State v. Barry

PASHMAN, J.,

dissenting.

Defendant’s statement was the only evidence admitted at the trial connecting him to the crimes of which he was convicted. As the State concedes before this Court, defendant was arrested without probable cause in violation of his Fourth Amendment rights. Defendant was then illegally detained for eighteen hours, without seeing anyone except law enforcement officers. Before his arraignment, he was told by the police that several participants in the crime had made statements implicating him. He then gave an inculpatory statement. The majority holds that the occurrence of other causative events including Murphy’s *94confession, which directly implicated defendant, and the recovery of the guns, which were shown to defendant, “severed any possible chain of causation between the original illegal arrest •and defendant’s subsequent confession.” Ante at 89. Because I do not find these intervening events any more significant than the ones in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the Supreme Court suppressed the defendant’s confession, and because I believe that suppression of defendant’s statement is necessary to deter similar police conduct, I dissent.

I

The primary purpose of the exclusionary rule is to deter violations of the Fourth Amendment. The rule “compel[s] respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). In determining when it is necessary to exclude an incriminating statement obtained after an unreasonable search or seizure, the Supreme Court has focused on the question whether “the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ ” Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). By focusing on “the causal connection between the illegality and the confession,” Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), the attenuation doctrine serves to indicate when exclusion is necessary to further the purpose of deterrence. See Dunaway v. New York, 442 U.S. 200, 217-18, 99 S.Ct. 2248, 2258-59, 60 L.Ed.2d 824 (1979). When there is a close causal connection between an illegal arrest and a confession, it is likely that the police could have foreseen that the statement would be a product of their illegal conduct and, therefore, that the desire to obtain a confession might have been a motivating factor behind the initial arrest. In such *95cases, exclusion of the confession is the best way to deter similar misconduct in the future.

The parallels between the circumstances in Brown v. Illinois, supra, and this case are striking. Brown was arrested without probable cause as a suspect in a murder investigation. At the station house, following a period of unbroken detention, the police brought out their file on the investigation and confronted Brown with the information they had obtained. After notifying Brown of his Miranda rights, the officers told him that they knew of an incident in which he had fired a shot from a revolver into the ceiling of a poolroom. They then informed him that a bullet extracted from the ceiling had been taken to the laboratory for comparison with the bullets taken from the murder victim. Brown then agreed to give a statement. 422 U.S. at 594, 95 S.Ct. at 2257.

In Brown the Supreme Court identified three factors to be considered in determining whether exclusion of a confession obtained during an illegal detention is necessary. These are the “temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603-04, 95 S.Ct. 2261-62 (citation and footnotes omitted). The Court stated that the burden of showing admissibility rests on the prosecution. Id. at 604, 95 S.Ct. at 2262.

Applying its three-part test to the facts of the case, the Supreme Court concluded that the State had not met its burden of showing that Brown’s statement was admissible. The “statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever.” Id. The Court reached this conclusion even though Brown had confessed only after learning of the evidence against him. The Court also found that the illegality of the arrest had “a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their *96testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ ” Id. at 605, 95 S.Ct. at 2262.

The Supreme Court’s reasoning and holding in Brown, completely ignored by the majority, require suppression of Barry’s statement in this case. First, although Barry made his statement after eighteen hours of detention instead of two, the difference is not significant because it was a period of unbroken custody. Indeed, one case cited in Brown to illustrate the relevance of the time between an arrest and a statement, 422 U.S. at 603 n.8, 95 S.Ct. at 2262 n.8, ordered the suppression of a statement made forty-two hours after the illegal arrest. See Hale v. Henderson, 485 F.2d 266, 267-69 (6th Cir. 1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). The events occurring during the detention, not the mere passage of time, are the significant factors in determining whether exclusion is necessary because the illegal arrest has not been attenuated. See 3 W. LaFave, Search and Seizure § 11.4 at 633-34 (1978); Comment, The Fourth Amendment and Tainted Confessions: Admissibility as a Policy Decision, 13 Hous.L.Rev. 753, 764-66 (1976). As Justice Stevens has said, “[i]f there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one.” Dunaway v. New York, supra, 442 U.S. at 220, 99 S.Ct. at 2260 (concurring opinion). Since the mere passage of time after an illegal arrest is by itself not determinative, the other two factors — the presence of intervening circumstances and the purpose and flagrancy of the police conduct — are the crucial issues in the inquiry.

The majority holds that the disclosure of Archie Murphy’s confession and the display of weapons used in the crime to the defendant constituted an intervening event breaking the causal chain between the illegal arrest and defendant’s confession. Ante at 89. I fail to see the relevance of this event to the attenuation doctrine, the purpose of which is to determine whether exclusion of a challenged piece of evidence will serve as a deterrent to similar police misconduct. Although the Supreme *97Court has not defined “intervening circumstances,” the examples contained in the Court’s opinions indicate that the event must create a demonstrable break between the illegal arrest and the confession, such as through actual release from detention, see Wong Sun v. United States, supra, 371 U.S. at 491, 83 S.Ct. at 419; appearance before a neutral magistrate, see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972), cited in Brown v. Illinois, supra, 422 U.S. at 604, 95 S.Ct. at 2262; or consultation with counsel, see Brown v. Illinois, supra, 422 U.S. at 611, 95 S.Ct. at 2265 (Powell, J., concurring); Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 30 (3d Cir. 1965), cited in Brown v. Illinois, supra, 422 U.S. at 603 n.8, 95 S.Ct. at 2262 n.8. Nowhere does the Court suggest that mere confrontation with evidence of guilt during interrogation is sufficient to attenuate the taint of an illegal arrest. The holding in Brown is strong evidence to the contrary. As in this case, the defendant in Brown was confronted with the evidence that the police had against him immediately before he gave a statement. Unlike the majority in this case, however, the Supreme Court held that “there was no intervening event of significance whatsoever.” 422 U.S. at 604, 95 S.Ct. at 2262. Furthermore, as the majority itself recognizes, ante at 87, the factors in Brown must be evaluated in light of the purposes of the exclusionary rule. This is the very kind of case where suppression is most necessary for deterrence. If the facts of this case present sufficient intervening circumstances, then police will have little incentive to refrain from illegally arresting someone upon mere suspicion and detaining him in hope that the investigation will uncover evidence of guilt with which to confront the suspect and perhaps obtain a confession.

The conclusion that suppression is necessary here is supported by the third factor in Brown : the purpose and flagrancy of the police conduct. Although the manner in which defendant was arrested was not so flagrantly abusive of personal liberty and privacy as the arrest in Brown, the Supreme Court’s decision in *98Dunaway v. New York, supra, establishes that police conduct need not be threatening and frightening before suppression is justified. Rather, the purpose of the violation is the significant factor. Id., 442 U.S. at 218, 99 S.Ct. at 2259. Here, as in Dunaway and Brown, defendant was arrested without the slightest trace of probable cause “in the hope that something might turn up.” Id. The need to curb the kind of illegal arrest that occurred in this case is not diminished, as the majority implies, ante at 90, by the arresting officer’s alleged “innocent although unreasonable belief” in the existence of probable cause. Nor is it significant that Barry’s arrest was not “investigatory”; the Fourth Amendment was not adopted solely to prevent investigatory arrests. The Supreme Court has repeatedly stated that “[hjostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant for arrest.’ ” Id. at 213, 99 S.Ct. at 2256. Because the kind of misconduct that occurred in this case poses so great a threat to individual liberty, there is a commensurate need for an effective deterrent to remove the motivation for such illegal conduct. Exclusion of evidence that the police will foreseeably obtain by exploiting an illegal arrest is the only effective sanction available. Defendant’s confession is that kind of evidence.

At various points in its opinion, the majority observes that because of Archie Murphy’s incriminating statement, the police had probable cause to hold defendant by the time they took his confession. Ante at 89 & 90. The majority wisely declines to hold that defendant’s statement is admissible for this reason, ante at 89 & 90, although its apparent approval of the questionable decisions cited is troubling. “It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause.” 1 W. LaFave, supra, § 3.2(d) *99at 465-66. Once the illegality of an arrest is shown, the question becomes whether the challenged evidence was obtained by exploiting that arrest and whether exclusion is a necessary sanction. The discovery of additional evidence to support probable cause during the illegal detention in no way breaks the causal chain connecting a statement with the prior illegal arrest. Nor does it eliminate the effectiveness of exclusion as a deterrent. When the police arrest someone based on mere suspicion, they presumably envisage the subsequent discovery of evidence of guilt. Before the poliee may interrogate an illegally arrested suspect with assurance that any statement he makes will be admissible, they must make an effective break with the prior arrest, for example, by giving him the opportunity to confer with counsel or by presenting him to a magistrate for arraignment or a probable cause determination.

II

To summarize, Brown v. Illinois requires the suppression of defendant’s confession as the fruits of an illegal arrest. Such suppression is necessary to deter future arrests based on nothing more than suspicion. Because I believe that this important principle of law requires the reversal of defendant’s conviction, I express no views on the question whether the trial court’s refusal to admit the statements of Walter Barry and Mark Jackson under the hearsay exception of Evid.R 63(10) was harmless error.

I would affirm the judgment of the Appellate Division.

For reversal and reinstatement — Chief Justice WILENTZ and Justices SULLIVAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 6.

For affirmance —Justice PASHMAN — 1.