People v. Harris

Sandler, J. P.

(concurring).

It may be that the somewhat ambiguous hearing testimony would have supported a factual finding by the hearing court that the defendant was arrested under circumstances that did not violate Payton v New York (445 US 573). I am unable to agree, however, that the hearing court’s finding that such a violation occurred was erroneous as a matter of law or contrary to the weight of the evidence. Accordingly, the critical issue, in my view, is whether there was an adequate basis for the hearing court’s further determination that there had been sufficient attenuation to justify the acceptance into evidence of the defendant’s written station house statement given after a renewal of the Miranda rights.

Although the issue is a close one, and the dissenting opinion presents a cogent argument to the contrary, I am satisfied that there was an adequate basis for the trial court to conclude that the police station statement was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” (Wong Sun v United States, 371 US 471, 486.)

Although Brown v Illinois (422 US 590) is relevant to the issue presented, I do not agree that it is as clearly determinative of that issue as suggested in the dissenting opinion. There is a difference between the issue presented here and that addressed by the Supreme Court in Brown that surely has significance in the balancing process required in determining whether challenged evidence must be suppressed as an exploitation of constitutionally invalid police behavior.

Brown (supra) was concerned with a defendant who was arrested without probable cause and who, at the time of his arrest, could not have been arrested anywhere in a manner consistent with constitutional requirements, and as to whom an arrest warrant could not properly have been then issued. Given the fact that there was here probable cause to arrest the defendant, a finding not disputed in the dissenting opin*473ion, we are confronted with an arrest that could have taken place lawfully anywhere except in the defendant’s apartment. This major difference in the character of the underlying illegality surely has some relevance in determining whether or not the challenged statement represented an improper exploitation of the underlying illegal act.

Significantly, in United States v Johnson (626 F2d 753, 759, affd 457 US 537), an important decision understandably relied on in the dissenting opinion, the Ninth Circuit rested its determination to suppress the station house statement on the conclusion that the defendant "[hjaving given one statement which inculpated him in the crime, he had already committed himself; there was little incentive to withhold a repetition of it”. In this case, however, the testimony strongly indicates that the defendant was expecting the police to come, was relieved when they arrived at his apartment, and had made a clear prior decision to admit his guilt. Accordingly, there is strong support in the record for the conclusion that the defendant gave his written statement at the station house, not because he felt committed by what he had said at the apartment, but because of a considered decision made prior to the expected arrival of the police.

One other fact distinguishing this case from Johnson (supra) should be noted. Johnson involved an arrest of a person charged with a nonviolent crime. In this case, the police had substantial reason to believe that they were concerned with a dangerously violent person who had abducted and raped the deceased some four days before he killed her. Although the arrest cannot be justified as having occurred under exigent circumstances in the normal meaning of that term, it seems clear that the police were acting under the pressure of a sense of urgency that the defendant should be taken into custody as soon as possible.