People v. Austin
Annotate this Case
SIXTH DIVISION
November 26, 1997
No. 1-96-2864
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
DONELL AUSTIN, ) The Honorable
) Daniel M. Locallo,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Following a bench trial, defendant was convicted of first
degree murder, armed robbery, and conspiracy to commit first degree
murder. Defendant now challenges those convictions, raising three
issues: (1) whether the trial court erred in refusing to suppress
his confession by reason of its attenuation subsequent to
defendant's unlawful arrest; (2) whether the evidence supports the
convictions; and (3) whether the trial court erred in imposing
consecutive sentences.
For the reasons that follow, we hold that the trial court
erred in refusing to suppress defendant's confession. We reverse
the conviction and remand for a new trial.
On November 16, 1992, Rufus Simpson was found murdered. He
had been shot in the back of the head twice. Simpson's vehicle and
some other property were missing from his home. More than two
months later, on January 23, 1993, police recovered the remains of
the burned-out vehicle near the residence of Bobby Walley.
Detective Michael Flemming reviewed telephone records, which
indicated that phone calls had been made between Eric Watkins'
residence (stepson of the victim), the victim's residence, and
Bobby Walley's residence. On January 27, 1993, Fleming and another
officer observed defendant, Jamal Dorrough, Kevin Taylor, and Bobby
Walley leave Walley's residence. At approximately 2:30 p.m., the
officers brought the four men to the police station and placed them
in separate interview rooms.
At 3:30 p.m., Fleming spoke with Taylor. Taylor denied any
knowledge of the homicide. At 3:45 p.m., Fleming spoke with
Dorrough after advising him of his Miranda rights. Dorrough made
no admissions. At 4 p.m., Fleming spoke with Walley after
administering the Miranda admonition. This conversation lasted
approximately 15 minutes, during which time Walley made no
admissions. At 4:15 p.m., Fleming spoke with defendant after
reading defendant his rights against self-incrimination. That
conversation also lasted approximately 15 minutes; defendant made
no admissions.
At 4:30 p.m., Fleming had a second conversation with Taylor,
who admitted knowledge of the homicide, stating that he had a
conversation with Dorrough a week after the homicide in which
Dorrough stated that the victim was dead and that "they" had done
it, meaning defendant, Dorrough, Walley, and Eric Watkins. Taylor
also stated that he had a conversation with Watkins wherein Watkins
told him that they had done the killing. Taylor acknowledged that
he was at Walley's residence prior to the murder and heard a
conversation in which Watkins stated that he wanted his stepfather
killed.
At 5 p.m. Fleming had a second conversation with Dorrough and
confronted him with Taylor's statements. Dorrough stated that he
was part of the conversation in which Watkins indicated that he
wanted to have his stepfather killed and further admitted being
present when Simpson was killed. He identified defendant as the
shooter and described how it was accomplished. He admitted taking
property from the residence.
At 5:30 p.m. Fleming spoke with Walley again, confronting him
with the statements from Taylor and Dorrough. Walley then
confessed his involvement with the homicide.
At 6 p.m. Fleming spoke with defendant again. He told
defendant of the other conversations. Defendant did not make a
statement regarding his involvement.
Between 6:30 p.m. and 7:30 p.m., Fleming had further
communication with Dorrough and Walley, learning additional facts.
At 7:30 p.m. Fleming had a third conversation with defendant,
confronting him with the additional facts. Defendant at first
conceded that he was at the victim's house at the time of the
shooting and admitted taking property. He then admitted he did the
shooting.
Defendant, Jamal Dorrough, Bobby Walley, and Eric Watkins were
all charged with the murder. No charges were brought against
Taylor. Defendant and Walley moved to quash their arrests and
suppress their confessions. Those motions were heard on September
7, 1994, and September 26, 1994, with the motions to quash
sustained and their confessions suppressed. Thereafter, the State
requested an attenuation hearing and the matter was heard on
October 20, 1994.
On April 19, 1995, Dorrough filed a motion to quash and
suppress evidence. On August 8, 1995, Dorrough's motion to quash
was sustained. Again, the State requested an attenuation hearing.
The parties stipulated to the testimony given on September 7 and
26, and October 20, 1994, for the purposes of determining whether
Dorrough's statement was attenuated.
On September 7, 1995, the trial court found defendant's,
Dorrough's, and Walley's confessions attenuated from their illegal
arrests. The court found that the statements obtained from Taylor
sufficiently attenuated Dorrough's confession. The court next
found Walley's confrontation with the statements of Taylor and
Dorrough provided an intervening circumstance so as to purge the
taint of his illegal arrest. Similarly, the court found
defendant's confrontation with the statements of Taylor, Dorrough,
and Walley also provided an intervening circumstance sufficient to
purge the taint of his illegal arrest.
After a bench trial, the court found defendant guilty of first
degree murder, conspiracy to commit first degree murder, and armed
robbery. He was sentenced to consecutive commitment terms of 55
years for murder and 25 years for armed robbery.
On appeal, defendant argues that the trial court erred in
finding that his confession was attenuated and in refusing to
suppress his confession. This court will not disturb a trial
court's decision on a motion to quash and suppress unless that
decision is determined to be clearly erroneous. People v. Foskey,
136 Ill. 2d 66, 76 (1990). When neither the facts nor the
credibility of witnesses is questioned, and the issue is a question
of law, this court reviews de novo. Foskey, 136 Ill. 3d at 76.
The State argues that the trial court erred in concluding that
defendant was illegally arrested. Defendant contends the State is
precluded from raising this issue at this time because it failed to
properly appeal this issue. Even if this issue is properly before
this court, we could not reverse the trial court's finding. We see
no error in the trial court's determination that the officers
lacked probable cause to arrest defendant when they picked him up
on the street. See People v. Williams, 164 Ill. 2d 1, 11-12 (1994)
(setting forth probable cause analysis).
The determination that defendant was subjected to an illegal
arrest does not resolve the question of whether his confession
should have been admitted. People v. Foskey, 136 Ill. 2d 66, 85
(1990). A confession obtained after an illegal arrest may be
admissible, if the court determines that it was obtained by means
sufficiently distinguishable to be purged of the taint of the
illegal arrest. People v. White, 117 Ill. 2d 194, 222 (1987). The
court should consider several factors: (1) the proximity in time
between the arrest and the confession; (2) the presence of
intervening circumstances; (3) the purpose and flagrancy of the
police misconduct; and (4) whether Miranda warnings were given.
Foskey, 136 Ill. 2d at 85-86, citing Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 416, 427, 95 S. Ct. 2254, 2261-62 (1975).
The prosecution bears the burden of demonstrating sufficient
attenuation. Foskey, 136 Ill. 2d at 86 (finding sufficient
attenuation); White, 117 Ill. 2d at 222 (finding insufficient
attenuation).
There is no dispute that appellant was given appropriate
Miranda warnings. Miranda warnings alone, however, cannot always
make the act sufficiently a product of free will to break the
causal connection between the illegality of an arrest and a
confession. People v. Graham, 214 Ill. App. 3d 798, 813 (1991).
There is no dispute that approximately five hours elapsed
between the time of appellant's illegal arrest and the time of his
inculpatory statement. The mere passage of time alone, however, is
not sufficient to purge the taint of an illegal arrest. Graham,
214 Ill. App. 3d at 813.
Although the police conduct here was technically improper, the
officers had some evidence suggesting a nexus between the Walley
residence and the murder, and nothing would suggest that their
conduct was flagrant. However, nothing in this record suggests a
reason to validate an otherwise illegal arrest.
The key issue is to examine what, if any, intervening events
occurred between the illegal arrest and the statement. Graham, 214
Ill. App. 3d at 813; People v. Turner, 259 Ill. App. 3d 979, 992
(1994). The trial court found that the statements of Taylor,
Dorrough, and Walley implicating defendant in the murder provided
a sufficient intervening event so as to attenuate defendant's
illegal arrest from his statement. We disagree.
"An intervening circumstance is one that dissipates the taint
of unconstitutional police conduct by breaking the causal
connection between the illegal conduct and the confession."
Turner, 259 Ill. App. 3d at 993. "The confrontation of an arrestee
with new information, untainted by the illegal arrest, has been
identified as an intervening circumstance that may produce a
voluntary desire to confess and thereby support admission of
in-custody statements." People v. Lekas, 155 Ill. App. 3d 391, 414
(1987) (recognizing intervening circumstance where defendant is
confronted with new information secured apart from illegal arrest);
see, e.g., People v. Gabbard, 78 Ill. 2d 88, 99 (1979) (finding
intervening event where defendant confronted with sketch of robbery
suspect prepared prior to his arrest and acknowledged sketch
resembled him); People v. Bracy, 152 Ill. App. 3d 566, 572 (1986)
(intervening events found where defendant saw his girlfriend at
police station and was told she was cooperating, saw his clothes
that had been retrieved from her home, and saw proceeds of robbery
at police station); In re R.S., 93 Ill. App. 3d 941, 946-47 (1981)
(finding intervening event where defendant confronted with evidence
gathered independent of defendant's illegal arrest); but see Taylor
v. Alabama, 457 U.S. 687, 691-92, 73 L. Ed. 2d 314, 320-21, 102 S. Ct. 2664, 2667-68 (1982) (finding no intervening circumstances
merely because defendant was given Miranda warnings three times,
visited with his girlfriend and male companion before he confessed,
and arrest warrant was filed while he was being interrogated).
Defendant contends his confession was not purged of the taint
of the illegal arrest because it resulted from tainted evidence.
The trial court found that the use of Taylor's statement provided
a sufficient intervening event. While the court held that
defendant, Dorrough, and Walley had been illegally arrested, there
was no finding that Taylor had been illegally arrested since Taylor
was not charged. Despite the fact that the record suggested that
Taylor was taken to the police station in the same manner as the
other men, the trial court refused to find that Taylor had been
illegally arrested. The court ruled that defendant lacked standing
to contest a violation of Taylor's constitutional rights. See
People v. James, 118 Ill. 2d 214, 226 (1987) (recognizing
"fundamental principal that a claim to suppress the product of a
fourth amendment violation can be asserted 'only by those whose
rights were violated by the search or seizure itself'").
Defendant argues that the traditional rule for standing does
not apply in this case and the statements obtained from the other
men may not be used to attenuate his illegal arrest. In People v.
Beamon, 255 Ill. App. 3d 63, 70 (1993), the court held that "the
State's use of evidence obtained as a result of the illegal arrest
of [a codefendant] may not serve to attenuate the taint of [another
codefendant's] illegal arrest." In Beamon, the court found that
the standing rule from James did not apply because James had not
himself been illegally arrested and the issue in James was probable
cause, not attenuation. Beamon, 255 Ill. App. 3d at 70.
In Beamon, 255 Ill. App. 3d at 66, the police illegally
arrested the codefendant, Moore, at his home a day after a murder
occurred. Moore told the police that he had been with Beamon at
the time of the murder. When the police illegally arrested Beamon,
he told them that on the day of the murder he had remained home ill
and he had not seen Moore. After confronting Moore and Beamon with
each other's statements, both defendants confessed. The court held
that Moore's statement could not "be relied upon as an intervening
circumstance [for Beamon's confession] because Moore's conflicting
statement was the result of Moore's illegal arrest." 255 Ill. App.
3d at 69-70 (relying on People v. Avery, 180 Ill. App. 3d 146
(1989)).
In People v. Avery, 180 Ill. App. 3d 146 (1989), Avery, Lewis
and Stofer were charged with murder after all three had been
illegally arrested. Stofer was picked up first and told police
that he had been at a party with Avery and Lewis the night before
and the three had driven around afterwards in a car with another
man. Lewis was then picked up and told police that he and Stofer
had been at a party and had driven around until 1:30 a.m. An
officer confronted Lewis with Stofer's version. Lewis agreed that
Avery and another man were with them. The officers then picked up
Avery, who told them that Stofer had driven him home at 11:30 p.m.
the night before and he retired to bed, after which the officers
confronted Avery with Lewis's and Stofer's versions. The officers
continued to speak to each of the men several times, eventually
securing incriminating statements from each of them. Avery, 180
Ill. App. 3d at 150-51.
The appellate court reversed the trial court's finding of
attenuation and suppressed Avery's statement. The court rejected
the State's argument that an intervening circumstance had occurred
when each defendant was confronted with his companion's statements.
Avery, 180 Ill. App. 3d at 156. "Confronting defendants with
statements from each other[,] * * * all of whom were illegally
arrested, did not constitute an intervening event which purged the
taint of the illegal arrests." Avery, 180 Ill. App. 3d at 156.
Under this analysis, the statements of Taylor, Dorrough, and Walley
did not provide an intervening circumstance so as to purge the
taint of defendant's arrest.
The State urges this court to follow two prior decisions in
which the courts looked to the acquisition of probable cause to be
an intervening factor. In People v. Lekas, 155 Ill. App. 3d 391,
414 (1987), the court suggested that the development of probable
cause to arrest a defendant who had been illegally arrested could
provide a basis for purging the taint of a confession obtained
after that point. The court stated "one could question the wisdom
of requiring police to go through the formality of releasing [the
defendant] only to rearrest him outside the jailhouse door."
Lekas, 155 Ill. App. 3d at 414. In People v. Pierson, 166 Ill.
App. 3d 558, 564 (1988), the court relied on such reasoning,
calling the intervening acquisition of probable cause an "important
factor" in attenuation analysis. The court held that a statement
obtained from an individual who was arrested by police without
probable cause could provide probable cause to attenuate a
statement obtained from another individual who was arrested by
police under the same circumstances and subsequently charged with
a crime. Pierson, 166 Ill. App. 3d at 564. We note, however, that
Beamon, 255 Ill. App. 3d 63, was decided after these cases and its
reasoning followed in People v. Bates, 267 Ill. App. 3d 503 (1994).
In Bates, 267 Ill. App. 3d at 506-07, the defendant confessed
after being confronted with legally obtained evidence and with
tainted evidence, including a statement from a codefendant that was
later found to have been coerced. The court suppressed Bates'
statement because it determined that the State failed to prove that
the tainted evidence was not a factor in Bates' decision to
confess. The court reasoned that the use of the evidence obtained
from coercing the codefendant could not serve to attenuate the
taint of Bates' illegal arrest. Bates, 267 Ill. App. 3d at 507,
citing Beamon, 255 Ill. App. 3d 63. "Statements made by [the
codefendant] about defendant's involvement in the crime and
evidence recovered as a result of these statements are tainted."
Bates, 267 Ill. App. 3d at 506.
We note defendant's concern that to allow the State to use
illegally obtained evidence to purge the taint of an illegal arrest
as done in this case would provide the prosecution with an
incentive to conduct illegal arrests and then validly use the
fruits of such improper arrests by merely deciding not to charge
one individual in the group.
Based on the analysis of Beamon and Bates, we hold that the
trial court erred in finding attenuation. Defendant's confession
should have been suppressed as a fruit of the illegal arrest.
We remand this case for a new trial. For the purposes of
determining whether the double jeopardy clause bars retrial of a
defendant where his conviction has been reversed for evidentiary
error, all evidence submitted at the original trial may be
considered in determining the sufficiency of the evidence, and
retrial is permitted even though the evidence is insufficient to
sustain a verdict once erroneously admitted evidence has been
discounted. People v. Olivera, 164 Ill. 2d 382, 393 (1995). Upon
review of the record, including defendant's confession, we hold
that there was sufficient evidence for the trier of fact to
conclude that defendant was guilty beyond a reasonable doubt.
For the foregoing reasons, we reverse defendant's convictions
and remand for a new trial in which defendant's confession shall be
suppressed. In light of this outcome, we need not address the
sentencing issue.
Reversed and remanded.
THEIS, J., concurs.
QUINN, J., specially concurs.
JUSTICE QUINN, specially concurring:
I concur in the holding of the case but write to express a
concern with the holding in a case this opinion heavily relies
upon. As noted, in People v. Beamon, 255 Ill. App. 3d 63 (1993)
the court held that, "the State's use of evidence obtained as a
result of the illegal arrest of [a co-defendant] may not serve to
attenuate the taint of [another co-defendant's] illegal arrest."
The court in Beamon further held, "[w]e recognize that in People v.
James (1987), 118 Ill. 2d 214, 514, N.E.2d 998, the supreme court
held that a defendant lacked standing to claim that his confession
is the product of the illegal arrest of another; but the defendant
in James had himself not been illegally arrested. The issue in
James was probable cause, not attenuation." People v. Beamon, 255
Ill. App. 3d at 70.
It is difficult to understand why probable cause to arrest a
defendant may be based on the statement of an illegally arrested
co-defendant (as in James) but that this same statement cannot be
used as attenuation.
In the instant case, the police did not confront defendant
with any further witnesses or evidence obtained as a result of
defendant's illegal arrest. This fact pattern is similar to that
in People v. Lekas, 155 Ill. App. 3d 391 (1987). In Lekas, three
brothers (George, Phillip and Christopher) were arrested and
charged with armed robbery and murder. George was arrested first
and he told police that his brothers had owed the murder victim's
son money and that at sometime in the past they had talked about
stealing a coin collection from the victim's home. A coin
collection had been taken from the victim's home at the time the
murder was committed. Six hours after receiving this information
from George, the police arrested Phillip and Christopher in their
homes without obtaining arrest warrants for them. After Phillip
and Christopher were arrested, the police located a witness who had
been identified by George. Christopher confessed after his arrest.
Phillip confessed after being in custody for 12 hours and after
being confronted with George's statement, Christopher's statement,
and the existence of the witness.
The trial court suppressed George's statements as being the
product of improper police promises. The trial court held there
was probable cause for the arrest of Phillip and Christopher.
On appeal, the appellate court held that even if Phillip's
arrest should have been quashed, his confession was attenuated due
to the intervening cause of attainment of probable cause. The
appellate court held that since George's statement, Christopher's
statement, and the existence of the witness were not the fruits of
Phillip's arrest, Phillip's subsequent confession was not tainted.
People v. Lekas, 155 Ill. App. 3d at 414.
Under Lekas, I believe that the defendant's confession would
be attenuated. I also believe that the holding in Beamon conflicts
with the holding in James.
The court in Beamon did not cite Lekas or distinguish it.
Likewise, the Beamon opinion did not cite or distinguish People v.
Pierson, 166 Ill. App. 3d 558 (1988). The status of Kevin Taylor
in the instant case is very similar to that of Alfie Jones in the
Pierson case. Jones was picked up by the police without probable
cause and gave a statement implicating Pierson but not implicating
himself. The appellate court in Pierson held that under these
circumstances, the statements of James provided probable cause as
to the unlawfully arrested defendant. This probable cause is an
intervening circumstance which was a significant factor to be
considered when determining whether there is attenuation. People
v. Pierson, 166 Ill. App. 3d at 564.
The defense urges this court to overrule Pierson, asserting
that its holding provides the prosecution with an incentive to
conduct illegal arrests and then validly use the fruits of such
improper arrests by merely deciding not to charge one individual in
the group. This is not a valid concern based on the facts of the
instant case. There is no evidence that Kevin Taylor was involved
in any way with the murder of Rufus Simpson. Therefore there was
no evidence that the State chose not to charge Taylor so they could
use his statements to supply the probable cause to arrest Dorrough,
Walley and defendant.
Indeed, had defendant confessed after being confronted only
with Taylor's statements, I believe defendant's confession would
have been attenuated. However, defendant was also confronted with
Dorrough and Walley's confessions prior to confessing himself.
Under Beamon, Dorrough and Walley's confessions were tainted. When
a defendant is confronted with legally obtained evidence (such as
Taylor's statements) and with tainted evidence (such as Dorrough
and Walley's confessions), it is the State's burden to prove that
the tainted evidence was not a factor in his decision to confess.
People v. Bates, 267 Ill. App. 3d 503, 507 (1994), citing People v.
Turner, 259 Ill. App. 3d 979 (1994). The State has not met this
burden in this case.
I believe that I am compelled to follow the holding in Beamon
and therefore I concur in the result of this case.
However, I believe that the holding in Beamon conflicts with the
holdings in Lekas and James and these conflicts should be resolved.
November 26, 1997
No. 1-96-2864
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
DONELL AUSTIN, ) The Honorable
) Daniel M. Locallo,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Following a bench trial, defendant was convicted of first
degree murder, armed robbery, and conspiracy to commit first degree
murder. Defendant now challenges those convictions, raising three
issues: (1) whether the trial court erred in refusing to suppress
his confession by reason of its attenuation subsequent to
defendant's unlawful arrest; (2) whether the evidence supports the
convictions; and (3) whether the trial court erred in imposing
consecutive sentences.
For the reasons that follow, we hold that the trial court
erred in refusing to suppress defendant's confession. We reverse
the conviction and remand for a new trial.
On November 16, 1992, Rufus Simpson was found murdered. He
had been shot in the back of the head twice. Simpson's vehicle and
some other property were missing from his home. More than two
months later, on January 23, 1993, police recovered the remains of
the burned-out vehicle near the residence of Bobby Walley.
Detective Michael Flemming reviewed telephone records, which
indicated that phone calls had been made between Eric Watkins'
residence (stepson of the victim), the victim's residence, and
Bobby Walley's residence. On January 27, 1993, Fleming and another
officer observed defendant, Jamal Dorrough, Kevin Taylor, and Bobby
Walley leave Walley's residence. At approximately 2:30 p.m., the
officers brought the four men to the police station and placed them
in separate interview rooms.
At 3:30 p.m., Fleming spoke with Taylor. Taylor denied any
knowledge of the homicide. At 3:45 p.m., Fleming spoke with
Dorrough after advising him of his Miranda rights. Dorrough made
no admissions. At 4 p.m., Fleming spoke with Walley after
administering the Miranda admonition. This conversation lasted
approximately 15 minutes, during which time Walley made no
admissions. At 4:15 p.m., Fleming spoke with defendant after
reading defendant his rights against self-incrimination. That
conversation also lasted approximately 15 minutes; defendant made
no admissions.
At 4:30 p.m., Fleming had a second conversation with Taylor,
who admitted knowledge of the homicide, stating that he had a
conversation with Dorrough a week after the homicide in which
Dorrough stated that the victim was dead and that "they" had done
it, meaning defendant, Dorrough, Walley, and Eric Watkins. Taylor
also stated that he had a conversation with Watkins wherein Watkins
told him that they had done the killing. Taylor acknowledged that
he was at Walley's residence prior to the murder and heard a
conversation in which Watkins stated that he wanted his stepfather
killed.
At 5 p.m. Fleming had a second conversation with Dorrough and
confronted him with Taylor's statements. Dorrough stated that he
was part of the conversation in which Watkins indicated that he
wanted to have his stepfather killed and further admitted being
present when Simpson was killed. He identified defendant as the
shooter and described how it was accomplished. He admitted taking
property from the residence.
At 5:30 p.m. Fleming spoke with Walley again, confronting him
with the statements from Taylor and Dorrough. Walley then
confessed his involvement with the homicide.
At 6 p.m. Fleming spoke with defendant again. He told
defendant of the other conversations. Defendant did not make a
statement regarding his involvement.
Between 6:30 p.m. and 7:30 p.m., Fleming had further
communication with Dorrough and Walley, learning additional facts.
At 7:30 p.m. Fleming had a third conversation with defendant,
confronting him with the additional facts. Defendant at first
conceded that he was at the victim's house at the time of the
shooting and admitted taking property. He then admitted he did the
shooting.
Defendant, Jamal Dorrough, Bobby Walley, and Eric Watkins were
all charged with the murder. No charges were brought against
Taylor. Defendant and Walley moved to quash their arrests and
suppress their confessions. Those motions were heard on September
7, 1994, and September 26, 1994, with the motions to quash
sustained and their confessions suppressed. Thereafter, the State
requested an attenuation hearing and the matter was heard on
October 20, 1994.
On April 19, 1995, Dorrough filed a motion to quash and
suppress evidence. On August 8, 1995, Dorrough's motion to quash
was sustained. Again, the State requested an attenuation hearing.
The parties stipulated to the testimony given on September 7 and
26, and October 20, 1994, for the purposes of determining whether
Dorrough's statement was attenuated.
On September 7, 1995, the trial court found defendant's,
Dorrough's, and Walley's confessions attenuated from their illegal
arrests. The court found that the statements obtained from Taylor
sufficiently attenuated Dorrough's confession. The court next
found Walley's confrontation with the statements of Taylor and
Dorrough provided an intervening circumstance so as to purge the
taint of his illegal arrest. Similarly, the court found
defendant's confrontation with the statements of Taylor, Dorrough,
and Walley also provided an intervening circumstance sufficient to
purge the taint of his illegal arrest.
After a bench trial, the court found defendant guilty of first
degree murder, conspiracy to commit first degree murder, and armed
robbery. He was sentenced to consecutive commitment terms of 55
years for murder and 25 years for armed robbery.
On appeal, defendant argues that the trial court erred in
finding that his confession was attenuated and in refusing to
suppress his confession. This court will not disturb a trial
court's decision on a motion to quash and suppress unless that
decision is determined to be clearly erroneous. People v. Foskey,
136 Ill. 2d 66, 76 (1990). When neither the facts nor the
credibility of witnesses is questioned, and the issue is a question
of law, this court reviews de novo. Foskey, 136 Ill. 3d at 76.
The State argues that the trial court erred in concluding that
defendant was illegally arrested. Defendant contends the State is
precluded from raising this issue at this time because it failed to
properly appeal this issue. Even if this issue is properly before
this court, we could not reverse the trial court's finding. We see
no error in the trial court's determination that the officers
lacked probable cause to arrest defendant when they picked him up
on the street. See People v. Williams, 164 Ill. 2d 1, 11-12 (1994)
(setting forth probable cause analysis).
The determination that defendant was subjected to an illegal
arrest does not resolve the question of whether his confession
should have been admitted. People v. Foskey, 136 Ill. 2d 66, 85
(1990). A confession obtained after an illegal arrest may be
admissible, if the court determines that it was obtained by means
sufficiently distinguishable to be purged of the taint of the
illegal arrest. People v. White, 117 Ill. 2d 194, 222 (1987). The
court should consider several factors: (1) the proximity in time
between the arrest and the confession; (2) the presence of
intervening circumstances; (3) the purpose and flagrancy of the
police misconduct; and (4) whether Miranda warnings were given.
Foskey, 136 Ill. 2d at 85-86, citing Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 416, 427, 95 S. Ct. 2254, 2261-62 (1975).
The prosecution bears the burden of demonstrating sufficient
attenuation. Foskey, 136 Ill. 2d at 86 (finding sufficient
attenuation); White, 117 Ill. 2d at 222 (finding insufficient
attenuation).
There is no dispute that appellant was given appropriate
Miranda warnings. Miranda warnings alone, however, cannot always
make the act sufficiently a product of free will to break the
causal connection between the illegality of an arrest and a
confession. People v. Graham, 214 Ill. App. 3d 798, 813 (1991).
There is no dispute that approximately five hours elapsed
between the time of appellant's illegal arrest and the time of his
inculpatory statement. The mere passage of time alone, however, is
not sufficient to purge the taint of an illegal arrest. Graham,
214 Ill. App. 3d at 813.
Although the police conduct here was technically improper, the
officers had some evidence suggesting a nexus between the Walley
residence and the murder, and nothing would suggest that their
conduct was flagrant. However, nothing in this record suggests a
reason to validate an otherwise illegal arrest.
The key issue is to examine what, if any, intervening events
occurred between the illegal arrest and the statement. Graham, 214
Ill. App. 3d at 813; People v. Turner, 259 Ill. App. 3d 979, 992
(1994). The trial court found that the statements of Taylor,
Dorrough, and Walley implicating defendant in the murder provided
a sufficient intervening event so as to attenuate defendant's
illegal arrest from his statement. We disagree.
"An intervening circumstance is one that dissipates the taint
of unconstitutional police conduct by breaking the causal
connection between the illegal conduct and the confession."
Turner, 259 Ill. App. 3d at 993. "The confrontation of an arrestee
with new information, untainted by the illegal arrest, has been
identified as an intervening circumstance that may produce a
voluntary desire to confess and thereby support admission of
in-custody statements." People v. Lekas, 155 Ill. App. 3d 391, 414
(1987) (recognizing intervening circumstance where defendant is
confronted with new information secured apart from illegal arrest);
see, e.g., People v. Gabbard, 78 Ill. 2d 88, 99 (1979) (finding
intervening event where defendant confronted with sketch of robbery
suspect prepared prior to his arrest and acknowledged sketch
resembled him); People v. Bracy, 152 Ill. App. 3d 566, 572 (1986)
(intervening events found where defendant saw his girlfriend at
police station and was told she was cooperating, saw his clothes
that had been retrieved from her home, and saw proceeds of robbery
at police station); In re R.S., 93 Ill. App. 3d 941, 946-47 (1981)
(finding intervening event where defendant confronted with evidence
gathered independent of defendant's illegal arrest); but see Taylor
v. Alabama, 457 U.S. 687, 691-92, 73 L. Ed. 2d 314, 320-21, 102 S. Ct. 2664, 2667-68 (1982) (finding no intervening circumstances
merely because defendant was given Miranda warnings three times,
visited with his girlfriend and male companion before he confessed,
and arrest warrant was filed while he was being interrogated).
Defendant contends his confession was not purged of the taint
of the illegal arrest because it resulted from tainted evidence.
The trial court found that the use of Taylor's statement provided
a sufficient intervening event. While the court held that
defendant, Dorrough, and Walley had been illegally arrested, there
was no finding that Taylor had been illegally arrested since Taylor
was not charged. Despite the fact that the record suggested that
Taylor was taken to the police station in the same manner as the
other men, the trial court refused to find that Taylor had been
illegally arrested. The court ruled that defendant lacked standing
to contest a violation of Taylor's constitutional rights. See
People v. James, 118 Ill. 2d 214, 226 (1987) (recognizing
"fundamental principal that a claim to suppress the product of a
fourth amendment violation can be asserted 'only by those whose
rights were violated by the search or seizure itself'").
Defendant argues that the traditional rule for standing does
not apply in this case and the statements obtained from the other
men may not be used to attenuate his illegal arrest. In People v.
Beamon, 255 Ill. App. 3d 63, 70 (1993), the court held that "the
State's use of evidence obtained as a result of the illegal arrest
of [a codefendant] may not serve to attenuate the taint of [another
codefendant's] illegal arrest." In Beamon, the court found that
the standing rule from James did not apply because James had not
himself been illegally arrested and the issue in James was probable
cause, not attenuation. Beamon, 255 Ill. App. 3d at 70.
In Beamon, 255 Ill. App. 3d at 66, the police illegally
arrested the codefendant, Moore, at his home a day after a murder
occurred. Moore told the police that he had been with Beamon at
the time of the murder. When the police illegally arrested Beamon,
he told them that on the day of the murder he had remained home ill
and he had not seen Moore. After confronting Moore and Beamon with
each other's statements, both defendants confessed. The court held
that Moore's statement could not "be relied upon as an intervening
circumstance [for Beamon's confession] because Moore's conflicting
statement was the result of Moore's illegal arrest." 255 Ill. App.
3d at 69-70 (relying on People v. Avery, 180 Ill. App. 3d 146
(1989)).
In People v. Avery, 180 Ill. App. 3d 146 (1989), Avery, Lewis
and Stofer were charged with murder after all three had been
illegally arrested. Stofer was picked up first and told police
that he had been at a party with Avery and Lewis the night before
and the three had driven around afterwards in a car with another
man. Lewis was then picked up and told police that he and Stofer
had been at a party and had driven around until 1:30 a.m. An
officer confronted Lewis with Stofer's version. Lewis agreed that
Avery and another man were with them. The officers then picked up
Avery, who told them that Stofer had driven him home at 11:30 p.m.
the night before and he retired to bed, after which the officers
confronted Avery with Lewis's and Stofer's versions. The officers
continued to speak to each of the men several times, eventually
securing incriminating statements from each of them. Avery, 180
Ill. App. 3d at 150-51.
The appellate court reversed the trial court's finding of
attenuation and suppressed Avery's statement. The court rejected
the State's argument that an intervening circumstance had occurred
when each defendant was confronted with his companion's statements.
Avery, 180 Ill. App. 3d at 156. "Confronting defendants with
statements from each other[,] * * * all of whom were illegally
arrested, did not constitute an intervening event which purged the
taint of the illegal arrests." Avery, 180 Ill. App. 3d at 156.
Under this analysis, the statements of Taylor, Dorrough, and Walley
did not provide an intervening circumstance so as to purge the
taint of defendant's arrest.
The State urges this court to follow two prior decisions in
which the courts looked to the acquisition of probable cause to be
an intervening factor. In People v. Lekas, 155 Ill. App. 3d 391,
414 (1987), the court suggested that the development of probable
cause to arrest a defendant who had been illegally arrested could
provide a basis for purging the taint of a confession obtained
after that point. The court stated "one could question the wisdom
of requiring police to go through the formality of releasing [the
defendant] only to rearrest him outside the jailhouse door."
Lekas, 155 Ill. App. 3d at 414. In People v. Pierson, 166 Ill.
App. 3d 558, 564 (1988), the court relied on such reasoning,
calling the intervening acquisition of probable cause an "important
factor" in attenuation analysis. The court held that a statement
obtained from an individual who was arrested by police without
probable cause could provide probable cause to attenuate a
statement obtained from another individual who was arrested by
police under the same circumstances and subsequently charged with
a crime. Pierson, 166 Ill. App. 3d at 564. We note, however, that
Beamon, 255 Ill. App. 3d 63, was decided after these cases and its
reasoning followed in People v. Bates, 267 Ill. App. 3d 503 (1994).
In Bates, 267 Ill. App. 3d at 506-07, the defendant confessed
after being confronted with legally obtained evidence and with
tainted evidence, including a statement from a codefendant that was
later found to have been coerced. The court suppressed Bates'
statement because it determined that the State failed to prove that
the tainted evidence was not a factor in Bates' decision to
confess. The court reasoned that the use of the evidence obtained
from coercing the codefendant could not serve to attenuate the
taint of Bates' illegal arrest. Bates, 267 Ill. App. 3d at 507,
citing Beamon, 255 Ill. App. 3d 63. "Statements made by [the
codefendant] about defendant's involvement in the crime and
evidence recovered as a result of these statements are tainted."
Bates, 267 Ill. App. 3d at 506.
We note defendant's concern that to allow the State to use
illegally obtained evidence to purge the taint of an illegal arrest
as done in this case would provide the prosecution with an
incentive to conduct illegal arrests and then validly use the
fruits of such improper arrests by merely deciding not to charge
one individual in the group.
Based on the analysis of Beamon and Bates, we hold that the
trial court erred in finding attenuation. Defendant's confession
should have been suppressed as a fruit of the illegal arrest.
We remand this case for a new trial. For the purposes of
determining whether the double jeopardy clause bars retrial of a
defendant where his conviction has been reversed for evidentiary
error, all evidence submitted at the original trial may be
considered in determining the sufficiency of the evidence, and
retrial is permitted even though the evidence is insufficient to
sustain a verdict once erroneously admitted evidence has been
discounted. People v. Olivera, 164 Ill. 2d 382, 393 (1995). Upon
review of the record, including defendant's confession, we hold
that there was sufficient evidence for the trier of fact to
conclude that defendant was guilty beyond a reasonable doubt.
For the foregoing reasons, we reverse defendant's convictions
and remand for a new trial in which defendant's confession shall be
suppressed. In light of this outcome, we need not address the
sentencing issue.
Reversed and remanded.
THEIS, J., concurs.
QUINN, J., specially concurs.
JUSTICE QUINN, specially concurring:
I concur in the holding of the case but write to express a
concern with the holding in a case this opinion heavily relies
upon. As noted, in People v. Beamon, 255 Ill. App. 3d 63 (1993)
the court held that, "the State's use of evidence obtained as a
result of the illegal arrest of [a co-defendant] may not serve to
attenuate the taint of [another co-defendant's] illegal arrest."
The court in Beamon further held, "[w]e recognize that in People v.
James (1987), 118 Ill. 2d 214, 514, N.E.2d 998, the supreme court
held that a defendant lacked standing to claim that his confession
is the product of the illegal arrest of another; but the defendant
in James had himself not been illegally arrested. The issue in
James was probable cause, not attenuation." People v. Beamon, 255
Ill. App. 3d at 70.
It is difficult to understand why probable cause to arrest a
defendant may be based on the statement of an illegally arrested
co-defendant (as in James) but that this same statement cannot be
used as attenuation.
In the instant case, the police did not confront defendant
with any further witnesses or evidence obtained as a result of
defendant's illegal arrest. This fact pattern is similar to that
in People v. Lekas, 155 Ill. App. 3d 391 (1987). In Lekas, three
brothers (George, Phillip and Christopher) were arrested and
charged with armed robbery and murder. George was arrested first
and he told police that his brothers had owed the murder victim's
son money and that at sometime in the past they had talked about
stealing a coin collection from the victim's home. A coin
collection had been taken from the victim's home at the time the
murder was committed. Six hours after receiving this information
from George, the police arrested Phillip and Christopher in their
homes without obtaining arrest warrants for them. After Phillip
and Christopher were arrested, the police located a witness who had
been identified by George. Christopher confessed after his arrest.
Phillip confessed after being in custody for 12 hours and after
being confronted with George's statement, Christopher's statement,
and the existence of the witness.
The trial court suppressed George's statements as being the
product of improper police promises. The trial court held there
was probable cause for the arrest of Phillip and Christopher.
On appeal, the appellate court held that even if Phillip's
arrest should have been quashed, his confession was attenuated due
to the intervening cause of attainment of probable cause. The
appellate court held that since George's statement, Christopher's
statement, and the existence of the witness were not the fruits of
Phillip's arrest, Phillip's subsequent confession was not tainted.
People v. Lekas, 155 Ill. App. 3d at 414.
Under Lekas, I believe that the defendant's confession would
be attenuated. I also believe that the holding in Beamon conflicts
with the holding in James.
The court in Beamon did not cite Lekas or distinguish it.
Likewise, the Beamon opinion did not cite or distinguish People v.
Pierson, 166 Ill. App. 3d 558 (1988). The status of Kevin Taylor
in the instant case is very similar to that of Alfie Jones in the
Pierson case. Jones was picked up by the police without probable
cause and gave a statement implicating Pierson but not implicating
himself. The appellate court in Pierson held that under these
circumstances, the statements of James provided probable cause as
to the unlawfully arrested defendant. This probable cause is an
intervening circumstance which was a significant factor to be
considered when determining whether there is attenuation. People
v. Pierson, 166 Ill. App. 3d at 564.
The defense urges this court to overrule Pierson, asserting
that its holding provides the prosecution with an incentive to
conduct illegal arrests and then validly use the fruits of such
improper arrests by merely deciding not to charge one individual in
the group. This is not a valid concern based on the facts of the
instant case. There is no evidence that Kevin Taylor was involved
in any way with the murder of Rufus Simpson. Therefore there was
no evidence that the State chose not to charge Taylor so they could
use his statements to supply the probable cause to arrest Dorrough,
Walley and defendant.
Indeed, had defendant confessed after being confronted only
with Taylor's statements, I believe defendant's confession would
have been attenuated. However, defendant was also confronted with
Dorrough and Walley's confessions prior to confessing himself.
Under Beamon, Dorrough and Walley's confessions were tainted. When
a defendant is confronted with legally obtained evidence (such as
Taylor's statements) and with tainted evidence (such as Dorrough
and Walley's confessions), it is the State's burden to prove that
the tainted evidence was not a factor in his decision to confess.
People v. Bates, 267 Ill. App. 3d 503, 507 (1994), citing People v.
Turner, 259 Ill. App. 3d 979 (1994). The State has not met this
burden in this case.
I believe that I am compelled to follow the holding in Beamon
and therefore I concur in the result of this case.
However, I believe that the holding in Beamon conflicts with the
holdings in Lekas and James and these conflicts should be resolved.
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