William J. Brennan, Jr.

“ But where fundamental constitutional guarantees are omitted, the question is rather whether consent to proceed without the constitutional protection can be found. It is patent here that it cannot. Of course, this principle is hardly to be altered by the Court's transparent semantic device of phrasing the constitutional right of this defendant as one that did not come into existence until he made explicit request that he have its benefits. ”

“ The waiver must be one based on the defendant's conclusion that 'in his particular situation his interests will be better served by foregoing the privilege than by exercising it.' United States v. Sorrentino, 3 Cir., 175 F.2d 721, 723. ”