(concurring in part and dissenting in part).
[¶ 47.] I concur, except for that portion of Issue C which concludes that Tuttle’s admission was involuntary. The majority finds the admission involuntary because it concludes that Detective Openhowski used a “coercive” “threat” to overbear Tuttle’s will to not speak. Supra at ¶ 25-32. I join in Chief Justice Gilbertson’s dissent on that conclusion. I also write to express my views that: the videotape more than adequately supports the trial court’s finding of a voluntary admission, the majority has inferred far too much from the 18 words used by the detective, and the majority’s authorities should not apply to this case.
[¶ 48.] Preliminarily, it should be noted that the majority incorrectly concludes that the trial court did not address the question of the voluntariness of Tuttle’s statements; but rather, in a “conelusory fashion” ruled that Tuttle’s statements were voluntary. Supra at ¶ 29. In point of fact, the trial court conducted a suppression hearing and then recited a finding of fact that supported its denial of the motion.
*39[¶ 49.] The trial court denied the suppression motion because it found that “at all times the defendant expressed a willingness, even a desire, to talk to the police about what happened.” (emphasis added). Although we conduct a de novo review of the ultimate issue of voluntariness, this finding that at a certain time and place this suspect actually expressed a “willingness, even a desire to talk to the police” is a subsidiary finding to which we should accord deference.14
[¶ 50.] Moreover, the trial court’s subsidiary finding is well supported by the videotape of the entire interview. A review of the short videotape clearly reflects that after Tuttle waived his Miranda rights, he never expressed any reservation about speaking with the detective. On the contrary, Tuttle fully and freely conversed with the detective for several minutes, telling several versions of the incident before he gave the version the majority suppresses.
[¶ 51.] In my view, the majority simply infers far too much from the detective’s statement. The majority declares that the detective’s statement (1) sent Tuttle an “unmistakable message,” that would (2) “discourage any leniency,” (3) “meaning” that Tuttle “would likely suffer more severely for not confessing.” Supra at ¶ 29. The majority also declares that “[t]he message was clear: if Tuttle failed to cooperate he would pay the consequences; he would be treated less favorably.” Supra at ¶ 30. I do not agree that all of these deductions can be reasonably inferred from the officer’s statement, and especially not from Tuttle’s demeanor and responses that are reflected on the videotape.
[¶ 52.] It bears repeating that the 18 words at issue are the detective’s statement, “I’m gonna have to write it up that you’re not cooperating, you’re being a real jerk about it.” Supra at ¶ 25. In my judgment, when viewed in context, one cannot divine from this language the majority’s “unmistakable message” that the detective’s report would “discourage any leniency,” and further, that this meant *40“Tuttle would suffer more severely for not confessing.”
[¶ 53.] It must also be ' remembered that “[t]he question is not whether the interrogators’ statements were the cause of the confession[,] but whether those statements were so manipulative or coercive that they deprived [a defendant] of his ability to make an unrestrained, autonomous decision to confess.” State v. Owens, 2002 SD 42, ¶ 52, 643 N.W.2d 735, 750 (emphasis in original) (quoting State v. Smith, 1998 SD 6, ¶ 8, 573 N.W.2d 515, 517). Although the majority weighs extrinsic elements for and against a finding of voluntariness, it fails to give sufficient weight to the entire context of the conversation and Tuttle’s unequivocal demeanor that depicts his voluntary participation throughout this interview. Those closer contextual considerations reveal that under the totality of the circumstances, Tuttle was fully capable of resisting pressure and was voluntarily talking. They also reveal that the officer’s statement at issue was not “coercive” police activity, Connelly, 479 U.S. at 167, 107 S.Ct. at 522, 93 L.Ed.2d at 484, that overbore Tuttle’s will. Haynes, 373 U.S. at 513-14, 83 S.Ct. at 1343, 10 L.Ed.2d at 520-21.
[¶ 54.] Finally, the majority’s reliance on Tingle, 658 F.2d 1332, Brommel, 56 Cal.2d 629, 364 P.2d 845, 15 Cal.Rptr. 909 (1961), Harrison, 34 F.3d 886, and Matthews, 601 So.2d 52 is factually and legally misplaced. Tingle is factually inapposite because that case was premised on acknowledged “improper influence” in threatening to deprive a young mother of her child in order to illicit cooperation. 658 F.2d at 1336. That misconduct, which caused Tingle to “sob,” “noticeably shak[e],” and to continue to cry for at least 10 minutes before confessing, is absent in this case. Id. at 1334.
[¶ 55.] Brommel, Hanison, and Matthews are factually distinguishable because they all involved threats to use non-cooperation by the judge or court that would ultimately find guilt and sentence the defendant. For example, Brommel involved “extensive questioning” by teams of two to five officers over a period of six hours. 15 Cal.Rptr. 909, 364 P.2d at 846. During the course of that extensive interrogation, promises of leniency were made to motivate the confession. Id. at 847. The specific statements involved police threats that their reports would reflect that the accused was a “liar” and that consequently, he could “expect no leniency from the court.” Id. at 848 (emphasis added).
[¶ 56.] In Hanison, the police rhetorically suggested that they' might inform “the court” that the defendant had not cooperated. 34 F.3d at 891. This was the controlling fact in the opinion because the 9th Circuit Court of Appeals specifically noted that the “improper conduct was the suggestion that [the police] might inform the court that [the defendant] had not cooperated.” Id. In fact, the court noted that the defendant broke her silence “only after the agent asked whether [the defendant] thought it preferable if the judge were informed that [the defendant] had cooperated or not cooperated,” and the defendant responded “that she thought it would be better if she talked to the agents and they informed the judge that she had cooperated.” Id. at 892 (emphasis added).
[¶ 57.] Matthews involved even more egregious conduct. In that case, after the police made the statement cited by the majority (“I can go back and tell the district attorney [defendant] cooperated with me or I can go back and tell the district attorney that [defendant] did not cooperate with me.”), the police went further and stated that “[w]e might cut you a deal .... it could make a lot of difference for you.” *41The police then concluded that the “judge” would know if the defendant failed to cooperate. Matthews, 601 So.2d at 52-53.
[¶ 58.] Thus, Tingle, Brommel, Harrison and Matthews all involved different police questioning where clearly improper threats were made to use a suspect’s right to remain silent. Those threats involved taking children away from their mother or the improper use of the right to remain silent by the judge or court that would be judging and sentencing the accused. These cases go far beyond Detective’s Openhowski’s accurate explanation that was limited to possible police or possible prosecutorial consequences of cooperation and non-cooperation.
[¶ 59.] In addition to these factual distinctions, Brommel, Harrison, and Matthews are legally inapposite because those courts apply much more restrictive exclusionary rules.15 Although professing to apply the totality of the circumstances rule in general, these courts actually apply some form of a per se rule of exclusion in this type of case. For example, Brommel reveals that California follows a more restrictive rule under which “any promise” of “leniency or advantage for the accused, if ... a motivating cause16 of the confession,” makes a confession involuntary. 15 Cal.Rptr. 909, 364 P.2d at 846-47. See also Cahill II, 22 Cal.App.4th at 311, 28 Cal.Rptr.2d at 10 (stating that “[i]t is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied”) (citation omitted); Cahill I, 5 Cal.4th at 494, 853 P.2d at 1048, 20 Cal.Rptr.2d at 593 (reviewing the California cases applying this rule of per se exclusion if any promise of benefit or leniency is expressed or implied).
[¶ 60.] The 9th Circuit Court of Appeals and Alabama decisions are no different. See Harrison, 34 F.3d at 891 (stating “there are no circumstances in which law enforcement officers may suggest' that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor”) (emphasis original); Matthews, 601 So.2d at 54 (stating “in order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight”) (emphasis in original).
[¶ 61.] On the other hand, South Dakota utilizes the “totality of the circumstances” analysis rather than one of these per se rules of exclusion. Frazier, 2001 SD 19 at ¶ 20, 622 N.W.2d at 255. Consequently, our cases have permitted some degree of threat as long as the resulting statement was voluntary under the totality of the circumstances.17 Because of these *42differences in jurisprudence and because of the differences in the police statements at issue, Tingle, Brommel, Harrison and Matthews have no application here.
[¶ 62.] It should be finally noted there is no doubt that police and prosecutors consider cooperation or non-cooperation routinely (and permissibly) in making prosecutorial decisions. This is simply a fact of life. See also, the authorities cited in Chief Justice Gilbertson’s dissent, supra, at ¶41. Unfortunately, under the language of the majority decision, any negative police or prosecutorial consequence of non-cooperation is now barred from disclosure to a suspect. Consequently, the majority opinion will actually hinder a suspect’s ability to make a fully informed, knowledgeable and intelligent decision: a decision that includes knowing how their cooperation or non-cooperation may be used by the police and prosecutor in exercising their prosecutorial duty.
[¶ 63.] The majority attempts to sidestep this undesirable result by permitting police to “tell a suspect that cooperation will be passed on to the authorities and may increase the likelihood of leniency, but threatening to inform the prosecutor ... of a suspect’s refusal to cooperate violates the 5th Amendment right to remain silent.” Supra at ¶ 32. However, “both types of statements are simply different sides of the same coin: ‘waive your rights and receive more favorable treatment’ versus ‘exercise your rights and receive less favorable treatment.’ ” Harrison, 34 F.3d at 891. In my judgment, this distinction, used by the majority and the 9th Circuit Court of Appeals, is a play on words that few, if any, suspects will discern. Either way a suspect in custody is only interested in receiving the best treatment. Consequently, this distinction means little and will add further confusion rather than further information for suspects who should make an informed decision to speak or not speak.
[¶ 64.] In the final analysis, this videotape shows that Tuttle was voluntarily speaking with the detective throughout the interview. Consequently, I would affirm the trial court.
. See ¶ 20 of the majority opinion ("Although there are often subsidiary factual questions deserving deference, the voluntariness of a confession is ultimately a legal question.”) (citing Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15). The majority fails to consider this subsidiary finding in a light most favorable to the trial court as required in State v. Anderson, 2000 SD 45, ¶ 80, 608 N.W.2d 644, 667.
Furthermore, this required deference is not changed by the fact that the trial court’s findings were based upon oral and documentary evidence (a videotape of the interview and the detective’s live testimony). As the majority notes, we have often expressed our preference for findings of fact and conclusions of law in criminal cases. See supra at n.ll, and State v. Flegel, 485 N.W.2d 210, 213 (S.D.1992). Although the Rules of Criminal Procedure (SDCL, Title 23A) have no explicit provision governing findings of fact and conclusions of law, the Rules of Criminal Procedure explicitly incorporate the civil rules in juxy selection (SDCL §§ 23A-19-1, 23A-20-1), evidentiary matters (SDCL 23A-22-2), and implicitly in all other criminal matters if the civil rules are not inconsistent with SDCL, Title 23A. SDCL 23A-45-13. Because Civil Rule 52(a) (SDCL 15-6-52(a)), governing findings of fact and conclusions of law, is not inconsistent with the criminal rules, it provides guidance here. Under the 2000 amendments of Civil Rule 52(a), we no longer apply de novo review simply because findings of fact are based on documentary evidence. The 2000 amendments require that “findings of fact, whether based upon oral or documentary evidence, may not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Id., SL 2000, ch 91, § 1. This is especially true here, where the trial court's critical finding was based on the videotape and the detective's oral testimony at the suppression hearing.
.Tingle also has no precedential value here because tire 9th Circuit Court of Appeals merely commented in a footnote that it "disapproved” of informing a suspect that a failure to cooperate would be communicated to a prosecutor. 658 F.2d at 1336, n.5. The court did not, however, hold that the factually correct statements involved were improper as a matter of law. It also did not cite any authority supporting its "disapproval." We have also disapproved of such conduct but nevertheless permitted use of the statement if voluntary under the totality of the circumstances. See State v. Lyons, 269 N.W.2d 124 (S.D.1978), infra, discussed in footnote 17.
. We do not follow this "but for” causation analysis. Owens, 2002 SD 42 at ¶ 52, 643 N.W.2d at 750 (stating that "[t]he question is not whether . the interrogators' statements were the cause of the confession, but whether those statements were so manipulative or coercive that they deprived [a defendant] of his ability to make an unrestrained, autonomous decision to confess.”). See also, supra at ¶ 23.
. For example, in Lyons, 269 N.W.2d 124, a police officer interviewed a suspect in a robbery. According to the defendant, the officer threatened that since the defendant and his wife’s stories did not match, "that ... I was either getting in deeper and deeper and just *42making things worse, and then [the officer] started talking about my wife getting arrested.” Id. at 125-126. Shortly thereafter, the defendant confessed to the robbery. Although like Tingle we "frowned upon” this type of indirect threat, we nevertheless looked at the totality of the circumstances and held that the officer's threats did not render the defendant’s confession involuntary in that case. Id. at 126.