A suspect in police custody who refuses to waive in writing his right to silence and his right to counsel can lose the rights anyway, the Supreme Court ruled 5 to 3 yesterday.

In "at least some cases waiver can be clearly inferred from the actions and words of the person interrogated," Justice Potter Stewart wrote for the majority.

An "explicit statement of waiver is not invariably necessary" under the so-called Miranda-rights decision, which implemented constitutional protections against self-incrimination, Stewart said.

Yesterday's decision reversed the North Carolina Supreme Court, which, Stewart said, had created "an inflexible rule that no implicit waiver can ever suffice . . ."

Such a rule, he said, has been rejected by "every other court that has considered the issue": 10 of the 11 U.S. courts of appeals and courts of at least 17 states.

In the dissenting opinion, Justice William J. Brennan Jr. cited a passage in the 1966 Miranda Opinion in which then-chief justice Earl Warren emphasized that no effective waiver of the right to counsel can be recognized unless "specifically made" after a defendant has been warned that his statements can be used against him.

"There is no allegation of an affirmative waiver in this case," said Brennan, who was joined by Justices Thurgood Marshall and John Paul Stevens. Justice Lewis F. Powell did not participate in deciding the case.

By allowing a waiver to be inferred, Brennan said, the majority "shrouds in half-light the question of waiver, allowing courts to construct inferences from ambiguous words and gestures. But that ambiguity be interpreted against the interrogator . . .

"Faced with 'actions words' of uncertain meaning, some judges may find waivers where none occurred," Brennan continued. "Others may fail to find them where they did . . . A simple prophylactic rule requiring the police to obtain an express waiver of the right to counsel before proceeding with interrogation eliminates these difficulties."

Just such an express waiver was made possible by the printed "Advice of Rights" form used by FBI agents in the case at issue and by the similar forms used by police departments generally.

The case grew out of a 1976 gas station robbery in Goldsboro, N.C. Attendant Ralph Burlingame, although shot in the back and left with permanently paralyzed legs, survived to testify in court that one of his two assailants was Willie T. (Top Cat) Butler.

Butler was arrested in Bronx, N.Y., by FBI agents who advised him of his Miranda rights and who said the determined he had an 11th-grade education. At trial, however, his lawyer contended that Butler couldn't read, thus calling into question his capacity to waive his rights knowingly.

Outside the trial jury's presence, agent David C. Martinez testified that Butler had read the rights form and said he understood what the rights were, but that he refused to sign the waiver at the bottom of the form. "I will talk to you but I am not signing any form," he was quoted as saying.

The trial judge, holding that Butler had "effectively waived his rights," refused to suppress FBI agents' testimony that Butler told them he and a friend had decided to rob a gas station.

Butler denied actual participation in the robbery, but the jury convicted him and imposed two concurrent life sentences. The North Carolina Supreme Court ordered a new trial but was reversed yesterday.