specially concurring:
I specially concur in the court’s reversal of the order suppressing the defendant’s statement to Detective Vanderohe and her subsequent telephone conversation with her husband.
I.
The ultimate test of the voluntariness of the defendant’s statement to Detective Vanderohe in the interview room of the stationhouse is whether the statement was a product of a rational intellect and a free will. E.g., Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); People v. Raffaelli, 647 P.2d 230 (Colo.1982). Resolution of this issue turns on an evaluation of the totality of circumstances surrounding this statement, including such factors as the presence or absence of force, threats, promises, and other forms of undue influence that might have affected the free will of the accused, as well as the defendant’s mental condition at the time the statement was made. E.g., Culombe, 367 U.S. 568, 81 S.Ct. 1860; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, (1960); People v. Connelly, 702 P.2d 722 (Colo.1985), cert, granted, — U.S. -, 106 S.Ct. 785, 88 L.Ed.2d 763 (1986).1
In this case there is no evidence to support the conclusion that the defendant’s statement to Detective Vanderohe was the product of any force, threats, promises, or other forms of undue influence exerted against the defendant by law enforcement officers. Nor does the record contain any evidence demonstrating that the defendant’s statement was the product of a serious mental illness such as to vitiate the defendant’s capacity for rational judgment and free choice. Although there is some evidence indicating that the defendant became emotionally distressed after being informed of the victim’s death, such distress was not sufficient to so impair her intellect and will as to render her statement involuntary. Given the state of the record in this case, I agree with the court that the defendant’s statement should not have been suppressed.
*1120II.
I also agree that there is no basis in the record for the suppression of the defendant’s telephone conversation with her husband, which was made from the police station and overheard by Detective Vander-ohe. The trial court concluded that the defendant had a reasonable expectation of privacy in the telephone call and, on that basis, suppressed the defendant’s statement to her husband as involuntary. The defendant’s expectation of privacy with respect to her telephone call, however, should not have been viewed as a material factor in determining the voluntariness of her statement. As previously noted, the issue of voluntariness turns basically on whether a particular statement was the product of a rational intellect and a free will. Whatever the defendant’s privacy expectation may have been at the time of her telephone call to her husband, that expectation had no bearing whatever on the voluntary nature of her statement to her husband. The record at the suppression hearing convincingly establishes that the defendant’s telephone conversation with her husband was the product of a rational intellect and a free will.
The issue to which the defendant’s expectation of privacy in the telephone conversation bears legal significance is whether Detective Vanderohe’s overhearing of the conversation constituted an unlawful search and seizure. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Santistevan, 715 P.2d 792 (Colo.1986); People v. Unruh, 713 P.2d 370 (Colo.1986). I am convinced that there was no unlawful search or seizure in this case. The defendant’s telephone conversation with her husband took place from the Ar-vada police station where the defendant was confined in lawful custody on a charge of murder. Any expectation of privacy on the part of the defendant under these circumstances was a substantially diminished one. See Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). In the absence of some explicit or implicit assurance that the defendant s statements to her husband would remain confidential, she had no reason to expect that Detective Vanderohe or anyone else in the room would not listen to her conversation. Not only was there no assurance of confidentiality given to the defendant, but the trial court also expressly found that, although the defendant did not know the exact location of Detective Vanderohe when she talked to her husband, “[s]he knew that he was standing next to her at the desk.” Under this state of the record, there was neither a factual nor a legal basis for the suppression of the defendant’s telephone conversation with her husband.
For the above reasons, I specially concur in the reversal of the suppression rulings in this case.
. In Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960), the United States Supreme Court stated:
Surely in the present state of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion.