(dissenting). Bur-dette Woods was a juvenile — 16 years, 9 months of age— and inexperienced with criminal proceedings; he was suspected of murder; his arrest and detention on an unrelated theft charge were illegal or at least pretextual; no parents or other relatives were present during his questioning; law enforcement officers used misrepresentation, promises, threats, and gruesome photographs of the death scene in their questioning; Woods was in custody approximately three and one half hours before making a statement; Woods responded in the negative when asked if he wanted counsel, but he also said he could not afford counsel; Woods remained silent for about 50 minutes of questioning and allegedly waived his right to remain silent by giving a statement.
The issue in this case is whether Burdette Woods voluntarily waived his right to counsel and his right to remain silent or the state overcame his. mind and will by psychological domination and deprived him of the freedom to decide whether or not to assist the state in secur*740ing his conviction. In the absence of a valid waiver of rights, Woods’s statements to the police must be suppressed.
Woods’s constitutionally protected interest at issue in this case is his right to decide, free from unfair pressure, whether he wants to speak and whether he wants an attorney. Schoeffler v. State, 3 Wis. 717 [*823], 735 [*844] (1854). The fundamental value at stake is that the suspect not be deprived before trial by unfair methods of interrogation of rights guaranteed to him at trial, e.g., his privilege not to testify, his right not to be compelled to be a witness against himself, his right to counsel. Thus in determining the question of voluntariness, the court evaluates whether the police practices impose an intolerable degree of pressure upon the will of the suspect and are contrary to standards of governmental fair play.
This was a gruesome crime. The perpetrator should be punished. But the gravity of the crime does not obviate police responsibility to conduct an interrogation that conforms to constitutional standards. The law relating to police interrogation and the admissibility of confessions attempts to resolve the competing claims of crime detection and fairness to the suspect. Both victims of crime and victims of government excess must be protected by the courts. A suspect must be afforded the safeguards our jurisprudence has developed for the administration of criminal justice, safeguards which are at once protective of the individual and of society.
The standard of review is twofold: the appellate court first reviews the trial court’s findings of facts to determine if they are clearly erroneous. Then the appellate court, viewing the totality of the circumstances, makes its own determination of the constitutional issue of the validity of the waivers. It need not give weight to the conclusion of the trial court. A waiver is knowing, intel*741ligent, and voluntary when the suspect appreciates the consequences of the decision to waive.1 Courts must indulge every reasonable presumption against waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
I accept the trial court’s findings of the historical facts. I set forth these findings in the margin at note 2.2 They are not clearly erroneous. Indeed the historical facts are undisputed.
*742Viewing the circumstances of this in-custody interrogation in their totality and using the beyond the reasonable doubt standard the majority sets forth, I am not persuaded that the waivers were the products of Woods’s *743free and rational choice of whether to make a statement or otherwise cooperate. Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968).
The United States Supreme Court has said that “[i]f counsel was not present for some permissible reason when an admission was obtained [from a juvenile], the greatest care must be taken to assure that the admission was voluntary in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Gault, 387 U.S. 1, 55 (1967). See also Fare v. Michael C., 442 U.S. 707, 725 (1979) ; Haley v. Ohio, 332 U.S. 596, 599 (1948).
The law enforcement officers did not exercise the “greatest care” in this case. There was no scrupulous adherence to Woods’s rights. The record shows that the law enforcement officers deliberately used unacceptable “tricks of interrogation” in getting Woods to waive his *744right to remain silent. Miranda v. Arizona, 384 U.S. 436, 448-455 (1966). I therefore dissent.
The “totality of the circumstances” standard requires a court to weigh the tactics and pressures to which the suspect was subjected to induce the waiver against the suspect’s power to resist such pressures. That which would be overpowering to the young, the inexperienced, or the weak might not faze a mature, experienced criminal. Grennier v. State, 70 Wis. 2d 204, 210, 234 N.W.2d 316 (1975) ; State v. Wallace, 59 Wis. 2d 66, 81, 207 N.W.2d 855 (1973).
The majority misapplies the totality of the circumstances test by isolating and analyzing in a vacuum each aspect of the interrogations in this case, thus failing to consider together, i.e., in the totality, all aspects of the interrogation and the personal characteristics of the suspect. The majority recognizes that several facets of the case signal the possibility of coercion. The majority does not, however, look at them together. Although no one facet of this case standing alone necessarily invalidates a waiver in this case, all the facets viewed together —and that is what we mean by the totality of the circumstances — compel the conclusion that Woods’s waivers were not made knowingly, intelligently, and voluntarily.
The circumstances of these in-custody interrogations to be considered in their totality are the following:
1: Personal characteristics. Woods was 16 years, 9 months of age at the time of his arrest; he was halfway through the tenth grade; according to his mother, he had normal or above average intelligence; he could speak and write English; he came from a broken home and resided in Shawano county with his grandparents. The interrogating officers testified that although Woods was controlled during interrogation, he also “became quite emotional” and cried at one point. Woods had no previous experience with the criminal justice system.
*745The personal characteristics of the defendant are significant insofar as they render him vulnerable to the particular type of psychological pressure, inducement, or stratagem used in the interrogation. Woods’s age and his inexperience with the criminal justice system made him more vulnerable to the strategems police used in this case to induce the waivers and increase the probability that the waivers were not made knowingly, intelligently, and voluntarily.
2: Custody and interrogation. Woods was in custody approximately three and a half hours before making an oral or written statement. Law enforcement officers arrived at Woods’s home between 7:00 and 7:30 a.m. while he was sleeping. They arrested him for theft and took him to the police station, arriving at about 8:00 a.m. He was booked and made to change from street clothes into jail clothes. Woods apparently was not left alone at any time at the police station. He met with Gage, a juvenile intake worker, and then was questioned in an interrogation room, first by two local police officers and then by two state agents from the Department of Justice. Woods gave an oral statement just before 11:00 a.m. and a written statement sometime between 11:00 and 11:30 a.m.
Here the interrogations lasted a relatively short period, probably less than an hour, but in this time there were two interrogations, by two relays of officers, with two-on-one questioning in each relay. The use of two relays of two officers doing the questioning and the total length of custody indicate psychological domination when considered along with such factors as Woods’s age, isolation from family and friends, the nature of the crime, and interrogation involving misrepresentation and gruesome photographs.
3: No parent present. Neither Woods’s mother nor his grandparents were present at the time of interrogation.
*746Without a parent or guardian or attorney present, the juvenile is, of course, more susceptible to “inherently coercive pressures” which “undermine” the “will to resist” and “compel him to speak where he would not otherwise do so freely,” Miranda v. Arizona, 384 U.S. 436, 467 (1966). This court has said that although the presence of parent, guardian, or attorney is not an absolute requirement for a minor to waive his or her right to remain silent, the absence of adult advice does raise the possibility of coercion and should be considered in the totality of circumstances. Theriault v. State, 66 Wis. 2d 33, 41, 44, 223 N.W.2d 850 (1974). Commentators have urged that the absence of parental or other adult advice should weigh more heavily than other factors in the totality of the circumstances evaluation.3
U: Suspect not advised of the charge. Initially Woods shook his head “no” and orally said “no” when asked if he wanted an attorney. When Woods waived his right to counsel, he had not yet been told that he was suspected of murder and would be questioned about the murders.
Since a suspect may be willing to be without counsel in questioning on one charge but not on another, more serious one, ignorance of the exact subject of the interrogation is significant in the court’s evaluation of the *747total circumstances of whether the waiver of counsel was made knowingly, intelligently, and voluntarily. Carter v. Garrison, 656 F2d 68 (4th Cir 1981). See also United States v. McCrary, 643 F.2d 328 (5th Cir 1981); Schenk v. Ellsworth, 293 F. Supp. 26, 29 (D. Mont. 1968).
5: Suspect asserts inability to afford counsel. When asked later in the interrogation if he wanted an attorney, Woods responded that he could not afford an attorney. The interrogation nevertheless continued and a written statement was taken from Woods. The trial court correctly suppressed this written statement because Woods’s right to counsel had been violated.
In view of Woods’s youth and inexperience with the criminal justice system, I conclude, as I explained in point 4, that when he made the initial negative response to the question whether he wanted counsel, he may have thought that he was going to be questioned about theft of a chain saw, not murder. Thus his waiver cannot be said to have been made intelligently. I further conclude that Woods’s later response that he could not afford counsel indicates, under all the circumstances described herein, that his initial waiver of his right to counsel was without understanding that he was entitled to counsel at public expense.
6: Suspect asserts right to remain silent by being silent. Woods never expressly stated he was waiving his right to remain silent. Indeed he made no statement to the interrogating officers for approximately 50 minutes of the interrogation other than one isolated response to a leading question. Despite Woods’s silence and despite the Miranda warning which advises both the suspect and the law enforcement officers that the accused has a right to remain silent, the officers persisted in questioning him and encouraging him to talk. The majority concludes that Woods’s conduct of neither total silence nor total responsiveness did not constitute an as*748sertion of the right to remain silent but indicated that he was trying to make a decision about whether to speak or remain silent. The majority holds that Woods’s confession after at least 50 to 60 minutes of interrogation constituted his waiver of the right to remain silent.
Waiver of the rights protected by Miranda must be “clear and explicit.” Schilling v. State, 86 Wis. 2d 69, 85, 271 N.W.2d 631 (1978). I conclude that Woods’s conduct until his confession was an exercise of his right to remain silent. See United States v. Hayes, 385 F.2d 375 (4th Cir. 1967). The majority fails to consider Woods’s steadfast silence and this alleged waiver in light of the cumulative effect of all that occurred before the confession. Considered in light of Woods’s personal characteristics and the techniques used in questioning, Woods’s confession did not constitute a waiver of his right to remain silent; if it did, it was not the product of free will.
7: Pretended friendly gesture. One of the interrogators placed his hand on Woods’s shoulder in a friendly gesture.
An interrogator’s taking on a nonadversary role is recognized as a very effective technique to induce suspects to forget they are in an adversary situation. See White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581, 614-17 (1979).
In the totality of the circumstances, considering Woods’s age and the fact that he was from a broken home and isolated from family and friends, he was especially likely to succumb to this strategy and cooperate. The significance of the gesture in this case is clearly set forth in the record. An officer testified he used this gesture because he had been told that Woods would be more likely to talk to a “strong father figure.” Woods gave his statement shortly after this gesture.
*7498: Police misrepresentations that guilt is known. Woods was subjected to what the majority concedes were police misrepresentations that the police had evidence establishing his guilt.
The device of impressing the suspect with the interrogators’ certainty of guilt is a very effective interrogation technique designed to make the suspect “yield to the majority judgment.” White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581, 624-25 (1979). Both the state and the majority opinion recognize that such misrepresentations are unacceptable police conduct. See Blaszke v. State, 69 Wis. 2d 81, 88-89, 230 N.W.2d 133 (1975) ; State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974). Woods’s age and inexperience in the criminal justice system, along with the gruesome photographs, friendly gesture, promises and threats, and isolation from family, made Woods particularly vulnerable to this technique to induce a waiver of his right to remain silent.
9: Gruesome death scene photographs displayed. The police had many gruesome death scene photographs in an album on the table when they were questioning Woods. The trial court found as a matter of historical fact that the local law enforcement officers showed these photographs to the defendant. See trial court findings of fact at note 2.
This court has cautioned law enforcement officers against the use of gruesome photographs of the crime scene because such photographs unfairly impair the suspect’s capacity to make a rational choice. State v. Wallace, 59 Wis. 2d 66, 207 N.W.2d 855 (1973). I conclude that the photographs — in combination with such other factors as Woods’s youth, the absence of a family member, the friendly gesture, and the misrepresentations— impaired his ability to make a rational choice whether to remain silent or speak.
*75010: Promises and threats used. Woods was told something to the effect that things would “be better” or “easier for him” if he confessed or talked to the police. Woods was also told, “This is what is going to pin you down,” or “This is what’s going to hang you,” when he was shown fingerprints, supposedly his, taken at the scene of the murder.
The effect of these words which imply threat or promise must be judged in light of their being directed to a juvenile who is being questioned about murders and led to believe that the state has conclusive evidence of guilt. This type of pressure is likely to exert substantial influence upon the suspect’s will and cause the decision to waive rights to be the result of outside pressure rather than a consequence of rational decision. This court has warned against the use of such tactics and strategies. Blaszke v. State, 69 Wis. 2d 81, 88-89, 230 N.W.2d 133 (1975).
11: Arrest on theft charge pretextual. Regardless of whether there was probable cause to arrest for theft,4 Woods’s arrest for theft was a pretext. The majority and the state in effect concede that the authorities wanted Woods in custody to question him not about the theft but about the murders. The state’s brief acknowledges that at the time of arrest the authorities had focused on Woods as the prime suspect in the murders but had no probable cause to arrest Woods on that charge.
*751Whether or not the pretextual nature of the arrest for theft should invalidate the arrest or the statements, it does indicate the law enforcement officers’ eagerness to get custody of the defendant and their willingness to use devious methods in order to question Woods about the murders and solve the case. The record clearly shows that the interrogators were prepared to use deception to deprive Woods of the opportunity to make a rational choice whether to speak to the police.
12: Juvenile detention order of questionable validity. Woods asserts that the juvenile intake worker, contrary to his obligations under chapter 48, was involved in the law enforcement officers’ pretext to detain Woods on the theft charge but question him about the murders.
The juvenile intake worker testified that he was not so involved; the law enforcement officers testified that he was. The circuit court made no finding. The state urges this court to review the record and make a finding.5 The majority opinion is silent on this issue.
I believe that this court cannot make a finding because the record contains contradictory testimony as to whether the juvenile intake worker was in league with the police and their subterfuge.
For purposes of this review of the totality of circumstances, it is sufficient for me to note that, according to *752the record, the juvenile intake worker did not act as the legislature mandated in chapter 48. Chapter 48 provides that the person “taking a child into custody shall make every effort to immediately release the child,” sec. 48.20 (2), and that the juvenile intake worker must make a probable cause determination, sec. 48.205, Stats. 1981-82, as to release of the child. The juvenile intake worker here did not make any effort to release Woods immediately and did not make a probable cause determination of whether the child was within the jurisdiction of the court and, unless detained, would run away, as required by sec. 48.205, 1981-82. Furthermore, the intake worker is required to inform the child what allegations he is facing. Sec. 48.243(1) (a). The intake worker’s knowing failure to tell Woods that he was being detained for questioning about the murders contributed to Woods’s inability to make a knowing, intelligent waiver of his rights. Since it appears that the juvenile intake worker may have failed to comply with chapter 48, violation of the juvenile code is a factor to be considered in evaluating the strategem of the interrogators and the voluntariness of the waiver.
When the circumstances are examined in their totality, I am not satisfied that the interrogation of this particular 16-year-old, in this particular situation, meets the constitutional standards. I conclude that the waivers, if any, were not voluntary.6 I dissent.
The terms “voluntary,” “íree irom fear or coercion,” and “free and rational choice” embrace “a wide range or complex of values which modern confession law considers and seeks to maximize. Many recent pronouncements instruct us to construe ‘volun-tariness’ as a shorthand expression indicative of these values.” 3 Wigmore, Evidence sec. 826, p. 350-51 (Chadbourn rev. 1970). See Wold v. State, 57 Wis. 2d 344, 353-54, 204 N.W.2d 482 (1973); White, Police Trickery in Inducing Confessions 127 U.P.L. Rev. 581, 593-96 (1979); Comment, The Coerced Confession: Cases in Search of a Rationale, 31 U. Chi. L. Rev. 313 (1964); Developments, Confessions, 79 Harv. L. Rev. 938 (1966); secs. 140.4, 150.2 (6), and Commentary, Model Code of Pre-Arraignment Procedure (Proposed Official Draft, April 15, 1975).
The questions whether the waivers were voluntarily, knowingly and intelligently made and whether the statement was voluntary, although discrete inquiries, often shade into each other. Both questions involve similar concepts of knowledge, intelligence, and voluntariness and both are governed by the totality of the circumstances test.
The trial court issued a comprehensive memorandum decision in which it made the following finding of facts relating to the waiver and statements:
“The following facts are made to a standard of beyond a reasonable doubt, primarily as they address themselves to the issue of whether or not the defendant was given the appropriate Miranda Rights and whether or not they in fact were waived by the defendant. The court would find that the defendant at the time of the alleged commission of the crimes was aged 16; had finished one half of the 10th Grade of high school; was in normal classes; and that he was at least of normal or above normal intelligence as indicated by his mother. It’s further found that the defendant was arrested at approximately 7:30 a.m., and was in bed sleeping. *742From this the court would infer that the defendant was, therefore, not tired or exhausted at the time of the interrogation. It’s found that the defendant on the way to the Sheriff’s Department was given his rights as prescribed in the famous case of Miranda v. Arizona. He arrived at the station at approximately 8:00 a.m. and was seen by the Intake Worker, Mr. Gage. The Court further finds that the defendant was acquainted with Mr. Gage, and at that time Mr. Gage asked if he had been given his rights and if they had been read to him, as indicated on the bottom of the sheet the defendant indicated they had. He was asked whether he wished to have an attorney and he stated that he did not. Subsequent to his discussion with Mr. Gage, the Intake Worker, the defendant was then questioned by the two state investigators at approximately 10:00. Said questioning lasting for approximately 20 minutes before the defendant gave him an oral statement, followed by a written statement, which for reasons cited above has been suppressed. The court would find also that the state agents asked the defendant if he had previously been given his rights, and the defendant responded he had. The court further finds that both the grandparents and the tribal president knew where the defendant was at the time that he was in custody. It’s found further that the defendant was acquainted with Mr. Gage and that Mr. Gage asked him and reminded him about his rights. It is further found that the defendant appeared to be under no strain at the time; was not crying; and appeared subdued. It’s further found that the defendant made no requests for food, drink, attorneys, or any indications that he wished to remain silent, with the exception of the remark concerning the fact that he could not afford an attorney after the state agents gave him his rights after his oral statement but prior to his written statement. It’s further found that during questioning the defendant was not in restraints; never indicated that he wanted to talk to anyone; or wanted to talk to a lawyer. It’s further found that the defendant was given cigarettes immediately upon request, and in addition was allowed immediately to go to the bathroom upon his request.
“This court will find by evidence beyond a reasonable doubt, in addition to those things found above, that the defendant was shown *743certain pictures which have been admitted into evidence. There is no direct evidence as to what specific pictures were shown, but one must assume that they were pictures showing the deceased, as they were found in their home. The court further finds that the defendant was shown the deceased’s wallet and a fingerprint card with two circles drawn around prints, and was told something to the effect that this is what would get him. The court would further find beyond a reasonable doubt that there was no force used to compel the defendant to look at the pictures, and that there was no coercion, duress or violence used on him. It is further found that although the mother asked to see the defendant, the court finds that he had already given his oral confession before the mother was in the police station. It is further found that the pictures were shown to the defendant during the first interrogation by the county officers, and that the fingerprint card and wallet were shown to the defendant by the state officers. There is no direct evidence to indicate that the pictures were put away by the county officers, but there is strong inferences that this happened when one considers the testimonies found on pages 36, 92 and 156. There is no evidence whatsoever that the pictures were shown to the defendant by the state officers.”
Bailey, Note, Waiver of Miranda Rights by Juveniles: Is Parental Presence a Necessary Safeguard?, 21 J. Fam. L. 725 (1982-83). For a discussion of the need for presence of an adult see Grisso, Juveniles’ Capacity to Waive Miranda Bights: An Empirical Analysis, 68 Calif. L. Rev. 1134 (1980); Flicker, Providing Counsel for Accused Juveniles, 14 (Institute of Judicial Administration and Juvenile Justice Standards Implementation Project, A.B.A. Section on Criminal Justice) (1983).
According to the record, Woods’s mother did arrive at the police station at about 11 a.m. and asked to see Woods but police denied permission because he was being interrogated. After Woods made his statement, he was given an opportunity to see his mother, but he did not wish to do so.
Woods’s arrest for theft was invalid because it was not based on probable cause. The majority decides that probable cause existed to arrest Woods for theft and receiving stolen property because Woods possessed a chain saw that had been stolen 17 months earlier, he attempted to sell it for a low price, and his attempt to sell was unsolicited and made to someone who didn’t even know Woods’s correct surname. Probable cause cannot be found under such tenuous circumstances. Because there was no probable cause to arrest Woods, his statement should be suppressed as the fruit of an illegal arrest.
The state’s brief asserts that the reported decisions are divided on whether a Wisconsin appellate court can supply a factual finding not made by the trial court. The state cites the following cases as supporting the proposition that an appellate court can make the finding: State v. Fillyaw, 104 Wis. 2d 700, 711, 312 N.W.2d 795 (1981); Termination of Parental Rights to T.R.M., 100 Wis. 2d 681, 688, 303 N.W.2d 581 (1981); State v. Kramer, 99 Wis. 2d 306, 316, 298 N.W.2d 568 (1980); Walker v. Walker, 40 Wis. 2d 313, 319, 161 N.W.2d 898 (1968). The state cites the following cases as supporting the proposition that an appellate court cannot make the finding: Wurtz v. Fleischman, 97 Wis. 2d 100, 107, 108 n. 3, 293 N.W.2d 155 (1980), and State v. Drogsvold, 104 Wis. 2d 247, 257, 311 N.W.2d 243 (Ct. App. 1981).
I do not reach the issue of whether Woods had right to counsel under sec. 48.23(1) (a), Stats. 1981-82.