(dissenting). The majority concludes that an accused who requests counsel at an initial appearance and remains in continuous custody has not invoked the fifth amendment right to counsel which precludes police-initiated interrogation on unrelated, uncharged offenses. I disagree.
The majority states that the issue is whether invocation of the sixth amendment right to counsel automatically transforms into an invocation of the fifth amendment right to counsel. (Majority op. at p. 37.) The fifth amendment protection against self-incrimination provides the right to counsel at custodial interrogations, irrespective of whether a defendant has been formally charged or not. Miranda v. Arizona, 384 U.S. 436 (1966), and Arizona v. Roberson, 486 U.S. 675 (1988). Hence, the issue in this case is whether the defendant invoked his fifth amendment right to counsel when he requested assistance of counsel at an initial appearance instead of while being interrogated afterwards.
I am persuaded that the reasoning of the Seventh Circuit Court of Appeals in United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987), cert. denied, Fairman v. Espinoza, 483 U.S. 1010 (1987), is correct and should be followed by this court. Espinoza holds that, when a defendant requests1 an attorney at an initial appearance and remains in custody, the court should presume that the defendant has invoked his fifth amendment right to counsel and police-initiated interro*49gation is thereafter prohibited on any crime. See Edwards v. Arizona, 451 U.S. 477 (1981), and Arizona v. Roberson, 486 U.S. 675 (1988).
The majority rejects the Seventh Circuit's approach by distinguishing between a defendant who makes a request for assistance of counsel to a police officer while subject to a custodial interrogation and a defendant who makes a request for assistance of counsel to a magistrate and thereafter remains in continuous custody. The majority asserts that, while a defendant is in custody at an initial appearance, he is not being interrogated. Because the defendant is not being interrogated when he makes his request for an attorney, the majority leaps to the conclusion that there is no danger of compelled testimony and, therefore, the fifth amendment right to counsel which arises from the protection against self-incrimination is not implicated. The majority misreads the holdings of Miranda v. Arizona, supra, and Edwards v. Arizona, supra.
Miranda established that the fifth and fourteenth amendments require that, prior to any custodial interrogation, defendants be informed of their right to remain silent and their right to have counsel present "during custodial interrogation." See Edwards, 451 U.S. at 481-482. This does not mean that the request for counsel must be made "during custodial interrogation." In Edwards v. Arizona, the Supreme Court established a bright-line rule that, if a defendant requests counsel while in custody, police-initiated interrogation must cease until an attorney is present. Edwards added protection to prevent police from badgering a defendant into waiving previously asserted Miranda rights. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983). Nowhere does Edwards or any of its progeny indicate accuseds must assert their Miranda right to counsel while they are *50being interrogated. The request must be made while the defendant is in custody, prior to, or during, an interrogation.
It is apparent that there is danger of "subtle compulsion" when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards protection is not dependent upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated.
Finally, I disagree with the majority that recent United States Supreme Court decisions provide support for its position. To the contrary, recent Supreme Court decisions support the Seventh Circuit Court of Appeals' decision in Espinoza. First, in Arizona v. Roberson, 486 U.S. 675 (1988), the Court resolved a conflict among the circuits and state courts, accepting the position taken by the Seventh Circuit in Espinoza, 486 U.S. at 679, n.3. The Roberson court held that, when a suspect requests counsel, the fifth amendment bars police-initiated interrogation on any crime, even one which was not the subject of the original interrogation. Recently, in Butler v. McKellar, — U.S. —, 110 S.Ct 1212, 108 L.Ed.2d 347 (1990) (formerly reported as Butler v. Aiken), the Supreme Court held that Roberson could not be applied retroactively in cases on collateral review and, for that reason, the particular, defendant could not reap the benefit of the rationale of the Espinoza court. The issue *51raised before the Court of Appeals in Butler was whether Espinoza required the police, during continuous custody, to refrain from all further questioning on any offense once an accused invokes his right to counsel. In resolving this issue, the Fourth Circuit Court of Appeals rejected the Seventh Circuit's holding in Espinoza. Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988). After the Supreme Court issued its decision in Roberson, the Fourth Circuit Court of Appeals, on defendant's petition for rehearing, acknowledged that its decision, rejecting the Espinoza rationale, was doubtful but that the defendant was not entitled to the retroactive benefit of Roberson. 864 F.2d 24, 25 (4th Cir. 1988), reh'g denied. The Supreme Court agreed that Butler was not entitled to a retroactive application of Roberson. The court noted the discrepancy between the Seventh Circuit and the Fourth Circuit as evidence that the outcome in Roberson was not clear from the earlier holding in Edwards and therefore constituted a "new rule," hence, not calling for retroactive application. While the Supreme Court limited its holding to the retroactive application of Roberson, its approval of Espinoza is significant. I conclude that the Espinoza court's analysis of the fifth amendment right to counsel is correct and implicitly has been approved by the United States Supreme Court. Therefore, law enforcement officers may be well advised to comply with Miranda-Edwards standards whenever a suspect is interrogated under the circumstances here.2 Reliance on *52the majority's view of what constitutes a constitutionally antiseptic confession may result in the suppression of crucial evidence. It would appear to this writer to be prudent to follow Espinoza by assuming that defendants who request assistance of counsel at an initial appearance and remain in custody have thereby invoked their fifth amendment right to counsel, and police-initiated interrogation is thereafter prohibited in respect to any crime unless the suspect waives his right to counsel.
I respectfully dissent and would reverse the trial court's judgment of conviction.
I am authorized to state that Justice Shirley S. Abrahamson and Justice William A. Bablitch join in this dissent.
I would like to clarify that our advice was not followed by these officers and does not serve as part of the majority's opinion. The majority misinterprets Miranda and its progeny. It is true that the officers in this case gave Miranda warnings to the defendant before they interrogated him and after he invoked his fifth amendment right to counsel by requesting an attorney at his initial appearance. Miranda, however, stands for more than the *52prophylactic rule that requires law enforcement officers to inform defendants of their right to counsel. Miranda recognized the already existing fifth amendment right to have counsel present at custodial interrogations. The fifth amendment right to counsel, as interpreted in Edwards, requires that police-initiated interrogation cease with respect to any crime once the defendant has invoked that right. Accordingly, it was not enough for the police officers in this case to read the defendant his Miranda rights again. The fifth amendment requires that police-initiated interrogation must cease.