to call his lawyer; here the defendant was given an opportunity to speak with the very person who had inculpated him).
In sum, I disagree with the motion judge’s interpretation of the relevant Federal and State decisions and with his application of them to the facts in the instant case. I am unable to find on this record that, after the defendant said initially that he wanted legal representation and would not make a statement in the absence of counsel and following the appointment of counsel, the defendant’s rights to cut off questioning, especially his Sixth Amendment right, were "scrupulously honored” in face of police behavior which manifested a desire to influence the defendant to talk after his counsel had departed. See United States v. Olof, 527 F.2d 752, 753-754 (9th Cir. 1975); United States v. Barnes, supra, United States v. Rodriguez-Gastelum, 569 F.2d 482, 488-489 (Goodwin, J., concurring and dissenting), & 589-591 (Hufstedler, J., dissenting) (9th Cir.), cert, denied 436 U.S. 919 (1978). See also in this regard Brewer v. Williams, 430 U.S. at 415 (Stevens, J., concurring), wherein the fundamental importance of counsel in safe-guarding the interests of both the accused and society is discussed. Justice Stevens emphasizes that when a client places his trust in counsel, and counsel in turn places his trust in law enforcement au*574thorities, if authorities nonetheless dishonor this trust and seek to influence the suspect to relinquish his rights outside of his lawyer’s presence, both the individual and society suffer.
In sum, I think that the law enforcement officials did not "scrupulously honor” the defendant’s right to cut off questioning, Michigan v. Mosley, 423 U.S. at 104, nor has the Commonwealth sustained its heavy burden of showing a knowing, intelligent, and voluntary waiver of that right. Miranda v. Arizona, 384 U.S. at 473-475. See Commonwealth v. Sires, 370 Mass. 541, 544 n.2 (1976), and cases cited. Accordingly, the motion to suppress should have been allowed in full, and the defendant should have a new trial free from the tainted evidence.
As I believe that all the statements made by the defendant while in custody to Florida law enforcement officials should not have been admitted in evidence, it goes without saying that testimony of police officers as to what he did not say is constitutionally proscribed.
Although a judge’s subsidiary findings will not be disturbed if they are warranted by the evidence, "[o]ur appellate function requires that we make our own independent determination on the correctness of the judge’s ‘application of constitutional principles to the facts as found.’ ” Commonwealth v. Haas, 373 Mass. 545, 550 (1977).
Accord, Commonwealth v. Dustin, 373 Mass. 612, 616 (1977), cert, denied, 435 U.S. 943 (1978). Although the facts in Dustin are different in part from the facts here, it is highly instructive to note the court’s concluding remarks regarding suppressing evidence:
“The result is to exclude the defendant’s statements from evidence, even though they were voluntarily made, even though they bear in*568dicia of reliability, and even though they are found not to have been the product of any intentional violation of constitutional standards [emphasis supplied].” Id.
It might be further stressed that in Dustin, unlike here, there was no intention exhibited by the police to influence the defendant to confess.
Nevertheless, Taylor, Jackson, Watkins, and Andujar, in sum, demonstrate that while police may resume interrogating a suspect after he has at an earlier time asserted his right to remain silent and his right to the assistance of counsel, they may do so only after some substantial intervening factor has occurred — either the passage of time, in Mosley, 423 U.S. at 104-105, and Andujar, 7 Mass. App. Ct. at 781, where it was a couple of hours, or, as in Watkins, 375 Mass. at 478, the opportunity to speak with one’s lawyer — which firmly demonstrates that the authorities scrupulously honored the suspects’ right to immediately cut off questioning. Indeed, the Massachusetts cases are firm in announcing that under no circumstances may authorities avoid defendants’ rights by attempting subtly to influence the defendant to "volunteer” a confession.
The majority opinion apparently does not regard as relevant the fact that Brant initially asserted his right to speak with an attorney on the day he was arrested (February 4, 1978). I thus think it important to emphasize that the statements sought to be suppressed were made at a time when the defendant had indicated, as he had done at his first encounter with the authorities, that (as the judge found) he was not "willing to proceed without an attorney being present to represent him.” See Massiah v. United States, 377 U.S. 201,206 (1964); Brewer v. Williams, 430 U.S. at 400-401. See also Commonwealth v. Murray, 359 Mass. at 545.
The judge found that on the morning of February 15, Massachusetts authorities and Deputy Sheriff Hudepohl were in court when Brant was arraigned and assigned a new attorney. At this time, having already secured a statement from Kampen, they nonetheless had formed an intention to interrogate Brant later that day, notwithstanding the fact that Brant and his attorney were before them, offering an opportunity for the authorities to apprise Brant and his attorney of their evidence and their intention. Later, when Brant unequivocally asserted his rights, the authorities nonetheless used as leverage information regarding Brant’s codefendant’s statement to influence Brant to talk. This might be readily inferred from the judge’s finding that the authorities’ statements were "not without significance ... [as] evidenced by the fact that Kampen immediately denied the veracity of his [own earlier] statement.” Furthermore, according to the judge’s findings the officials did not take Brant back to his cell after he exercised his rights, as was the case in Andujar, 7 Mass. App. Ct. at 779, and Mosley, 423 U.S. at 97-98, or afford him the opportunity to speak to his lawyer, as was the case in Watkins, 375 Mass. at 478, but rather allowed him to go out into the hallway with the very person who had made a statement against him, which move they "hoped and expected” would influence Brant to "change his mind and make a statement.”
Moreover, the larger picture, which uncontroverted government testimony vividly paints, adds further significance to the fact that the police "hoped and expected that Brant would change his mind and make a statement.”
The record of the suppression hearing reflects that all witnesses said that "conversation” took place amongst the officials concerning their trip back to Massachusetts. This occurred while Brant was in the interrogation room, subsequent to his assertion of his rights and subsequent to "statements” made by the officials that his codefendant had already confessed. This fact is crucial in assessing the effect that such "statements” may have had on Brant, as well as the officials’ intention in making them. We know from the judge’s findings that Brant had heard that were he to go to prison in Florida he would be subjected to homosexual attacks. Indeed, Brant’s eagerness to get out of Florida, as well as the authorities’ awareness of that fact, is readily apparent from the judge’s findings and the transcript.
Viewed in this light, the officials’ apprising Brant that his codefendant had already confessed cannot reasonably be seen as an attempt on their part to stand vigil over Brant’s best interests. The over-all picture demonstrates the contrary.
It cannot be gainsaid that there are no other situations where an attorney’s presence is more critical. See Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring and dissenting) ("any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances”).
"Warnings by law enforcement officers and subsequent action by the accused that might suffice to'comply with Fifth Amendment strictures against testimonial compulsion would not necessarily meet what I regard as the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.” United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (Friendly, J., dissenting), cert, denied, 400 U.S. 1022 (1971). Accord, United States v. Satterfield, 558 F.2d 655, 657 (2d Cir. 1976).
It could persuasively be argued that all communications regarding the charges should go through the defendant’s counsel. See S.J.C. ’Rule 3 : 22, DR 7-104(A) (1), 359 Mass. 820-821 (1972).
See note 4, supra.