dissenting:
I would reverse the judgment of the trial court.
In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the court held that the factors to be considered in making the determination of attenuation between an unlawful arrest and a confession which follows are whether the defendant was advised of his Miranda rights prior to the confession, the time lapse between arrest and confession, the existence of intervening circumstances, and the flagrancy of the official misconduct in making the illegal arrest.
In the present case, the only factor which may weigh against the validity of the confession is the time lapse. This defendant was arrested at 11:00 a.m. and confessed at 2:50 p.m. However, there was an intervening circumstance of enormous importance. At about 2:00 p.m. defendant’s confederate gave a statement to the police accusing defendant of two robberies. If defendant had not been in custody at the time the police would have had every right to go out and arrest him. The fact they had him in custody already did not detract from the fact that by the time he confessed he was lawfully under arrest.