                                              SECOND DIVISION
                                              August 29, 2006



No. 1-05-2208



THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
          Plaintiff-Appellant,           )    Cook County.
                                         )
     v.                                  )
                                         )
MARCHELLO SAMS,                          )    Honorable
                                         )    Dennis J. Porter,
          Defendant-Appellee.            )    Judge Presiding.



     JUSTICE SOUTH delivered the opinion of the court:

     The State appeals from an order of the trial court granting

defendant Marchello Sams's motion to suppress his statement.     On

appeal, the State contends that the trial court erroneously

granted the motion where it determined that defendant's statement

was involuntary based on his prior lengthy detainment.

     Briefly stated, on September 12, 2002, defendant, who was 20

years old at the time, voluntarily went to a police station in

relation to the murder investigation of the victim, George

LeVonte, who was the one-year-old son of defendant's girlfriend.

Defendant then continuously remained at the police station until

late on September 15, 2002.   Throughout that time, defendant was

interviewed by numerous detectives and assistant State's

Attorneys (ASA).   Initially, defendant denied involvement in the

victim's death; however, he eventually issued a verbal and

written inculpatory statement.   After memorializing his statement

on September 15, 2002, defendant was charged with first degree
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murder and aggravated battery.   Defendant then filed a motion to

suppress his statement on the basis that it was "obtained as a

result of psychological and mental coercion," specifically noting

his "prolonged illegal detention."

     The evidence adduced at the suppression hearing demonstrated

that, around 11 p.m on September 12, defendant was initially

interviewed by Detectives Lawrence Aikin and Jamie Kane.    Prior

to that, the detectives interviewed the victim's mother, Carrie

Anne Collins, her brother Kirkland Collins, and several others.

The initial interview lasted approximately one hour, during which

defendant admitted caring for the child on the day in question;

however, he denied involvement in the victim's death.    At the

conclusion of the interview, Aikin and Kane requested that

defendant, Carrie Anne and Kirkland remain at the police station

overnight in order to assist in the continuing investigation the

next day.   According to Aikin, they all agreed and none were

placed in handcuffs.

     Early the next morning, on September 13, Aikin and Kane

returned to the police station to check on defendant, Carrie Anne

and Kirkland and to offer them coffee and food before the

detectives left to investigate the crime scene.    Aikin and Kane

returned four or five hours later, and interviewed Carrie Anne,

Kirkland and defendant for several hours.    Defendant again denied

involvement in the victim's death.     That night, at about 10 p.m.,



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Detectives Paul Zacharias, James Gildea and Michael Cusack issued

the Miranda warnings and interviewed defendant for approximately

45 minutes.   During the interview, Gildea told defendant that the

victim was being examined to determine the cause of death, and

that defendant's original statement did not explain how the

victim could have been injured.     Defendant subsequently changed

his story and made an inculpatory statement describing how he may

have harmed the victim.

     During the morning of September 14, the detectives contacted

Carrie Anne in light of defendant's inculpatory statement;

however, she was not available until the late afternoon.    Later

that evening, after again advising him of the Miranda rights,

Zacharias and ASA Lisette Mojica interviewed defendant and he

gave essentially the same inculpatory statement.    Then, very late

that night, ASA John Brassil arrived at the police station and

requested that all witnesses be contacted to make an additional

statement.

     Around 1:30 a.m. on September 15, defendant was Mirandized

and reiterated essentially the same inculpatory statement to ASAs

Brassil and Mojica.   Then, at about 4 p.m., after interviewing

the other witnesses, ASA Athena Farmakis reissued the Miranda

warnings and interviewed defendant with Zacharias for

approximately 45 minutes.   Defendant stated that he had not been

mistreated while at the police station.    Thereafter, Farmakis



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interviewed more witnesses and then spoke with defendant around

10:30 p.m.    At that time, defendant indicated that he wanted to

memorialize his inculpatory statement.   Farmakis wrote out the

statement on a preprinted form, which included the Miranda

warnings.    Defendant signed the form, indicating that he read and

understood the Miranda rights and agreed with the statement.

Defendant was subsequently charged with first degree murder and

aggravated battery.

     Detectives Aikin, Kane and Gildea and ASAs Brassil and

Farmakis all testified that defendant's statements were made

voluntarily, and that he was never physically abused or

threatened.   Defendant's mother and grandmother, however,

testified that, when they visited defendant in jail on September

16, they noticed marks on his person indicative of physical

abuse.

     Defendant testified that he was handcuffed at some point on

September 12, and that Detective Aikin physically abused him

throughout the time he was detained.   Defendant stated that the

inculpatory version of events was suggested to him by the

officers.    He further testified that he was told he could leave

the police station if he signed the statement.   Defendant

admitted that he signed the statement without reading it because

he "didn't [sic] know it was going to cause me this much

trouble."    On cross-examination, defendant admitted that the ASA



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read his written statement aloud; that he signed every page and

initialed two corrections; and signed the page acknowledging that

"no threats or promises [had] been made to him in return for

[the] statement" and that he gave the "statement freely and

voluntarily and because it [was] the truth."

      The trial court ultimately granted defendant's motion to

suppress his statement.   In its findings, the trial court noted

that defendant arrived at the police station voluntarily;

however, the court questioned whether defendant voluntarily

agreed to remain overnight.    The court, therefore, concluded that

defendant was under arrest at some time on September 13, and that

his written statement was completed at 10:30 p.m. on September

15.   The court then determined that there was no credible

evidence of any physical abuse or mistreatment.   Further, the

court found that defendant was an adult of seemingly reasonable

intelligence with some experience in the criminal justice system

due to prior felony arrests.   In addition, the court found that

defendant was advised of his constitutional rights, and that his

interrogations were intermittent and "not overly long."   The

court, however, determined that defendant was detained for an

"enormously long time."

      Although the court noted the "so-called 48 hour rule," it

also noted the rule that "delay alone is insufficient" as a basis

for excluding a defendant's incriminating statement.   Ultimately,



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the trial court concluded that "this [was] not merely delay

alone" on the basis that the police held defendant during their

investigation despite the fact that he denied involvement in the

offense.    In that regard, the court stated that the police could

have released defendant and then brought him back for further

investigation if necessary, "rather than leaving him there for

days maintaining his innocence, and then eventually, you would

think, wearing him down."   Consequently, the trial court

suppressed defendant's written statement and any statement given

after his arrest on September 13.      This timely appeal followed.

     The trial court's factual determinations are awarded great

deference, such that we will not disturb those findings unless

they are against the manifest weight of the evidence.     People v.

Willis, 215 Ill. 2d 517, 536 (2005).

     In Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S.

Ct. 854 (1975), the Supreme Court found that, pursuant to the

fourth amendment, a suspect is entitled to a probable cause

hearing before or promptly after his arrest.     Generally, a

probable cause hearing within 48 hours of a defendant's

warrantless arrest will satisfy this requirement.     People v.

Nicholas, 218 Ill. 2d 104, 116 (2006), citing County of Riverside

v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct.

1661, 1670 (1991).   However, "if the defendant can prove

'unreasonable delay' Snchiefly, delay to gather additional



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evidence to justify the defendant's arrest," then the

Gerstein/McLaughlin rule may be violated even if the hearing is

held within 48 hours.   Nicholas, 218 Ill. 2d at 116.

     Recently, in Willis, the supreme court reiterated the well-

established rule that prolonged confinement in presenting an

arrested defendant before a judge is not enough to establish a

fourth amendment violation.   See Willis, 215 Ill. 2d at 533-35.

Rather, the long-standing voluntariness test determines whether a

defendant's statement is admissible.   Willis, 215 Ill. 2d at 535.

Specifically, the test is "whether the inherently coercive

atmosphere of the police station was the impetus for the

confession or whether it was a product of free will."   Willis,

215 Ill. 2d at 535.   Further, voluntariness is ascertained by the

totality of the circumstances, such that courts consider the

"defendant's age, intelligence, education, experience, and

physical condition at the time of the detention and

interrogation; the duration of the interrogation; the presence of

Miranda warnings; the presence of any physical or mental abuse;

and the legality and duration of the detention."   Willis, 215

Ill. 2d at 536.   However, "an extraordinarily long delay which

itself raises the inference of police misconduct could, at some

point, render any confession involuntary."   Willis, 215 Ill. 2d

at 538.

     In the instant case, defendant was held at the police



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station for over 72 hours prior to being charged.   In determining

that defendant's statement was involuntary, the trial court made

numerous findings that were not against the manifest weight of

the evidence.    Defendant, a seemingly intelligent 20-year-old

with some experience in the criminal justice system, was arrested

sometime within the primary 24-hour period as it was unlikely

that he would have agreed to remain at the police station

overnight.    However, he was not physically or mentally abused

during his detention.   Further, although he was apprised of his

constitutional rights and was interrogated sporadically for

acceptable periods of time, defendant was detained for an

"enormously long time."   The trial court stated that "delay alone

is insufficient" to establish a fourth amendment violation;

however, it determined that, where defendant was continuously

held despite repeated denials of involvement in the offense,

"this [was] not merely delay alone."   Rather, defendant was

unreasonably detained while the police gathered evidence.   See

Nicholas, 218 Ill. 2d at 116.    This process eventually wore

defendant down and created a lack of free will.   See Willis, 215

Ill. 2d at 535, 538.

     Based on the totality of the circumstances, we find that the

trial court's ruling was not against the manifest weight of the

evidence.    Accordingly, we conclude that defendant's statement

was involuntary.



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     Accordingly, we affirm the judgment of the circuit court of

Cook County.

     Affirmed.

     WOLFSON and HALL, JJ., concur.




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