dissenting:
The majority’s opinion seriously undermines the Miranda requirement that a suspect in custody must be informed of important constitutional rights and be given an opportunity to waive those rights before being interrogated. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The majority opinion goes astray, I believe, because it follows the disposition in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), without considering significant qualifications made by the court in Elstad concerning the degree of police misconduct in failing to give the required Miranda warnings as well as the effect, in fact, of the first unwarned confession on the later warned one. Although deference to the trial court is appropriate with respect to certain underlying historical facts, “the ultimate issue of ‘voluntariness’ is a legal question” that we determine de novo, Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), taking into consideration a “complex of values [that] militates against treating the question as one of simple historical fact.” Id. at 116, 106 S.Ct. 445 (internal quotation omitted). With these considerations in mind, I conclude that Davis’ videotaped confession was involuntary in the constitutional sense because the underlying facts in this case were much more egregious than those in Elstad and warrant suppression of Davis’ videotaped confession even though it was given after the police finally gave Davis the required Miranda warnings. Thus, I respectfully dissent.
The holding in Elstad was succinctly put by the Court:
We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.
Id. at 318, 105 S.Ct. 1285 (emphasis added). What this means is simply that the unrebuttable legal presumption that an unwarned confession is the result of coercive police conduct, and therefore inadmissible in the government’s ease in chief, id. at 317, 105 S.Ct. 1285, does not apply to also render inadmissible, as a matter of law, a second, warned confession. Elstad does not, however, reverse the presumption to favor admissibility of the second confession, and the government still bears the burden of proving, by a preponderance of the evidence, that the second confession was voluntarily given. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Martin v. United States, 567 A.2d 896, 907 (D.C.1989), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). The fact that the second confession came after Miranda warnings does not, ipso facto, render it admissible. Rather, the preceding Miranda warning is a highly probative fact that goes to the volun-tariness of the subsequent confession sought to be admitted. It is a factor to be considered among the totality of the circumstances in determining whether there was a knowing and voluntary waiver of rights which, in turn, reflects on the voluntariness — and corresponding admissibility — of the subsequent statement. See Elstad, supra, 470 U.S. at 318, 105 S.Ct. 1285; Cowan v. United States, 547 A.2d 1011, 1015 (D.C.1988) (citing Elstad, 470 U.S. at 314, 105 S.Ct. 1285).
The Supreme Court’s holding in Elstad that the presumption that an unwarned confession is coerced does not apply to a subsequent, warned confession was not intended to liberate law enforcement officers from their legal obligation promptly to “Mirandize” a suspect once in official custody:
The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to *1172invoke his rights once they are read to him.
Id. at 317, 105 S.Ct. 1285; see id. at 346, 105 S.Ct. 1285 (Brennan, J., dissenting) (“[I]f the official violation of Miranda was flagrant, courts may fairly conclude that the violation was calculated and employed precisely so as to ‘undermine the suspect’s ability to exercise his free will.” ’) (citing majority opinion at 309, 105 S.Ct. 1285); id. at 364, 105 S.Ct. 1285 (Stevens, J., dissenting) (“I am persuaded that the Court intends its holding to apply only to a narrow category of cases in which the initial questioning of the suspect was made in a totally uncoercive setting and in which the first confession obviously had no influence on the second.”).
Because of the central importance of Miranda warnings to the issue of voluntariness, the Court in Elstad took pains to show that the police officers in that case acted reasonably and did not purposely disregard their obligations nor the suspect’s rights. First, the Court noted that one officer’s failure to give Miranda warnings “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or it may simply have reflected [the police officer’s] reluctance to initiate an alarming police procedure .... Whatever the reasons for [the police officer’s] oversight, the incident had none of the earmarks of coercion.” Id. at 315-16, 105 S.Ct. 1285 (emphasis added).
It is not possible to excuse or explain the police conduct in this ease with similar niceties. At Davis’ suppression hearing, Detective Sullivan testified that he had been the officer who obtained a warrant for Davis’ arrest and that the warrant had been executed and Davis had been arrested at 4:00 p.m. on January 14,1995. Thus, there is no question that the police here knew that Davis was in custody and that Miranda warnings were therefore required. Not only was the police officer in this case not confused about the need to give warnings — as the Court ventured may have been the case in Elstad — but Detective Sullivan also admitted, and gave no explanation for, having made a conscious decision, when active interrogation of Davis began almost two hours after the arrest, not to give Miranda warnings, as constitutionally mandated. Miranda warnings were not given to Davis until one hour into active police interrogation (three hours after arrest) and only after Davis had confessed to murder.
Nor can we possibly derive confidence in the voluntariness of Davis’ waiver of his rights — once they were tardily given — from the fact that, as in Elstad, “[n]either the environment nor the manner of either ‘interrogation’ was coercive.” Id. at 315, 105 S.Ct. 1285. In Elstad, the court noted that “[t]he initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away” and that “the brief stop” at the home had not been for the purpose of interrogating the suspect, “but to notify his mother of the reason for his arrest.” Id. By contrast, here, Davis was arrested, taken to the police station, and two hours later subjected to active police interrogation for at least forty-five minutes — hardly a “brief stop.” During this time he was in an interrogation room handcuffed by one arm to a bolt in the floor — quite unlike being in the familiar surroundings of his own living room at home as in Elstad.
Under these circumstances, the fact that the officers finally apprised Davis of his rights three hours after being taken into custody, after active interrogation had yielded a confession to murder, a mere ten or fifteen minutes before concluding the interrogation session by videotaping the confession is insufficient, under Elstad, to render the videotaped confession admissible. That the officers’ unconscionable delay in advising Davis of his rights undermined his will is evident from Davis’ statement, made during a telephone call with his sister (a police officer) which the trial court found occurred after he had confessed and Miranda warnings were subsequently given, that “there is no use in not talking, I already talked to him and I did it.” Although a suspect’s ignorance of the consequences of an unwarned confession does not compromise the volun-tariness of an admission of guilt, see Elstad, supra, 470 U.S. at 317, 105 S.Ct. 1285, the *1173fact that the police are aware of and exploit1 the suspect’s serious misunderstanding of his legal rights compounds the egregiousness of the police’s behavior in this case, making it further distinguishable from Elstad. Id. at 316, 105 S.Ct. 1285 (“Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent.”)
As the Court of Appeals for the Eighth Circuit has explained, “Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda." United States v. Carter, 884 F.2d 368, 373 (8th Cir.1989). Distinguishing the possibly inadvertent Miranda violation in Elstad from the more certain custody situation requiring warnings in the case before it, the Carter court observed that Elstad “gave no indication that it intended to give a green light to law enforcement officers to ignore the requirements of Miranda until after such time as they are able to secure a confession.” Id. The court also distinguished Elstad by noting that there an hour had passed between the first unwarned confession at the suspect’s home and the subsequent warned confession at the police station. In Carter, “there was no passage of time to speak of between the unwarned confession and the subsequent warmings and confession, all of which occurred as part and parcel of a continuous process.” Id. at 373.
Federal and state appellate courts have cited Carter, supra, with apparent approval of the proposition that Elstad should not be interpreted as automatically permitting the admissibility of a second confession, even if voluntary, without first evaluating the egregiousness of the police’s conduct in failing to administer required Miranda warnings and the existence of a clear break between the first, unwarned and the second, warned confession. See United States v. McCurdy, 40 F.3d 1111, 1117 (10th Cir.1994) (distinguishing Carter on the ground that officers did not coerce suspect into making incriminating statements and that there was “a delay of several hours between the time that the officers detained [suspect] in their custody and the time that he was formally arrested, Mirandized and gave his statement”); United States v. Gale, 293 U.S.App.D.C. 218, 224, 952 F.2d 1412, 1418 (1992) (noting that, unlike in Carter, there was “no evidence ... of a deliberate ‘end run’ around Miranda and, consequently, no error in the district court’s refusal to suppress” the warned incriminating statement); Halberg v. State, 903 P.2d 1090, 1098, 1099 n. 3 (Alaska Ct.App.1995) (distinguishing facts from Carter, noting that police’s violation of Miranda was “not flagrant or purposeful,” “that the police tried to comply with the duty [imposed by] Miranda" and that “[t]here was a significant interval — approximately seven hours — between” the first unwarned interrogation and the second warned one); see also State v. Nobles, 122 Idaho 509, 835 P.2d 1320, 1324 (Idaho Ct.App.1991), aff'd, 122 Idaho 470, 835 P.2d 1281 (1992) (concluding, after first determining that both unwarned and warned incriminating statements were voluntary, “[n]or is there any evidence to suggest that the officers exploited the unwarned admission to pressure [the suspect] into waiving his right to remain silent in confessing” the second time, after warnings were given).
This case is more like Carter than Elstad. As in Carter, Davis’ videotaped confession was but the conclusion of a continuous interrogation. The number of minutes between unwarned and warned confessions is not, by itself, determinative. It is relevant in evaluating whether there was an opportunity to reconsider between the unwarned and the warned confessions sufficient to dissipate the taint of the unwarned confession. Here there was a ten-to-fifteen minute break during which Davis was left alone after he confessed the first time. This was merely the time it took the officers to set up the videotaping equipment. During that time, Davis continued to be in the same place, handcuffed to the floor, knowing that the officers were preparing for the final videotaping, which commenced some ten minutes later. The fact that Davis was alone during this brief period is negligible under the circumstances. Had Miranda warnings been given and then *1174Davis had been left alone, it might be possible to consider this short interval as a period during which the interrogation stopped and Davis had some time to reflect and reconsider his statements in light of his rights. Instead, the officers here did not advise Davis of his rights until after they returned to begin to videotape his confession. Cf. United States v. Gale, supra, 293 U.S.App.D.C. at 223 n. 9, 952 F.2d at 1417 n. 9 (“[A] change in location and the passage of time between coerced statements and a post -Miranda statement are viewed as relevant to show that any coercion has dissipated to the point that a defendant is able to make a rational decision to waive his rights at a later time.”) (citing Elstad, supra, 470 U.S. at 310, 105 S.Ct. 1285); see also Stewart v. United States, 668 A.2d 857, 867 (D.C.1995).
Most recently, the Court of Appeals for the First Circuit affirmed the trial court’s suppression of incriminating statements made in open court, even though voluntary, that were the fruit of prior unwarned statements. See United States v. Byram, 145 F.3d 405 (1st Cir.1998). The court stated that the. police had acted in “good faith”— albeit objectively incorrectly — when the officer failed to give Miranda warnings the first time that the witness made incriminating statements; and that the witness was not entitled to Miranda warnings before his trial testimony when he made a second incriminating statement, because he was not then in a custodial setting.2 Nonetheless, the court of appeals held that the witness’ second statement at the state trial was properly excluded when that witness then became a defendant in a federal prosecution, as the tainted fruit of the unwarned incriminating statements that had been made by the witness while in custody a month earlier. In reaching its conclusion that the state trial testimony should be suppressed, the court looked at the specific facts linking the first, unwarned statements with the second incriminating statements made at trial; it did not terminate its inquiry, as the majority does in this case, once it determined that both incriminating statements were voluntary. In support of its approach, the court opined as follows:
Our own view, highly tentative in the absence of more guidance from the Supreme Court, is that Elstad would be hard to confine to technical violations [of Miranda]; its language emphasizing the vol-untariness test as the prime safeguard is too powerful for that. But by the same token we think that Elstad does not wholly bar the door to excluding evidence derived from a Miranda violation — at least where the Miranda violation is not merely technical, where there is a substantial nexus between the violation and the second statement, and where the second statement is not itself preceded by an adequate Miranda warning.
... All members of the panel agree that the events in this case are unusual and that Elstad discourages any promiscuous use of the fruits doctrine in ordinary Miranda cases.
Id. at 409-10 (footnote omitted).
Although the facts of this case are different from those in Byram, particularly in that Davis did receive some measure of Miranda warnings immediately before he confessed on the videotape,3 the police conduct here was much more egregious than in Byram, where the police were found to have acted in good faith and a month had elapsed between the first inadmissible confession and the later one sought to suppressed. What Carter, By-ram and the other cases citing Carter with approval make clear is that the Supreme Court’s opinion in Elstad is not as straightforward as the majority would have it. It is not sufficient, in short, for this court to conclude only that because the first and second confessions were voluntary in fact, the second one, if warned, is therefore automatically admissible. The totality of the circumstances must be considered.
The facts in this case are that the police violated Miranda deliberately and that there *1175was scant opportunity for the belated warnings to do much good. The Supreme Court recognized in Miller, which was decided after Elstad, that because “ours is an accusatorial and not an inquisitorial system, ... tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment guarantee of fundamental fairness.” 474 U.S. at 110, 106 S.Ct. 445 (internal citation omitted). Thus, in addition to testing confessions against the Fifth Amendment privilege against self-incrimination, “the Court has continued to measure confessions against the requirement of due process.” Id,. That is “significant because it reflects the Court’s consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.” Id. at 116, 106 S.Ct. 445 (citing Gallegos v. Colorado, 370 U.S. 49, 51, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962)). Therefore, not only does Elstad not preclude suppression in the circumstances of this case, but when the confession at issue here is viewed against the broader due process considerations in Miller, thoughtful application of the exclusionary rule mandates that it be suppressed.
The Supreme Court’s more recent jurisprudence on the exclusionary rule in the context of the Fourth Amendment is instructive on the question whether, in this Fifth Amendment context, an unwarned confession should be excluded. In Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the Court refused to exclude evidence that was obtained as a result of a seizure and search in violation of the Fourth Amendment. The Court distinguished between a Fourth Amendment violation, the search and seizure, and the use of the fruits of a search in violation of the Fourth Amendment. Id. at 10, 115 S.Ct. 1185. Noting that the exclusionary rule which suppresses the fruit is a “remedial device [to deter police misconduct], the rule’s application has been restricted to those instances where its remedial objectives are thought most efficaciously served.” Id. at 11, 115 S.Ct. 1185. As the police had acted to arrest in reasonable reliance on court-supplied information, the evidence seized as a result of the unlawful arrest was deemed admissible because exclusion would not likely affect future police conduct.
Similar considerations apply in the Fifth Amendment context. In Elstad, the Court distinguished between coercive police conduct that leads to confessions involuntary in fact, and police failure to give required warm-ings which results in confessions presumed to be involuntary as a matter of law. The latter, the Court explained in Elstad, is “preventive medicine [that] provides a remedy even to the defendant who has suffered no identifiable constitutional harm.” 470 U.S. at 307, 105 S.Ct. 1285 (citations omitted). “The Miranda exclusionary rule ... serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.” Id. at 306, 105 S.Ct. 1285. As in Arizona v. Evans, therefore, our decision whether to apply the exclusionary rule to suppress a confession should turn in part on its deterrent effect on future police conduct. Viewed against the Court’s more recent analysis, Elstad’s pains to explain the reasonableness of the police’s conduct and the complete absence of a coercive environment acquires full meaning. Suppression of the warned confession in El-stad would not have deterred police misconduct — significantly, the court found none — or even induced police to take greater care in providing prompt warnings. The situation before us, however, stands in stark contrast, for here the police purposely delayed advising Davis of his rights for a considerable period of time, not only after the police knew Miranda mandated that they be given, but even after they had engaged in active and persistent interrogation that had yielded a confession to murder.
In my view, the flagrant violation of Miranda that occurred in this case coupled with the closeness in time and circumstance between the first and second confessions require suppression of Davis’ second confession.
. Detective Sullivan testified at the suppression hearing that he was present when Davis spoke to his sister on the telephone.
. Neither the trial judge nor counsel followed the salutary practice of advising the witness of the privilege against self-incrimination.
. For the reasons that I have stated earlier, see supra at 1172, the manner and timing of the Miranda warnings that Davis finally received in this case give no assurance of their efficacy.