dissenting:
It was the best of times. Our legal system functioned in all of its magnificent splendor with the utmost care and respect for constitutional dignity. Police officers respectfully requested that defendant, a civic-minded public-spirited citizen, voluntarily accompany them to the police station as part of their investigation of a murder. Defendant complied. He was treated humanely by the police. They gave him food, water and access to a bathroom during his 25-hour stay at the police station. Eventually the police had probable cause to arrest defendant, and they advised him of his Miranda rights. Defendant made incriminating statements.
It was the worst of times. Our legal system utterly failed to protect basic human rights. Without legal justification, police officers took a 17-year-old citizen (defendant) from his home and transported him against his will to a police station. Isolated from relatives, defendant was handcuffed and beaten by the police. Defendant was denied food, water and access to toilet facilities. He was not given Miranda warnings or an attorney to advise and counsel him. He was not allowed to see his family who came to the police station for that purpose.
Unlike the tale of two cities, these two tales cannot both be true. The trial court denied defendant’s motion to suppress and made findings of ultimate facts (mixed questions of fact and law) that totally absolved the State of any impropriety or denial of defendant’s constitutional rights.
The trial court found that defendant signed waivers, was not high on marijuana, was not subjected to mental or physical coercion, was not interrogated constantly over two days, was allowed to sleep and did not complain to the assistant State’s Attorney. These are basic and inferred facts and subject to a very narrow standard of review. These findings cannot be disturbed unless they are clearly erroneous. People v. Saunders (1991), 220 Ill. App. 3d 647, 668, 580 N.E.2d 1246.
The trial court further found that defendant waived his right to counsel and made voluntary statements. These findings of ultimate facts are subject to a broader standard of review. These findings can be disturbed only where there is a legal error in the choice, interpretation or application of a legal precept. The scope of our ongoing question of law is independent, not deferential. (People v. Williams (1984), 124 Ill. App. 3d 734, 736, 464 N.E.2d 1176.) On the basis of these findings, the trial court denied defendant’s motion to suppress.
Appellate counsel for defendant failed to raise the question of the denial of the motion to suppress in defendant’s appeal. In a subsequent post-conviction petition and hearing, defendant urged that the failure of appellate counsel to raise the issue of denial of his motion to suppress denied him effective assistance of appellate counsel. The ruling of the post-conviction court here is an interpretation of a question of law, and as such, it is subject to a broad standard of review on appeal. Williams, 124 Ill. App. 3d at 736.
I respectfully disagree with the majority’s opinion on the issue of ineffectiveness of counsel and probable cause to arrest defendant. As the majority points out, to succeed in his claim of ineffective assistance of appellate counsel, defendant must show both that the failure to appeal the adverse ruling on the motion to suppress was objectively unreasonable and that there is a reasonable likelihood that his conviction would have been reversed had that issue been presented to the appellate court. (Caballero, 126 Ill. 2d at 269-70.) The majority opinion concludes that it is not reasonably likely that defendant’s conviction would have been reversed if appellate counsel had challenged the ruling on the motion to suppress, because the trial court’s ruling on that motion was correct.
Appellate counsel has no obligation to brief every conceivable issue on appeal. “[I]t is not incompetence for counsel to refrain from raising those issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong.” (People v. Ferro (1990), 195 Ill. App. 3d 282, 288, 551 N.E.2d 1378.) The appellate court has found appellate counsel’s assistance ineffective where he failed to raise defendant’s strongest issue on appeal. Downey, 198 Ill. App. 3d at 716.
Defendant argues that he did not receive effective assistance because defense counsel raised three minor issues and failed to raise the issue of the motion to suppress, which is of great magnitude.
This court affirmed defendant’s conviction and stated that: (1) the issue of the proposed question to the venire regarding presumption of innocence was without merit (Cole, 168 Ill. App. 3d at 183); (2) the denial of a continuance was not an abuse of discretion where the motion was made after jury selection and defendant could not offer any assurance that a particular witness would be available and offer relevant testimony (Cole, 168 Ill. App. 3d at 184); and (3) the testimony regarding the accuracy of written summaries was of no consequence in that defendant never denied the statements but contended that they were coerced (Cole, 168 Ill. App. 3d at 184). Counsel successfully challenged the extended-term sentences the trial court imposed for rape and home invasion. That success will have no effect on the time defendant actually serves because this court affirmed defendant’s sentence of natural life in prison for murder. Cole, 168 Ill. App. 3d at 185.
The trial court denied the motion to suppress stating that defendant was not arrested until Cole made statements implicating him. The majority opinion in the present appeal concludes that the trial court’s decision on the motion to suppress is correct and that the taint of the illegal arrest, if any, was purged or attenuated.
In the post-conviction hearing, appellate counsel could not explain why he believed that a challenge to the ruling on the motion to suppress was not sufficiently meritorious for appeal. Our task is to determine whether appellate counsel’s failure to challenge the ruling on the motion to suppress was objectively unreasonable, and if it was unreasonable, whether the failure prejudiced defendant. (See Caballero, 126 Ill. 2d at 269-70.) This court in the first appeal recognized that defendant’s appellate counsel had failed to raise an important issue with its surprised observation: “Although Holman might also have a colorable fourth amendment argument, he has not chosen to raise it before this court.” (Cole, 168 Ill. App. 3d at 178.) This extraordinary uninvited remark demonstrates our bewilderment at the failure of appellate counsel to litigate the denial of the motion to suppress. Appellate counsel chose to raise three weak issues on appeal, and failed to raise defendant’s strongest argument for reversal of the convictions. Appellate counsel’s appraisal of the merits of the issues was patently wrong. The failure to challenge the rulings on the motion to suppress is objectively unreasonable. See Ferro, 195 Ill. App. 3d at 293.
The majority finds that this court would have affirmed Holman’s conviction even if appellate counsel had challenged the trial court’s decision on the motion to suppress.
This view is cursed by the need to distinguish this case from the case against codefendant Cole. We held that the trial court should have granted Cole’s motion to suppress. A review of the similar facts and circumstances between defendant and Cole is enlightening: The State contends that defendant and Cole agreed to accompany the police, on a voluntary basis, to the police station; both were contacted and transported to the police station by the same police officers; both were transported, at some juncture, to the police station by the police in the same vehicle at the same time; both were told by the police officers not to speak to each other while being transported; upon arrival at the police station, they were placed in separate interview rooms, the doors to which were closed; both defendants were interrogated by the same police officers; the officers never told either defendant that he was free to leave; relatives of both defendant and Cole came to the police station; neither of them met with or consulted with their relatives while at the police station; and both testified that they were beaten by the police and that their statements were coerced.
The differences between defendant and codefendant Cole are equally compelling and should be noted: At the time of the interrogation, defendant was 17 years old and codefendant Cole was 16 years old; in the initial appeal to this court, codefendant Cole challenged the trial court’s ruling of the motion to suppress, and defendant did not; defendant’s conviction was affirmed and codefendant Cole’s conviction was reversed (in that Cole’s statements were held to be the fruits of an illegal arrest).
The State concedes that police lacked probable cause to arrest defendant at the time of their initial contact with him. The State relies on its argument that the police did not arrest defendant until Cole implicated him, and that Cole’s statement provided probable cause. Before police developed this probable cause, they went to defendant’s home and suggested that he come to the police station because the station was “more conducive” to questioning. Police never told defendant, who was then 17 years old, that he was free to go. On the contrary, Officer Switski admitted that if defendant had asked to leave he would “definitely” have “tried to talk him out of it.” Defendant remained at the station for 25 hours before he made the incriminating statements the State introduced into evidence.
The core question that we must resolve is, what legal conclusion flows from the factual representation made by the police? (See Williams, 124 Ill. App. 3d at 736.) The history of this court is replete with pronouncements that give us guidance in making these determinations. I cannot better state that which has already been said. In deference to the eloquence of these pronouncements, I humbly quote them:
“In reviewing this case, we bear in mind that in a criminal case the police are considered part of the prosecution team. Thus, when there is a motion to suppress because of alleged police coercion or racial intimidation, the trial judge must maintain a conscious awareness that the testimony of police is not to be viewed in isolation as if they have no interest in the outcome of the case. Rather, the testimony must be examined by the trial judge with the same scrupulous eye that one would expect the trial judge to use to assay the testimony of a party to the lawsuit.
Also, the trial judge must keep in mind that ours is an adversary criminal justice system, and there must not be any naivete that it is otherwise. The stark realities of our adversary criminal justice system are such that what occurs within the confines of a police station during custodial interrogation when there is no attorney present is not always what the unsophisticated would expect. ***
* * *
*** [T]rial judges must be most circumspect when it appears that a right guaranteed to every citizen by our constitution may have been violated by police brutality or racial discrimination, for those affected are invariably the poorest, the weakest and the least educated, who are not sophisticated enough or do not have the resources to see and ensure that they are not denied the protections afforded by the rights and guarantees of our constitution.” People v. Banks (1989), 192 Ill. App. 3d 986, 991-93, 549 N.E.2d 766.
The appellate court has further explicated the coercion inherent in police interrogations:
“Whenever the police choose to conduct ‘non-custodial interrogations’ at the police station, there is a substantial risk that a court subsequently will disagree that the circumstances were noncustodial. [Citations.] This risk arises because police stations are typically the location of custodial interrogations, thereby giving credibility to a suspect’s claim that he believed himself to be in custody despite police testimony about how they treated the suspect. The interrogating officers ought to know that if the suspect makes incriminating statements and is later arrested, a motion to suppress those statements assuredly will be filed, and the defendant, as in the present case, is almost certain to testify that he believed he was in custody at the time he made those statements. *** By choosing the police station as the location for their allegedly ‘non-custodial interrogations,’ police officers give defendants, who later claim they believed they were in custody, the greatest possible advantage to support that claim. As in this case, the setting of the interrogation will be subject to very close scrutiny to see what support it lends to defendant’s claim of custody. ***
Perhaps the best means of demonstrating the risk of finding coercion whenever a suspect is interrogated at a police station is to ask whether the same arguments made by the suspect (T was taken to a small room, the door was closed, I was told to wait, other armed officers were present, et cetera’) would sound nearly as credible or persuasive if the interrogation had occurred instead at the local Burger King restaurant, a nearby park, the suspect’s own residence, or in any location of the suspect’s choosing. We think not, and the case law in point supports that conclusion.” (Emphasis in original.) People v. Gorman (1991), 207 Ill. App. 3d 461, 470-71, 565 N.E.2d 1349.
Cumulatively, the facts and circumstances of this case cry out for a finding that defendant was under arrest before Cole gave the statements incriminating him. In view of defendant’s age, his prior lack of experience with the police, the fact that he and codefendant were told not to speak to each other while being transported to the police station, the fact that they were separated and isolated at the police station, the fact that the police never told defendant that he was free to leave, and relatives who were at the station did not meet with him, demonstrate that defendant was under arrest. There is no plausible explanation to the contrary. Why would defendant and codefendant be instructed not to talk to each other while being transported to the police station? Why separate them? Are cooperating, public-spirited citizens treated this way? By what authority do police officers order cooperating, public-spirited citizens not to speak to each other? By what authority do police officers remove a minor from his home without parental consent? By what authority did the police officers isolate defendant and Cole from each other and their relatives? The authority is the right and the power to arrest. If defendant is under arrest, police officers are not required to obtain parental consent to transport him to the police station. While in the custody of the police after an arrest, defendant is subject to police regulation as to his contact with others. See generally People v. Prim (1972), 53 Ill. 2d 62, 69, 289 N.E.2d 601.
A reasonable, innocent person in defendant’s position would not have considered himself free to leave. I would find that the trial court’s finding that defendant was not arrested until Cole implicated him was manifestly erroneous and that the police arrested defendant without probable cause. See People v. Townes (1982), 91 Ill. 2d 32, 37-38, 435 N.E.2d 103; Ealy, 146 Ill. App. 3d at 564-66.
The majority finds that defendant’s confession was admissible even if the arrest were illegal because the confession was sufficiently attenuated from the arrest. Here, too, I disagree. The majority opinion finds that police obtained Cole’s name from defendant prior to defendant’s arrest, and Cole’s statements to the police then produced defendant’s confession. The majority opinion concludes that Cole’s statements constitute an intervening circumstance which attenuated the taint of the illegal arrest. There is conflicting testimony as to whether defendant gave the police Cole’s name while en route to the police station or while at the police station.
For the reasons stated heretofore, the facts of this case demonstrate that defendant was under arrest at the police station prior to Cole’s statements. Defendant did not give police Cole’s name before this arrest. Cole’s name and any evidence police obtained therefrom are fruits of the unconstitutional arrest of defendant.
Moreover, even if defendant gave police Cole’s name before he arrived at the station, as the police testified, the police car provided a setting effectively as coercive as a police station for questioning this 17 year old. Police did not tell defendant he had the right not to go to the police station, and Officer Switski admitted he would have tried to talk defendant out of leaving. All the reasons cited by the court in Gorman for finding interrogations at police stations custodial apply with equal force to interrogations in police cars. Competent defense counsel could have argued that defendant was under arrest when police put him in the police car to take him to the station. If he was under arrest at that point, police obtained Cole’s name from defendant as a consequence of this unconstitutional arrest. Cole’s statements cannot provide attenuation between the unconstitutional arrest and defendant’s confession because under either account, Cole’s name and Cole’s statements are at least arguably the product of the unconstitutional arrest.
For an intervening circumstance to supply attenuation between an illegal arrest and a confession, the intervening circumstance must be free from the taint of the illegal arrest. White, 117 Ill. 2d at 224; Gabbard, 78 Ill. 2d at 100; Thomas, 186 Ill. App. 3d at 794.
“If an accused establishes the ‘primary illegality’ and shows a connection between the illegality and what are alleged to be fruits of the illegality, the prosecution will have the burden of establishing by clear and convincing evidence that the challenged evidence has come from an independent source.” People v. Wilson (1975), 60 Ill. 2d 235, 238, 326 N.E.2d 378.
Officer Vucko testified that he first learned of Cole’s involvement from defendant. The officers admitted that they did not find out about Cole from another source independent of defendant’s statement. Defendant established the illegality of his arrest, and he has shown that he gave police Cole’s name, which led police to question Cole and obtain statements implicating defendant, and police confrontation of defendant with Cole’s statements led to defendant’s confession. Defendant has shown a connection between the illegal arrest and the confession; the State has not shown that Cole’s statements and defendant’s confession came from an independent source. Under Wilson, Gabbard and White, since Cole’s statements are not free from the taint of defendant’s illegal arrest, those statements cannot be an intervening circumstance attenuating the connection between the illegal arrest and defendant’s confession.
In People v. Althide (1979), 71 Ill. App. 3d 963, 389 N.E.2d 240, police improperly induced the defendant to make statements in which defendant gave the police the names of four persons whom the State later called as witnesses against the defendant. The appellate court reversed defendant’s conviction and remanded the case for a determination of whether the police obtained the testimony of those witnesses from a source independent of defendant’s statement. The court held that if police obtained the names of the witnesses only from defendant’s statement, the evidence obtained from those witnesses was fruit of the poisonous tree of the improperly induced statements. Similarly, Cole’s statements here are fruit of the poisonous tree of defendant’s arrest, unless the State can show a source independent of that arrest for Cole’s statements. The record does not reflect any evidence of such an independent source.
As Cole’s statements are fruit of the poisonous tree, all evidence obtained by use of those statements, including defendant’s confession, remains fruit of the poisonous tree. In People v. Williams (1990), 138 Ill. 2d 377, 563 N.E.2d 385, police took the defendant to the police station for questioning, and he said he had been with Davis and Erving when the victim was murdered. Erving implicated Davis and Davis implicated defendant. Police then confronted the defendant with Davis’ statement and defendant confessed. Our supreme court held:
“As one basis for finding that defendant’s confession was attenuated from the taint of his unlawful arrest, the State contends that, even though Erving’s name first came to police attention because of statements by defendant, and even though Davis was implicated by both Erving and defendant, the police would eventually have discovered Erving and Davis independently in any investigation of defendant, since they were known associates of his. The State cites United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054 ***.***
The flaw in the State’s Ceccolini analysis is that Ceccolini dealt with jurisprudential policy reasons for permitting live testimony at trial by a willing witness, not with whether the witness’ supposed willingness or the inevitability of the witness’ discovery can constitute an intervening circumstance as far as admissibility of the defendant’s own confession is concerned. Ceccolini drew specific attention to this distinction. (Ceccolini, 435 U.S. at 277-79, 55 L. Ed. 2d at 277-78, 98 S. Ct. at 1061.) *** Ceccolini is inadequate to support an attenuation argument as to defendant’s confession itself.” Williams, 138 Ill. 2d at 397-98.
On defendant’s account of when he gave police Cole’s name, Cole’s confession cannot be an attenuating circumstance because it is a product of defendant’s illegal arrest. Even on the police account, defense counsel could present strong argument that defendant was under arrest before he gave them Cole’s name. In light of the conflict in the evidence which the trial court left unresolved, I would find that there is a reasonable probability that defendant could have obtained a reversal of his convictions if appellate counsel on direct appeal had challenged the ruling on the motion to suppress because the trial court erred in finding that defendant was not arrested until Cole made his statement.
It was the worst of times.
I would reverse the decision denying defendant’s petition for post-conviction relief. Defendant’s conviction should be reversed and the case remanded for a new trial.