(dissenting) — The majority finds that defendant Joseph Sherman Sargent's confession to murder and arson was obtained in violation of the fifth and sixth amendments to the United States Constitution, and for that reason holds that the confession must be suppressed. I *657find no evidence that Sargent's rights were violated. Thus, I dissent.
Fifth Amendment
Sargent wrote his confession out longhand on or about November 10, 1983, in the presence of a King County probation officer, Ronald Bloom. Bloom visited Sargent on that day at Sargent's unilateral request and asked no questions of him. Bloom merely provided Sargent with pad and pencil and attended to other matters while Sargent prepared his statement.
The majority apparently would concede that Bloom did nothing on the day Sargent confessed to coerce or compel the confession. Nonetheless, the majority believes that the confession was presumptively coerced because several days before Sargent confessed, Bloom subjected him to a "custodial interrogation" without first advising him of his rights in accordance with the rule of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
I disagree on several points. First, I do not believe Bloom's questioning of Sargent constituted "interrogation" within the meaning of the Supreme Court's Miranda decision. See State v. Sargent, 49 Wn. App. 64, 70, 741 P.2d 1017 (1987). I will not pursue this issue, however, because even assuming Miranda was applicable to Bloom's first meeting with Sargent, I see no reason to hold it applicable to the second. Finally, I find no evidence that Bloom's actions affected Sargent's volition in such a way as to render his later confession involuntary under a conventional Fifth Amendment analysis.
In Miranda, the Supreme Court held that, prior to conducting in-custody interrogation of a criminal suspect, police must advise the suspect of his right to remain silent and to the presence of an attorney during questioning. Failure to abide this requirement, or to honor a criminal suspect's assertion of these rights, the Court held, renders *658statements made by the suspect during such interrogation inadmissible in a criminal proceeding against him.
Miranda's requirements are "not themselves rights protected by the Constitution".5 Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974). Rather, they are procedural safeguards the Court formulated as a practical means for ensuring that the Fifth Amendment privilege against self-incrimination is protected. The Court in Miranda observed a significant probability that statements elicited by the police during custodial interrogation might be "compelled" within the meaning of the Fifth Amendment. Thus, the Court established a conclusive presumption that such statements are obtained in violation of the Fifth Amendment. The Miranda Court made clear, however, and in cases since Miranda the Court has repeated often, that this conclusive presumption does not arise "outside the context of the inherently coercive custodial interrogations for which it was designed.'" Minnesota v. Murphy, 465 U.S. 420, 430, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984) (quoting Roberts v. United States, 445 U.S. 552, 560, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980)). See also Beckwith v. United States, 425 U.S. 341, 346, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976) ("Miranda was grounded squarely in the Court's explicit and detailed assessment of the peculiar 'nature and setting of . . . in-custody interrogation") (quoting Miranda, at 445). When the contextual premises of the Miranda presumption are not present, therefore, the presumption cannot properly arise, and Miranda's prophylactic rules have no legitimate applicability. See Minnesota v. Murphy, supra; Rhode Island v. Innis, 446 U.S. 291, 64 *659L. Ed. 2d 297, 100 S. Ct. 1682 (1980), cert. denied, 456 U.S. 930 (1982); Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); Beckwith v. United States, supra; Miranda, at 477-78.
Such is the situation with which we are presented in this case. Even if Sargent's first meeting with Bloom was a "custodial interrogation" within the meaning of Miranda, Sargent did not confess at that meeting. Rather, he volunteered his confession after a period of several days during which apparently no one interrogated him or coerced him in any way. With respect to a volunteered statement of this sort, Miranda's requirements are not applicable. See Miranda, at 478 ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.").
The majority concludes otherwise, apparently of the view that the presumptively compelling pressures of the first meeting between Sargent and Bloom continued in effect after that meeting ended, even as long as the several days that passed before Sargent confessed. Far from furthering Miranda's purposes, I believe this extension of the Miranda holding would cut the case "completely loose from its own explicitly stated rationale." Beckwith v. United States, supra at 345.
A proper appreciation of Miranda's logical and factual premises makes clear that Miranda's presumption extends only to statements made during custodial interrogation. The Miranda Court's observations concerning "[t]he potentiality for compulsion" of in-custody interrogations, Miranda, at 457, included no suggestions that such compulsion might persist following the cessation of questioning. Nor were any of the four confessions the Court ruled inadmissible in Miranda made outside the interrogation room. See Miranda, at 491-97. Thus, the majority's application of Miranda to a confession not made during custodial interrogation is inconsistent with both the purposes and logical *660underpinnings of the Miranda holding.6 See generally Moran v. Burbine, 475 U.S. 412, 425, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) ("The purpose of the Miranda warnings ... is to dissipate the compulsion . . . experienced by the defendant during interrogation") (italics mine); Miranda, at 469 ("Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.") (italics mine).
The majority's error is pointed out by our own most recent Miranda ruling. In State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988), we interpreted the Supreme Court's decisions on the admissibility of evidence obtained derivatively from "non-Mirandized" statements. Dictum in the leading case of Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), we noted, "strongly suggests that a Miranda violation without actual coercion will not taint evidence derived from a confession, no matter what form such evidence takes." Wethered, at 474. We observed also that, under Elstad, a confession may be admissible notwithstanding its derivation from an occurrence violative of Miranda when the "volition of the defendant [is] an insulating factor". Wethered, at 473. On this view, the fact that Bloom may have violated Miranda at his first meeting with Sargent does not taint Sargent's later self-initiated confession, if the confession was voluntarily made.
Miranda's presumption being inapplicable, a "traditional" constitutional "voluntariness" inquiry is necessary to determine the admissibility of Sargent's confession. See Beckwith v. United States, supra at 347-48. This inquiry involves a consideration of the totality of the circumstances in which the confession was made, to ensure that the confession was "the product of a rational intellect and a free *661will", State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984), and not a result of "coercive police activity". Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 484, 107 S. Ct. 515 (1986). That Sargent experienced a custodial interrogation and then confessed without first being advised of his Miranda rights certainly is relevant to this determination, but it is not, as the majority suggests, conclusive. See Beckwith v. United States, supra at 348; Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Also relevant are his familiarity with his rights, see Miller v. Fenton, 796 F.2d 598, 606 (3d Cir. 1986), the nature of the interrogation to which he was subjected, see Bustamonte, at 226, and the interposition of other influences in his decision to confess his crimes. See Colorado v. Connelly, supra. Considering all of these factors, I do not believe Sargent's confession was the product of government-induced compulsion.
With respect to Sargent's knowledge of his rights, it is significant that the present convictions are not Sargent's first; he previously was convicted of these same charges after a full trial on the merits. While the present record does not indicate how many times before he confessed Sargent was informed of his Fifth Amendment privilege, the experience of his first trial at least suggests that he was not ignorant of his rights.7 See CrR 3.2A(b)(2) (defendant is informed at preliminary appearance of right to counsel); Office of Administrator for the Courts, Washington State Judges' Benchbook Criminal Forms CR-03.0100 (1980) (form defendant signs prior to trial evidencing knowledge of rights). See also Minnesota v. Murphy, supra at 437 ("'At this point in our history virtually every schoolboy is familiar with the concept, if not the language, of the [Fifth Amendment]."') (quoting Michigan v. Tucker, 417 U.S. 433, 439, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974)).
*662Considering next the nature of Bloom's "interrogation", nothing about it was coercive. Presentence interviews, in general, are far less intimidating than postarrest interrogation by police. As a result of the trial, the defendant's guilt is established as a matter of law. The focus then switches to the defendant's background, a topic inherently less incul-patory to him. Accordingly, the psychological pressure on the defendant is significantly less than in postarrest interrogation. I also note that the interview in this case lasted approximately 2V% hours and, while not insignificant, was of far shorter duration than most interrogations courts have found violative of the Fifth Amendment privilege. See Miller v. Fenton, supra at 606.
The majority asserts that, by exhorting Sargent to "'come to the truth' with himself", Bloom "in effect made confessing a precondition to treatment." Majority, at 650. This distorts the substance of what Bloom said. The gist of Bloom's comment, as nearly as Bloom could recollect it 2 years later, was that Sargent might wish to admit his guilt to himself in order to benefit from mental health counseling. Bloom's testimony at the suppression hearing makes clear that he in no way suggested that a confession would improve Sargent's position at sentencing, or that if Sargent failed to confess, he might receive a harsher sentence.8 Indeed, Bloom directly informed Sargent that the interview, and the report Bloom would prepare based on it, were unlikely to have any effect on Sargent's sentence. Sargent *663thus could not reasonably have believed Bloom was threatening to penalize him for not confessing.9
The circumstances thus far discussed suggest to me that Sargent's confession was not compelled by Bloom's questioning. Inquiry into the voluntariness of Sargent's confession should not stop at the first meeting between Bloom and Sargent, however.10 In the "totality of the circumstances", the presence of other influences on Sargent's decision to confess also must be considered. The constitution protects defendants only from governmental coercion; to the extent other motivations and influences were at play, Sargent's confession cannot be said to have been involuntary in the constitutional sense. See Colorado v. Connelly, supra.
From Bloom's testimony and from the substance of Sargent's confession, it appears that if Sargent felt any compulsion to confess, the compulsion was of a personal and theistic, not a governmental, nature. Bloom recalled Sargent expressing feelings of "coming clean with God" on the day he tendered his confession. And when he confessed, Sargent "seemed much more comfortable with himself, much more at ease", Bloom testified. The substance and tone of Sargent's confessory statement are consistent with these observations. Sargent affirmed the truth of his account by asserting that "[t]he events I have stated are true and correct, so help me God." He made no mention of desiring mental health treatment, said nothing about Bloom, and his statements revealed no signs of fear, distress, anger, or helplessness. Indeed, far from evidencing compulsion or confusion, the calm and clarity of Sargent's *664account of his crimes suggests that the confession was the product of a "rational intellect and a free will." State v. Rupe, supra at 679.
The majority completely ignores this direct evidence, preferring to speculate that Sargent "thought about his predicament for several days", and that his confession necessarily was influenced by Bloom's comment about coming to the truth with himself. Majority, at 654. As explained above, Bloom did not put Sargent in a "predicament". Thus, Sargent had nothing to "mull over". Majority, at 653. Even if Bloom's comment fairly could be characterized as somehow coercive, moreover, the substance and circumstances of Sargent's confession in no way suggest that the confession issued under influence of Bloom's conduct. I conclude, therefore, that Sargent's confession was not compelled by the State, and thus that its suppression "would serve absolutely no purpose in enforcing constitutional guarantees."11 Colorado v. Connelly, supra at 166.
Sixth Amendment
In addition to finding Sargent's confession inadmissible under the rule of Miranda, the majority holds that the confession must be suppressed because Bloom obtained it in violation of Sargent's Sixth Amendment right to counsel. The majority does not — indeed, it cannot on the facts presented — claim that Bloom "deliberately elicited" Sargent's confession, though that is the standard against which Sixth *665Amendment claims of this sort are measured.12 See Kuhlmann v. Wilson, 477 U.S. 436, 456-61, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986); Maine v. Moulton, 474 U.S. 159, 170-76, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985); United States v. Henry, 447 U.S. 264, 270, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980); Brewer v. Williams, 430 U.S. 387, 399-400, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977); Massiah v. United States, 377 U.S. 201, 206, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964); State v. Sargent, 49 Wn. App. 64, 71-76, 741 P.2d 1017 (1987); State v. Franklin, 48 Wn. App. 61, 737 P.2d 1047 (1987). Rather, the majority asserts that Bloom violated Sargent's Sixth Amendment right simply by "knowingly circumventing" it.
The majority's rejection of the "deliberately elicited" test in favor of a "knowing circumvention" standard is plain-faced wrong. The "deliberately elicited" test has been a guiding principle of the Sixth Amendment right to counsel for nearly a quarter century, and there is no cause to believe it suddenly should not apply in this case. If the members of the majority believe Maine v. Moulton, supra, permits a different standard, they should read Kuhlmann v. Wilson, supra:
As our recent examination of the Sixth Amendment issue in Moulton makes clear, the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. . . . [To make out a violation of the right to counsel,] the defendant must demonstrate that the police . . . took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
(Italics mine.) Wilson, at 459. This passage did not speak merely for a majority of the Supreme Court; the Court unanimously agreed that the Sixth Amendment right is not *666violated unless police "deliberately elicit" incriminating statements from a defendant who speaks without the assistance of counsel. See Wilson, at 461 (Burger, C.J., concurring), 473-76 (Brennan, J., dissenting), 476-77 (Stevens, J., dissenting).
Under the proper "deliberately elicited" test, Sargent's right to counsel clearly was not violated.13 Bloom did nothing, "beyond merely listening", to elicit Sargent's confession. Wilson, at 459. Indeed, Bloom's conduct seems even more clearly consistent with the Sixth Amendment than the police conduct approved by the Supreme Court in Wilson.
Having been seen fleeing from a taxi garage immediately after a robbery and murder had occurred therein, Wilson surrendered to police, admitting he was at the garage when the crimes occurred, but claiming he was innocent and had fled for fear of being wrongly accused. After arraignment, police confined Wilson in a cell with another prisoner who, unbeknownst to Wilson, earlier had agreed to act as a police informant. By strange coincidence, the cell overlooked the garage where the crimes had occurred. After observing the garage through his cell window, Wilson began to discuss the crimes with the cell mate/informant. The informant asked no questions of Wilson, but expressed disbelief as to Wilson's initial claim of innocence. For several days, the informant surreptitiously took notes while Wilson steadily changed his story and finally confessed. The Supreme Court held that Wilson's right to counsel was not violated because the police had not "deliberately elicited" his confession.
*667Like Wilson, Sargent was in custody at the time he confessed. And as happened to Wilson, Sargent was told by his "interrogator" that his claim of innocence was not credible. Unlike Wilson, however, Sargent did not confess to a secret informant who clandestinely recorded his statements over several days.14 Nor did he gaze over the scene of his crime while Bloom waited for a confession to issue. These distinctions make Sargent's Sixth Amendment claim weaker than the one the Court rejected in Wilson.
Conclusion
Sargent's confession was not compelled by the police in violation of his Fifth Amendment privilege against self-incrimination. Nor was it "deliberately elicited" in violation of his Sixth Amendment right to counsel. Thus, the convictions should be affirmed.
Callow, J., concurs with Durham, J.
Reconsideration denied January 13,1989.
The Supreme Court repeatedly has emphasized that "a simple failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment." Oregon v. Elstad, 470 U.S. 298, 306 n.1, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), and cases therein cited; see Moran v. Burbine, 475 U.S. 412, 424-45, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986). See also Miranda v. Arizona, 384 U.S. 436, 457, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966) ("In these cases, we might not find the defendants' statements to have been involuntary in traditional terms.").
0f course, in some circumstances an interrogation might have coercive effects upon a defendant that are felt even after questioning has ceased. See, e.g., Wainwright v. State, 504 A.2d 1096 (Del. 1986). Miranda does not presume this for all cases, however.
Indeed, Sargent exercised his right to be silent by not testifying at his first trial. See State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985).
"Q. [The prosecuting attorney] Did you in any way lead [Sargent] to believe that — or say something that would lead him to believe that there would be some benefit to him if he were to tell you what happened, the truth of what happened?
"A. [Bloom] Not me specifically. I again did bring out to him if he was to come to a clear understanding himself of what he did, in fact, do, that he would probably benefit, particularly if he was to enter into treatment. He told me at the time that he was very confused and troubled as to his situation.
"Q. [Sargent's counsel] And you did indicate that you did discuss the possibility of treatment with him in the prison context if, in fact, he finally did admit to his involvement?
"A. [Bloom] No, he didn't have to admit anything in order to get treatment. He can receive treatment regardless of whether he admits the crime or not."
There is no direct evidence that Sargent in fact did perceive Bloom's comment as a threat. But even if he did so view Bloom's comment, and confess with the perceived threat in mind, the unreasonableness of his perception would defeat any claim that his confession was involuntary in the constitutional sense. See Minnesota v. Murphy, 465 U.S. 420, 437-38, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984); Miller v. Fenton, 796 F.2d 598, 610 (3d Cir. 1986).
Because it improperly applies Miranda, the majority does end its inquiry at this point.
There is no evidence that Bloom acted in bad faith in failing to advise Sargent of his Miranda rights. On the contrary, Bloom's unrefuted testimony is that he acted consistently with corrections department policy, which does not require corrections officers to administer Miranda warnings before conducting presentence interviews. Whatever the merits of this policy, cf. Baumann v. United States, 692 F.2d 565, 574-77 (9th Cir. 1982) (Miranda warnings not required before routine presentence interviews; statements admissible for sentencing purposes), Bloom acted reasonably in relying on it. Thus, any deterrent value suppression of Sargent's confession might have is outweighed by the confession's unquestioned probativeness and demonstrated trustworthiness. See Oregon v. Elstad, 470 U.S. 298, 308-09, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985); Michigan v. Tucker, 417 U.S. 433, 446-47, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974).
The Supreme Court recently described this test as follows: " [0]nce a defendant's Sixth Amendment right to counsel has attached, he is denied that right when [police] 'deliberately elicit' incriminating statements from him in the absence of his lawyer." Kuhlmann v. Wilson, 477 U.S. 436, 457, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986).
I base my conclusion solely on the view that Sargent's confession was not "deliberately elicited" by Bloom, though I believe it plausible also that Bloom's postconviction interview was not a "critical stage" of the proceedings and thus that Sargent did not even have a right to counsel. See Brown v. Butler, 811 F.2d 938, 940-41 (5th Cir. 1987); Baumann v. United States, 692 F.2d 565, 577-78 (9th Cir. 1982); Cahill v. Rushen, 678 F.2d 791, 796-806 (9th Cir. 1982) (Wallace, J., dissenting).
As Justice Brennan noted in dissent, conversation between a defendant and a secret informant is more likely to elicit incriminating information than conversation between a defendant and someone the defendant knows to be a government agent. Wilson, at 475 (Brennan, J., dissenting).