Dissenting Opinion
DeBruler, J.Officer Szymczak arrested appellant a few moments after appellant’s car crashed into the tree. He placed a handcuff on one of appellant’s wrists. Officer Szymczak immediately told him he was under arrest, he had a right to remain silent, he had a right to an attorney, and if he could not- afford one, one would be appointed for him. Appellant said nothing in response to this advisement. Officer Szymczak turned appellant over to Officer Miller to finish handcuffing *265and for transporting. As Miller took hold of him, appellant began crying. Miller then read him an advisement of rights,word for word, from a card which had been supplied him by the Academy. That card reads:
“Before we ask you any questions, you must understand your rights and also understand the rights as follows: You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning, if you wish. If you decide to answer questions without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”
After having heard this advisement, appellant, while still crying, and without verbal response, resisted having his other hand cuffed, and was flipped onto the ground and onto his stomach where the cuffing was completed. While so situated on the ground, Officer Miller started patting him down and searching his person; and then while still crying and while being so searched upon the ground, the appellant yelled out, “The gun is in the front seat and I just want to go to jail.”
This statement should have been suppressed on motion of appellant as the State failed to show beyond a reasonable doubt that it was voluntarily made. Nacoff v. State, (1971) 256 Ind. 97, 267 N.E.2d 165; Burton v. State, (1973) 260 Ind. .94, 292 N.E.2d 790. The circumstances under which it was made indicate that appellant made no free and voluntary choice to speak. The advisement received by appellant moments before the statement commences with the words “Before we ask you any questions. . . .” and later calls upon appellant to make an immediate decision as to whether he wants to give the police information. These phrases in this advisement inform the person to whom they are directed that the first step in a police process aimed at getting information is now taking place. The advisement was followed immediately by further forcible restraint and a search of appellant. While this physical force was reasonable and legitimate as a means of taking custody *266of appellant, its influence was nevertheless upon the appellant as he cried out. And as appellant shouted, Officer Miller was searching his person for something. While it is only necessary for this Court to conclude that the State failed in its burden to show the statement was made voluntarily to find error here, we could reasonably go so far here as to conclude that the only reasonable inference from the evidence was that appellant made this statement in order to give the police what he thought they were after, and in order to extricate himself from the conditions there at the scene.
After this episode at the scene, appellant was transported to the jail by Officer Miller. En route Officer Miller again read a Miranda advisement to him, and this time appellant responded that he had nothing to say. It is this exercise by him of the right to remain silent that casts the heavy burden upon the State to show beyond a reasonable doubt that before giving the two later station house statements, appellant voluntarily and intelligently relinquished his right to remain silent. Brown v. State, (1971) 256 Ind. 558, 270 N.E.2d 751; Magley v. State, (1976) 263 Ind. 618, 335 N.E.2d 811. After several hours at the police station appellant summoned an officer. He was then taken to an interrogation room, read an advisement of rights, but refused to sign a waiver. He then gave the first station house statement. In refusing to sign the waiver and in indicating a willingness to speak, appellant was taking contradictory positions. Under such circumstances the police should have made further inquiry to determine whether appellant’s decision to relinquish the right to remain silent was being made out of ignorance and confusion. Brown v. State, supra; State v. Jones, (1974) 37 Ohio St. 2d 21, 306 N.E.2d 409. Without such an inquiry, no conclusion could reasonably be reached that appellant had intelligently and voluntarily relinquished the right to remain silent. The trial court erred in refusing to suppress this first station house statement. And as for the second station house statement, it too was erroneously admitted over objection since appellant’s decision to sign a written waiver of the right t<? *267remain silent and right to counsel was the product of and was tainted by the precedent unlawful interrogation in which appellant made seriously incriminating statements. Westover v. U.S., (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Ashby; Corley v. State, (1976) 265 Ind. 316, 354 N.E.2d 192.
I vote to reverse this conviction and order a new trial.
Note. — Reported at 362 N.E.2d 144.