Attenuation Doctrine Is Used To Admit A Confession That Was Obtained Illegally

People v. Hernandez, 2017 IL App (1st) 150575 (March). Episode 332 (Duration 11:51)

Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest.

Facts

Defendant was arrested after his ex girlfriend was found dead in her car with a shotgun wound to her head.

In sum, more than 20 police officers, some armed, arrived at defendant’s home, handcuffed him and patted him down, and then removed his handcuffs and seated him next to an armed officer in the back of a police vehicle and transported him to another police vehicle, which then transported him to an interrogation room in a police station, where he was questioned from nine at night until almost three in the morning.

When the Hanover detectives got there they asked APD to uncuff defendant.

They asked if he would agree to go with them to the police station. He agreed.

They put him in the back seat with an HPD detective sitting right next to him.

Arrested

This court concluded that no reasonable person in defendant’s shoes would have thought that he or she was free to leave.

Attenuation Hearing

After a first appeal the case was remanded for an attenuation hearing.

During the hearing we learned that defendant was first arrested by 20 Aurora Police Officers.

The interview lasted five hours and 45 minutes.

There were two periods of time when defendant was left alone for 10 to 20 minutes.

Defendant asked to use the bathroom once, and a Hanover Park police officer took him.

After defendant exited the bathroom, he went directly back to the interview room.

Defendant received a bottle of water and, after the interview, he ate a hamburger. During the interview, he was asked if he was hungry and he said no.

First Question

When Defendant wanted to know if it was legal for officers to search his truck he the detective got angry with him accusing him of saying he was going to plant something in his truck.

Second Question

Later in the interview when detectives asked defendant to submit to a gunshot residue test, defendant responded by asking what his rights were.

Again, they called defendant a liar several times, defendant agreed to take the test.

Fake Gun Residue Test

About 5 hours in, the gave defendant a bogus gun residue test which he “flunked”.

About 10 to 15 minutes later, defendant began making incriminating statements, saying the killing was accidental.

The trial court found that it was the fake GSR test which prompted defendant to confess and that was sufficiently attenuating.

Issue

The reviewing court felt differently.

The conclusion that a defendant’s arrest was illegal under the fourth amendment does not automatically mean that his subsequent statement is suppressed.

The question then becomes whether the statement was obtained by means sufficiently distinguishable from the illegal arrest such that we can say that the statement is purged of, or attenuated from, the taint of the original fourth-amendment illegality.

Attenuation Doctrine

Attenuation analysis under the fourth amendment is distinct from the threshold question of voluntariness under the due process clause.

Attenuation analysis under the fourth amendment is distinct from the threshold question of voluntariness under the due process clause. The absence of physical abuse or coercion, and the voluntariness of the statement, are merely threshold requirements for its admissibility.

As a result, the fact that a trial court found no physical abuse or coercion does not resolve the issue of attenuation.

To satisfy its burden, the State must prove by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. Clear and convincing evidence means evidence greater than a preponderance of the evidence but less than proof beyond a reasonable doubt.

To determine whether a statement is attenuated from an illegal arrest, courts generally consider the following factors:

(1) the proximity in time between the arrest and the statement;
(2) the presence of intervening circumstances;
(3) the provision of Miranda warnings; and
(4) the flagrancy of the police misconduct.

Of these four factors, the presence of intervening circumstances and the flagrancy of the police conduct are the most important.

No Intervening Probable Cause

In the case at bar, the State does not argue that the police had any intervening probable cause between the time of defendant’s arrest and his statement.

In addition to providing probable cause, an intervening circumstance can also be an event that prompts or induces a voluntary desire to confess, thereby breaking the causal connection between the illegal arrest and the confession.

However, it cannot be

[1] something that was obtained illegally, such as statements from unlawfully arrested codefendants, or
[2] information obtained by exploiting the illegality of the defendant’s detention, such as “a polygraph examination conducted during the defendant’s illegal detention.

Like a polygraph examination, the bogus gunshot residue test was used, in this instance, as a form of interrogation, and it was also a consequence of the illegal arrest and the resulting detention.

Similar to a codefendant’s confession that was suppressed due to police misconduct, the bogus test was, itself, a form of misconduct. Thus, the bogus test cannot serve to purge the taint of the prior illegal arrest.

Our supreme court and this court have found that even a validly given polygraph test cannot be an intervening circumstance that purges the taint of an illegal arrest. If a valid test cannot purge the taint, then a completely bogus test certainly cannot.

Lying To Defendant

The State cites cases from the 1980’s and early 1990’s in which the police lied to defendants and the subsequent confessions were still admitted as voluntary under the due process clause.

However, voluntariness under the due process test is not the issue in front of us.

The question here is: when a custodial bogus test is the primary event prompting a defendant’s confession, does that bogus test purge the taint of a prior illegal arrest under the fourth amendment?

He Got Miranda Warnings

True Miranda warnings were given.

But, the warnings occurred once at the very beginning of the six-hour interrogation and were not repeated, even after defendant asked what his rights were—immediately prior to the test.

When the officers asked defendant if they had his “permission” to “check” his hands for gunshot residue, defendant replied: “what are my rights?”

Instead of informing him of his rights, one of the officers stated: “I’m asking you. If you don’t want it we won’t do it.”

The Miranda warnings carry some weight but not much under the circumstances of this case.

Police Misconduct

Our supreme court has explained that police misconduct is flagrant when it is carried out in such a manner as to cause surprise, fear, confusion, or when it has a quality of purposeful or intentional misconduct.

The trial court found that the officer’s tone during the detention following the initial arrest was cordial, and that defendant was not handcuffed during the ensuing detention.

However, the trial court did not consider the flagrancy of the police misconduct during the initial arrest, when over 20 officers arrived with weapons drawn at defendant’s residence and handcuffed him.

Although the trial court found that the officer’s’ tone was cordial during the ensuing detention, the apparent purpose of the defendant’s arrest and detention was to enable the police to conduct an expedition for evidence in the hope that something might turn up, a practice that the Supreme Court has condemned.

Further, officers repeatedly told defendant he was lying and confronted him with a bogus test in order to induce him to confess. Thus, this factor does not help the State meet its burden of showing clear and convincing evidence of attenuation.

Holding

In sum, after having reviewed all the factors, the appellate court concluded that the statement was not attenuated from the taint of the illegal arrest,

(1) where the duration between the illegal arrest, as found by the trial court, was short and thus did not provide time for independent reflection;
(2) where the event that prompted the confession, as found by the trial court, was the bogus gunshot residue test, and it did not qualify as an intervening circumstance purging the taint of the illegal arrest, since it was itself a form of interrogation occurring as a consequence of the illegal arrest and a form of misconduct;
(3) where Miranda warnings were provided once at the start of the six-hour interrogation but were not repeated again, even when defendant specifically asked what his rights were; and
(4) where the State introduced no evidence at the attenuation hearing concerning the circumstances of the initial arrest, and thus the trial judge, who had not presided at the original suppression hearing, had no information on which to determine whether or not the initial illegality constituted egregious police conduct, and where the police were on a fishing expedition during the subsequent detention.

The statement was not attenuated from the illegal arrest and must be suppressed under the fourth amendment.

Reversed and remanded for a new trial.

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