dissenting:
I cannot concur in the majority opinion upholding the order denying Nobles’ motion to suppress for the following reasons.
First, Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), which the state urges supports the district court’s decision, was not — so far as I can tell from the record — ever argued to the district court. As a result, the factors important to the Elstad decision were never addressed by the district court.
Second, Elstad requires findings by the trial court that both the first “unMirandized” statement of defendant, as well as the subsequent, separate “Mirandized” statement are voluntary. Here, the district court made no such discrete findings. The court orally stated only that:
Considering the totality of the circumstances the situation does not warrant suppression of evidence given to Detective Stech. There’s a different status for a probation officer ... but I’m not going *514to allow the confession to come in through Officer DeLuca. I don’t believe that there was [an] appropriate basis for that, but I will allow the written confession as well as the oral confession to come in through the Detective.
Accordingly, I can agree with the majority that the judge’s oral decision contains an implicit finding that the statement given to Detective Stech was voluntary, but I cannot discern any such implicit finding in regard to the statement obtained by Parole Officer DeLuca.
Third, I question whether Elstad should be applied at all to the facts of this case. As noted earlier, Elstad applies where there are two separate statements, both voluntary, but the first is inadmissible because of a Miranda violation. Our Supreme Court recognized and followed Elstad in State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985). There, the Court noted that while Windsor was under arrest, she had been questioned briefly about the location of the victim’s car, but without the benefit of the Miranda warnings. In upholding a later confession made to other officers after the Miranda warnings were given, the Court noted that this “confession was not taken until more than an hour later.” 110 Idaho at 415, 716 P.2d at 1187. Moreover, the Court said, “The confession which followed was not connected in any way to the initial questioning as to the location of the car.” Id.
The reality of the present case is that there were not two separate confessions. Perhaps the district judge recognized this when he said, “but I’m not going to allow the confession to come in through Officer DeLuca.” (Emphasis added.)
The parole officer and the police detective acted jointly in obtaining Nobles’ confession to the robbery. While questioning Nobles about his activities relating to parole conditions, Officer DeLuca asked him directly whether he had committed the “Buck” robbery. At first, Nobles denied that he had. Later, after further questioning by DeLuca, Nobles admitted a role in the robbery and DeLuca asked for the facts of the robbery.
Apparently, DeLuca was versed in some details about the robbery investigation before he talked to Nobles, because at the suppression hearing he testified that he had made the following statements to Nobles:
I did state that the owner — you know, I said, “It appears that it would be in your best interest to tell the truth here to me, Bill, because it appears that the owner is not cooperating fully.” And I said, “It appears that there was not a weapon used, and so we’re not talking about an armed robbery.” I just said, “It would appear that it would be in your best interest to tell the truth.”
It also appears that DeLuca was aware that, since he had not Mirandized Nobles, he would not be able to testify at a trial in the robbery case about any admissions Nobles had made concerning the robbery. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). This awareness is important in view of DeLuca’s final message to Nobles as the interview came to an end.
I told Mr. Nobles that he had violated his parole by committing this robbery, and that there was a good chance that new charges, you know, may be filed against him. I told him that it would probably be in his best interest to be truthful about that, and Mr. Nobles stated that he wanted to be, that he wanted to clear this matter up.
I then left the room and went to Mr. Stech’s office and told him that Mr. Nobles would like to speak with him.
After that lead-in, all that Detective Stech had to do was to have Nobles sign the Miranda notification and waiver form and write out his confession. However fairly the two officers conducted their sessions with Nobles, if we permit this practice to continue under a broad reading of Elstad, we will be inviting abuses of fundamental rights.