Miles v. State

Dissenting Opinion by

RAKER, J.,

in which BELL, C.J. and ELDRIDGE, J., join.

I respectfully dissent. I would reverse appellant’s convictions for first degree felony murder, robbery with a deadly *574weapon, robbery, and use of a handgun in the commission of a crime of violence.

The Circuit Court erred in refusing to suppress all of the evidence that was derived from appellant’s unlawfully intercepted cellular telephone communication in violation of the exclusionary command contained in the Maryland Wiretapping and Electronic Surveillance Act, Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) § 10-405 of the Courts and Judicial Proceedings Article.1 Specifically, the State failed to carry its burden to prove that the evidence obtained from Jona Miles, appellant’s wife, and appellant’s subsequent statement to police were sufficiently purged of the taint of the primary illegality of the wiretap and the evidence seized pursuant to the search warrant derived therefrom that they did not constitute “fruit of the poisonous tree” under the attenuation doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny.

The Circuit Court suppressed the tape recording of the phone conversation between Jona and Jody Lee Miles because it was seized illegally in violation of the Maryland wiretapping statute, § 10-401, et seq. No one disputes this finding of the trial judge. The judge also found, and the State also does not dispute, that the evidence seized pursuant to the search warrant executed on April 22, 1997 was unlawfully seized because it was derivative of the illegal wiretap and, thus, was excluded pursuant to the exclusionary mandate of § 10-405. Therefore, the sole question presented by this appeal, with respect to appellant’s pretrial motion to suppress, is whether the remaining evidence obtained subsequent to the illegal wiretap and search warrant was admitted improperly in evidence at appellant’s trial because it was derived from the illegally intercepted communication in violation of the exclusionary command of § 10-405.

*575While the statutory exclusionary rule of § 10-405 is not dependent upon the Fourth Amendment exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the constitutional “fruit of the poisonous tree” doctrine is helpful in interpreting the scope of the exclusionary prohibition against admission of evidence “derived from” an illegal wiretap. See maj. op. at 516-520; United States v. Spagnuolo, 549 F.2d 705, 711-12 (9th Cir.1977) (interpreting the federal wiretap statute as codifying the “fruit of the poisonous tree” doctrine with respect to its exclusionary provision); United States v. Wac, 498 F.2d 1227, 1232 (6th Cir.1974) (interpreting the words “derived therefrom” in the federal wiretap statute as a codification of the “fruit of the poisonous tree” doctrine); Carter v. State, 274 Md. 411, 422, 337 A.2d 415, 422 (1975) (applying the Wong Sun doctrine to a violation of the Maryland wiretap statute). As a result, the exclusionary rule “applies to any ‘fruits’ of a constitutional violation — whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention.” United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980) (footnotes omitted).

It is black letter law that once a defendant has demonstrated the existence of a primary illegality, such as the illegal wiretap in this case, the burden shifts to the government to prove that the resulting evidence was not derived from that illegality. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1969); United States v. Parker, 722 F.2d 179, 184 (5th Cir.1983); United States v. Taheri, 648 F.2d 598, 601 (9th Cir.1981); United States v. Celia, 568 F.2d 1266, 1284-85 (9th Cir.1978); State v. Pau’u, 72 Haw. 505, 824 P.2d 833, 836 (1992); Carter, 274 Md. at 443, 337 at 434, 337 A.2d 415; Commonwealth v. Cephas, 447 Pa. 500, 291 A.2d 106, 110 n. 4 (1972); Hart v. Commonwealth, 221 Va. 283, 269 S.E.2d 806, 809 (1980). As this Court stated in Carter:

*576Although initially the petitioner must go forward with evidence to show that the facts in the affidavit were obtained as “fruits of the poisonous tree,” if it is established that any such illegal wire tap or eavesdrop was employed, it then becomes the ultimate burden of the prosecution to show that such facts were discovered independently, untainted by any such illegal wire tap or eavesdropping, or were so “attenuated as to dissipate the taint” of the primary illegality.

Carter, 274 Md. at 443, 337 A.2d at 434.

The government can demonstrate that the taint of the primary illegality has been purged in three ways: (1) by demonstrating that the causal nexus between the illegality and the subsequently discovered evidence is sufficiently attenuated so that the taint has been dissipated, see Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417, 9 L.Ed.2d 441, (2) by demonstrating that the subsequently discovered evidence was obtained from a source independent of the primary illegality, see United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967); or (3) by demonstrating that, absent the illegality, the State still inevitably would have discovered the later evidence. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984); United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir.1989); Parker, 722 F.2d at 184. In this case, neither the State nor the majority alleges an independent source for the disputed evidence or inevitable discovery; therefore, the admissibility of the evidence obtained from Jona Miles and appellant’s confession is dependent solely upon application of the attenuation doctrine.2

*577This Court examined the attenuation doctrine in the context of the Fourth Amendment in Ferguson v. State, 301 Md. 542, 483 A.2d 1255 (1984). In that case, the police had illegally arrested the petitioner without probable cause. As a result, at the petitioner’s ensuing trial, the court suppressed the physical evidence seized from his person at the time of his arrest, but the trial court permitted the victim’s identification of the petitioner, both at the time of his arrest and in court, to be admitted in evidence, and the petitioner was subsequently convicted of armed robbery and related offenses. See id. at 546-47, 483 A.2d at 1257.

This Court reversed the petitioner’s conviction, ruling that the trial court had erred in not suppressing the extrajudicial identification testimony as the fruit of the petitioner’s unlawful arrest, see id. at 552, 483 A.2d at 1260, although it upheld the court’s admission of the in-court identification of the petitioner because it had an “independent source.” See id. at 556, 483 A.2d at 1262. We found that the causal relationship between the illegal arrest and the subsequent extrajudicial identification of the petitioner was not sufficiently attenuated, primarily on the basis of the temporal proximity between the arrest and the identification, the lack of any meaningful intervening circumstance to break the causal connection, and the purposefulness of the police conduct in conducting the identification “showup.” See id. at 550-52, 483 A.2d at 1259-60.

In examining the Wong Sun attenuation doctrine, courts repeatedly utilize consequential language, such as “exploitation,” “direct result,” “chain of events,” “link,” “nexus,” “impetus,” “connection,” “causation,” “inducement,” “basis,” and “product” to describe the necessary relationship between a primary illegality and evidence derived therefrom. In assess*578ing attenuation, courts examine the facts and circumstances of each case in considering four factors: the giving of Miranda warnings; the temporal proximity of the illegality to the confession; the presence of intervening circumstances; and the purpose and flagrancy of the illegal police conduct. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975); Parker, 722 F.2d at 186; Ferguson, 301 Md. at 549, 483 A.2d at 1258; State v. Jennings, 461 A.2d 361, 368 (R.I.1983).

In my view, there was no sufficient attenuation to purge the primary taint of the illegal oral acquisition. All of the subsequent evidence presented at the trial was the product of the primary illegality, and the State failed to satisfy its burden to prove attenuation. While Jona Miles and appellant both were given their Miranda warnings, an application of the remaining Brown factors makes clear that the temporal proximity between the illegal wiretap and search warrant and the derivative evidence, the lack of intervening circumstances, and the purposefulness of the illegal police conduct all strongly indicate a direct causal nexus between the illegally seized evidence and the subsequent evidence used by the State at trial.

The illegal wiretap and subsequent search and seizure led the police almost immediately to appellant — the police identified the voices of Jona Miles and appellant on the basis of the taped conversation; the search and seizure warrant for appellant’s residence was issued within a week of the taped phone conversation having been turned over to the police, on the basis of the contents of that conversation; Jona Miles’s custodial interview was conducted the same day, during which she consented to subsequent searches and seizures and described to police where she had disposed of the murder weapon; appellant was arrested later that evening and confessed after a brief custodial interrogation during which he was confronted with evidence that the police had against him, including the illegally seized evidence; and the police recovered the gun the following day.

*579Without the primary illegality, it is unlikely that the police would have identified appellant. There certainly were no intervening circumstances to lead them to his door.3 The police knew or, at the very least, they should have known, that the tape of appellant’s telephone conversation was obtained in violation of the statute and should not have exploited it further to obtain the search warrant for his residence.

Emphasizing the deterrent purposes of the exclusionary rule, the majority asserts that the police conduct in this case did not constitute flagrant and purposeful misconduct. See maj. op. at 538, stating that “the police did exactly what anyone would have expected them to do.” I disagree. The intercepted conversation plainly was obtained in contravention of the wiretap statute. As the majority concedes, “the police were aware that the conversation had been taped ... without the consent of the parties to the conversation.” Maj. op. at 512. Even if, for some reason not apparent on this record, the police did not know that its further use was illegal, they certainly should have. The law in Maryland is certainly clear that the use of the contents of an unlawfully taped conversation is, in itself, an unlawful act. See § 10-402(a).

The majority attempts to distinguish the police misconduct in this case from that in Brown, see id., but the attempt amounts to a distinction without a difference. In Brown, the Court found the police conduct to be purposeful and flagrant because the arrest of the petitioner was obviously improper and investigatory in purpose since it was used to effectuate a search of his home as a search incident to his arrest. See *580Brown, 422 U.S. at 604-05, 95 S.Ct. at 2262, 45 L.Ed.2d 416. The police conduct in this case is directly comparable — the police listened to an obviously illegally taped conversation and then used its contents to effectuate the search of appellant’s home and seize evidence of his involvement in the murder. The only real difference between the two situations is that, in Brown, the police search was a warrantless one — a meaningless distinction for the purpose of assessing the purposefulness and flagrancy of the actions of the police.

In addition, the majority claims that construing the wiretap statute to preclude police use of the taped conversation in this case would produce an unreasonable result. See maj. op. at 539-540. On the contrary, such exclusion is mandated by this Court’s holdings in Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991), and Perry v. State, 357 Md. 37, 741 A.2d 1162 (1999). In implicitly creating, despite its protestations to the contrary, see maj. op. at 538 n. 14, a new “clean hands” exception to the exclusionary rule of the Maryland wiretap statute, the majority appears to be overruling at least portions of Mustafa and Perry sub silentio.

Mustafa arose in a context similar to that of the case at bar, when a private citizen, who was not acting at the direction of law enforcement, turned over an intercepted conversation to police. See Mustafa, 323 Md. at 71, 591 A.2d at 484. Unlike this case, in which the interception was unquestionably illegal, the communication at issue in Mustafa was intercepted lawfully in Washington, D.C. Nonetheless, this Court held that wiretap evidence intercepted pursuant to more lenient statutory enactments of other jurisdictions is not admissible in Maryland courts unless it complies with Maryland’s more restrictive standards. See id. at 74, 591 A.2d at 485. In doing so, we specifically held:

The exclusionary provision § 10-405 of the Maryland Act precludes the admission of evidence which was not lawfully intercepted. The language of this section is unambiguous, and provides for no exceptions. There is no indication that the legislature intended to adopt anything but an “all-*581encompassing exclusionary rule which it unequivocally fashioned in § 10-405.”

Id. at 73-74, 591 A.2d at 485 (internal citations omitted).

In Perry, this Court held, inter alia, that there was no coconspirator exception, nor wilfulness requirement, to the exclusionary command of § 10-405. See Perry, 357 Md. at 60-67, 741 A.2d at 1174-78. In Perry, the telephone conversations that the State sought to introduce in evidence had been taped by one of the alleged participants in the crime and had been discovered and seized pursuant to a valid search warrant. See id. at 43, 741 A.2d at 1165. In fact, we specifically noted that “[t]here is no doubt that [the police officer] received the tape by an authorized means; he acquired it through execution of a search warrant, the validity of which is not in dispute. The question, then, is whether the interception ... was ‘in accordance with the provisions of the subtitle.’ ” Id. at 63, 741 A.2d at 1176. Once again, this Court reiterated its strict interpretation of § 10-405 in Mustafa, emphasizing that “[a]ny exception that would make an interception lawful or that would preclude an aggrieved person from moving to suppress an unlawful interception must be ‘specifically’ provided for in the Act....” Id. at 62, 741 A.2d at 1175.

The analysis of the exclusionary provision in Mustafa and Perry applies with equal force to the evidence derived from an illegal wiretap in this case because § 10-405 places the contents of illegally intercepted communications on equal footing with evidence “derived therefrom.” See § 10-405 (“Whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence ....”) (emphasis added).

The majority concludes that the “balance” of factors determining admissibility of the evidence falls in favor of the State. See maj. op. at 539-540. That determination, however, is a legislative one and not for this Court to make.

In enacting the strict exclusionary provisions of § 10-405, the General Assembly made the public policy determination of *582the appropriate balance between the needs of law enforcement and the privacy interests of the citizens of Maryland in their wire communications. The Legislature did not choose to adopt the type of sliding scale exclusionary rule that the majority now espouses. As we explained in Perry, “[t]he Legislature has made unmistakably clear that, except as otherwise specifically provided in the subtitle, wire communications are not to be intercepted without the consent of all parties.” Perry, 357 Md. at 65, 741 A.2d at 1177.4 This is true because “[t]he exclusionary provision operates only upon the communication itself, depriving it of evidentiary value, rather than against the person or property of the interceptor.” Id. at 66, 741 A.2d at 1177-78. Likewise, the fact that the police did not participate in the taping of the conversations at issue in this case is irrelevant to the question of whether their use of the illegally obtained recordings was permissible or whether evidence derived therefrom is admissible in a Maryland court.

The record of the suppression hearing in this case shows clearly that the State failed to carry its burden to prove attenuation. Unfortunately, the record from the suppression hearing contains only a few fragmentary excerpts of the illegally wiretapped conversation and the subsequent police interviews of Jona Miles and appellant, which makes it difficult to determine with any certainty the extent to which the primary illegality was exploited in obtaining this later evidence. Cf. maj. op. at 527 n. 12 (acknowledging fragmentary state of Jona Miles’ statement in the record). Nonetheless, since the State bears the burden of proving attenuation, this paucity of evidence should not work to appellant’s detriment. *583Furthermore, the record before us contains evidence affirmatively demonstrating a substantial nexus between the illegal wiretap and resulting search of appellant’s residence and the evidence obtained from Jona Miles and appellant.

It is important to remember that the analysis of whether evidence to which objection is made was obtained by exploitation of the primary illegality or instead by means sufficiently distinguishable to be purged of the primary taint depends primarily upon weighing the facts in the particular case. See United States v. Finucan, 708 F.2d 838, 843 (1st Cir.1983); 5 Wayne R. LaFave, Search and Seizure § 11.4 (3rd ed.1996). The excerpts from the police interview with Jona Miles, who was under arrest at the time as an accessory in the alleged crime, demonstrate that police specifically used the contents of the wiretapped conversation in eliciting Ms. Miles’s statements. At different points in the interview, the police informed Ms. Miles that they knew that appellant had called her and told her to get rid of the gun, that she and appellant had talked about his resemblance to the composite photographs that had been broadcast on the local news, and that appellant had informed Ms. Miles that he was at a particular friend’s house when the composites appeared on television, and the police made reference to another friend, “Becky,” whose suspicions about the crime appellant and Ms. Miles had discussed during the wiretapped conversation.

During the police interview of Jona Miles, the following exchange occurred regarding the contents of the illegally taped conversation between appellant and Ms. Miles about disposing of the murder weapon and the composite photographs on television:

[POLICE]: The same night he called and told you to get rid of the gun—
JONA MILES: I saw — no. I saw him in the afternoon. I saw him on the noon news. I was at a patient’s house.
[POLICE]: Okay. Was it the same day that he talked to you that night and told you to get rid of the gun? That you saw the composites?
*584JONA MILES: Probably.
[POLICE]: Okay, so probably on the 15th, which is the day before your doctor’s appointment, you saw the composites?
JONA MILES: All I remember is it was on the noon news.
[POLICE]: Okay.
JONA MILES: I remember that.
[POLICE]: That night, Jody called you, you two talked about the comparisons between him and the composites:
JONA MILES: Uh-huh.

(emphasis added).

The police also interviewed Jona Miles using her cellular telephone conversation with appellant regarding the night that he saw the composites on television at a friend’s house:

[POLICE]: The night the composites were shown on TV, he told you he was at somebody’s house. Whose house was he at? He said he didn’t really want to look at the TV and act too interested.
JONA MILES: Cooper’s. Cooper’s.
[POLICE]: Jimmy K. Cooper?
JONA MILES: Uh-huh.

(emphasis added).

Later on in the interrogation, police returned to the subject of appellant’s telephone conversation with Jona Miles about the composites being shown on television:

[POLICE]: Okay. When you — why were you so worried and why were you so grateful that Jody called you that night he called you after the composites were up? You said you were on pin and needles waiting for you [sic] to call because you were worried.
JONA MILES: Just wondering if something happened to him.

(emphasis added).

During their illegally taped cellular telephone conversation, appellant and Jona Miles engaged in the following discussion:

*585FEMALE VOICE: Are you sure you’re going to be okay down there:
MALE VOICE: I don’t know. You know, I was almost thinking about having you call Becky and tell her to leave me a key somewhere.
FEMALE VOICE: That might not be a good idea.
MALE VOICE: Why?
FEMALE VOICE: Because she asked questions last night. If anything had come up. Yes, she did bring it up to me. You knew she would. I told you she would.
MALE VOICE: Did anything come up what?
FEMALE VOICE: Huh?
MALE VOICE: Anything come up what?
FEMALE VOICE: Remember what you told me you all talked about when I left?
MALE VOICE: Yeah.
FEMALE VOICE: Yeah. She just asked me about if you’d heard anything. I said no. Everything’s cool. I said everything’s fine, why? And she brought it up the other day.

The police also exploited this illegally obtained information during their interrogation of Jona Miles:

[POLICE]: Who is Becky? Who’s Becky that’s a friend of yours? 5
MILES: Rebecca Chips.

The majority sidesteps the crucial causation analysis by pointing out that the police never confronted Jona with “the fact that they possessed the taped cellular phone conversation.” Maj. op. at 528. This assertion, however, in no way negates the fact that the police confronted her with the contents of those tape recorded conversation. In that way, *586Ms. Miles’ statements to police were nonetheless derived from the taped conversations and, therefore, inadmissible under § 10-405.

Stressing that Ms. Miles voluntarily waived her Miranda rights, the majority asserts that any taint emanating from the illegal wiretap was attenuated in two ways. First, the majority states that the taint dissipated when Jona Miles attempted to dispose of the evidence of the crime. See maj. op. at 527-529. Second, the majority asserts that the taint dissipated at the point at which Ms. Miles “took the Maryland State Police on a guided tour of the locations where she had disposed of evidence.” Id. at 527.

Courts have universally agreed that the giving of Miranda warnings alone cannot per se, purge the taint of a prior illegality. See Parker, 722 F.2d at 186; People v. Hines, 195 Colo. 71, 575 P.2d 414, 416 (1978); State v. Abdouch, 230 Neb. 929, 434 N.W.2d 317, 328 (1989); State v. Jennings, 461 A.2d 361, 368-69 (R.I.1983); Hart, 269 S.E.2d at 809; State v. Williams, 162 W.Va. 309, 249 S.E.2d 758, 764 (1978). The voluntary waiver of Miranda rights is but one factor to be considered in assessing attenuation. In fact, the Court’s specific holding in Brown, upon which the majority relies for its finding of attenuation, was that Miranda warnings issued for the purposes of protecting a suspect’s Fifth Amendment rights are not sufficient, in themselves, to purge the taint of a Fourth Amendment violation. See Brown, 422 U.S. at 603, 95 S.Ct. at 2261, 45 L.Ed.2d 416.

Furthermore, Brown dealt with a situation where the petitioner’s statements to police had been tainted by his illegal arrest. In deciding that question, the Supreme Court devoted a significant portion of the opinion to discussing the distinction between taint analysis under Wong Sun and the Fourth Amendment and voluntariness under Miranda and the Fifth Amendment. See Brown, 422 U.S. at 597-99, 95 S.Ct. at 2258-59, 45 L.Ed.2d 416.

The majority here makes the same mistake as the Illinois state courts did in Brown—conflating the question of the *587voluntariness of appellant’s statement with the question of whether that statement was the result of prior illegal police conduct.6 If anything, the causal connection between a suspect’s statement and illegal police conduct will be stronger when the prior police conduct is an illegal search and seizure, rather than an illegal arrest, because of the inherent pressure to confess generated by a suspect’s being confronted with tangible evidence that is the result of the illegal search. See discussion and cases cited infra pp. 591-596. Any assessment of the voluntariness of the actions of Jona Miles or appellant must take place against the backdrop of their having been confronted with the fruits of the illegally recorded phone conversation and search and seizure resulting therefrom.

The majority also asserts that Jona Miles’ actions in disposing of evidence after the taped phone conversation and in leading the police to the locations of the destroyed evidence somehow attenuated the connection between her statements and the illegally wiretapped conversation. See maj. op. at 527-529. This assertion is opaque, at best, and simply begs the question of why Jona Miles made statements to police and led them to the inculpatory evidence. Jona Miles’ conduct was the result of being confronted with the evidence that the police had obtained from the illegally wiretapped conversation. Her attempts to dispose of evidence of the crime, if anything, demonstrate that, had it not been for the illegally obtained telephone conversation that led the police to her, she never would have come forward on her own and cooperated with the investigation, particularly given her own criminal liability as an accessory. Not only does her disposal of evidence not fulfill the State’s burden to prove attenuation of the causal link between the illegal wiretap and subsequently obtained evi*588dence, it effectively rebuts it.7 Ultimately, the majority concludes that Ms. Miles’ actions following her statements to the police manifested the “uniquely human attributes of perception, memory and volition,” which were sufficient to purge her confession of the taint of the primary illegality. Id. at 526. I fail to see how those characteristics have any bearing on attenuation in that they are utterly irrelevant to the question of whether her statements were the result of the illegally recorded conversation.

We turn next to appellant’s statement to police. The majority stresses that the police never showed any of the illegally-seized evidence gathered prior to Jona Miles’s arrest in questioning appellant. See id. at 535. Nonetheless, the question is not whether the police visually paraded the evidence in front of appellant, but whether they used it during questioning in order to obtain his confession, which they did when they discussed the evidence with him. The majority asserts that “[t]he police never disclosed in questioning appellant the contents of the cellular phone conversation, nor the fact that Jona Miles had given them a statement.” Id. The mere fact that the police did not disclose to appellant the existence of the illegal wiretap does not mean that his confession was not derived therefrom pursuant to § 10-405. During the interrogation, the police confronted appellant with evidence that they seized as a result of the illegal wiretap and subsequent search of appellant’s residence, a fact that even the majority does not *589deny. The trial court ruled that the search of appellant’s residence was illegal, as the warrant was based on the illegal wiretap, and the State did not appeal that ruling.

The excerpts of the police interrogation of appellant demonstrate that the police informed appellant specifically that they had seized the clothes that he purchased with the victim’s Structure credit card (pursuant to the tainted search warrant) and that they had recovered the gun from the river and more clothing from a dumpster (as a result of Jona Miles’ statements, which themselves are derivative of the illegal wiretap):

[POLICE]: We’ve done a search warrant on your house today. We’ve recovered Structure pants, Structure jeans, Structure shirt that was hidden in Larry’s closet. Okay?
MILES: You’re going to find Structure clothes in -
[POLICE]: I’m not going to find this brand new Structure shirt that was hid in Larry’s closet. That belongs to you. We’ve recovered a gun from right down here in the river, a little 22 with a long barrel on it. Okay? We’ve recovered clothes from a dumpster right down on 404. So, we’re not in here playing games. You’re a smart person; I’m a smart person. But, I’m here to tell you there’s a reason why everything happens. Okay? What I’m here to ask you is for you to tell us why things happen. I know you killed Edward Joseph Atkinson. Okay, I’m not going to let you sit here and play dumb with you and let you play dumb with me. We’re adult men, it’s time to find out why. I’m not interested in sending you to prison for the rest of your life but I want to know why you killed this man.

The majority attempts to minimize this disclosure by stressing again that the police did not show the seized clothing to appellant. See maj. op. at 535. I simply fail to fathom how informing appellant that they had seized the damning evidence from his home is any more attenuated from the illegal search and seizure than actually placing it in front of him, nor am I aware of cases from any jurisdiction that recognize this distinction.

*590The majority also attempts to minimize the impact of the disclosure by pointing out that, although the clothing was illegally obtained, the police already had receipts from the Structure store itemizing the clothing that had been purchased with the victim’s credit card. See id. at 535-536. This is precisely why the seized evidence, with which police confronted appellant, was so damning. The items seized from appellant’s home, in conjunction with the receipts that the police already had from the Structure store, directly inculpated appellant in the crime. Clearly, any admissions by appellant, in light of this illegally obtained evidence, were not sufficiently attenuated to be purged of the taint of the primary illegality.

During the interrogation of appellant, the police also referred to his being at the house of certain of his friends when the composite photographs were displayed on the news and to who was present at the time, information specifically obtained from the wiretapped conversation between appellant and Jona Miles. The following conversation transpired between appellant and Jona Miles during their taped cellular telephone call:

MALE VOICE: There’s a mess of cops up here.
FEMALE VOICE: Over where?
MALE VOICE: On the other side of Denton. But, ah, you know, they sat right there, Jim and Kay, and had a face and a picture and looking right dead at it, you know, I was sitting right next to the television so it’s like side by side.
FEMALE VOICE: Uh-huh.
MALE VOICE: And they said it looked like Richard, whoever Richard is. So, you know, it’s sort of iffy.

During the police interrogation of appellant, the following exchange occurred:

MILES: I was at different people’s houses. I lay a composite at these houses and I’d make sure I was there when the news hit. And—
[POLICE]: One of them being Jim McKay [sic]?
*591MILES: Yeah.
[POLICE]: Okay.
MILES: And I sat there and, you know, they sat right there and they said it looked like some other guy. They said (inaudible).
[POLICE]: Richard?
MILES: Yeah.

It is mindboggling how the majority can assert, given this factual record, that the statements of Jona Miles and appellant, as well as the physical evidence derived therefrom, are not the direct result of the illegally wiretapped conversation and the search executed on its basis.

The majority again appears to confuse derivative evidence attenuation analysis, under the Fourth Amendment and Maryland wiretap statute, and the question of voluntariness under the Fifth Amendment with respect to appellant’s statements to police. The majority emphasizes that appellant’s statement was voluntary and volitional based on his demeanor during the interrogation, the extent of his cooperation with the police, and his personal circumstances of age, knowledge and experience. See maj. op. at 536-538. As we explained swpra, while voluntariness is one factor to be considered under Brown, it is hardly determinative of the question of whether appellant’s statements were derived from the illegally recorded conversation and subsequent search of his residence — a question that, in my view, is not sufficiently dealt with in the majority opinion.

The chronology of events in this case is very similar to those reviewed by the Supreme Court of Nebraska in Abdouch. In that case, the defendant was convicted of manufacturing marijuana after the trial court had suppressed evidence from an illegal search of her residence but admitted her subsequent custodial statements after finding that they were freely and voluntarily made. See Abdouch, 434 N.W.2d at 321. The Nebraska Supreme Court reversed the defendant’s conviction, finding that her statements to police were “fruit of the poisonous tree” of the illegal police search because the police had *592detailed for her, during their interrogation, the evidence that was seized before the defendant admitted her participation in the marijuana production. See id. at 329. In doing so, the court emphasized the significant differences, for the purposes of the fruit of the poisonous tree doctrine, between a custodial statement resulting from an illegal arrest and one resulting from an illegal search, concluding that, when a suspect is confronted with evidence discovered during an illegal search, there has clearly been an exploitation of the primary illegality because, once the suspect has realized the evidence that the police have seized, that realization plays a significant role in encouraging him or her to confess by demonstrating the futility of remaining silent-because the suspect has, in effect, been “caught red-handed.” See id. at 327-28.

Furthermore, the court made clear that, while giving Miranda warnings to a suspect is a factor to be considered in attenuation analysis, the warnings alone are not sufficient to break the causal chain between the illegality and subsequent confession, particularly where the primary illegality was an illegal search and seizure. The court noted that the warnings cannot neutralize the inducement to confess that is furnished by confronting the suspect with illegally obtained evidence that demonstrates guilt and the futility of remaining silent. See id. at 328; cf. Pau’u, 824 P.2d at 835-36 (holding that the government’s burden to show that a confession is voluntary is particularly heavy when the defendant is under arrest and that the waiver is invalid if it is induced by a prior illegality).

The Supreme Court of Rhode Island reached a similar conclusion in Jennings. In that case, the defendant was convicted of manslaughter and possession of a firearm while committing a crime of violence, in part on the basis of a detailed confession that he made to police. See Jennings, 461 A.2d. at 363. The trial court had suppressed physical evidence taken during an illegal search of the defendant’s apartment, but had admitted the defendant’s subsequent confession that he gave after the police had confronted him with the illegally seized evidence. See id. at 364. The Supreme Court of Rhode Island reversed the defendant’s conviction, finding *593that his confession had been tainted by the exploitation of the illegal search of his dwelling. See id. at 368. The court held that the exclusionary rule applies “when the giving of a statement is induced by confronting a suspect with illegally seized evidence,” unless the state can show attenuation. See id. The court also found that voluntariness was “merely a threshold requirement,” id., such that giving Miranda warnings alone “does not per se make any subsequent statement sufficiently a product of free will to break the causal connection between the confession and the unlawful action.” Id. The court concluded:

The record discloses that the confession was made immediately upon defendant’s being confronted with the information that the police had possession of the gun as a result of an illegal search and seizure. There was no time lapse. There were no intervening events to break the causal chain other than the reading of the Miranda warnings, which does not per se purge the taint of the illegality. Additionally, the use of the product of the illegal police conduct to induce defendant to change his story has the quality of purposefulness which the Fourth Amendment seeks to protect against. A reading of the record reveals that the defendant’s sudden willingness to incriminate himself was the result of his being confronted with the illegally seized evidence.
We therefore find that the confession was obtained by the exploitation of the illegal search and seizure.

Id. at 369 (footnote omitted).

This case is also similar to Williams, in which the defendant was convicted of first degree murder after the trial court had denied his motion to suppress the victim’s watch, which he alleged had been seized illegally, and all of his inculpatory statements made subsequent to that seizure. See Williams, 249 S.E.2d at 760. The Supreme Court of West Virginia reversed his conviction. After finding that the watch had been seized illegally, the court went on to rule that the defendant’s confessions also should have been suppressed because they were induced by the illegally seized evidence. *594See id. at 764. The court found that the defendant’s first confession was made immediately after being confronted with the victim’s watch and was, therefore, a product of the exploitation of the illegality. See id. The court then found that the prosecution had failed to meet its burden of showing that the defendant’s subsequent confessions were not the product of the first. See id. The court concluded:

There is no evidence demonstrating a break in the causative link running between the confessions in this case. The State did not meet its burden, and we must presume each confession was the product of the preceding illegalities. The fact that Miranda warnings were given prior to each confession is not sufficient standing alone to purge the primary taint of the illegal search and seizure. Had the defendant also been informed that the victim’s watch and his first confession could not be introduced at trial against him in the State’s case in chief, a different outcome might obtain as to the subsequent confessions.

Id. (footnote omitted).

Also similar is Commonwealth v. Johnson, 474 Pa. 512, 379 A.2d 72 (1977), in which the Supreme Court of Pennsylvania found that a suspect’s statement to police was derivative of an illegal search and should have been suppressed. In that case, the appellant was convicted of rape, conspiracy, and second degree murder after the trial court granted his motion to suppress certain evidence seized by police, but admitted his subsequent inculpatory statement. See id. at 73. The Pennsylvania Supreme Court found that, since the search of the appellant’s house was illegal, his subsequent statement was inadmissible because the Commonwealth failed to establish that it was sufficiently purged of any taint from the unlawful activity. See id. The court found:

In this case, the typewritten statement used against appellant at trial was obtained as a direct result of the unlawful search. The police obtained the statement as a result of three factors: (1) appellant’s arrest and the extended custodial interrogation which followed; (2) confrontation of appellant with the fact that evidence had been *595obtained during the unlawful search of his house; and (3) confrontation of appellant with information obtained from [his coconspirator].

Id. at 76. The court held that the appellant’s custody and arrest were the direct product of the illegal search because the police did not suspect the appellant until after the search was conducted and because evidence found in the illegal search formed the basis for probable cause to arrest him. See id. The court found that the appellant’s incriminating statements were derivative of the illegal search because they were obtained after he was confronted with evidence found during the illegal search. See id. Finally, the court found that the appellant’s statements were also derivative of the illegal search because they were made after he was confronted with information given to the police by his coconspirator, which in turn was the result of the illegal search. See id. at 77. Clearly, the same analysis applies almost verbatim to the case at bar. Cf. United States v. Johns, 891 F.2d 243, 245-46 (9th Cir.1989) (holding that attenuation is a question of the substantiality of the taint-if the role of the illegality is insubstantial, then suppression is inappropriate, but if the illegality is “the impetus for the chain of events” leading to the derivative evidence, then it is “too closely and inextricably linked to the discovery for the taint to have dissipated”); United States v. Cales, 493 F.2d 1215, 1215-16 (9th Cir.1974) (holding that derivative evidence must be suppressed if an illegal wiretap tended “significantly to direct the investigation toward the specific evidence sought to be suppressed”); Amador-Gonzalez v. United States, 391 F.2d 308, 318 (5th Cir.1968) (holding that the defendant’s confession was the direct result of the illegal discovery of narcotics and that the taint of the illegally seized evidence had not been removed); United States v. Schipani, 289 F.Supp. 43, 62 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (2nd Cir.1969) (“If illegally secured information leads the government to substantially intensify an investigation, all evidence subsequently uncovered has automatically ‘been come at by exploitation of that illegality.’ The unlawful search has set in motion the chain of events leading to the government’s *596evidence.”); State v. Blair, 691 S.W.2d 259, 263 (Mo.1985) (holding that the defendant’s palm and finger prints and statements were properly suppressed because they resulted from an unlawful arrest and search).

The majority relies upon United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), as support for the proposition that the link between the illegal wiretap and the evidence obtained from Jona Miles and appellant was sufficiently attenuated. See maj. op. at 522-527. In fact, citing Ceccolini, the majority asserts that “the voluntariness of a person’s actions in providing evidence or testimony should be considered as an intervening factor under the attenuation doctrine.” Id. at 525. The majority’s reliance on Ceccolini is misplaced. The Supreme Court in Ceccolini found that there was sufficient attenuation between an illegal search and the live testimony of a witness at trial, see Ceccolini, 435 U.S. at 273, 98 S.Ct. at 1058-59, 55 L.Ed.2d 268, but did so because it found that the evidence indicated “overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority” as a result of the illegal search. Id. at 279, 98 S.Ct. at 1062, 55 L.Ed.2d 268. Most significantly, in reaching that conclusion, the Court specifically emphasized that the illegally obtained evidence was not used in questioning the witness. Moreover, substantial periods of time elapsed between the time of the illegal search and the initial contact witness and the testimony at trial; the witness’s identity and her relationship to the defendant were well known to the investigators prior to the illegal search; and the police did not conduct the illegal search and seizure with the intent of finding a witness to testify against the defendant. See id. at 279-80, 98 S.Ct. at 1062, 55 L.Ed.2d 268. Clearly, none of those factors outlined by the Supreme Court exist in this case.

Furthermore, Ceccolini deals with the application of the attenuation doctrine to live-witness testimony at trial. The exploitation of the illegal search in this case led the police not merely to the live-witness testimony of a particular witness, but to appellant’s identity, the identity of an accessory (Jona *597Miles), the murder weapon, and other physical evidence. In fact, the Ceccolini analysis is informed by the degree of free will exercised by the witness in testifying. The Supreme Court noted that “the greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet.” Ceccolini, 485 U.S. at 276, 98 S.Ct. at 1060, 55 L.Ed.2d 268. The question of whether Jona Miles could have testified, had the trial judge suppressed all of the derivative evidence (including her statement to police), is the only question on which Ceccolini would shed light.

This rationale was shared by the United States Court of Appeals for the Ninth Circuit in United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir.1989). In that case, the United States District Court suppressed physical evidence and contemporary statements discovered as the result of an illegal search, but permitted witness testimony regarding identification of the defendants and their illegal immigration scheme pursuant to the inevitable discovery doctrine. See id. at 1394. Citing Ceccolini, the Court of Appeals ruled that the testimony should not have been admitted, either on the basis of the attenuation doctrine or inevitable discovery. See id. at 1396. With respect to attenuation, the court found that the testimony had been induced by the illegal search. See id. at 1397. The court distinguished Ceccolini as follows:

This case is unlike Ceccolini. First, the illegally obtained documentary evidence was clearly used by Officer Torres in questioning the witnesses. Second, no time elapsed between the illegal search and the initial questioning of the witnesses. Third, the identities of the witnesses were not known to those investigating the case. In all likelihood, the police and the INS would never have discovered these witnesses except for Torres’ illegal search. Finally, although the testimony was voluntary in the sense that it was not coerced, it is not likely that these witnesses would have come forward of their own volition to inform officials that *598they were illegally transported into the country by the appellant. It seems clear that their testimony was induced by official authority as a result of the illegal search.

Id.

Clearly, all four of the distinguishing factors identified by the Court of Appeals (use of the illegally obtained evidence in questioning, lack of time lapse, discovery of the identity of witnesses solely by means of the illegal search, and no independent reason to come forward) exist just as strongly in the case of Jona Miles’s and appellant’s statements to police. See United States v. Rubalcava-Montoya, 597 F.2d 140, 143 (9th Cir.1979) (holding that, under Ceccolini, since there was no evidence in the record that the prosecution witnesses made an independent decision to come forward and since they were discovered as a direct result of an illegal search, the government failed to rebut the logical inference that the search induced their testimony); United States v. Marder, 474 F.2d 1192, 1195 (5th Cir.1973) (holding that “if the identity of a government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded” unless the government can show an independent source or attenuation, including the consideration of whether the witness would have come forward on her own); United States v. Tane, 329 F.2d 848, 853 (2nd Cir.1964) (holding that the grand jury testimony of the defendant’s coconspirator was derivative of an illegal wiretap because the witness’s identity was derived from the wiretap, the witness was unwilling to testify or inculpate himself until the wiretap conversation was revealed, and the government did not show attenuation sufficient to break the nexus between the tap and the testimony); Cephas, 291 A.2d at 111 (“The primary question ... is not whether the witness voluntarily plead guilty and testified, rather it is why she chose to do this.... [TJhese choices on her part flowed directly from the exploitation of the search and thus the taint remains.... For the police to conduct an illegal search during which they discover physical evidence and a witness ..., and for a court to suppress the physical evidence but not the witness would *599seemingly be allowing the authorities to do indirectly what they cannot do directly.”).

The State has failed to meet its burden of showing that the taint of the prior illegal wiretap and illegal search had been dissipated or that there was an independent source for the evidence. Accordingly, I would reverse the Circuit Court’s denial of Petitioner’s motion to suppress all of the evidence derived from the illegal wiretap of his cellular telephone conversation, including the evidence obtained from Jona Miles and appellant’s statement to police.

Chief Judge BELL and Judge ELDRIDGE join in this dissenting opinion.

. Unless otherwise indicated, all statutory references are to Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.), Courts and Judicial Proceedings Article.

. The majority seems to flirt with either independent source or inevitable discovery analysis, without explicitly doing so, by arguing that the police had other investigatory leads directing them to appellant, see maj. op. at 536-537, and by describing Jona Miles’s cooperation as voluntary assistance. See id. at 527-530. Nonetheless, the State has failed to meet its burden of demonstrating either that the evidence used to convict appellant was derived from a source independent of the primary illegality in this case or that the evidence used at appellant’s *577trial would have been discovered absent the illegally taped telephone conversation and subsequent search warrant. The majority's allegation that “the police had already physically identified their suspect,” id. at 526 n. 11, merely because they had a physical description of a person who had been seen near the crime scene during the police investigation, is a far cry from the proof necessary to make the derivative evidence resulting from the illegal seizures in this case admissible.

. The majority accuses this dissent of verging “on a traditional tort analysis of proximate cause....” Maj. op. at 538. We agree that the attenuation doctrine does not require a strict but — for test of causation. Nonetheless, in determining the admissibility of derivative evidence under the Maryland wiretap statute, courts are guided by the statutory exclusionary command that no evidence “derived from” any intercepted communication may be received in evidence. See § 10-405. Under the attenuation doctrine developed in Fourth Amendment jurisprudence, the question of whether evidence derives from an illegally intercepted transmission is a question of causation. See discussion supra pp. 503- 505.

. In fact, the Maryland General Assembly acquiesced in this Court's broad interpretation of § 10-405 when it amended the enumerated offenses of § 10-402 and § 10-406 of the Maryland wiretap statute in 2000, after this Court’s decisions in Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991), and Perry v. State, 357 Md. 37, 741 A.2d 1162 (1999), but did not amend the exclusionary provision of § 10-405. See 2000 Maryland Laws ch. 288, at 1690-91 (codified as amended at Maryland Code (1957, 1998 Repl.Vol., 2000 Supp.) §§ 10-402, 10-406 of the Courts and Judicial Proceedings Article).

. Although the reference to “Becky” may seem to be innocuous, it is the effect of being confronted with the contents of the illegally taped telephone conversation that creates the sense of the futility of noncooperation in the suspect, independent of the incriminating nature of those contents.

. In fact, the majority notes that the police did not coerce Ms. Miles, offer her leniency, or compel her to lead them to evidence. See maj. op. at 527. These questions, while crucial to determining whether her statement was voluntary under the Fifth Amendment, are insufficient to establish attenuation of the violation of her statutory privacy rights under the Maryland wiretap statute.

. Attempting to dispute the claim that the record excerpts establish that Ms. Miles’ conduct was the result of being confronted with the illegally obtained evidence, the majority points out that the excerpts of the taped phone conversation contain no references to the Structure store at the Dover Mall, the murder weapon, or the Choptank River, “all of which were facts that came to be know to the police through their independent investigation.” Maj. op. at 529. Again, the majority here appears to be engaging in independent source analysis without explicitly stating so. More importantly, for the purpose of attenuation doctrine, the police, in fact, did not come to discover the murder weapon in the Choptank River through "independent investigation,” but rather solely as the result of Ms. Miles’ statements to them. Were it not for the illegally wiretapped conversation and the subsequent use thereof by police, there would have been no evidence linking appellant to the murder in this case.