The opinion
DENECKE, J.,
dissenting.
I further dissent from a statement made in a footnote in the majority opinion which states “* * * the principles relating to police interrogation announced in that case [Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L ed2d 694, 10 ALR3d 974 (1966)] are not applicable here. Johnson v. New Jersey, 384 US 719 , 86 S Ct 1772 , 16 Led2d 882 (1966); * * * ”
That statement is, at least in part, patently incorrect. Two of the basic “principles relating to police interrogation announced” in Miranda were “[p]rior to any questioning, the person must be warned that he has a right to'remain silent * * * and that he has a right to the presence of an attorney * * 384 US at 444. We anticipated these principles by our decision in State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 (1965), and the majority has applied them in this case.
Two other principles of police interrogation announced in Miranda are that if the suspect indicates that “he wishes to consult with an attorney before speaking” or that “he does not wish to be interrogated, the police may not question him.” 384 US at 445. This is simply a rule enforcing the rights about which the suspect has been warned and which he desires to *389 exercise. These appear to be the principles to which the majority refers. In my opinion these last two “principles” are ancillary and clearly follow from onr decision in State v. Neely, supra. The latter ground was the basis for my dissents in State v. Atherton, 242 Or 621, 629 , 410 P2d 208 , cert den 384 US 1025 , 86 S Ct 1982 , 16 L ed2d 1030 (1966), and State v. Bosenburger, 242 Or 376, 380 , 409 P2d 684 (1966). Because of our prior decision in State v. Neely, supra, Miranda did not decide anything startlingly new which would disrupt law enforcement and the administration of justice in Oregon and, therefore, there is no reason to adopt the retroactivity rule announced in Johnson v. New Jersey, 384 US 719 , 86 S Ct 1772 , 16 L ed2d 882 (1966).
Johnson v. New Jersey, supra ( 384 US 719 ), upon which the majority relies, I construe as supporting the adoption of my position for a jurisdiction such as Oregon:
“Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided.
“As for the standards laid down one week ago in Miranda, if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo, ⑫ however, have impelled *390 us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. * * *
People v. Dorado, 62 Cal2d 338, 42 Cal Rptr 169, 398 P2d 361 (1965), cited in the footnote as construing Escobedo broadly, is legally identical to State v. Neely, supra ( 239 Or 487 ).
People v. Rollins, 65 Cal2d 681, 56 Cal Rptr 293, 423 P2d 221 (1967), is contrary to my position
“For example, compare People v. Dorado, 62 Cal. 2d 338 , 42 Cal. Rptr. 169 , 398 P 2d 361 (1965), and People v. Dufour, 99 R.I. 120 , 206 A 2d 82 (1965), which construe Escobedo broadly, with People v. Hartgraves, 31 Ill. 2d 375 , 202 N.E. 2d 33 (1964), and Browne v. State, 24 Wis. 2d 491 , 131 N.W. 2d 169 (1964).” 384 US at 734.