Robert Joseph Walsh (appellant) appeals from a judgment, and sentence entered upon a jury verdict finding him guilty of aggravated assault and of being a habitual criminal. We reverse and remand.
This action arises from an apparent beating on August 9, 1979, of one Harold Rooney, a party described as a member of a *688group of local winos. Rooney was severely beaten, resulting in brain damage and requiring his being institutionalized in the South Dakota Human Services Center at Yankton. Appellant was charged with and convicted of aggravated assault, and also of being an habitual criminal, in connection with this beating. The underlying facts shall be discussed in disposing of the issues raised on appeal.
The first issue raised by appellant is that statements made by him to Sioux Falls Police Officers on the morning of August 10,1979, are inadmissible because they were the result of custodial interrogation based upon less than probable cause for arrest, thereby violating the Fourth Amendment of the United States Constitution. The State concedes that probable cause to arrest appellant did not exist until approximately 9:30 a. m. on August 10, but contends that appellant was properly taken into protective custody on August 9 for detoxification and therefore was not illegally seized and that even if appellant was illegally seized or detained, the detention was so slight an intrusion that it does not justify exclusion of appellant’s statements.
We first consider whether appellant was properly taken into protective custody for detoxification. SDCL 34-20A-55 pro.vides:
A person who appears to be intoxicated in a public place and to be in need of help, may be assisted to his home, or may be taken into protective custody by the police and taken forthwith to an approved public treatment facility. If no approved public treatment facility is readily available he shall be taken to an emergency medical service which shall include any facility with the capability to provide basic health care or which is customarily used for incapacitated persons including a jail which complies with the rules promulgated by the board of charities and corrections pursuant to § 24 — 11-23.
A taking into protective custody for detoxification is not an arrest. SDCL 34-20A-56.
The evidence indicates that Officer David Blades, who was very much involved in investigating the Rooney assault, had been called to the scene where the victim Rooney was found. Blades identified Rooney as one of a group of “winos” that frequented the area. Blades had been directed to help form a “perimeter” around the crime area to find possible suspects and prevent unauthorized persons from entering the area.
As Blades was returning from the hospital, after picking up Rooney’s clothing, he spotted appellant walking down the street. Blades recalled that he had seen Rooney and appellant together on prior occasions. He stopped his patrol car and questioned appellant about Rooney. After this questioning Blades decided to bring appellant in ostensibly for detoxification, “as he was intoxicated and had no place to go.” He manacled appellant’s hands and proceeded to the Minnehaha County Jail.
Officer Blades, upon noting some stains on appellant’s shirt, immediately called in two detectives who were investigating the Rooney beating. The detectives took appellant to a conference room in the jail and questioned him for two or three hours and learned that appellant and some others had been drinking with Rooney earlier that day at the location where Rooney was later found. About 11:30 p. m. appellant was read his Miranda rights and voluntarily consented to have some blood withdrawn at a hospital. Finally, after four and one-half hours, appellant was booked into the jail and placed in a detoxification cell. Under normal detoxification procedures (and it was conceded that appellant was a normal case), appellant should have been released at 6:30 a. m. on August 10. Instead, he was held for further investigation by the detectives, beginning at 9:30 a. m. on August 10, when he finally made incriminating statements, which were later used at the trial where appellant was convicted. Then he was arrested and held for the assault on Rooney.
The trial court found that appellant was taken into custody for the purpose of detoxification. The trial court noted that appellant was stopped by Blades because he was intoxicated and not because he was a sus*689pect and concluded that appellant “was legally being held in police custody [at the Public Safety Building] ... for purposes of detoxification and not on any criminal charges.”
It is submitted that in light of the overwhelming evidence to the contrary, the trial court’s finding that “appellant was legally being held in police custody for purposes of detoxification and not on any criminal charge,” is clearly and palpably erroneous. If we accept all of the statements of Blades, we still cannot escape the plain facts that appellant was not booked for detoxification until after he had been questioned for three hours on the assault, and that he was not released from detoxification at the proper time because he was being held for further investigation on the criminal charge.
It is somewhat puzzling that the trial court suppressed the statements obtained from the interrogation on August 9 but refused to suppress the statements obtained on August 10. The State, conceding that it had no probable cause to arrest on August 9, claims it finally had probable cause to arrest appellant from the investigations and questioning that had taken place on August 9, while appellant was being held for detoxification. The questioning on both August 9 and 10 was carried on at a time when appellant was involuntarily detained; when the State had no probable cause to arrest in the first instance; and lacks clear indication of any attenuation of the primary taint.*
We find the following language from State v. Weekes, Minn., 268 N.W.2d 705, 710-711 (1978), to be most persuasive:
“ * * * Assuming [Officer Blades’] utmost good faith in his judgment that defendant should be confined for the ‘protection’ of himself and others or held for ‘investigation,’ it is nevertheless clear that defendant was taken into custody and confined without a warrant and without probable cause in violation of Fourth Amendment guarantees, for absent probable cause there is not and never has been any lawful basis for ‘holding’ a person ‘for investigation’ or ‘on suspicion.’ Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66 (1969). Indeed this is the very essence of the protection afforded by the Fourth Amendment freedom of ‘[t]he right of the people to be secure in their persons’ against unreasonable seizures of both *690physical and verbal evidence which may be used in a criminal prosecution. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).”
... [As] Mr. Justice Powell in his concurring opinion in Brown v. Illinois, 422 U.S. 590, 610, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431 ... state[s]:
“I would require the clearest indication of attenuation in cases in which official conduct was flagrantly abusive of Fourth Amendment rights. If, for example, the factors relied on by the police in determining to make the arrest were so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or if the evidence clearly suggested that the arrest was effectuated as a pretext for collateral objectives, * * * or the physical circumstances of the arrest unnecessarily intrusive on personal privacy, I would consider the equalizing potential of Miranda warnings rarely sufficient to dissipate the taint. In such cases the deterrent value of the exclusionary rule is most likely to be effective, and the corresponding mandate to preserve judicial integrity, * * * most clearly demands that the fruits of official misconduct be denied. I thus would require some demonstrably effective break in the chain of events leading from the illegal arrest to the statement, such as actual consultation with counsel or the accused’s presentation before a magistrate for a determination of probable cause, before the taint can be deemed removed * *
One major purpose for the exclusionary rule is deterrence of illegal police conduct by removing incentives to the illegality. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Were we to affirm the trial court the effect would be to render admissible any confession made after an illegal detention where police conduct falls short of overt physical brutality.... Affirmance would serve to encourage police disregard of constitutional procedures, to encourage exploitation of illegal confinements, and to increase public cynicism about law enforcement agencies.
Law and order require the police as well as citizens to refrain from illegal activities. While we in no way condone the acts committed by defendant, the police failure to abide by constitutional restraints mandates a reversal in this case. The confession must be excluded in any retrial.
There is no clear indication of any attenuation of the taint of the illegal arrest. Rather, the seizure, and subsequent interrogation, without probable cause, clearly indicates a collateral objective. The police cannot be allowed to pull themselves up by their own bootstraps in an effort to bolster “probable cause” by obtaining admissions from a defendant after he has been illegally taken into custody. When a defendant is taken into protective custody for detoxification, he should be detoxified and released. This humane statute should not be used as a device for picking up possible suspects without probable cause and subjecting them to interrogation on a felony charge.
We, therefore, reverse and remand for a new trial excluding all evidence illegally obtained in both the August 9 and August 10 interrogations.
As we are reversing the underlying conviction, those issues relating to the habitual criminal charge are rendered moot.
MORGAN and HENDERSON, JJ., concur. WOLLMAN, C. J., and FOSHEIM, J., dissent.Even if we were predisposed to find that appellant was properly detained for detoxification (which we are not so inclined to do), we would still find that he was illegally seized beyond the normal time period for detoxification; in this case beyond 6:30 a. m., August 10. Then we would be presented with the question of whether that illegal detention required suppression of the incriminating statements.
[S]everal factors to be considered “in determining whether the confession is obtained by exploitation of an illegal arrest [are] [: t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct .... ” ([:t] in original)
Dunaway v. New York, 442 U.S. 200 at 218, 99 S.Ct. 2248 at 2259, 60 L.Ed.2d 824 at 839 (1979), quoting from Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Here, all of these factors militate in favor of suppressing the August 10 statements. The temporal proximity of appellant’s statements that were made within three hours of this illegal 6:30 a. m. seizure, indicates they should be suppressed.
As for the second factor of intervening circumstances, “[n]o intervening circumstances occurred in this case which áre generally recognized as sufficient to purge the taint of an illegal arrest. There was no appearance before a magistrate; there was no release and subsequent voluntary return to confess; [and] there was no consultation with an attorney.” State v. Weekes, Minn., 268 N.W.2d 705, 709 (1978) (footnotes omitted).
Finally, as for the factor of the flagrancy of the official misconduct; the State concedes that there was a total lack of any probable cause to arrest appellant until the morning of August 10; however, appellant was subjected to several hours of interrogation without probable cause, a substantial part of which was done without even giving a Miranda warning to appellant. We fail to see how an involuntary detention, with subsequent interrogation, without a reading of Miranda rights, by trained and experienced police detectives, can be deemed anything but flagrant misconduct.
There is simply nothing to indicate that the taint of the original arrest has been purged; regardless of whether appellant was legally or illegally detained for detoxification.