dissenting:
Prior to stating my reasons for dissenting in this cause, I wish to call attention to some inaccuracies in the majority opinion. The majority says that “even though he [defendant] was scrupulously advised of his constitutional rights and waived them ” s I have examined appellee’s brief carefully and find no such concession.
The opinion also states that when asserting the fruit of the poisonous tree doctrine the burden is on the defendant in the first instance to establish the primary illegality and to show its connection to what are alleged to be the fruits of the illegality, citing People v. Wilson, 60 Ill. 2d 235, and People v. Robbins, 54 Ill. App. 3d 298. This is an inaccurate statement of the law enunciated in these two cases. The rule of law stated in those two opinions is that once the defendant establishes the primary illegality and shows its connection to what are alleged to be the fruits of the illegality, the prosecution then has the burden of establishing by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. This, to me, means that the test enunciated was to require the accused to establish the primary illegality and make a prima facie showing of the connection and upon the showing of that prima facie connection the burden is shifted to the prosecution to prove the contrary by clear and convincing evidence. Compare Harrison v. United States, 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.
After hearing testimony offered by the State on the defendant’s motion to suppress confession, the court found that the defendant was “in custody” within the meaning of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and therefore all statements obtained from the defendant prior to the time proper warnings were given were inadmissible. The court also suppressed as fruit of the poisonous tree all statements made by the defendant immediately after warnings were given and certain physical evidence obtained from the defendant’s car.
The law is clear that the ruling of a trial judge on a motion to suppress confession will not be reversed on appeal unless it is against the manifest weight of the evidence, since he is in the best position to determine the credibility of the witnesses and the competency of the confession. (People v. Young, 131 Ill. App. 2d 113, 266 N.E.2d 160.) This is true whether the motion involves a confession or merely admissions. People v. Mrozek, 52 Ill. App. 3d 500, 367 N.E.2d 783.
The trial court after hearing the witnesses on the motion to suppress concluded that the defendant was in custody when they first took him to the station. I agree. The investigation had focused upon him, he was in the type of setting described in Miranda and he was not free to leave. In any event, there was sufficient evidence for the trial court so to find and this finding is binding on us if supported by the evidence, which it was.
Therefore, in my opinion we should commence with the fact that the defendant was in custody when he first was taken into the station and that he was entitled to the Miranda warnings before any interrogation began. The reasoning of the majority impels this conclusion, but it ducks the question.
The reasoning of the trial court and the argument of counsel for the defendant was and is that all of the statements taken after the Miranda warnings were given were inadmissible because of the fruit of the poisonous tree doctrine. This position is wrong. In fact, it is so wrong that I do not think the case should be based upon this issue even though argued before us. When there has been an uninterrupted interrogation with no Miranda warnings given at the beginning of the interrogation, and where Miranda warnings are given at a time later on in the interrogation, I have never heard of an argument that the latter part of the statement must be suppressed under the “fruit of the poisonous tree doctrine.” If it is to be suppressed, it must be done under the principles laid down in Miranda. In Miranda the Supreme Court pointed out that if authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s fifth amendment privilege so long as they do not question him during that time. The court further stated that if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
From the foregoing I conclude that the statement as a whole was in violation of the principles enunciated in Miranda and therefore the statement was involuntary. In my opinion the trial court was correct in suppressing the statement but not for the reason enunciated, i.e., that it was the fruit of the poisonous tree, but for the reason that I have previously stated. The court in its order said:
“There can be no question that this questioning took place while Defendant was in custody. The Defendant was the prime suspect in this case. He was taken by the police from a funeral home to the County Jail. He was not advised for an hour and one-half that he did not have to talk to these officers. He was not advised that he could leave at any time he wanted. He was not advised that he was not under arrest and was not advised that the investigation into his father’s homicide was focusing on him.
Under the totality of the circumstances Defendant’s Constitutional rights were violated when the police failed to advise him of his rights before questioning for the period in question.”
I think the following language from Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, is particularly appropriate to the actions of the two police officers in this case:
“The illegality here, moreover, 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 testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ [Citation.] The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.” 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.
I would affirm the order of the trial court.