Defendant Mark A. Hovind appeals from his convictions of burglary in the first degree in violation of Iowa Code sections 713.1, 713.3 (1985), and arson in the second degree in violation of Iowa Code sections 712.1, 712.3 (1985). He contends the trial court erred 1) by denying his motion to dismiss based on enforcement of a plea bargain agreement, and 2) by allowing into evidence his inculpatory statements over his motion to suppress. We transferred the case to the court of appeals which affirmed by operation of lаw. We granted defendant’s application for further review and now vacate the court of appeals decision and reverse and remand for a new trial.
I. Background facts and proceedings. On May 10, 1985, fire destroyed the home of Judge Thomas Nelson in Dubuque. Arson was suspected, and susрicion focused on a man named Robert Frank. Frank was reputedly upset with Judge Nelson following the property award the judge entered in Frank’s dissolution of marriage case. Defendant was later charged in an unrelated arson. Hovind, through counsel, initiated plea negotiations with the Du-buque County Attorney in which he offered to convey to law enforcement authorities information concerning Robert Frank and the Nelson arson in return for concessions in the unrelated arson case against Hovind. A рlea bargain agreement was reached by which defendant agreed to provide a full and truthful account of his knowledge concerning the Nelson arson. In return the State would make concessions on the unrelated arson charge and forego any prosecution against defendant based on information he provided about the Nelson fire. *368 The State claims the agreement was contingent upon the premise that defendant was not directly involved in the commission of the Nelson arsоn. At all times, defendant denied that he was directly involved in the Nelson arson.
Starting on September 10, 1986, defendant related his knowledge of the Nelson arson over a number of interviews with law enforcement officers and gave a deposition in the State’s case against Robert Frank. In the investigation that followed, the authorities acquired additional information, some by investigating defendant’s statements, that led them to believe defendant was directly involved in the Nelson arson.
On November 6, 1986, investigators sought to confront defendant with certain inculpatory information. Before meeting with the defendant, investigators contacted defendant’s counsel and stated that they believed Hovind had lied in his earlier statements, that he may have been involved in the Nelson arsоn, and that the plea agreement was in jeopardy. Counsel communicated this information to defendant. Later, with the permission of defendant’s counsel, two investigators drove from Dubuque to Clinton, Iowa, where they met with defendant in a parking lot outside dеfendant’s place of employment. Although they had not given a Miranda 1 warning in any of their prior discussions with defendant, the investigators began the November 6 interview by informing defendant of his Miranda rights. Defendant also waived these rights in writing. Defendant was then confronted by the officers with the inculpatory information and told his plea bargain may be in jeopardy. In response, defendant made statements that corroborated some of this information.
The State then filed the criminal charges against Hovind of which he was later сonvicted.
Defendant filed pretrial motions to dismiss, based on the plea agreement, and to suppress all statements made to police officers in interviews and in plea negotiations. The trial court denied defendant’s motion to dismiss but granted thе motion to suppress. Upon the State’s motion to enlarge the suppression order, the court ruled defendant’s statements of November 6 were not privileged. Thus, those statements were admitted into evidence at trial.
After a change of venuе from Dubuque County to Black Hawk County, defendant was found guilty by a jury of all charges. Following his convictions, defendant appealed, claiming the trial court erred in denying his pretrial motions. We transferred the case to the court of appeals which in аn equally divided vote affirmed by operation of law. See Iowa Code 602.4107 (1987). We granted further review.
II. Defendant’s motion to dismiss. Defendant contends his pretrial motion to dismiss the charges should have been sustained because the State violated the plea agreement in filing the Nelson arson charges against him.
In ruling on a mоtion to dismiss as a remedy for the State’s alleged repudiation of a plea agreement, the trial court possesses the same limited discretion it exercises when ruling on a motion to dismiss for failure to provide a speedy trial under Iowa Rule оf Criminal Procedure 27.
State v. Edwards,
The performance of a plea bargain agreement must be mutual.
State v. Aschan,
In the present action, defendant entered into a plea bargain agreement that obligated him to truthfully relate everything he knew about the Nelson arson. The agreement also was contingent upon his having no direct involvement in the offense. Defendant conceded that he was obligated to be complete and truthful in relating these events. The State’s investigation determined that defendant had breached the agreement by not being truthful with the State and in his actually sеtting the Nelson fire. Thus, the State unilaterally rescinded the agreement and filed an information charging defendant with the offense. At the hearing upon defendant’s motion to dismiss, the State offered evidence that defendant was not entirely forthright in his answers to the quеstions from investigators, and that, contrary to his earlier statements, he was directly involved in setting the fire.
It is evident from a review of the record that the trial court had ample basis and evidence to conclude defendant did not hon- or his obligations under thе plea bargain agreement and that the State was free to pursue a full prosecution against defendant for the Nelson offense. Trial court correctly overruled defendant’s motion to dismiss the information.
III. Defendant’s motion to suppress. Defendant’s second contention is that the trial court erred in denying his motion to suppress the statements he made to the police on November 6, 1986. Defendant contends the statements were privileged as plea bargain negotiations and were otherwise admitted in violation оf his constitutional rights.
Defendant claims the benefit of the privilege created in Iowa Rule of Criminal Procedure 9(5). That rule provides:
If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed'on direct or collateral review, neither the plea discussion or any other resulting agreement, plea or judgment shall be admissible in any criminal or civil action or administrative proceeding.
Rule 9(5) is based on Rule 11(е)(6) of the Federal Rules of Criminal Procedure and is designed to encourage plea discussions involving the defendant without concern about the peril of subsequently using these discussions against the defendant. 4 J. Yeager & R. Carlson,
Iowa Practice Criminal Law and Procedure,
§ 1041, at 228, 233 (1979). Thus, a plea discussion that does nоt result in a plea of guilty is inadmissible.
State v. Epps,
In
State v. Taylor,
First whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.
(quoting
United States v. Robertson,
The State relies heavily upon the fact that preceding the November 6 interview with defendant in Clinton, peace officers advised defendant of his Miranda rights. Because this warning was never before *370 given to defendant by the peace officers preceding any of the prior discussions concerning the Nelson arson, the State contends it was unreasonable for defendant to believe that the discussion following a Miranda warning would be privileged.
A
Miranda
warning alone, however, does not erode the privilege. We must look to the totality of the objective circumstances.
Taylor,
The discussion between the officers and defendant on November 6 was conducted following the formation of a plea agreement and in the spirit of defendant’s continuing obligation to provide information concerning the Nelson arson. Despite the fact that the November 6 discussion was prefaced with the officers informing defendant of his Miranda rights, the officers never clearly conveyed to defendant that their plea agreement was rescinded. Rather, the officers informed defendant that the plea bargain was in jeopardy, that they no longer believed he was telling them the truth, and that they believed he may have been directly involved in the Nelson arson. By informing defendant only that his agreement may be in jeopardy, the officers fostered defendant’s subjective expectation thаt either the prior agreement may be salvaged or a new plea bargain might be struck by further cooperation in the investigation.
We conclude that when responding to the officer’s questions and providing further information concerning the Nelson аrson, defendant exhibited an actual subjective expectation to honor his continuing obligation under the prior plea agreement or form a new one during the November 6 interview. Furthermore, because the officers failed to inform defendant that the plea agreement was rescinded and instead only informed him that the agreement was “in jeopardy,” we conclude defendant’s expectation that he was speaking to the officers under a plea bargain was reasonablе given the totality of the objective circumstances. The district court erred by denying defendant’s motion to suppress these statements and later admitting them into evidence at trial.
Because we reverse the trial court on the basis of the privilegе afforded defendant’s statements of November 6 under rule 9(5), we need not reach defendant’s asserted error based on constitutional grounds.
IV. Disposition. We conclude the trial court correctly overruled defendant’s motion to dismiss the information. Becausе we conclude the trial court erred in overruling defendant’s motion to suppress defendant’s November 6, 1986, statements and allowing those statements in evidence at trial, we vacate the court of appeals decision. The trial court judgment is reversed and the case is remanded for a new trial.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Notes
.
See Miranda v. Arizona,