¶ 1. Dеfendant appeals the Caledonia District Court’s partial denial of his motion to suppress his confession to assault and robbery. The court suppressed statements defendant made in his home before he was given
Miranda
warnings, but did not suppress subsequent statements made after officers administered
Miranda
warnings at the police station. See
Miranda v. Arizona,
¶2. The undisputed faсts on appeal are as follows. During an afternoon vehicle patrol on January 26, 2006, two St. Johnsbury police officers noticed defendant, an eighteen-year-old male they recognized from prior encounters, at the intersection of Railroad Street and Bagley Street. Not suspecting any wrongdoing, the officers drove on. Within ten minutes after observing defendant, *32 the officers received a report of a robbery at Landry’s Drug Store on Railroad Street. A witness at the scene gave a description of a robber armed with a gun, wearing a face mаsk, sweatshirt, and jeans with a distinctive yellow emblem sewn on the back pocket.
¶ 3. Because the witness’ description of the clothes matched those worn by defendant, whom they had just seen, the officers proceeded to defendant’s mother’s apartment, which was only a few minutes’ walk from the drug store, and where one of the officers knew he lived. One officer knocked on the front door while the other proceeded around the house to watch the back door. By the time defendant’s mother opened the door, at least four officers and two police cruisers were at the scene. One officer told defendant’s mother that they were investigating an armed robbery and asked permission to speak with her son inside the apartment. Permission was granted.
¶ 4. Officer Bickford saw that defendant was wearing jeans with a distinct yellow insignia on the rear pocket. Officer Bickford told defendant that he matched the description of a suspect in an armed robbery. Defendant replied that he had no guns or mask, a statement Officer Bickford found significant because he had not mentioned the details of the robbery to defendant. Without administering Miranda warnings, Officer Bickford then proceeded to question defendant about his whereabouts during the day. Defendant denied leaving the apartment. When defendant asked for a cigarette and moved towards the kitchen to get one, the officer told him to stay where he was and that he was not allowed to smoke. Officer Bickford told defendant that the officers had seen him outside walking near the drug store. Defendant again denied being outside that day. To this the officer responded: “C’mon, I know you were outside. I saw you”; “C’mon, tell the truth”; and “Tell me what you really did.” For aрproximately ten minutes, Officer Bickford continued this line of questioning. Defendant again asked if he could smoke, and was again denied. At no time did any of the officers unholster their guns or get out their handcuffs. None of the officers touched or searched defendant.
¶ 5. At some point, Officer Maurice came in through the back door and asked defendant why there was a puddle of water — presumably from melted snow — on the floor under his boots if he had not been outside that day. Defendant then acknowledged that he had been out very briefly to see his girlfriend. The trial *33 court found that this statement was incriminating because it placed defendant outside the apartment in the same general time and area where the crime had occurred. During the questioning in the apartment, defendant did not make any other admissions and continued to deny any involvement in the robbery.
¶ 6. About midway through the interrogation, Officer Bickford noticed the odor of alcohol and asked defendant if he would submit to a preliminary breath test. Defendant agreed. The test results indicated a blood alcohol content of 0.04. At this point the officers decided to arrest defendant fоr an underage-drinking violation, 7 V.S.A. § 657(a)(3), but did not inform defendant of this. 1 Officer Bickford questioned defendant about the robbery for an additional thirty minutes before bringing him to the police station, a few minutes’ drive from the apartment.
¶ 7. The officers did not question defendant while he was in the police cruiser. At the police station, an officer handcuffed defendant to a wall while waiting for defendant’s mother to arrive on foot. Officer Maurice informed defendant of his Miranda rights for the first time. When his mother arrived, defendant waived his Miranda rights and confessed to participating in the robbery.
¶ 8. Defendant moved to suppress the statements he made during the initial interrоgation in his home, as well as the statements he made later at the police station. The State opposed this motion, arguing that defendant was not “in custody” when he was interviewed in his home, and, since Miranda applies only to “custodial police interrogation,” the statements were admissible. The trial court found that while the questioning at the home may “have begun as an investigative detention . . . the situation transformed itself into a full scale interrogation.” It concluded that, “[g]iven the totality of the circumstances . . . this was a custodial interrogation. The failure to give Miranda warning[s] requirеs suppression of the statements defendant made within his home.”
¶ 9. Relying on
Oregon v. Elstad,
¶ 10. The sole issue raised on appeal is whether the trial court erred in concluding that the confession obtаined at the station was admissible. “A motion to suppress evidence presents a mixed question of fact and law. While we uphold the trial court’s factual findings absent clear error, we review the trial courts conclusions of law de novo.”
State v. Bauder,
¶ 11. The Fifth Amendment gives every citizen the right not to be “compelled in any Criminal Case to be a witness against himself.” U.S. Const, amend. V. To protect this right, law enforcement officers must warn a person in custody “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
Miranda,
¶ 12. This dispute requires us to consider in detail the Supreme Court’s decisions in
Elstad
and
Missouri v. Seibert,
¶ 13. In Elstad, a witness contacted the police and reported that Elstad, an eighteen-year-old male, had committed a burglary. After obtaining a warrant for Elstad’s arrest, two police officers drove to Elstad’s home. Elstad’s mother answered the door and led the officers to Elstad’s room. The officers asked Elstad to get dressed and to accompany them into the living room. While one officer talked to Elstad’s mother in the kitchen, the other offiсer briefly questioned Elstad about the burglary without administering Miranda warnings. According to the officer’s testimony, the extent of the interrogation was as follows:
“I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, Tes, I was there.’ ”
¶ 14. At trial, Elstad moved to suppress the statement, ‘Tes, I was there,” made to the police officer at his house. He also moved to suppress his subsequent confession because, aftеr the first admission “let the cat out of the bag,” his stationhouse confession was “fruit of the poisonous tree.” Id. The trial judge suppressed the pre-Miranda statement, but admitted the post- Miranda confession. On appeal, the Oregon appellate court reversed, noting that the “taint” from the first statement had not yet dissipated when the confession was given. Id. at 302-03. The Oregon Supreme Court denied review. The U.S. Supreme Court *36 granted certiorari to resolve whether the “Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.” Id. at 303. The Court concluded:
[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.
Id. at 314. In Elstad, the government conceded that the defendant’s pre-Miranda statement, “Yes, I was there,” was properly excluded as obtained in violation of Miranda. Id. at 302.
¶ 15. The Supreme Court held that, despite the оfficers’ initial failure to administer Miranda warnings, Elstad’s post-warning confession remained admissible: “[o]nce warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities.” Id. at 308. The Court continued, “[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. at 309. The Court concluded that Elstad’s waiver of his rights and his subsequent written confession were given freely and voluntarily, not as a result of police coercion. Id. at 315. A simple failure “without more,” id. at 300, to administer warnings will not preclude the admissibility of statements made subsequent to a voluntary and informed waiver. 2 Id. at 309. But, the Elstad Court warned, if the failure to administer warnings was accompanied “by any actual coercion or other circumstances calculated to undermine the *37 suspect’s ability to exercise his free will,” a court might be compelled to exclude post-Miranda confessions. 3 Id.
¶ 16.
Seibert,
decided nearly twenty years later, presented just this scenario. In that case, the police woke the suspect, Seibert, at 3:00 a.m. at a hospital where her son was being treated for burns he suffered in a house fire that the police suspectеd Seibert had set.
Seibert,
¶ 17. The plurality characterized this question-first strategy as designed to undermine the effectiveness of Miranda warnings. Id. at 609-11. For precisely this reason, the plurality held that the postwarning confession was inadmissible. Id. at 617. The plurality rejected the idea that “mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance.” Id. at 611. Once a defendant thoroughly incriminates himself, a midstream warning may fail to “reasonably convey that he could choose to stop talking.” Id. at 612. According to the plurality, “[t]he threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively ....’” Id. at 611-12. “For unless the warnings could place a suspect who has just been *38 interrogated in a position to make such an informed choice,” the plurality continued, “there is no practical justification ... for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.” Id. at 612. Whereas in Elstad the officers’ failure to give warnings was “arguably innocent neglect” or a “good-faith Miranda mistake,” the officer’s conduct in Seibert was at “the opposite extreme” and “by any objective measure reveal[ed] a police strategy adapted to undermine the Miranda warnings.” Id. at 615-16.
¶ 18. To determine whether Miranda warnings delivered mid-interrogation could be effective, the Seibert plurality outlined five factors: (1) the completeness and detail of the questions and answers in the first round of interrogation, (2) the overlapping content of the two statements, (3) the timing and setting of the first and the second statements, (4) the continuity of police personnel, and (5) the degree to which the interrogator’s questions treated the sеcond round as continuous with the first. Id. at 615.
¶ 19. The plurality in Seibert observed that the unwarned interrogation was “systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid.” Id. at 616. The warned interrogation occurred in the same location as the unwarned interrogation, it occurred only fifteen to twenty minutes after the first, and it was conducted by the same officer. Id. Furthermore, the officer treated the warned interrogation as a continuation of the unwarned interrogation by referring to the earlier confession sо much that “a reasonable person in the suspect’s shoes would not have understood [the Miranda warnings] to convey a message that she retained a choice about continuing to talk.” Id. at 617. Thus, the plurality held that in Seibert’s circumstances, the Miranda warnings were inadequate. Id.
¶ 20. Justice Kennedy concurred in the judgment, but concluded that the plurality’s multi-factor test should not apply in every case of a two-stage interrogation. “[T]his test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity.” Id. at 622 (Kennedy, J., concurring). Instead, he advocated applying the principles of Elstad unless a deliberate “two-step interrogation technique was used in a calculated way to *39 undermine the Miranda warning.” Id. Justice Kennedy continued, “[i]f the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” Id. Curative measures, such as a substantial break in time and circumstances, could “allow[] the accused to distinguish the two contexts and appreсiate that the interrogation has taken a new turn.” Id. Thus, Justice Kennedy’s concurrence prohibits officers from deliberately withholding warnings to elicit incriminating statements from a suspect and then using those statements to undermine the efficacy of later Miranda warnings. This requires an inquiry into the subjective intent of the interrogating officer. According to both the plurality and Justice Kennedy, the intentional two-step interrogation technique employed in Seibert is impermissible because it renders Miranda warnings ineffective.
¶21. Because there was no majority opinion in
Seibert,
we must first decide which opinion is controlling. It is well settled that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed аs that position taken by those Members who concurred in the judgments on the narrowest grounds.”
Marks v. United States,
¶ 22. The interrogation in the instant case, while it was a two-step interrogation, was materially different from those in
Elstad
and
Seibert. Elstad
involved a very brief questioning that did not seek or obtain a detailed confession. The brief stop in the living room in
Elstad
was not for the purpose of interrogating the
*40
suspect, but rather to give the second officer time to inform Elstad’s mother of the reason for his arrest.
¶ 23. Here, the initial unwarned custodial interrogation was no mere oversight or good-faith mistake as in
Elstad.
But neither is it clear that the officers
intended
to undermine the efficacy of
Miranda
warnings, as in
Seibert.
While the initial interrogation was persistent, and at times confrontational, it was not conducted in bad faith or in an abusive manner. In contrast to
Seibert,
the police did not elicit a full confession from defendant before administering
Miranda
warnings, and defendant makes no showing that Officer Maurice attempted to use defendant’s prior statements to pressure him into his subsequent confession.
4
Absent a showing that the officers deliberately withheld
Miranda
warnings, the principles of
Elstad
apply. See
Seibert,
¶ 24. In practice, the principles of Elstad’s “voluntariness” test and the five factors in the Seibert plurality’s “effectiveness” test have substantial overlaр, and together they operate essentially as a totality-of-the-circumstances analysis. Elstad presumes that a defendant’s waiver is knowingly and voluntarily made unless the circumstances surrounding the first, unwarned confession were so coercive as to violate not just Miranda, but the Fifth Amendment itself. Seibert provides a multi-factor test to determine if the circumstances compromised the effectiveness of mid-interrogation Miranda warnings. Both effective warnings and a voluntary waiver are needed to safeguard defendants’ rights. We conclude that the warned confession here was admissible under Elstad and the plurality’s test in Seibert, that the Miranda warnings defend *41 ant receivеd functioned effectively, and that defendant voluntarily waived his Miranda rights. 5
¶ 25. Recently, in
State v. Yoh,
we reached a similar conclusion under different circumstances. 2006 VT 49A,
¶ 26. As the
Elstad
Court noted, “[t]here is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a ‘guilty secret’ freely given in response to an unwarned but noncoercive question.”
¶27. In
Tankleff v. Senkowski,
the United States Court of Appeals for the Second Circuit had occasion to consider this issue.
¶ 28. Having concluded that defendant’s initial interrogation did not taint his later confession, we now consider defendant’s contention that, under the circumstances, the warning he was *43 given did not effectively convey that he had a right to remain silent. The ensuing analysis is similar to the voluntariness analysis above, and demonstrates that the Miranda warnings meaningfully informed defendant of his right to remain silent.
¶ 29. We first consider the level of detail in the officers’ questions and defendant’s answers — thе more detailed the prewarning interrogation, the more difficult it is to later deny culpability. See
Seibert,
¶ 30. The second factor concerns the degree to which defendant’s prewarning and postwarning statements overlapped — the greater the overlap, the stronger the inference that the warnings were ineffective. See id. In Seibert, the Court found it important that after the first interview, “there was little, if anything, of incriminating potential left unsaid.” Id. at 616. As noted аbove, only minimal detail surfaced in the initial interrogation. Defendant admits that his “[postwarning] statements were different than his earlier statements.” After defendant was warned, he gave the police a complete admission of guilt. He described how and why he committed the crime and informed the police where he had hidden the gun and mask. The minimal overlap between the information elicited in the two interrogations suggests that the warnings operated effectively.
¶ 31. The third and fourth factors — the timing and setting of the two interrogations and the degree of continuity of policе personnel — can signal to a suspect that the postwarning interrogation was a separate and distinct experience, and that he possessed a real choice between exercising or waiving his right to remain silent. Id., at 615-16. In this case, the first interrogation *44 took place in defendant’s home, while the second occurred approximately one hour later in the police station — a very distinct setting. At the apartment, Officer Bickford primarily questioned defendant, while at the police station Officer Maurice both administered the Miranda warnings and conducted the interrogation. Contrast this to Seibert, where the same officer questioned the suspеct in an interview room for thirty to forty minutes. Id. at 604. Once Seibert confessed, that same officer administered Miranda warnings, obtained a signed waiver, and then interrogated her again. Id. at 605.
¶ 32. The fifth and final factor concerns the degree to which the interrogator’s questions treated the second round as continuous with the first. Id. at 615. In Seibert, the officer gave the suspect the “impression that the further questioning was a mere continuation of the earlier questions and responses ... by references back to the confession already given.” Id. at 616. He repeated the previous line of questioning, in his words, “until I g[о]t the answer that she’s already provided once.” Id. at 605-06. The two sessions were treated “as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Id. at 617. Because defendant here did not confess to the robbery during the initial interrogation, it would have been natural for him to maintain his prewarning contention that he was at his girlfriend’s house, without further impheating himself in the robbery. In this respect, the outcome of this case is similar to that in Yoh, where we stated that Yoh, “unlike the defendant in Seibert, who believed [she] had already confessed prior to giving [her] stаtement, . . . understood that he was entitled . . . not to answer further questions, but he decided to cooperate anyway.” 2006 VT 49A, ¶ 15.
¶ 33. Accordingly, the prewarning interrogation did not render the later Miranda warnings ineffective. Defendant’s subsequent waiver of his Miranda rights was voluntary, and his confession was properly admitted.
Affirmed.
Notes
The underage-drinking charge, along with a violation-of-eonditions-of-release charge, see 13 V.S.A. § 7559(e), were later dropped.
In
State v. Badger,
we stated that intervening
Miranda
warnings alone did not render a subsequent confession admissible.
The
Elstad
Court reiterated that the “fruit of the poisonous tree” exclusionary-rule does not apply to
Miranda
violations.
Elstad,
The “psychological impact” of prior statements that “let the cat out of the bag,” without more, does not сompel the conclusion that a subsequent confession was compelled.
Elstad,
As discussed,
supra,
¶ 15 n.3, the Supreme Court of the United States has declined to apply the fruit-of-the-poisonous-tree analysis to
Miranda
violations.
Elstad,