specially concurring:
I concur in the holding of the case but write to express a concern with the holding in a case this opinion heavily relies upon. As noted, in People v. Beamon, 255 Ill. App. 3d 63 (1993) the court held that, "the State’s use of evidence obtained as a result of the illegal arrest of [a codefendant] may not serve to attenuate the taint of [another codefendant’s] illegal arrest.” The court in Beamon further held, "[w]e recognize that in People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998, the supreme court held that a defendant lacked standing to claim that his confession is the product of the illegal arrest of another; but the defendant in James had himself not been illegally arrested. The issue in James was probable cause, not attenuation.” People v. Beamon, 255 Ill. App. 3d at 70.
It is difficult to understand why probable cause to arrest a defendant may be based on the statement of an illegally arrested codefendant (as in James) but that this same statement cannot be used as attenuation.
In the instant case, the police did not confront defendant with any further witnesses or evidence obtained as a result of defendant’s illegal arrest. This fact pattern is similar to that in People v. Lekas, 155 Ill. App. 3d 391 (1987). In Lekas, three brothers (George, Phillip and Christopher) were arrested and charged with armed robbery and murder. George was arrested first and he told police that his brothers had owed the murder victim’s son money and that at some time in the past they had talked about stealing a coin collection from the victim’s home. A coin collection had been taken from the victim’s home at the time the murder was committed. Six hours after receiving this information from George, the police arrested Phillip and Christopher in their homes without obtaining arrest warrants for them. After Phillip and Christopher were arrested, the police located a witness who had been identified by George. Christopher confessed after his arrest. Phillip confessed after being in custody for 12 hours and after being confronted with George’s statement, Christopher’s statement, and the existence of the witness.
The trial court suppressed George’s statements as being the product of improper police promises. The trial court held there was probable cause for the arrest of Phillip and Christopher.
On appeal, the appellate court held that even if Phillip’s arrest should have been quashed, his confession was attenuated due to the intervening cause of attainment of probable cause. The appellate court held that since George’s statement, Christopher’s statement, and the existence of the witness were not the fruits of Phillip’s arrest, Phillip’s subsequent confession was not tainted. People v. Lekas, 155 Ill. App. 3d at 414.
Under Lekas, I believe that the defendant’s confession would be attenuated. I also believe that the holding in Beamon conflicts with the holding in James.
The court in Beamon did not cite Lekas or distinguish it. Likewise, the Beamon opinion did not cite or distinguish People v. Pierson, 166 Ill. App. 3d 558 (1988). The status of Kevin Taylor in the instant case is very similar to that of Alfie Jones in the Pierson case. Jones was picked up by the police without probable cause and gave a statement implicating Pierson but not implicating himself. The appellate court in Pierson held that under these circumstances, the statements of James provided probable cause as to the unlawfully arrested defendant. This probable cause is an intervening circumstance which was a significant factor to be considered when determining whether there is attenuation. People v. Pierson, 166 Ill. App. 3d at 564.
The defense urges this court to overrule Pierson, asserting that its holding provides the prosecution with an incentive to conduct illegal arrests and then validly use the fruits of such improper arrests by merely deciding not to charge one individual in the group. This is not a valid concern based on the facts of the instant case. There is no evidence that Kevin Taylor was involved in any way with the murder of Rufus Simpson. Therefore there was no evidence that the State chose not to charge Taylor so it could use his statements to supply the probable cause to arrest Dorrough, Walley and defendant.
Indeed, had defendant confessed after being confronted only with Taylor’s statements, I believe defendant’s confession would have been attenuated. However, defendant was also confronted with Dorrough’s and Walley’s confessions prior to confessing himself. Under Beamon, Dorrough’s and Walley’s confessions were tainted. When a defendant is confronted with legally obtained evidence (such as Taylor’s statements) and with tainted evidence (such as Dorrough’s and Walley’s confessions), it is the State’s burden to prove that the tainted evidence was not a factor in his decision to confess. People v. Bates, 267 Ill. App. 3d 503, 506 (1994), citing People v. Turner, 259 Ill. App. 3d 979 (1994). The State has not met this burden in this case.
I believe that I am compelled to follow the holding in Beamon and therefore I concur in the result of this case. However, I believe that the holding in Beamon conflicts with the holdings in Lekas and James and these conflicts should be resolved.