Massa, J.
Danielle Kelly here appeals the denial of her motion to suppress evidence found in a search of her vehicle and inculpatory statements she made to police. We reverse.
….
Here, two officers ordered Kelly out of her car at gunpoint and handcuffed her. They then proceeded to search her car and subject her to questioning. And when she asked if she could leave, Chief Kiphart told her to sit down “before [he] put [her] down.” Indeed, Chief Kiphart testified he considered Kelly to be “in custody” the moment he cuffed her. Tr. at 20–21. We believe these circumstances, taken together, constitute an arrest that must be supported by probable cause. Accord Reinhart v. State, 930 N.E.2d 42, 47 (Ind. Ct. App. 2010) (finding encounter constituted arrest when officer approached defendant with his gun drawn, ordered him to lie on the ground, and handcuffed him).
The existence of probable cause is a fact-sensitive determination, and the officer’s knowledge may be based on reliable information he receives from an informant. DiTommaso v. State, 566 N.E.2d 538, 540 (Ind. 1991). The reliability of such information depends upon many factors, including whether (1) the informant has provided accurate information before, (2) the criminal allegations are corroborated by independent facts, (3) there is a demonstrated basis for the informant’s knowledge, (4) the informant correctly predicts the suspect’s otherwise unpredictable conduct or activity, and (5) the informant has made a declaration against her own penal interest. State v. Spillers, 847 N.E.2d 949, 954 (Ind. 2006); see also Jaggers v. State, 687 N.E.2d 180, 182 (Ind. 1997) (finding no probable cause when the “critical claim” of criminal activity “was entirely uncorroborated”); Houser v. State, 678 N.E.2d 95, 100 (Ind. 1997) (adding the fifth factor, declaration against penal interest).
At the suppression hearing, Sergeant Fuller testified he had never used Goodwin as an informant before and had no way to assess her trustworthiness. Prior to the arrest, the officers corroborated that Day had arrived as Goodwin said he would, but they did not corroborate the “critical claim” that he had cocaine and intended to sell it. Indeed, the officers had no other evidence—aside from Goodwin’s statements—to believe Day was doing anything illegal. And Goodwin said nothing about Kelly at all. Finally, the State argues Goodwin’s statements were credible because she could have been prosecuted for making a false report if she had lied, or for attempted cocaine possession if the police believed she was actually buying drugs from Day rather than setting a trap for him. But as we have said before, susceptibility to prosecution for false reporting—or, similarly, for participation in the criminal enterprise—is a relevant factor in our analysis but is not enough on its own to infuse Goodwin’s statements with reliability sufficient to support a finding of probable cause. See Kellems v. State, 842 N.E.2d 352, 355 (Ind. 2006), modified on reh’g 849 N.E.2d 1110 (Ind. 2006).
All of these circumstances, in the aggregate, likely would have been enough to establish reasonable suspicion for a Terry stop, but that question is not before us today. What we can say is, on these facts, the officers did not have probable cause to arrest Kelly or to search her vehicle. [Footnote omitted.] And as we have found her federal constitutional claim dispositive of this issue, we do not address her separate claim that the search and seizure violated rights guaranteed to her by article 1, § 11 of our Indiana Constitution.
….
We have considered this case in light of those five factors and find it closer to Seibert than to Elstad. Kelly’s pre-warning statement regarding the cocaine (“I did know about it”) was more specific than her post-warning statement (Chief Kiphart stated “You knew he had the cocaine,” and Kelly simply responded “Yeah.”). Both statements concern the same subject: whether Kelly knew Day had cocaine. They were made in the same location, mere minutes apart, in response to the same officer. Most significantly, however, Chief Kiphart and another officer referred to Kelly’s pre-warning admission three times during the post-warning interrogation. First, immediately after Chief Kiphart read Kelly the Miranda warning, Kelly denied dealing cocaine, and Chief Kiphart reminded her she knew Day had cocaine: “You said. You told me.” Then, when Kelly denied knowing why Day needed a ride, Chief Kiphart replied: “Oh. That’s not what you told me, like, thirty seconds ago.” Finally, another officer chimed in:“You just told us you did.” Such references, we believe, inevitably diluted the potency of the Miranda warning such that it was powerless to cure the initial failure to warn, even if that failure was a product of good-faith mistake. These circumstances lead us to conclude, as the Seibert Court did, “that a reasonable person in the suspect’s shoes would not have understood [the Miranda warning] to convey a message that she retained a choice about continuing to talk.” Id. at 617.
Our conclusion today is consistent with several previous decisions from our Court of Appeals. See, e.g., Morris v. State, 871 N.E.2d 1011, 1019 (Ind. Ct. App. 2007), trans. denied; Payne v. State, 854 N.E.2d 7, 16 (Ind. Ct. App. 2006); King v. State, 844 N.E.2d 92, 99 (Ind. Ct. App. 2005); Drummond v. State, 831 N.E.2d 781, 784 (Ind. Ct. App. 2005) (all applying Seibert to preclude the admission of confessions obtained through “question first, warn later” interrogation). Although we have no knowledge of, and thus can express no opinion regarding, Chief Kiphart’s motives, we believe our jurisprudence, as well as that of our colleagues, makes it clear that Miranda requires a “warn-first practice.” Seibert, 542 U.S. at 615. This does not mean that officers must offer a Miranda warning prior to initiating any conversation with a suspect, nor does it mean that a pre-warning confession necessarily renders a post-warning confession involuntary. Officers may still, under Elstad, cure a good-faith mistake by administering a proper warning before proceeding with further questioning. All we hold today is that such a cure was impossible when it was followed by explicit references to a pre-warning incriminating statement. Finally, as we have found Kelly’s post-warning statements inadmissible under the federal Fifth Amendment, we need not address Kelly’s claim that they are also inadmissible under article 1, § 14 of our own Indiana Constitution.
Conclusion
We therefore reverse the trial court’s denial of Kelly’s motion to suppress and remand for further proceedings consistent with our opinion today.
Dickson, C.J., Rucker, David, and Rush, JJ., concur.