dissenting:
Although the main question presented in this appeal has not yet been squarely decided by the United States Supreme Court nor addressed by any Illinois reviewing court, I am not persuaded that this court should create an exclusionary rule to bar testimony of a prosecution witness discovered as a fruit of defendant’s confession where the confession itself was found by the trial court to be voluntary but was suppressed because it was given after defendant had requested counsel.
Two United States Supreme Court decisions, however, are helpful in the analysis of the general issue of suppression of the fruits of a voluntary statement taken in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, although neither case involved a specific request for counsel as was found here by the trial court.
In Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357, cited by the State, the Court noted that Miranda warnings are not themselves constitutional rights but are merely prophylactic standards which protect the privilege against self-incrimination. (Tucker, 417 U.S. at 446, 41 L. Ed. 2d at 194, 94 S. Ct. at 2364-65.) Thus, in Tucker, the Court refused to extend a fourth amendment Wong Sun fruit of the poisonous tree analysis to prevent the testimony of a witness whose identity was discovered as a result of a statement taken from the defendant without the benefit of complete Miranda warnings and balanced the interests in allowing the evidence. Tucker, 417 U.S. at 450-52, 41 L. Ed. 2d at 196-97, 94 S. Ct. at 2367-68.
Similarly, in Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, the defendant made an inculpatory statement after being initially questioned without any Miranda warnings. The defendant was then subsequently given Miranda warnings and again interrogated. Although the Court found that the initial unwarned statement had to be suppressed, it declined to extend the Wong Sun analysis to the subsequent statements given after the warnings. (Elstad, 470 U.S. at 308, 84 L. Ed. 2d at 232, 105 S. Ct. at 1292-93.) The Court reiterated that Miranda warnings are merely prophylactic procedures. (Elstad, 470 U.S. at 309, 84 L. Ed. 2d at 232, 105 S. Ct. at 1293.) The court noted that, as in Tucker, the absence of any coercion or improper tactics undercut the rationale of the fifth amendment, assuring trustworthy evidence, and the general goal of deterring police misconduct, for invoking a broader rule of excluding evidence. Elstad, 470 U.S. at 308, 84 L. Ed. 2d at 231-32, 105 S. Ct. at 1292-93.
As the majority correctly points out, the United States Supreme Court has not squarely decided the issue presented and other Federal and State court decisions are divided on this precise question. Those courts which have suppressed evidence obtained (beyond the confession itself) as a result of a fifth amendment violation of a request for counsel have expressed the view that the justification for the exclusion of evidence is to deter unconstitutional police conduct and have applied a fourth amendment exclusionary rule under Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407. (United States v. Downing (1st Cir. 1981), 665 F.2d 404, 408-09; Commonwealth v. White (1977), 374 Mass. 132, 138-39, 371 N.E.2d 777, 781.) In contrast, the rationale used in not applying the fourth amendment “fruit of the poisonous tree” exclusion of resulting evidence is that the Supreme Court has never extended the exclusionary rule to a voluntary Miranda-tainted confession and that a violation of Miranda or the Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, rule of invocation of the right to counsel is not an infringement of a constitutional right which should lead to the suppression of other evidence resulting from the suppressed statement, but is a violation of only the prophylactic rules developed to protect those rights. Wilson v. Zant (1982), 249 Ga. 373, 378, 290 S.E.2d 442, 447.
In my view, the decisions of the United States Supreme Court in Tucker and Elstad which have refused to extend the fourth amendment exclusionary rule to the fruits of a noncoercive statement where the Miranda warnings were not given or incompletely given lend support for not adopting an exclusionary rule here where defendant requested counsel but later gave a voluntary statement. The violation was not of the fifth amendment constitutional right but of a prophylactic rule designed to implement that right (see McNeil v. Wisconsin (1991), 501 U.S. 171, 176, 115 L. Ed. 2d 158, 167, 111 S. Ct. 2204, 2208; see also Smith v. Illinois (1984), 469 U.S. 91, 95, 83 L. Ed. 2d 488, 493, 105 S. Ct. 490, 492 (Edwards holding referred to as “prophylactic rule”)), and I am reluctant to create an exclusionary rule for such a violation absent the unequivocal authority of the Supreme Court or the Illinois Supreme Court. Accordingly, I would not adopt an exclusionary rule to testimonial evidence of a third-party witness derived from a voluntary statement obtained after a request for counsel in violation of Edwards v. Arizona. See Wilson, 249 Ga. at 378, 290 S.E.2d at 447.
Because I would affirm the case under the foregoing analysis, I need not examine the State’s alternative argument that the witness’ testimony would have been admissible under the inevitable discovery rule except to note that I would not agree with the trial court that the evidentiary testimony obtained from Spruille would have been inevitably discovered under the rule announced in Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377,104 S. Ct. 2501.