I dissent.
Reversible error occurred when the testimony of Patrolman Novy, relating to admissions made by defendant, was admitted into evidence.
We should first review the essential facts under which the admissions to Patrolman Novy were made. At the time of the interrogation the following facts appear from the record made by the State:
1. Defendant had been arrested at 2:00 A.M.
2. Defendant had been held in custody at a DX filling station in the town of Adair for four hours.
3. Defendant had been given the Miranda warnings at 3:20 A.M.
4. Immediately upon receiving the Miranda warning defendant exercised his right against self-incrimination and stated he did not want to talk to the sheriff who read the warning to him.
5. Defendant was not questioned further by the sheriff but was handcuffed. He remained handcuffed to and during his ride in the patrol car where further questioning took place.
*1996. Defendant was being transported to the county jail in a patrol car when questioned at about 6:00 A.M. by Patrolman Novy. Officer Novy was driving, defendant sat at his right. In the back seat were Chafa, also handcuffed and Deputy Sheriff Herrick.
7. There is no record of further warnings to defendant by the patrolman or anyone else.
8. The patrolman initiated the questioning.
9. Defendant answered the patrolman’s questions.
10. There is no evidence of duress other than defendant being in custody and handcuffed.
11. There is no record of voluntary waiver of constitutional rights by defendant.
I. This is not a case of whether defendant received adequate warnings under the rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. It is a case of whether the State proved a waiver of defendant’s previously exercised right to remain silent. Miranda v. Arizona states at page 475 of 384 U.S. 436, page 1628 of 86 S.Ct.: “If 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. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 986. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962), is applicable here:
“ ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”
The majority accepts the Maryland philosophy1 cited at Division I, “despite the fact that the testimony does not show an express waiver of appellant’s right to remain silent and to counsel, we hold that the totality of the circumstances — the attendant facts of the case — are such as implicitly show that appellant voluntarily and intelligently relinquished these rights when he made his incriminating admissions.” Whatever may have been the result of the Maryland case, under the facts before that court, the acceptance of such *200a holding under the facts of this case constitutes refusal to follow the mandate of the Supreme Court of the United States on a federal constitutional issue.
This is true because there are no facts which point to an intelligent waiver of the previously asserted right to remain silent. A short opinion of the United States Court of Appeals (9 Cir.), Moore v. U. S., 401 F.2d 533 fits our situation exactly: “Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires the government to show not only that the accused was effectively informed of his privilege against self-incrimination and his right to the assistance of counsel, but also that the accused knowingly and intelligently waived these rights. Moreover, ‘A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.’ 384 U.S. at 475, 86 S.Ct. at 1628.
"The record is devoid of any evidence that appellant waived his rights before making the admissions to which Officer Pels testified. (Emphasis supplied.)
“Since we cannot say that the error ‘does not affect substantial rights’ (Fed. R.Crim.P. 52(a)), or 'that it was harmless beyond a reasonable doubt’ (Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the judgment must be reversed.”
This is the entire opinion. It is enough. To hold otherwise here is to reject the principle of federal pre-eminence in federal constitutional law fields, a cornerstone of our national form of government.
The refusal of this court, and most other state appellate courts, to follow the Miranda decision flows in large part from the refusal to recognize that the voluntary character of the statement is no longer the sole test of its admissibility. There are now two standards: the United States constitutional tests as delineated by the United States Supreme Court and the voluntary character of the statement. When we merge the two standards and treat them as one we ultimately make the decision based on pre-Miranda standards.
Basically Moore v. U. S., supra, recognizes this distinction by reversing the case without inquiry into the voluntariness of the statement. Such inquiry is immaterial if the standards of Miranda have not been met. Such is the case here.
II. The fundamental principle that United States Supreme Court rulings are binding in State courts in matters of federal constitutional law has been repeatedly recognized by this court. State v. Kelly, 249 Iowa 1219, 91 N.W.2d 562; State v. Karston, 247 Iowa 32, 72 N.W.2d 463. When we ignore the binding authority of such rules we come perilously close to affirming the principle that the State may violate its own laws to achieve its immediate objective.
We have tried to move away from such dangers as are inherent in the philosophy accepted in State v. Tonn, 195 Iowa 94, 191 N.W. 530. There we held evidence acquired by the illegal or even criminal acts of state agents was nevertheless admissible in evidence. This flaunting of all of the basic concepta of our government was not corrected until Mapp v. Ohio, 367 U.S. 433, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, was decided. Happily in State v. Hagen, 258 Iowa 196, 137 N.W.2d 895, we treated Mapp v. Ohio, supra, as binding on us. The false principle of State v. Tonn, supra, was thus abandoned.
We now face essentially the same question. Shall we condone and approve a clear and known violation of a fundamental constitutional right in order to sustain a conviction that we think correct? In State v. Tonn, supra, the answer was affirmative but not without dissent.
Justice Weaver observed in part: “It seems little less than solemn mockery for us to protest our devotion to the ‘sacred *201constitutional right,’ or virtuous purpose to rigidly enforce it and in the same breath declare our approval of the admission of ‘evidence without any inquiry as to how that evidence was obtained.’ The principle so involved finds a suggestive parallel in the case of the candidate for office who maintains his equipoise on the question of prohibition by declaring himself in favor of the law, but opposed to its enforcement. The suggestion that the person whose rights are invaded by a wrongful search or seizure has his remedy in an action for damages against the individual committing the trespass is scarcely worthy of the court which refuses to give him protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary as well as of the private citizen. It is this growing disregard of fundamental rights and orderly methods of justice, which has given rise to the infamies of the so-called ‘sweat box’ and ‘third degree’ practices which cast discredit upon our professions of loyalty to law.” (loc. cit. 195 Iowa at page 119-120, 191 N.W. at page 540.)
Chief Justice Preston wrote a separate dissent, part of which reads: “Other reasons occur to me why it seems to me that the majority opinion ought not to be adopted, but those stated will suffice for present purposes. After the Declaration of Independence, the Articles of Confederation, the adoption of the Constitution, and the separation from the mother country was complete, it was found necessary, under conditions then existing, that the people— innocent people — all the people, should be protected from the then existing encroachments of the government, or rather, the overzeal of its officers; and so for that reason and purpose the first ten amendments were proposed by Congress to the Legislatures of the several states, and they were ratified. This was in 1789. For 134 years until now, the protection guaranteed by the Constitution has meant something more than a ‘form of words.’ I would continue the protection, and follow the rule of the Supreme Court of the United States that evidence secured by an unlawful search or seizure, as here, is incompetent, where a petition or application is made * * * to return the property. * * *
“It is said that enforcement of criminal law would be handicapped by a strict adherence to the rule contended for: that is to say, if the Constitution is adhered to, upheld, and defended, such would be the result. That may be so in some cases; but I submit that is not a sufficient answer. It should not be forgotten that the rights and interests of innocent people, guilty of no crime, are at stake.” (loc. cit. 195 Iowa at page 131, 191 N.W. at page 545.)
These two dissents, written 45 years ago, are admirably prophetic when read in light of our current struggle to balance the needs of society against our ancestors’ bold assertion that the State exists to serve the individual and the individual does indeed have certain inalienable rights which the State, regardless of need, cannot violate.
III. The majority cites three cases which are closely analogous to this case with one important exception. The exception is determinative, Jennings v. United States, 391 F.2d 512, (5 Cir.); State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438 and State v. Bishop, 272 N.C. 283, 158 S.E.2d 511. All involve evidence of admissions obtained from defendants after the Miranda warnings had been given, defendants had exercised their right to remain silent, a period of time elapsed, defendants were again questioned and statements were elicited from them. The three cases are identical to this case except that in each and all of the three cases the Miranda warnings were again given before the subsequent questioning was started, and in two cases there was evidence defendants, immediately prior to the subsequent questioning, affirmatively waived their right to remain silent.
None of the three cases support the result reached here because in each of those *202cases the State had affirmative evidence to sustain its burden to show a voluntary relinquishment of a known right.
IV. Division VIII of the majority opinion again frowns on the instruction calling the jury’s attention to defendant as an interested witness. We should now clearly state the giving of such an instruction is reversible error. See dissent in State v. Ford, 259 Iowa 744, 755, 145 N.W.2d 638.
This case should be reversed for retrial on legally admissible evidence. Only by such action do we abide by our own rules.
MASON and RAWLINGS, JJ., join in this dissent.. Mullaney v. State, 5 Md.App. 248, 246 A.2d 291.