Dore, J. —
We hold that the State violated Sargent's Fifth and Sixth Amendment rights when a probation officer preparing a sentencing statement failed to give defendant Miranda warnings and assistance of counsel. The interview resulted in a confession which was admitted at Sargent's second trial to establish guilt of first degree murder and first degree arson. Sargent was convicted at that second trial on stipulated facts. We reverse.
Facts
Following Sargent's first conviction on charges of murder and arson, the trial judge ordered a presentence report pursuant to RCW 9.95.200 and former CrR 7.2(b). Ronald Bloom, a probation officer for the King County Corrections Department, was assigned to prepare the report. On or about November 5, 1983, Bloom met with Sargent in the visiting area of the King County Jail, in a booth separated by a glass wall. Mr. Sargent was locked into his side of the booth. At no time did Bloom administer Miranda warnings to Sargent.
In the course of the interview, Sargent informed Bloom of his plan to appeal his convictions. Near the end of the interview, Bloom asked Sargent if he was guilty. Sargent asserted his innocence. Bloom stated:
[643]*643[A]s far as I was concerned, he was guilty of the charge. I further told him that if he was to benefit from mental health counseling, it was my impression that he would have to come to the truth with himself. And I guess essentially that means that he is going to have to admit that he committed the crime.
Report of Proceedings vol. 1, at 20. Mr. Bloom repeated this argument to Sargent. Report of Proceedings vol. 1, at 24. On leaving the interview room, Bloom handed Sargent his card and told him to call "if there's something else that he regard [ed] as significant..." Report of Proceedings vol. 1, at 25-26.
Several days later,1 Sargent called Bloom, indicated that he wished to make a written statement, and asked Bloom to visit him in jail. Mr. Bloom understood this to mean that Sargent wished to confess. Report of Proceedings vol. 1, at 29. Bloom discussed the telephone call with co-workers, and the officers joked about the possibility of giving Miranda warnings. Bloom discussed the situation with his supervisor and, according to Bloom, was "probably" instructed to contact both the prosecutor and the defense counsel prior to speaking to Sargent. Report of Proceedings vol. 1, at 28. Bloom disobeyed this order and did not contact either attorney.
Bloom met with Sargent the day after he received the telephone call. Again Bloom did not administer Miranda warnings to Sargent. Clerk's Papers, at 21. Bloom merely handed Sargent a legal pad and pencil, with which Sargent wrote out his confession. Report of Proceedings vol. 1, at 29-30. There was little or no communication between Bloom and Sargent during the second interview as the defendant quietly wrote out his confession, while Bloom busied himself making out other reports. The second interview lasted approximately 15 minutes. Bloom contacted [644]*644Sargent's defense counsel only after obtaining the confession. The next day, the original confession was in the prosecutor's file. Bloom, when questioned, said he gave it to the prosecutor because he thought it might get lost in his file. Report of Proceedings vol. 1, at 45. The substance of the confession was incorporated in the presentence report. Report of Proceedings vol. 1, at 44.
Sargent's convictions were reversed on appeal. State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985) (Sargent I). On remand, the State sought to use the confession received by Bloom. Following a hearing, Superior Court Judge Faith Enyeart suppressed the confession. On the State's motion for reconsideration, however, she reversed her decision and ruled that the confession was admissible. She concluded that the first interview was a custodial interrogation, requiring Miranda warnings. Judge Enyeart, however, admitted the written confession secured during the second interview on the ground that it did not flow from, and was not tainted by, the improper custodial interrogation of the first interview. The State did not assign error to the finding that the first interview was a custodial interrogation.
Stipulated findings of fact and conclusions of law were entered on December 11, 1985 and Sargent was convicted of first degree murder and first degree arson. Clerk's Papers, at 23-26.
A certificate pursuant to CrR 3.5, based on the suppression hearings was entered on December 11, 1985. In the findings and conclusions of that certificate, Judge Enyeart also ruled admissible the telephone statements made by Sargent to Bloom. Clerk's Papers, at 21-22.
The Court of Appeals affirmed Sargent's conviction, rejecting his argument that the confession was improperly admitted because it was obtained in violation of his Fifth and Sixth Amendment rights. State v. Sargent, 49 Wn. App. 64, 741 P.2d 1017 (1987) (Sargent II).
[645]*645Issues
This case presents a number of issues: (1) Was the second interview a knowing exploitation of an opportunity to contact the defendant in the absence of counsel in violation of the Sixth Amendment? (2) Was the first interview a custodial interrogation by an agent of the State requiring the administration of Miranda warnings? (3) Were Sargent's telephone call and his written confession at the second interview voluntary acts by Sargent or tainted responses to a custodial interrogation by Bloom?
Sargent's Sixth Amendment Right to Counsel Was Violated
The Court of Appeals held that Sargent's Sixth Amendment right to counsel was not violated because Bloom did not engage in subterfuge in obtaining the written confession. It held that Sargent voluntarily initiated the second conversation with Bloom. The proper standard, however, is whether the State "knowingly circumvents" the right to counsel. The standard of knowledge is objective: whether the State knew or should have known that the contact in the absence of counsel would prejudice the defendant.
In Maine v. Moulton, 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985) Maine arranged for Moulton's codefen-dant to wear a microphone and to discuss a coordinated defense against pending charges. The conversation occurred in the absence of counsel after Moulton had been arraigned and had asserted his Sixth Amendment right to counsel. The defendant, not the State or its informant, initiated the conversation. Though the State engaged in subterfuge, the Court made clear that it was not the State's deceit per se which violated the right to counsel.
Thus, the Sixth Amendment is not violated whenever— by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State of an opportunity to confront the accused without [646]*646counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.
(Citation omitted. Italics ours.) Moulton, at 176.
The State "knowingly circumvents" the right to counsel when it knows, or should know that the defendant will make incriminating statements without the assistance of counsel. In United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980), a cell mate of the defendant was instructed to listen to and report on conversations of the defendant, but was specifically instructed not to initiate conversation. Contrary to instructions, the cell mate did question Henry about the crime. The Court held that the Sixth Amendment had been violated because the State "must have known" that the cell mate would violate his instructions in attempting to cooperate and win favorable treatment. Henry, at 271. The opinion in Moulton also makes clear that an objective standard of knowledge applies. Moulton, at 176 n.12.
Regardless of the fact that Bloom's statements in the initial interview were not intended as a subterfuge for obtaining a confession, Bloom "knowingly circumvented" Sargent's right to counsel at the second interview. Following Sargent's telephone call, Bloom knew that Sargent intended to confess. Bloom's superior "probably" instructed him to contact Sargent's counsel. Bloom did not do so. Instead, he simply provided Sargent with pencil and paper, knowing full well that Sargent intended to give a written confession. The assistance of counsel at this juncture was critical because, as Bloom knew, Sargent's appeal was pending.
The right to counsel extends to any transaction bearing on a meaningful defense.
[647]*647[I]n addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. . . .
... It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
(Footnotes omitted.) United States v. Wade, 388 U.S. 218, 226-27, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). It is a virtual certainty that Sargent did not understand that he was at risk in his conversations with Bloom. He was ignorant of the fact that, if his conviction was overturned on appeal, the confession would render his new trial a formality. In a case with virtually identical facts, the Ninth Circuit held that it is this precise risk that the right to counsel is meant to guard against. Cahill v. Rushen, 678 F.2d 791, 794 (9th Cir. 1982). Bloom knowingly denied the assistance of counsel to Sargent in violation of his Sixth Amendment rights.
Custodial Interrogation
The trial court found that the first interview was a custodial interrogation requiring the administration of Miranda warnings. The State has not assigned error to that finding, and it becomes the law of the case. It is therefore established on appeal. State v. Hubbard, 103 Wn.2d 570, 693 P.2d 718 (1985). Nevertheless, in view of the Court of Appeals analysis, we feel compelled to set forth our reasoning on the issue.
Sargent claims that when Bloom interviewed him in connection with the sentencing report, the Fifth Amendment required that he be advised of his right to remain silent and of his right to an attorney. This contention turns on whether any part of the first interview was: (a) custodial; (b) interrogation; (c) by an agent of the State. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
[648]*648The State argues that the only question is whether Sargent was compelled to speak. Brief of Respondent, at 9. The Court of Appeals took a similar approach. While this analysis is correct for the Fifth Amendment question, where the issue is only whether the confession is compelled, the analysis is very different where Miranda applies. Minnesota v. Murphy, 465 U.S. 420, 429, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984).
It is true that, as a general rule, the Fifth Amendment privilege against self-incrimination must be asserted; it is not self-executing. Garner v. United States, 424 U.S. 648, 654 n.9, 47 L. Ed. 2d 370, 96 S. Ct. 1178 (1976).
Thus it is that a witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself . . . But if he chooses to answer, his choice is considered to be voluntary since he was free to claim the privilege and would suffer no penalty as the result of his decision to do so.
(Citation omitted.) Minnesota v. Murphy, 465 U.S. at 429. It must he stressed, however, that this is the general rule. Once a person is taken into custody, the presumption of voluntariness disappears. Murphy, at 429. Instead, self-incriminating statements obtained from an individual in custody are presumed to be involuntary, and to violate the Fifth Amendment, unless the State can show that they were preceded by a knowing and voluntary waiver of the privilege. The requirement that the waiver be knowing necessitates the Miranda warnings.
The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.
Colorado v. Spring, 479 U.S. 564, 574, 93 L. Ed. 2d 954, 107 S. Ct. 851, 858 (1987). The State concedes that no warnings were ever given Sargent. The question is therefore whether [649]*649any part of the first interview was a custodial interrogation by a State agent.
(a) The interview was "custodial".
Sargent was unquestionably in custody when this interview took place. He was in jail, locked in the interview booth. These restraints on his freedom of movement constitute custody for Miranda purposes.
The State made the following argument in its brief and at oral argument.
While Sargent lacked the physical freedom to simply walk away from the interview booth, he was in the identical interview area where he would have spoken to his attorneys, an area where he could simply push a buzzer, summon a jail guard and be returned to the jail ... As noted in Murphy, Miranda warnings are intended to protect a suspect thrust into an "unfamiliar atmosphere" or an "interrogation environment" who may think the interrogation will continue until he confesses.
Brief of Respondent, at 12. The critical inquiry, however, is not the psychological state of the defendant, but simply whether his freedom of movement was restricted. In Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977), the psychological atmosphere was extremely intimidating: the defendant was interviewed in a police station, was told he was a suspect, and that his statements would be evaluated by the district attorney and was told falsely that his fingerprints had been found at the scene of the crime. Miranda warnings were not given. The Supreme Court held that the Fifth Amendment was not violated because the defendant was free to go at any time, and had been told so.
Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment."
Mathiason, at 495. Thus, freedom of movement, not the atmosphere or the psychological state of the defendant, is the determining factor in deciding whether an interview is [650]*650"custodial." California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983). Since Sargent's freedom of movement was unquestionably limited, the interview with Bloom was "custodial" for Miranda purposes.
(b) Bloom engaged in "interrogation".
The United States Supreme Court defined "interrogation" for Fifth Amendment purposes in Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), cert. denied, 456 U.S. 930 (1982).
That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.
(Footnotes omitted.) Innis, at 301. There is no question that Bloom's statements at the first interview amount to interrogation under the Innis standard. He asked Sargent "Did you do it?" Report of Proceedings vol. 1, at 19. This is not the functional equivalent of interrogation — it is interrogation.
Bloom's further statements to the effect that Sargent should "come to the truth" with himself and that Sargent could not benefit from mental health counseling unless he did so, clearly did, from Sargent's point of view, call for a response. Bloom in effect made confessing a precondition to treatment. Under Innis, Bloom knew or should have known that Sargent might desire such treatment and would, in light of Bloom's statement, feel compelled to confess to obtain it. If Sargent misunderstood Bloom, Innis requires us to place the burden of that misunderstanding on the State. The misunderstanding, if there was one, resulted at least in part from Sargent's natural desire to cooperate with Bloom. This is just the sort of psychological coercion inherent in custodial situations which Miranda recognizes as the basis of its custodial interrogation standard. Bloom knew or [651]*651should have known that Sargent was reasonably likely to confess as a result of such a statement made under these circumstances.
The State stresses in several places that Bloom had no intention of extracting a confession from Sargent. As the quotation from Innis indicates, that fact is irrelevant. The standard is an objective one, focusing on what the officer knows or ought to know will be the result of his words and acts. The subjective intentions of the officer are not at issue.
The State suggests that because the preparation of a presentence report is a routine post-conviction procedure in which Miranda warnings are not customarily given, no interrogation within the meaning of Miranda could have taken place here. Brief of Respondent, at 10. However, the nature of the procedure during which the question is asked is not decisive; the nature of the question is. In re Gault, 387 U.S. 1, 47, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967). While it is well established that routine booking procedures do not call for Miranda warnings, this court recently held that a question which is not necessary for booking the defendant is interrogation for Miranda purposes. State v. Wheeler, 108 Wn.2d 230, 239, 737 P.2d 1005 (1987). See Mathis v. United States, 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503 (1968).
Bloom's statements amount to improper interrogation for the same reason statements made during booking were held to be interrogation in Wheeler. Bloom's statements to Sargent were not necessary to the preparation of the presen-tence report. While RCW 9.95.200 authorizes the probation officer preparing such a report to inquire into the circumstances surrounding the commission of the crime and concerning the defendant, Bloom testified that his statements were intended to assist Sargent in benefiting from treatment, not to assist Bloom in the preparation of his report. Report of Proceedings, at 24; Clerk's Papers, at 21. That sort of counseling is not within the scope of Bloom's duties. [652]*652Furthermore, even if Bloom's statements could be considered proper questions, it was not necessary, for the purposes of his report, to obtain a written confession from Sargent. Therefore, since Bloom's statements and actions were unnecessary to the performance of his duties and were reasonably likely to result in an incriminating statement, they constituted an "interrogation" for Miranda purposes.
(c) Bloom was an "officer of the State."
The final question in determining whether Miranda warnings were required in the first interview is whether Bloom was an officer of the State. When a probation officer is assigned by the Department of Corrections to prepare a sentencing statement at the request of a judge of the superior court, he becomes an officer of the State. In the context of deciding that a defendant's request to see his probation officer during questioning is not an invocation of the right to counsel, the United States Supreme Court stressed the fact that the probation officer's allegiance is unquestionably due the State, not the defendant.
Moreover, the probation officer is the employee of the State which seeks to prosecute the alleged offender. He is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers. He owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision.
Fare v. Michael C., 442 U.S. 707, 720, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979). There is nothing in this case which points to a contrary conclusion and suggests that Bloom at any point ought to have placed Sargent's interests over those of the State in the performance of his duties. Bloom was clearly the agent of the State in this transaction.
Therefore, Bloom was engaged in custodial interrogation as an officer of the State in the first interview with Sargent. Miranda warnings were required, but were not given. That does not end the analysis, however, because Sargent made no response at that first interview. Even if Bloom violated Miranda in the first interview, the question remains whether Sargent's subsequent telephone conversation and [653]*653written confession, which was obtained several days later, are tainted by that violation.
The Written Confession Is Tainted and Was Not Preceded by a Waiver
The telephone call and written confession by Sargent were made in response to, and were tainted by, the first interview. There was no knowing, voluntary waiver preceding the written confession, as Miranda requires. Therefore, the confession should have been suppressed at the second trial.
The State concedes in its brief that the first interview and Sargent's subsequent incriminating statements cannot be separated.2 Brief of Respondent, at 13. The Court of Appeals, however, concluded that Sargent's subsequent telephone call and written confession were voluntary and therefore untainted.
After the initial interview, Sargent waited 2 days before he contacted Bloom on his own initiative. It is an unavoidable conclusion that his decision to make a written confession was a decision arrived at entirely on his own after thinking about it for 2 days.
Sargent II, at 70. The proposition that Sargent's confession was unrelated to the interview with Bloom because "his decision to make a written confession was a decision arrived at entirely on his own after thinking about it for 2 days", is self-contradictory. If Sargent's reflection was prompted by Bloom, as that sentence and the entire record suggest, then the confession was caused by Bloom's interrogation and it is tainted. We so find.
There is no support in the case law for the proposition that the mere passage of time can remove the taint of an [654]*654illegal interrogation from a subsequent confession. The only case considering the argument comes to the opposite conclusion. In Wainright v. State, 504 A.2d 1096 (Del. 1986) the defendant was given Miranda warnings and asserted his right to an attorney. Prior to his attorney's arrival, a police officer informed him that his codefendant had identified him as the trigger man in the robbery. Wainright contested this, making an incriminating statement that placed him at the scene of the crime. Wainright's statement was made 45 minutes after the police officer's statement, during which time Wainright was alone in his cell. The court's reasoning in holding that the incriminating statement was tainted applies to any period of time.
The fact that Wainright's elicited reaction came not immediately but forty-five minutes later when taken from his cell to the magistrate court does not sanitize it. . . .
Nor does the fact that the defendant's statement was made after he was placed alone in a cell render it a purely spontaneous one. Indeed, the opportunity to mull over the effect of Dodson's accusatory statements could reasonably have had the opposite effect — to impress upon the defendant the seriousness of his predicament and the need to rebut his codefendant's accusations. Any attempt to "spark" the accused's initiative to make a statement in the absence of counsel through presentation of evidence will contaminate the waiver.
Wainright, at 1103.
Similarly, the fact that Sargent thought about his predicament for several days before calling Bloom does not render the telephone call or the subsequent confession voluntary. The call and the confession were "sparked" by Bloom's statements in the first interview, as the fact that he gave his confession to Bloom instead of a police or corrections officer, or his own attorney, clearly indicates. The passage of time and the opportunity for reflection do not render the confession voluntary if the reflection was prompted by an improper interrogation.
[655]*655The State also contends that the confession was voluntary because the right against self-incrimination was waived. The Court of Appeals apparently accepted this argument. However, any alleged waiver of the right against self-incrimination must be shown by the State to have been made knowingly and intelligently. North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979). In the absence of any Miranda warnings, that showing simply cannot be made. While the waiver need not be express and may be inferred from the totality of the circumstances, it cannot be said that there has been a knowing and intelligent waiver unless it is shown that the defendant knew of his right. Unless the defendant is informed of his right, he cannot be presumed to know it.
Miranda expressly prohibits drawing an inference of knowledge of the right against self-incrimination from the circumstances of the defendant.
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
(Italics ours.) Miranda, 384 U.S. at 471-72. State v. Thomas, 16 Wn. App. 1, 9-10, 553 P.2d 1357 (1976). Therefore, since Sargent was never informed of his Miranda rights by Bloom, the confession resulting from his conversations with Bloom was not freed from the taint of the Miranda violation by a waiver of those rights.
Conclusion
We hold that Sargent's Fifth and Sixth Amendment rights were violated by admission of his confession as evidence of his guilt at trial, as he was not given his Miranda [656]*656warnings before the probation officer secured his confession and was not given the assistance of counsel at a critical stage of the proceedings.
We hold, however, that Sargent's confession was properly used during his sentencing by the trial judge. A probation officer need not administer Miranda warnings to a defendant, providing the information secured is used only for sentencing purposes. Such information cannot be used at trial to determine defendant's guilt or innocence.
We set aside defendant's convictions and remand for retrial for murder and arson.
Utter and Dolliver, JJ., concur.