(dissenting):
The majority opinion states that Miranda does not place a per se ban on police questioning of a suspect after he has invoked his right to counsel. This is clearly the law in Arizona. This Court has held that questioning a suspect after he has asserted his Miranda rights is permissible, so long as the suspect’s right to cut off the questioning is “scrupulously honored.” State v. McGinty, 120 Ariz. 162, 584 P.2d 1153 (1978); State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977).
Similarly, the Ninth Circuit Court of Appeals, in United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978) cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), held that although questioning must stop after a right to counsel is asserted, it can later resume if the suspect makes a waiver of the right. Such a waiver of a previously asserted right must meet the definition pronounced in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). That is to say, it must be an intentional relinquishment or abandonment of a known right or privilege. The RodriguezGasteium opinion specifically concluded that a waiver could meet this test even if the questioning was resumed at the instigation of the police.
The facts of this case, however, do not meet the requirements of either the Ninth Circuit or Arizona case law. Edwards asserted that he wanted an attorney before making a deal. At this point all questioning ceased. The next morning, the detention officer told Edwards that detectives were there to see him. Edwards told the officer that he did not wish to speak to anyone. The officer told him that he had to.
Because Edwards was told that he had to talk to the detectives, I disagree with the majority’s conclusion that his right to cut off the questioning was scrupulously honored. For the same reason his subsequent statements were not an intentional relinquishment or abandonment of his right to counsel, even though the detectives once again read him his Miranda rights. This is evidenced by the fact that when asked at the motion to suppress hearing why he had not once again told these detectives that he wanted an attorney, he responded: “I didn’t think you had to keep asking for an attorney over and over and over.”
Moreover, I cannot condone the tactics of the investigating detectives. Despite the suspect’s prior assertion of his right to counsel, detectives questioned him the following morning, knowing that an attorney would not be appointed for him until the afternoon. I find the language of State v. Sauve, 112 Ariz. 576, 544 P.2d 1091 (1976) controlling on these facts.
“After the defendant’s refusal to answer questions, the officers ceased interrogation, but their subsequent conduct and statements were made to persuade the defendant to reconsider his position. Any response under such circumstances cannot be considered ‘volunteered,’ and' the statements were not admissible.” 112 Ariz. 576, 579, 544 P.2d 1091, 1094. (Emphasis added.)
Despite Arizona’s rejection of a per se rule regarding the right to remain silent, a suspect’s right to cut off questioning must be scrupulously honored, and his statements must be voluntarily made. Because he was told that he had to talk to the detectives and because the questioning took place shortly before an attorney was to be appointed, I would find the defendant’s statements to be inadmissible.