(dissenting).
I would affirm the judgment of conviction.
At approximately 6:30 p. m. on August 9, 1979, members of the Sioux Falls Police Department arrived at the scene of an apparent beating that occurred near downtown Sioux Falls. One of the officers on *691the scene, Officer Blades, identified the victim of the beating as Harold Rooney. Shortly thereafter, Rooney was transported to McKennan Hospital in Sioux Falls; Officer Blades was sent to the hospital to pick up Rooney’s clothes.
While enroute from the hospital to the police station, Officer Blades observed appellant walking down the street. Officer Blades had previously seen appellant and Rooney together and had also taken appellant in for detoxification on an earlier occasion. After asking appellant some questions about Rooney, Officer Blades took appellant to the Minnehaha County jail at approximately 8:30 p. m. for detoxification purposes because, according to Officer Blades, appellant was intoxicated and had nowhere to go.
Upon arrival at the Public Safety Building, Officer Blades saw what appeared to be possible blood stains on appellant’s shirt as he was removing handcuffs from appellant. He then contacted the two detectives who were investigating the Rooney beating. The detectives took appellant to a conference room in the same building, questioned him, and learned that appellant and some others had been drinking with Rooney earlier that day at the location at which Rooney was later found. At about 11:30 p. m., appellant was advised of his Miranda rights and voluntarily consented to have some blood withdrawn at a hospital. Appellant was returned to a cell in the Public Safety Building shortly after midnight.
At approximately 9:00 a. m. on August 10, appellant was returned to the conference room, where he was again advised of his Miranda rights. Appellant then proceeded to make incriminating statements, whereupon he was arrested and charged with aggravated assault.
The trial court suppressed the statements made by appellant at the Public Safety Building the night of August 9, but held that all other statements were admissible.
Appellant contends that the statements he made to Sioux Falls Police Officers on August 10 are inadmissible because they were the result of custodial interrogation based upon less than probable cause for arrest. The State, conceding that probable cause to arrest appellant did not exist until approximately 9:30 a. m. on August 10, contends that appellant was properly taken into protective custody for detoxification and therefore was not illegally seized. The State further argues 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.
The trial court found that Officer Blades took appellant into custody for the purpose of detoxification and concluded that appellant was stopped because he was intoxicated and not because he was a suspect. The trial court held that appellant was legally being held for purposes of detoxification and not on any criminal charges. I cannot say that this finding is clearly erroneous. SDCL 15-6-52(a). There was sufficient evidence that appellant was intoxicated. Moreover, Officer Blades had previously taken appellant into protective custody for detoxification. Also, the record fails to show bad faith on the part of the officer in taking appellant into protective custody. Cf. Klingler v. United States, 409 F.2d 299 (8th Cir. 1969). I would emphasize, however, that I do not mean to suggest that this Court would sanction the use of the protective custody procedure as a pretext for questioning a suspect in. a criminal matter.
There remains the question whether appellant was held in violation of his fourth amendment rights following the expiration of the detoxification process.
According to the record, the normal detoxification stay is eight to ten hours. Officer Blades testified that appellant was an average detoxification subject. Inasmuch as appellant was taken into protective custody at 8:30 p. m. on August 9, the police were justified in keeping him in protective custody until approximately 6:30 a. m. on August 10. Appellant was, in effect, “seized” in violation of his fourth amendment rights upon his continued detention following the period of detoxification.
*692It must be determined, then, whether the illegal detention requires the suppression of the incriminating statements appellant made on the morning of August 10. In resolving this question, we must apply the principles set forth in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
As stated by the United States Supreme Court in Brown:
The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances ... and, particularly, the purpose and flagrancy of the official misconduct are all relevant.... The voluntariness of the statement is a threshold requirement.. . . And the burden of showing admissibility rests, of course, on the prosecution.
422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427 (footnotes omitted).
In Brown, the Court noted that the defendant’s statement was separated from his illegal arrest by a period of less than two hours, during which there was no intervening event of any significance. The Court also emphasized the purposefulness of the action of the arresting officers in taking the defendant into custody under circumstances that were calculated to cause surprise, fright, and confusion. Similar factors were present in Dunaway.
After weighing the facts in the instant case in the light of the factors set forth in Brown, I would hold that appellant’s August 10 statements were properly admitted by the trial court.
First, appellant was advised of his Miranda rights immediately prior to making the incriminating statements on the morning of August 10, this after receiving them late the preceding night. See Rawlings v. Kentucky, supra, 448 U.S. at 106, 100 S.Ct. at 2562, 65 L.Ed.2d at 633.
The second factor — the temporal proximity of the arrest and the confession— presents a closer question. As indicated above, the period of appellant’s illegal detention began at the time he should have been released following the expiration of the normal period of detoxification. At the most, then, appellant had been illegally detained for a period of two and one-half hours when he made his incriminating statements. Applying the analysis followed by the Supreme Court in Rawlings, where the period of illegal detention was approximately forty-five minutes, one must look to the circumstances surrounding appellant’s detention. Unlike the situation in Brown, appellant was not forcibly taken into custody on the evening of August 9 at the point of a gun; he was acquainted with Officer Blades and in fact had been taken into protective custody for detoxification before by Officer Blades. The transition from the period of lawful custody to illegal detention was marked by no show of force or police intimidation. Indeed, it is only through the computation of the expiration of the period of lawful custody for detoxification purposes that it can be said that appellant was ever unlawfully detained. Given these facts, I conclude that, in the words of the United States Supreme Court, “these circumstances outweigh the relatively short period of time that elapsed between the initiation of the detention and [appellant’s] admissions.” Rawlings v. Kentucky, supra, 448 U.S. at 108, 100 S.Ct. at 2563, 65 L.Ed.2d at 644.
Turning to the third factor — the presence of intervening circumstances between the unlawful detention and the challenged statements — the record reveals the occurrence of no event of significance between *693the time the lawful custody ended and the incriminating statements were made. This fact is not determinative, however, in view of the totality of the circumstances surrounding appellant’s initial detention on the streets of Sioux Falls on the evening of August 9 and the questioning that occurred some twelve and one-half hours later. When taken into custody in the evening, appellant was intoxicated; when questioned in the morning, he was sober. Because the line that separated the period of lawful custody from the period of illegal detention was not characterized by an overt, clear-cut, easily recognizable exercise of official police action, I am loath to say that the absence of any similarly overt, clear-cut, easily recognizable intervening act during the two and one-half hour period of unlawful detention renders appellant’s otherwise voluntary statements inadmissible. I look upon the facts of this case as being far different from those in Brown, Dunaway, and Rawlings, insofar as in those cases there was a bright line, as it were, marking the start of the illegal detention. Suffice it to say, then, that the absence of any event of significance during the period from 6:30 to 9:00 on the morning of August 10 does not by itself render appellant’s statements inadmissible.
Finally, we have in the case before us none of the purposeful, flagrant police misconduct that the Court found so offensive in the Brown and Dunaway cases. As I have already indicated, the trial court’s finding that appellant was taken into custody on the evening of August 9 for the purpose of detoxification is not clearly erroneous. Although appellant should have been released at the expiration of the normal period of detoxification, I conclude that “the conduct of the police here does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner’s statements.” Rawlings v. Kentucky, supra, 448 U.S. at 110, 100 S.Ct. at 2564, 65 L.Ed.2d at 645.
I conclude, therefore, that appellant’s statements were acts of free will unaffected by his unlawful detention and were thus properly held to be admissible.
I am authorized to state that Justice FOSHEIM joins in this dissent.