People v. Loewenstein

NO. 4-05-0692 Filed 2/15/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Vermilion County
JEREMY L. LOEWENSTEIN, ) No. 05CF108
Defendant-Appellee. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In February 2005, the State charged defendant, Jeremy

L. Loewenstein, with single counts of aggravated discharge of a

firearm and unlawful possession of a weapon by a felon. In July

2005, defendant filed a motion to suppress statements, which the

trial court granted in part and denied in part.

On appeal, the State argues the trial court erred in

suppressing certain statements made by defendant to the police.

We reverse and remand for further proceedings.

I. BACKGROUND

In February 2005, the State charged defendant Loewen-

stein and codefendant Donald Huerta by information with one count

of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2)

(West 2004)), alleging defendants knowingly discharged a firearm

in the direction of another person. The State also charged

defendants with one count of unlawful possession of a weapon by a

felon (720 ILCS 5/24-1.1(a) (West 2004)), alleging defendants,

both of whom had been convicted of a felony, knowingly possessed
a handgun. Defendant Loewenstein pleaded not guilty.

In May 2005, defendant filed a motion to suppress

evidence, which the trial court denied. In July 2005, defendant

filed a motion to suppress certain statements made to the police.

Defendant stated he was taken into custody on February 20, 2005,

and interrogated by police officers. In response to questions,

defendant allegedly gave incriminating statements. Defendant

claimed the statements were involuntary and made without a

knowing and intelligent waiver of his right to remain silent and

his right to an attorney as he was not advised of those rights

prior to interrogation. Defendant also claimed statements made

on February 21, 2005, should be suppressed as having been given

as a result of the initial improper interrogation, thereby

amounting to fruit of the poisonous tree.

In August 2005, the trial court conducted a hearing on

the motion to suppress statements. Danville police detective

Bruce Stark testified he obtained defendant's consent to search a

safe in defendant's residence at 12:25 p.m. on February 20, 2005.

Stark questioned defendant about the contents of the safe but did

not read him any Miranda warnings (Miranda v. Arizona, 384 U.S.

436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Stark's police

report, admitted as defendant's exhibit No. 3, summarized the

interview as follows:

"The reporting officer[,] Bruce Stark[,]

used a Danville Police Dept. consent[-]to[-]

search form with Jeremy Loewenstein. Det.

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Stark filled out the form and it was read to

Jeremy. He was asked if he understood the

form and he stated 'Yes.' Det. Stark asked

Jeremy for consent to [a] search of a blue

Sentry safe that was located in his bedroom.

Jeremy stated the safe belonged to a guy

named Ivan who used to stay with him. Ivan

got out of prison and moved in with Jeremy.

Jeremy said he forgot what Ivan's last name

was even with Ivan living with him. Jeremy

stated Ivan got the safe to keep his personal

papers in it. When Ivan moved out a couple

of months ago, the safe was left at Jeremy's.

Jeremy stated Lupe Perez came to his

house and he had a [9-millimeter] handgun

that didn't work. Lupe Perez kept the maga-

zine and Jeremy said he put the gun in the

safe. Jeremy was asked if he knew he was a

convicted felon and he[,] Jeremy[,] said

'Yes.' Jeremy said he was going to take the

gun to a man's house on Perrysville Road that

works on guns in his garage. Jeremy said he

just never got around to doing that. Jeremy

said that his wife Nicole is also a convicted

felon, but she had no idea what was in the

safe.

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 Jeremy said in the blue Sentry safe was

a blue steel [9-millimeter] handgun and some

extra bullets. Jeremy said he doesn't know

where the handgun came from other than Lupe

Perez brought it to him to try and fix.

Jeremy said the gun hasn't been fired

and there is no magazine at his house for the

gun.

Jeremy admitted to knowing the gun was

there before the safe was open. Jeremy said

that Ivan left the safe there and abandoned

it and he began using it. Jeremy said there

was nothing of Ivan's still in the safe and

Ivan moved out in December of 2004.

The blue Sentry safe was put on evidence

tag [No.] 95613.

See completed consent[-]to[-]search form

for the blue Sentry safe."

Detective Stark stated he and Detective Gene Woodard

then met with defendant at approximately 12:45 p.m. on February

20, 2005, in an interview room at the public safety building.

Stark advised defendant of his Miranda rights and presented him

with a waiver-of-rights form. Defendant indicated he understood

his rights, put his initials next to the listed rights, and

signed the waiver form. During the 30-minute interview, Stark

stated he did not threaten defendant and asked him about a

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shooting involving Roy Delarosa. Defendant stated he was not

present at the shooting.

On February 21, 2005, Stark stated he and Detective

Keith Garrett interviewed defendant at around 11:14 a.m. at the

public safety building. Officers had by this time opened the

safe and retrieved the handgun. The officers presented defendant

with a waiver-of-rights form, and defendant initialed and signed

the form indicating he understood his rights. Stark stated he

did not threaten defendant or promise him anything during the 30-

minute interview. Stark's police report, admitted as People's

exhibit No. 3, summarized the interview as follows:

"The reporting officers[,] Bruce Stark &

Keith Garrett[,] met with Jeremy Loewenstein

and he was asked about the handgun. Jeremy

was asked where the clip-magazine was for the

[9-millimeter] handgun. Jeremy stated Lupe

Perez has it, as the handgun was his. Jeremy

said that he was holding the gun for Lupe

Perez and he was to take it to have it re-

paired.

Jeremy Loewenstein said he did forget to

tell Det. Stark one thing yesterday and that

was Nicole[,] his wife[,] when she came

home[,] answered the door when someone

knocked. Jeremy said that Nicole said it was

Hugo Torres, Greg Acuna, and one guy she

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 didn't know. She told them Jeremy was in bed

sick[,] and they never came in.

Jeremy Loewenstein also said he told the

officer that the guy living with him was

possibly Ivan Brown, but since he has thought

overnight, he wasn't sure of the last name

and he didn't want to tell the officer the

wrong name. He still said the guy[']s first

name was Ivan and they called him 'Little

Man' in prison and he was paroled to Jeremy's

house, but Jeremy couldn't remember Ivan's

last name.

Jeremy said *** he did in fact handle

the gun that was in the blue safe, which the

officers took from his home."

During arguments on the motion, the State conceded the

statements given during the first interview on February 20, 2005,

should be suppressed because of the officer's failure to advise

defendant of his Miranda rights. The trial court suppressed the

first statement. The court declined to suppress the second

interview of 12:45 p.m. on February 20, 2005, finding it did not

concern the contents of the safe. The court found no evidence

that any of the statements were not voluntarily given and also

found no showing of any threats, force, or coercion.

As to the third interview, the trial court stated as

follows:

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 "And then we have the conversation Feb-

ruary 21st at 11:14 a.m., that's also sought

to be suppressed. And to a very great extent

it would appear that that conversation covers

much of the same ground that was volunteered

by the defendant when he was asked for a

consent to search the safe. He talks about

there not being a clip for the handgun, that

it is a handgun, where he got [it], it was

kind of covered both times. He was

Mirandized on February 21st just before that

conversation. It's the next day, so there's

been about 24 hours passage of time. This

conversation obviously has connections to the

first conversation on February 20th before

Miranda and I think it is linked to it.

There has been a break, there's been a pas-

sage of time, a new Miranda, but I think

the--the law in the past has covered those

types of situations and I don't think that

the law allows in an improper situation where

police find things out without giving Miranda

to then go back and remedy or try to cure the

situation by [M]irandizing and questioning.

To me it's obvious the police officers were

not improperly trying to solicit information

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 from Mr. Loewenstein when they spoke with him

to get the consent to search, but there was a

conversation, and then the next day a contin-

uation of that conversation, and as a result

of the topics covered both times, the [m]o-

tion to [s]uppress February 21st, 11:14 a.m.,

conversation is gonna be allowed for the

reasons stated."

The State filed a certificate of substantial impairment and

appealed the court's ruling pursuant to Supreme Court Rule 604(a)

(see 210 Ill. 2d R. 604(a)).

II. ANALYSIS

A. Burden of Proof and Standard of Review

"Where a defendant challenges the admissibility of his

confession through a motion to suppress, the State has the burden

of proving the confession was voluntary by a preponderance of the

evidence." People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d

472, 481 (2003), citing 725 ILCS 5/114-11(d) (West 2000). On

review of a trial court's ruling on the voluntariness of a

confession, the court's factual findings are accorded great

deference and will be reversed only if they are against the

manifest weight of the evidence. In re G.O., 191 Ill. 2d 37, 50,

727 N.E.2d 1003, 1010 (2000). However, the court's ruling on the

ultimate question of whether the confession was voluntary is

entitled to de novo review. People v. Morgan, 197 Ill. 2d 404,

437, 758 N.E.2d 813, 832 (2001).

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 B. The Admissibility of the Second Confession

In the case sub judice, Detective Stark did not read

defendant his Miranda rights prior to his first confession on

February 20, 2005, that he possessed a handgun. A short time

later, Stark administered the Miranda warnings, but defendant

made no incriminating statements. The next day, Stark gave the

Miranda warnings before defendant admitted possessing the hand-

gun.

The State does not argue the trial court erred in

suppressing defendant's first inculpatory statement. Instead,

the State argues the court erred in suppressing the second

confession of February 21, 2005. Defendant argues the "question

first-warn later" interrogation technique utilized here requires

suppression of the second confession.

The fifth amendment to the United States Constitution

provides that no person "shall be compelled in any criminal case

to be a witness against himself." U.S. Const., amend. V.

Similarly, the Illinois Constitution provides that "[n]o person

shall be compelled in a criminal case to give evidence against

himself." Ill. Const. 1970, art. I, §10. The rule set forth in

Miranda requires suppression of statements made by a defendant in

response to custodial interrogation unless police officers warn

the defendant of certain rights, including the right to remain

silent and the right to an attorney, and obtain a voluntary

waiver of those rights. Miranda, 384 U.S. at 478-79, 16 L. Ed.

2d at 726, 86 S. Ct. at 1630.

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 In Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222,

105 S. Ct. 1285 (1985), the United States Supreme Court was

confronted with the situation where a defendant makes inculpatory

statements without the benefit of Miranda warnings and then

repeats those statements after the warnings were given. In that

case, police officers went to the defendant's home with an arrest

warrant for the offense of burglary. Elstad, 470 U.S. at 300, 84

L. Ed. 2d at 226, 105 S. Ct. at 1288. One officer spoke to the

teenage defendant's mother in the kitchen to explain the arrest

warrant, while another officer spoke with the defendant in the

living room. Elstad, 470 U.S. at 300-01, 84 L. Ed. 2d at 226-27,

105 S. Ct. at 1288-89. The defendant was informed the police

believed he was involved in the burglary, and he acknowledged

being at the scene of the crime. Elstad, 470 U.S. at 301, 84 L.

Ed. 2d at 227, 105 S. Ct. at 1289. Officers transported the

defendant to the police station, advised him of his Miranda

rights for the first time, and obtained his confession. Elstad,

470 U.S. at 301, 84 L. Ed. 2d at 227, 105 S. Ct. at 1289.

On appeal, the Supreme Court considered whether "the

Fifth Amendment requires the suppression of a confession, made

after proper Miranda warnings and a valid waiver of rights,

solely because the police had obtained an earlier voluntary but

unwarned admission from the defendant." Elstad, 470 U.S. at 303,

84 L. Ed. 2d at 228, 105 S. Ct. at 1290. The Supreme Court held

the failure to give the defendant his Miranda warnings before his

initial inculpatory statement did not require suppression of his

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later warned confession at the police station. Elstad, 470 U.S.

at 318, 84 L. Ed. 2d at 238, 105 S. Ct. at 1298.

"It is an unwarranted extension of Miranda to

hold that a simple failure to administer the

warnings, unaccompanied by any actual coer-

cion or other circumstances calculated to

undermine the suspect's ability to exercise

his free will, so taints the investigatory

process that a subsequent voluntary and in-

formed waiver is ineffective for some inde-

terminate period. Though Miranda requires

that the unwarned admission must be

suppressed, the admissibility of any subse-

quent statement should turn in these circum-

stances solely on whether it is knowingly and

voluntarily made." Elstad, 470 U.S. at 309,

84 L. Ed. 2d at 232, 105 S. Ct. at 1293.

The Supreme Court confronted the parameters of the

"question first-warn later" technique in Missouri v. Seibert, 542

U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004). There, the

defendant mother had a 12-year old son, Jonathan, afflicted with

cerebral palsy, who died in his sleep. Seibert, 542 U.S. at 604,

159 L. Ed. 2d at 650, 124 S. Ct. at 2605. As the defendant

feared charges of neglect based on bedsores on Jonathan's body,

her two teenage sons and two friends devised a plan in her

presence to conceal the death by burning down the mobile home

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with Donald Rector, a mentally ill teenager, inside so as to

avoid the appearance Jonathan was left unattended. Seibert, 542

U.S. at 604, 159 L. Ed. 2d at 650, 124 S. Ct. at 2605. The

defendant's son and his friend set the fire, and Donald died in

the blaze. Seibert, 542 U.S. at 604, 159 L. Ed. 2d at 650, 124

S. Ct. at 2605-06.

Five days later, police officers awakened the defendant

at 3 a.m. in a hospital where her son was being treated for

burns. Seibert, 542 U.S. at 604, 159 L. Ed. 2d at 650, 124 S.

Ct. at 2606. An officer made the "'conscious decision'" to

withhold Miranda warnings following her arrest. Seibert, 542

U.S. at 605-06, 159 L. Ed. 2d at 651, 124 S. Ct. at 2606. She

was then taken to the police station and left in an interview

room for 15 to 20 minutes. Seibert, 542 U.S. at 604, 159 L. Ed.

2d at 650, 124 S. Ct. at 2606. Thereafter, an officer questioned

her without Miranda warnings for 30 to 40 minutes, squeezed her

arm, and repeated, "'Donald was also to die in his sleep.'"

Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 650, 124 S. Ct. at

2606. The defendant then admitted she knew Donald was meant to

die in the fire. Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 651,

124 S. Ct. at 2606. After a 20-minute break, the officer gave

the defendant Miranda warnings, obtained a signed waiver, and

resumed questioning while confronting her with her prewarning

statements. Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 650, 124

S. Ct. at 2606. The defendant gave a second confession, which

was "'largely a repeat of information ... obtained' prior to the

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warning." Seibert, 542 U.S. at 606, 159 L. Ed. 2d at 651, 124 S.

Ct. at 2606.

On appeal, a plurality of the Supreme Court held the

second confession inadmissible because the officer's interroga-

tion technique rendered the Miranda warnings ineffective.

Seibert, 542 U.S. at 617, 159 L. Ed. 2d at 658, 124 S. Ct. at

2613 (plurality opinion of Souter, J., joined by Stevens,

Ginsburg, and Breyer, JJ.). The plurality distinguished the

police conduct in Elstad from the question-first interrogation

technique by "treating the living room conversation as a good-

faith Miranda mistake, not only open to correction by careful

warnings before systematic questioning in that particular case,

but posing no threat to warn-first practice generally." Seibert,

542 U.S. at 615, 159 L. Ed. 2d at 657, 124 S. Ct. at 2612. In

contrast, the plurality opinion found the questioning in Seibert

was "systematic, exhaustive, and managed with psychological

skill." Seibert, 542 U.S. at 616, 159 L. Ed. 2d at 657, 124 S.

Ct. at 2612. Further, the warned phase of questioning took place

shortly after a break from the first interrogation, in the same

place, and with the impression that it was a mere continuation of

the earlier questioning. Seibert, 542 U.S. at 616-17, 159 L. Ed.

2d at 658, 124 S. Ct. at 2613.

To determine the admissibility of the second confes-

sion, the plurality advocated the following multifactor test:

"The contrast between Elstad and this

case reveals a series of relevant facts that

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 bear on whether Miranda warnings delivered

midstream could be effective enough to accom-

plish their object: the completeness and

detail of the questions and answers in the

first round of interrogation, the overlapping

content of the two statements, the timing and

setting of the first and the second, the

continuity of police personnel, and the de-

gree to which the interrogator's questions

treated the second round as continuous with

the first." Seibert, 542 U.S. at 615, 159 L.

Ed. 2d at 657, 124 S. Ct. at 2612.

Justice Kennedy concurred in the judgment in Seibert

but wrote separately to state the admission of statements depends

on whether "the circumstances would frustrate Miranda's central

concerns and objectives." Seibert, 542 U.S. at 619, 159 L. Ed.

2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concurring). Justice

Kennedy found the interrogation technique employed in Seibert was

designed to circumvent Miranda. Seibert, 542 U.S. at 618, 159 L.

Ed. 2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concurring).

However, the plurality's multifactor test cut "too broadly" and

might undermine the clarity of the rule set forth in Miranda.

Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at

2616 (Kennedy, J., concurring). Justice Kennedy advocated a

narrower test and would refuse to allow a postwarning confession

where "the two-step interrogation technique was used in a calcu-

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lated way to undermine the Miranda warning." Seibert, 542 U.S.

at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at 2616 (Kennedy, J.,

concurring).

"The admissibility of postwarning state-

ments should continue to be governed by the

principles of Elstad unless the deliberate

two-step strategy was employed. If the de-

liberate two-step strategy has been used,

postwarning statements that are related to

the substance of prewarning statements must

be excluded unless curative measures are

taken before the postwarning statement is

made. Curative measures should be designed

to ensure that a reasonable person in the

suspect's situation would understand the

import and effect of the Miranda warning and

of the Miranda waiver." Seibert, 542 U.S. at

622, 159 L. Ed. 2d at 661, 124 S. Ct. at 2616

(Kennedy, J., concurring).

Absent a majority opinion as in Seibert, a holding of

the Supreme Court is viewed as that position taken by the jus-

tices who concurred on the narrowest grounds. Marks v. United

States, 430 U.S. 188, 193, 51 L. Ed. 2d 260, 266, 97 S. Ct. 990,

993 (1977); see also United States v. Ollie, 442 F.3d 1135, 1142

(8th Cir. 2006) ("Because Justice Kennedy provided the fifth vote

[in Seibert] and his concurrence resolved the case on narrower

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grounds than did the plurality, it is his reasoning that rules

the present case").

Courts confronted with similar situations have found

Elstad continues to apply unless police officers make a deliber-

ate attempt to undermine the Miranda warning. See People v.

Lopez, 367 Ill. App. 3d 817, 825, 856 N.E.2d 471, 478 (2006)

("courts should depart from the Elstad analysis of voluntariness

only where the police set out deliberately to withhold Miranda

warnings until after a confession has been secured"); United

States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007)

(postwarning Miranda statement was governed by Elstad, not

Seibert, as failure to warn was not deliberate); United States v.

Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007) (as no

evidence indicated officers made a deliberate attempt to utilize

a two-step interrogation strategy, Elstad applied); United States

v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004) ("Where the

initial violation of Miranda was not part of a deliberate strat-

egy to undermine the warnings, Elstad appears to have survived

Seibert").

With this review of the pertinent case law in mind, we

find the facts in this case require us to follow Elstad, as

Seibert is distinguishable. Based on a review of the record, no

inference can be made that Stark deliberately employed a two-step

interrogation technique to undermine the warnings set forth in

Miranda or to evade its requirements. The dissent's view of the

facts completely ignores the purpose of the first interrogation,

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i.e., to obtain a consent to search. Nothing in the evidence

indicated Detective Stark goaded, coerced, forced, or threatened

defendant into making a statement that officers would then turn

around and use against him once they administered Miranda warn-

ings. Instead, Stark testified the conversation concerning the

contents of the safe was in conjunction with defendant's consent

to search. No evidence indicated this questioning was "system-

atic, exhaustive, and managed with psychological skill."

Seibert, 542 U.S. at 616, 159 L. Ed. 2d at 657, 124 S. Ct. at

2612 (plurality opinion). In fact, the trial court found it

"obvious the police officers were not improperly trying to

solicit information from [defendant] when they spoke with him to

get the consent to search." Because the failure to warn defen-

dant was not deliberate, Seibert is not implicated.

As Elstad applies, "[t]he relevant inquiry is whether,

in fact, the second statement was also voluntarily made. As in

any such inquiry, the finder of fact must examine the surrounding

circumstances and the entire course of police conduct with

respect to the suspect in evaluating the voluntariness of his

statements." Elstad, 470 U.S. at 318, 84 L. Ed. 2d at 238, 105

S. Ct. at 1298.

Defendant was given Miranda warnings prior to the

February 21, 2005, statements. He placed his initials next to

the warnings on the waiver-of-rights form and in signing it

indicated he made the waiver freely and voluntarily and without

any force, promises, or threats. There was no indication police

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officers used coercive tactics to obtain the second confession.

Further, the trial court found the statements were voluntary.

Under the circumstances here, "[a] subsequent administration of

Miranda warnings to a suspect who has given a voluntary but

unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement."

Elstad, 470 U.S. at 314, 84 L. Ed. 2d at 235, 105 S. Ct. at 1296.

As defendant voluntarily gave his February 21st statement,

Miranda does not require suppression. Thus, the court erred in

granting the motion to suppress.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings.

Reversed and remanded for further proceedings.

McCULLOUGH, J., concurs.

APPLETON, P.J., dissents.

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 PRESIDING JUSTICE APPLETON, dissenting:

I dissent because the majority lays the burden of proof

on defendant rather than the State. The majority says: "[W]e

find the facts in this case require us to follow Elstad, as

Seibert is distinguishable. Based on a review of the record, no

inference can be made hat Stark deliberately employed a two-step

interrogation technique to undermine the warnings set forth in

Miranda or to evade its requirements." Slip op. at 16. When

penning those lines, the majority seems to have forgotten what it

said at the beginning of its analysis: under section 114-11(d)

of the Code of Criminal Procedure of 1963, "[t]he burden of going

forward with the evidence and the burden of proving that a

confession was voluntary shall be on the State." Slip op. at 8,

quoting Braggs, 209 Ill. 2d at 505, 810 N.E.2d at 481, citing 725

ILCS 5/114-11(d) (West 2006). The lack of evidence that the two-

step interrogation was a deliberate attempt to thwart Miranda is

significant only if defendant had the burden of proving it was a

deliberate attempt to thwart Miranda. Defendant had no such

burden. The absence of an inference of deliberateness is signif-

icant only if defendant had the burden of proving that inference.

Instead, the majority should be asking if the State presented any

evidence that the two-step interrogation procedure was inadver-

tent. The State presented no evidence of inadvertence. Placing

the burden on defendant violates section 114-11(d).

Section 114-11 speaks of the voluntariness of a confes-

sion (725 ILCS 5/114-11 (West 2006)), and, therefore, at first

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glance, the statute might seem inapplicable. Defendant does not

allege his second confession was involuntary but only that the

police obtained it in violation of Miranda. Because Miranda's

prophylactic rule sweeps more broadly than the fifth amendment

(U.S. Const., amend. V), a violation of Miranda does not neces-

sarily entail compulsion. Elstad, 470 U.S. at 306-07, 84 L. Ed.

2d at 230-31, 105 S. Ct. at 1291-92. Even "unwarned statements

that are otherwise voluntary within the meaning of the [f]ifth

[a]mendment must nevertheless be excluded from evidence under

Miranda." Elstad, 470 U.S. at 307, 84 L. Ed. 2d at 231, 105 S.

Ct. at 1292. The supreme court has interpreted section 114-11,

however, as applying to Miranda cases, even though the standards

of Miranda "go beyond what has been considered 'involuntary in

traditional terms.'" People v. Costa, 38 Ill. 2d 178, 182, 230

N.E.2d 871, 873 (1967), quoting Miranda, 384 U.S. at 457, 16 L.

Ed. 2d at 713, 86 S. Ct. at 1618; see also People v. Longoria,

117 Ill. App. 3d 241, 252, 452 N.E.2d 1350, 1357 (1983) (applying

section 114-11 to a Miranda objection); People v. Hughes, 181

Ill. App. 3d 300, 303, 536 N.E.2d 71, 72 (1989) (same). "The

word 'voluntary' *** has become a word of art in a constitutional

sense, and the references in section 114-11 to an 'involuntary'

confession and to a confession 'not voluntarily made' must be

read as embracing the constitutional standards that govern

admissibility." Costa, 38 Ill. 2d at 183, 230 N.E.2d at 874.

Thus, section 114-11 applies to this case, and under

subsection (d), the State had the burden of proving the admissi-

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bility of defendant's second confession. (It conceded the

inadmissibility of the first confession on the ground of noncom-

pliance with Miranda.) Indeed, the prosecutor expressly acknowl-

edged, at the beginning of the hearing, that the State had the

burden of proof. To prove the admissibility of the second

confession, the State had to prove what Seibert required, namely,

that the two-step interrogation procedure was inadvertent rather

than deliberate--or, if it was deliberate, adequate curative

measures intervened before defendant made his postwarning state-

ment. Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct.

at 2616 (Kennedy, J., concurring).

The circuit court stated from the bench: "To me[,]

it's obvious the police officers were not improperly trying to

solicit information from Mr. Lowenstein when they spoke with him

to get the consent to search ***." Given the record before us,

that statement is inexplicable. Of course the police improperly

tried to solicit information from defendant in the first inter-

view. They not only improperly tried to solicit information from

him; they improperly did solicit information from him. That is

why the State conceded the first confession was inadmissible

under Miranda, and that is why the court ruled it was inadmissi-

ble.

Detective Stark was the only witness to testify in the

hearing, and his testimony was uncontested and unrebutted. He

testified that at the time of the first confession, defendant

"had already been arrested and was in the interview room." That

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fact alone makes Elstad distinguishable. In Elstad, "the offi-

cer's initial failure to warn was an 'oversight' that 'may have

been the result of confusion as to whether the brief exchange [in

the living room] qualified as a 'custodial interrogation.'"

Seibert, 542 U.S. at 614, 159 L. Ed. 2d at 656, 124 S. Ct. at

2611 (plurality), quoting Elstad, 470 U.S. at 315, 84 L. Ed. 2d

at 236, 105 S. Ct. at 1296; see also Seibert, 542 U.S. at 619,

159 L. Ed. 2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concur-

ring). In the present case, defendant was under arrest and

sitting in the police station when the police interrogated him

without Miranda warnings. Defense counsel asked Stark:

"Q. So the--conversation at 12:20 [p.m.

on February 20, 2005,] involved the contents

of the safe and his knowledge of the contents

of the safe[,] is that correct?

A. Yes.

Q. And you asked him questions[,] and he

responded[,] is that correct?

A. Yes."

Of all people, Stark best knew why he used the two-step

interrogation procedure, but he never offered any explanation in

the hearing. Unless the majority's citation of section 114-11(d)

is merely decorative, the silence of the record on this crucial

point should be fatal to the State's appeal. For all we know,

Stark was following the Illinois Police Law Manual, condemned in

Seibert. The manual says: "'[O]fficers may conduct a two-stage

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interrogation. *** At any point during the pre-Miranda interro-

gation, usually after arrestees have confessed, officers may then

read the Miranda warnings and ask for a waiver. If the arrestees

waive their Miranda rights, officers will be able to repeat any

subsequent incriminating statements later in court'" (emphasis in

original) (Seibert, 542 U.S. at 609-10, 159 L. Ed. 2d at 653, 124

S. Ct. at 2608-09, quoting Police Law Institute, Illinois Police

Law Manual 83 (January 2001-December 2003)).

The State failed to come forward with any evidence that

the two-stage interrogation was not a deliberate attempt to

subvert Miranda. The second confession dealt with the same

subject matter as the first. Were there sufficient curative

measures? The circuit court mentioned the passage of time--24

hours--between the first and second confessions, but, given its

decision to suppress the second confession, the court evidently

did not deem those 24 hours as a sufficient curative measure to

ensure that a reasonable person in defendant's situation would

understand the import and effect of the Miranda warnings and of

the Miranda waiver. Seibert, 542 U.S. at 622, 159 L. Ed. 2d at

661, 124 S. Ct. at 2616 (Kennedy, J., concurring). Whether a

Miranda waiver was knowing and intelligent is a question of fact

(People v. Bernasco, 138 Ill. 2d 349, 367, 562 N.E.2d 958, 966

(1990); People v. Kolakowski, 319 Ill. App. 3d 200, 212, 745

N.E.2d 62, 74 (2001); In re M.W., 314 Ill. App. 3d 64, 68, 731

N.E.2d 358, 361 (2000)), and, as the majority says, we should

give great deference to the court's findings of fact, upholding

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them unless they are against the manifest weight of the evidence.

"[A] substantial break in time and circumstances between the

prewarning statement and the Miranda warning may suffice in most

circumstances" as a curative measure. (Emphases added.)

Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at

2616 (Kennedy, J., concurring). A rational trier of fact would

not necessarily have to regard 24 hours as a "substantial break

in time." Even if 24 hours were, as a matter of law, a "substan-

tial break in time," there was no "substantial" change of "cir-

cumstances": defendant was still in jail, and the same police

officer, Stark, was interrogating him about the contents of the

safe, as he did the day before. Because the State failed to

carry its burden of proof--both as to the inadvertence of the

two-stage interrogation procedure and the intervention of ade-

quate curative measures--I would affirm the judgment.

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