                                         2016 IL App (3d) 140833

                               Opinion filed January 26, 2016
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2016

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois,
            Plaintiff-Appellant,                      )
                                                      )       Appeal No. 3-14-0833
            v.                                        )       Circuit No. 12-CF-2764
                                                      )
     BRUCE GEMPEL,                                    )       Honorable
                                                      )       Robert P. Livas,
            Defendant-Appellee.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Presiding Justice O'Brien and Justice Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          The State charged the defendant, Bruce Gempel, by indictment with two counts of first

     degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2012)), residential arson (720 ILCS 5/20-1

     (West 2012)), and concealment of a homicidal death (720 ILCS 5/9-3.4(a) (West 2012)) in

     connection with the death of his neighbor, Dorothy Dumyahn.

¶2          During the pretrial motion stage, the defendant moved to suppress statements he made to

     police while in custody. Specifically, the defendant argued the police obtained his statements as

     a product of an illegal arrest. Following a hearing, the court granted the defendant's motion to

     suppress. In turn, the State requested an evidentiary hearing to establish the statements
     sufficiently attenuated from the illegal arrest to allow their admission at trial. The court allowed

     the State's request, but after hearing the evidence and arguments, found that the State failed to

     meet its burden in proving attenuation. Therefore, the circuit court barred the admission of the

     suppressed statements at the defendant's upcoming trial. The State filed a certificate of

     impairment.

¶3                                                FACTS

¶4          On the morning of November 18, 2012, an off-duty firefighter drove past the victim's

     home. The firefighter observed smoke coming from the home. He managed to enter through the

     front door, despite a chair blocking the door from the inside. Inside the home, the firefighter

     discovered a woman, identified later as the victim and neighbor of the defendant. It is later

     revealed that multiple stab wounds caused the victim's death, not the fire.

¶5          The police began their investigation by seeking interviews with individuals acquainted

     with the victim and her habits. Individuals of interest included the neighbors on each side of the

     home, which included Craig Gottwald and the defendant and his family. Also of interest to the

     police were the defendant's family's guest, Billy Norris, and the victim's regular acquaintance and

     friend, Rosella Hase.

¶6          On November 20, 2012, the defendant appeared voluntarily at the Romeoville police

     department for an interview with the police. The interview lasted approximately one hour.

     When the interview ended, the police arrested the defendant.

¶7          Following the arrest, the defendant remained in custody until November 22, 2012, at

     which time he made a recorded statement to the police. The defendant's statements in that

     recording are the subject of his motion to suppress and the State's later motion for an attenuation

     hearing. For clarity, we discuss the evidence adduced at each hearing separately.


                                                      2
¶8                                  I. The Defendant's Motion to Suppress

¶9            In his motion to suppress, the defendant alleged that the police illegally arrested him

       without probable cause or an arrest warrant when he voluntarily appeared at the Romeoville

       police department on November 20, 2012. Therefore, the defendant moved to bar the admission

       at trial of any statements he made while in police custody, because the police obtained those

       statements as the product of an illegal arrest. The parties presented the following evidence,

       organized chronologically, at the hearing on the motion.

¶ 10                                        A. November 18, 2012

¶ 11          Romeoville Police Commander Kenneth Kroll (a detective at the time of the homicide),

       testified that he responded to a police call-out at 2309 Caton Farm Road in Crest Hill on the

       morning of November 18, 2012. At the time, Kroll was a member of the Will County-Grundy

       County major crimes task force (task force) and had been called to investigate a homicide.

¶ 12          When Kroll arrived at the scene, he spoke with Crest Hill Police Detective Jason Opiola.

       Opiola told Kroll that an off-duty firefighter recovered the body of a deceased female from

       inside her burned home. The victim lived alone and had regular contact with her neighbors on

       both sides. Hase, the victim's friend, also had regular or daily contact with the victim. Opiola

       also told Kroll that he had spoken with the victim's daughter, who informed Opiola that the

       defendant borrowed money from the victim in the past. The victim's daughter had recently told

       the victim to stop lending money to the defendant.

¶ 13          After speaking with Opiola, Kroll viewed the scene himself. He observed the victim's

       body on the front lawn. He saw that the house had been very badly burned. He noted that the

       victim's body appeared to have significant injuries, not from the fire, but from what appeared to

       be stab and puncture wounds. According to Kroll, the stab wounds appeared defensive.


                                                        3
¶ 14            As Kroll viewed the scene, other investigators told him that the victim routinely blocked

       the front and back doors of her home with a chair after locking them. Based on their

       observations of the smoke trail inside the home and the absence of the chair blocking the back

       door, investigators believed the perpetrator knew the victim and had exited through the back

       door after starting the fire.

¶ 15            After viewing the scene, Kroll and members of the task force sought interviews with the

       victim's neighbors and friend who were present at the crime scene watching the police. This

       included the defendant's brother, William Gempel, the defendant's nephews, Jesse and Jacob

       Gempel, and the victim's friend, Hase. The Gempel family's overnight guest, Norris, was also

       present at the scene but was not interviewed by the task force. All individuals the task force

       interviewed provided voluntary buccal swab samples for testing.

¶ 16            Later that evening, William consented to a police search of his home (located next door

       to the victim's home). 1 Inside the residence, Kroll observed the defendant for the first time,

       sitting on a couch. Kroll noticed scratches on the defendant's face.

¶ 17            Detective William Sheehan, another task force member, testified that he met the

       defendant when police searched William's home. When he spoke with the defendant, Sheehan

       asked general background questions. During the conversation, the defendant mentioned that he

       had borrowed money from the victim in the past and it bothered the defendant when she asked

       for repayment. The defendant also asked Sheehan why somebody would do such a thing to the

       victim. Sheehan suggested that alcohol had been involved. Sheehan believed his remark made

                1
                    Although it is not clear from the record of the suppression hearing, the following

       attenuation hearing revealed William owned the home in question and the defendant stayed

       there.


                                                            4
       the defendant upset because the defendant had previously told Sheehan that he had been drinking

       the night before.

¶ 18          Like Kroll, Sheehan observed a scratch on the side of the defendant's face. Sheehan also

       observed a scratch on the defendant's nose and some marks and scratches on both the defendant's

       knees. Sheehan noticed additional scratches on the inside of the defendant's right elbow. The

       defendant also voluntarily provided a buccal swab sample for analysis.

¶ 19          Sheehan also spoke with the victim's friend, Hase. Hase told Sheehan that William

       would borrow money from the victim. She indicated that the defendant would also borrow

       money from the victim. Hase did not tell Sheehan that the defendant owed money to the victim

       at the time of her death nor was Hase aware of the defendant ever threatening the victim.

¶ 20                                        B. November 19, 2012

¶ 21          According to Opiola, an autopsy was performed on the victim, during which the

       pathologist collected the victim's fingernails and sent the samples to the Joliet crime lab for DNA

       analysis.

¶ 22                                        C. November 20, 2012

¶ 23          The next day, Sergeant Sean Talbot, another task force member, interviewed the

       defendant's nephew, Jacob. Jacob told Talbot that it was common for the defendant to borrow

       money from the victim. According to Jacob, the victim knew when the defendant received his

       paycheck and would wait for the defendant to return from work and ask for repayment. Since

       the homicide, Jacob noticed that the defendant had not been sleeping, had been pacing a lot, and

       had called in sick to work.

¶ 24          Later in the day, the defendant appeared voluntarily at the Romeoville police department

       for an interview with Detectives Sheehan and Matlock. Kroll did not attend the interview but

                                                       5
       was informed by the detectives that the defendant had been read and had asserted his Miranda

       rights (Miranda v. Arizona, 384 U.S. 436 (1966)). The video recording of the interview was not

       played for the circuit court at the suppression hearing. 2 Further, neither party offered evidence

       regarding the substance of the conversation between the defendant and the detectives during the

       interview.

¶ 25          When the interview finished, the police decided to arrest the defendant. Kroll personally

       escorted the defendant to the station's booking area, where Kroll took a photograph of the

       defendant, removed the defendant's personal belongings, and placed the defendant into a secure

       bullpen. When the police arrested the defendant, they had not indentified any eyewitnesses, did

       not have a description of the possible offender, and had not obtained a warrant to arrest the

       defendant.

¶ 26          By stipulation, the parties agreed that the defendant remained in custody at the

       Romeoville police department until November 22, 2012 (approximately 37 hours). At the end of

       the 37 hours, the defendant made a recorded statement to the police. 3

¶ 27          After the parties finished presenting their evidence and arguments, the circuit court

       granted the defendant's motion to suppress. In so ruling, the circuit court noted that the victim's

       habit of placing chairs at the front and back doors of her home did not connect the defendant to

       the back door where the police suspected the perpetrator exited. The circuit court also noted that

       while the officers observed fresh scratches on the defendant, the State failed to offer any

       evidence connecting the defendant to the DNA under the victim's fingernails at the time of the



              2
                  The interview was played at the subsequent attenuation hearing.
              3
                  The record does not contain the content of those statements.


                                                         6
       arrest. Therefore, the circuit court concluded the police lacked probable cause to arrest the

       defendant and suppressed the statements the defendant made to the police while in custody.

¶ 28                                   II. The State's Attenuation Motion

¶ 29           Following the circuit court's ruling, the State filed a motion for an attenuation hearing.

       The State argued that, despite the defendant's illegal arrest, the statements should still be

       admissible at trial because intervening probable cause to arrest the defendant occurred two days

       after the arrest, when the police obtained the preliminary results from the DNA analysis of the

       victim's fingernails. Specifically, the State argued that this additional fact, considered along with

       the defendant's treatment while in custody, the absence of flagrant police misconduct, and the

       significant lapse of time between the illegal arrest and the statements, attenuated the statements

       from the illegal arrest. Thus, the State argued, the statements previously suppressed by the

       circuit court, should still be admissible at trial. The circuit court allowed the hearing, which

       adduced the following evidence.

¶ 30                                         A. November 20, 2012

¶ 31           Detective Sheehan testified that on November 20, 2012 (two days after the homicide), he

       and Detective Matlock interviewed the defendant at the Romeoville police department around

       6 p.m. Sheehan believed an officer or another individual brought the defendant to the police

       department for the interview. Sheehan recorded the interview, which ended around 7:10 p.m.

       when police arrested the defendant. Sheehan explained for the circuit court what occurred

       during the interview. It is unclear if the parties played the entire video recording of the interview

       during the hearing, but at least some of the video recording was played for the circuit court. The

       entire video recording is included in the record on appeal and will be described in relevant part

       for clarity.


                                                         7
¶ 32          The interrogation took place in an interview room inside the police station. The

       defendant sat in the corner of the room across from the exit and the two detectives sat in between

       the defendant and the closed door. Sheehan began the interview by reading the defendant his

       Miranda rights. The defendant initialed a Miranda form acknowledging he understood his

       rights. Sheehan then told the defendant that he was not under arrest, but did not tell the

       defendant that he was free to leave at any time.

¶ 33          During the interrogation, the defendant denied involvement in the homicide. The

       defendant admitted to borrowing money from the victim in the past, but denied owing money to

       the victim at the time of her death. After about 20 minutes of interrogation, the defendant told

       the detectives that he wanted to leave and he wanted a lawyer because he believed the detectives

       were "twisting this around and trying to get [him] to say something [he] didn't do." 4 Neither

       detective responded to the defendant's request for an attorney or told the defendant that he was

       free to leave. Nor did the detectives re-Mirandize the defendant.

¶ 34          After further interrogation, the defendant told the detectives, "again let me get a lawyer or

       get me out of here, I am telling you I didn't do this, I am telling you the truth[.]" After this

       request, the detectives acknowledged the defendant's desire to speak with an attorney and left the

       room. The detectives did not tell the defendant that he was free to leave but asked the defendant

       to remain in the room.

¶ 35          Following a six-minute break, the detectives returned to the interview room. When

       Sheehan sat down, he acknowledged the defendant's previous request to speak with an attorney

       and explained to the defendant that the request meant the detectives could not speak with the

              4
                  Sheehan testified that he did not hear this comment during the interview itself, but after

       watching the video recording of the interview, he acknowledged the statement had been made.


                                                          8
       defendant any further. Sheehan, however, proceeded to tell the defendant if he wanted to

       continue communicating with the detectives "that [would] be great." Sheehan then told the

       defendant that he did not really need an attorney if somebody else had committed the crime.

       Sheehan then stated that the detectives were prohibited from questioning the defendant further,

       but asked the defendant to expressly acknowledge that the defendant initiated further

       communication with the detectives. When the defendant asked the detectives if he was in

       custody, Sheehan told the defendant that he was not. Then, the defendant asked the detectives if

       he could smoke a cigarette. The detectives allowed the request and escorted the defendant

       outside to the front of the building. Outside, the defendant smoked while the detectives watched

       from the front door (a distance of approximately 20 feet). When the defendant finished his

       cigarette he returned to the detectives and walked back to the interview room.

¶ 36          Back inside, the defendant told the detectives, "I really didn't do this, I wish I would have

       never come today[.]" Sheehan did not tell the defendant that he could leave but asked the

       defendant, "do you want to talk to us without an attorney, we can just go over this real slowly[.]"

       The defendant asked if he was under arrest and Sheehan told the defendant that he was not.

       Then, the defendant told the detectives "I want to go, I'll have to get an attorney[.]" The

       detectives continued interrogating the defendant. Next, the defendant told the detectives, "I don't

       want to go to prison for something I didn’t do[.]" After this, the detectives left the interview

       room and asked the defendant to wait in the room. After approximately 27 minutes, Sheehan

       returned and asked the defendant to come out into the hallway. The video recording of the

       interview then ended.

¶ 37          Kroll testified that the police placed the defendant under arrest after the interview

       concluded. Kroll personally booked the defendant. When Kroll finished booking the defendant,


                                                        9
       he allowed the defendant to again go outside to smoke a cigarette. Kroll accompanied the

       defendant while he smoked. According to Kroll, he did not question the defendant about the

       case during the booking procedure or while the defendant smoked. However, while the

       defendant smoked, the defendant made a spontaneous statement to Kroll explaining "he was 49-

       years old, he couldn't believe that this was taking place and he was going to spend the rest of his

       life in jail." Kroll reminded the defendant that he had invoked Miranda and told the defendant

       that any conversation about the case needed to be initiated by the defendant and recorded.

¶ 38          Later in the day, Kroll accompanied the defendant outside to have another cigarette.

       While smoking, the defendant made another spontaneous remark, "that he wanted to sit down

       with the state's attorney, the police, somebody to represent him, and find out what his best case

       scenario was because he wanted to know that he would–he wanted to have an opportunity to see

       his kids again someday."

¶ 39          According to Kroll, throughout the day the defendant had been fed, allowed to use the

       restroom, and provided several opportunities to smoke. At the end of the day, Kroll placed the

       defendant in a cell, where he remained until the next morning.

¶ 40                                        B. November 21, 2012

¶ 41          In the early morning hours, the defendant's brother, William, called the police station and

       asked Kroll if he could speak with the defendant. Kroll notified the defendant that William had

       called, but the defendant chose not to speak with him at that time.

¶ 42          Later in the morning, Kroll provided the defendant coffee and a cigarette. In addition,

       Kroll allowed the defendant to return William's call and contact his employer. The defendant

       spoke with his employer about an attorney benefits program it offered. After speaking with his

       employer, the defendant contacted two local attorneys by phone and left messages.


                                                       10
¶ 43          Julie Glasner, assistant laboratory director for the Illinois State Police Joliet forensic

       science lab, supervised the analysis of the DNA samples obtained from under the victim's

       fingernails. According to Glasner, on November 21, she spoke with Commander Rich Demick

       at the Romeoville police department, who worked with Detective Opiola. She informed Demick

       that the preliminary results from the DNA analysis revealed the presence of female and male

       DNA under the victim's fingernails.

¶ 44          According to Glasner, the DNA test did not identify the individual matched to the DNA,

       the age or race of the DNA, how long the DNA had been under the victim's fingernails, or how

       the DNA got underneath the victim's fingernails.

¶ 45          In the evening, Kroll asked the defendant for consent to take hair samples to compare to

       the samples recovered from the victim's fingernails. Kroll read the defendant his Miranda rights

       and the defendant consented to provide hair samples. By way of stipulation, the parties agreed

       that while Kroll took the hair sample from the defendant, the defendant commented, "I really

       want to be able to talk to an attorney. I wish there was a way to do that, you know what I mean,

       but I have got no control over that." 5 At the time, the defendant had still not spoken with an

       attorney.

¶ 46          Kroll also allowed the defendant to take regular cigarette breaks throughout the day. In

       addition, Kroll provided the defendant with access to the restroom, meals, and a shower. Like

       the previous day, Kroll placed the defendant in his cell for the night. Shortly after, Kroll left the

       Romeo police department.

              5
                  When asked about the statement, Kroll indicated he did not remember the defendant

       requesting an attorney. The video recording of the event was played in open court but was

       inaudible. Consequently, the parties stipulated to the statement.


                                                        11
¶ 47                                        C. November 22, 2012

¶ 48          Romeoville Police Officer Michael Michienzi, testified that he worked the booking room

       at the Romeoville police department in the early morning hours of November 22, 2012.

       According to Michienzi, at around 5:30 a.m., he walked past the defendant's cell and the

       defendant asked Michienzi if he could speak with Kroll because "he did something wrong and

       needed to talk to [Kroll]."

¶ 49          Kroll received a call from the station informing him that the defendant wished to speak.

       Kroll arrived at the station around 6:45 a.m. and allowed the defendant to have coffee and a

       cigarette before speaking.

¶ 50          At 7:13 a.m., the defendant followed Kroll and Detective Opiola into an interview room.

       The defendant was read his Miranda rights. The defendant acknowledged that he initiated the

       conversation with the detectives and knew his statement would be recorded. At that time, the

       defendant made a recorded statement to the police. The next morning the defendant was

       transported to the Will County adult detention facility. This ended evidence.

¶ 51          After hearing the parties arguments, the circuit court made the following findings:

                      "[T]he surrounding circumstances of the conduct of the defendant were so

                      insignificant as to not even contribute to probable cause. The only physical piece

                      of evidence in the original ruling [at the suppression hearing] or circumstance was

                      scratch marks.

                              In the attenuation hearing nothing further was presented to this Court

                      except for the fact that unknown DNA were taken from the [victim's] fingers

                      coming back mostly female and some male.




                                                       12
                              The defendant did not flee during that time, he voluntarily gave DNA.

                      The defendant was never caught in any lie that I know about. There was no other

                      physical evidence found at all during that period of time.

                              And I've already made statements concerning the police, their interview on

                      the 18th. The conclusion I'll draw is that in terms of the four elements that were

                      required, the State fails. And it's not the State's fault, it's just the evidence and

                      what was going on at that station. In any case, they did not meet their burden."

       Therefore, the circuit court denied the State's attenuation request and motion to reconsider its

       ruling on the defendant's motion to suppress.

¶ 52          Following the circuit court's ruling, the State filed a motion to reconsider its attenuation

       ruling and a certificate of substantial impairment to proceed to trial. The certificate asked the

       circuit court to hold the prosecution of the case in abeyance pending the State's appeal from the

       attenuation ruling. The circuit court denied the motion to reconsider but granted the State's

       motion for impairment.

¶ 53                                               ANALYSIS

¶ 54          At the outset, we note that the State does not dispute that the detectives illegally arrested

       the defendant following his interview with detectives on November 20, 2012. In addition, the

       State does not challenge the circuit court's initial ruling on suppression. However, the State

       argues the suppressed statements should still be admissible at trial because the evidence

       presented at the suppression and attenuation hearings demonstrated that the confession was

       sufficiently attenuated from the illegal arrest. The State only challenges the suppression of the

       statements the defendant made on November 22, 2012.




                                                         13
¶ 55          An illegal arrest does not in and of itself render a defendant's statements to police

       inadmissible. People v. Morris, 209 Ill. 2d 137, 157 (2004). Statements made by a defendant

       following an illegal arrest may still be admissible if it is sufficiently attenuated from the illegal

       arrest. People v. Salgado, 396 Ill. App. 3d 856, 860 (2009). In making this determination, the

       question is whether the statements were obtained by exploitation of the illegal arrest or were

       obtained " ' by means sufficiently distinguishable to be purged of the primary taint ' " of the

       illegal arrest. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting John M. Maguire,

       Evidence of Guilt 221 (1959)). Courts consider the four following factors in attenuation

       analysis: (1) the flagrancy of police misconduct; (2) whether there were intervening

       circumstances; (3) the proximity of time between defendant's arrest and statement; and (4)

       whether Miranda warnings were given to the defendant. Salgado, 396 Ill. App. 3d at 860. The

       State has the burden of showing that the defendant's statements were sufficiently attenuated from

       his illegal arrest to be admissible. People v. Foskey, 136 Ill. 2d 66, 86 (1990).

¶ 56          While we apply a manifestly erroneous standard to the circuit court's findings of fact, we

       review de novo the ultimate question of whether the evidence should be suppressed. Salgado,

       396 Ill. App. 3d at 860. We consider each of the above four factors with this standard of review

       in mind.

¶ 57                              I. Purpose and Flagrancy of Police Conduct

¶ 58          "The presence of purposeful and flagrant police misconduct weighs against attenuation.

       [Citation.] 'Police action is flagrant where the investigation is carried out in such a manner as to

       cause surprise, fear, and confusion, or where it otherwise has a "quality of purposefulness," i.e.,

       where the police embark upon a course of illegal conduct in hope that some incriminating

       evidence (such as the very statement obtained) might be found.' " People v. Klimawicze, 352 Ill.


                                                         14
       App. 3d 13, 23 (2004) (quoting People v. Jennings, 296 Ill. App. 3d 761, 765 (1998)). In other

       words, police misconduct is flagrant where "it has a quality of purposeful or intentional

       misconduct." People v. Johnson, 237 Ill. 2d 81, 94 (2010).

¶ 59          The defendant argues the police flagrantly violated his fifth amendment right to counsel

       during the November 20, 2012, interview with Detectives Sheehan and Matlock because they

       continued to interrogate him after he invoked Miranda and asked to leave and speak with an

       attorney. Because the record clearly establishes the defendant was in custody and invoked his

       Miranda rights, we agree.

¶ 60          Under Edwards, when an accused individual subjected to custodial interrogation requests

       an attorney, he is not subject to further interrogation until counsel has been made available to

       him, or he initiates further conversation with the authorities. Edwards v. Arizona, 451 U.S. 477,

       484-85 (1981). Before considering the detectives' compliance with the defendant's requests for

       counsel in this case, we must determine whether the defendant was in custody during the

       November 20, 2012, interview.

¶ 61          An individual is in custody "if, under the circumstances of the questioning, 'a reasonable

       person would have felt he or she was not at liberty to terminate the interrogation and leave.' "

       People v. Jordan, 2011 IL App (4th) 100629, ¶ 17 (quoting People v. Braggs, 209 Ill. 2d 492,

       506 (2003)). To determine whether a statement was made in a custodial setting, the following

       factors are relevant:

                      "(1) the location, time, length, mood, and mode of the questioning; (2) the number

                      of police officers present during the interrogation; (3) the presence or absence of

                      family and friends of the individual; (4) any indicia of a formal arrest procedure,

                      such as the show of weapons or force, physical restraint, booking or


                                                       15
                      fingerprinting; (5) the manner by which the individual arrived at the place of

                      questioning; and (6) the age, intelligence, and mental makeup of the accused."

                      People v. Slater, 228 Ill. 2d 137, 150 (2008).

       Another factor to consider is whether the suspect "had reason to believe that he or she was the

       focus of a criminal investigation." People v. Vasquez, 393 Ill. App. 3d 185, 190 (2009).

¶ 62          The first factor (the location, time, length, mood and mode of questioning), as applied in

       this case, favors finding the defendant was in custody during the interview with the police. The

       interrogation took place in a small interview room with the door closed. The detectives placed

       the defendant in the corner opposite the exit and blocked the defendant's path to the exit by

       placing themselves in between the defendant and the door.

¶ 63          Likewise, the second factor (the number of police officers present) weighs in favor of

       finding the defendant was in custody. The defendant was alone with two detectives when the

       interview took place. Similarly, the third factor (the absence of family and friends) favors

       finding the defendant was in custody, as the defendant's family and friends were absent during

       the interview. Id. (officers establish domination over a suspect by removing him from the

       presence of others who could offer moral support).

¶ 64          While the police did not book the defendant until after the interview, the fourth factor

       (any indicia of a formal arrest procedure) also favors finding the defendant was in custody. The

       detectives advised the defendant of his Miranda rights at the very beginning of the interview, the

       defendant asserted his innocence, and had his requests to leave repeatedly ignored by the

       detectives. See People v. Ollie, 333 Ill. App. 3d 971, 984 (2002) (a reasonable person who had

       been advised of his Miranda rights and had asserted that he knew nothing about the crime, but

       was not released, would not have believed he was free to leave).


                                                       16
¶ 65          The fifth factor (the manner in which the defendant arrived for questioning) also favors

       the same finding. The defendant did not drive himself to the interview with the police. Thus, the

       defendant had no reasonable means to leave the station on his own, because he lived in Crest Hill

       and the interrogation took place in Romeoville. The sixth factor (the age, intelligence, and

       mental makeup of the accused) is ambiguous.

¶ 66          The final factor (whether the defendant had reason to believe he was the focus of a

       criminal investigation), overwhelmingly favors the defendant. Throughout the interview the

       defendant denied involvement in the crime and told the detectives that he believed they were

       trying to get him to admit to something he did not do. Also, the defendant asked if he was under

       arrest or being booked several times throughout the interview. When the defendant requested a

       cigarette, the detectives escorted the defendant outside and watched him from a short distance.

       While the detectives told the defendant he was not under arrest, the surrounding circumstances

       made it clear the defendant was not free to leave the police station. Considering these factors

       together, we find the defendant was in custody from the very beginning of the November 20,

       2012, interview.

¶ 67          Having concluded the defendant was in custody during the November 20 interview, we

       now address whether the detectives violated the defendant's fifth amendment right to counsel

       after he invoked Miranda. As noted above, when an accused individual subjected to custodial

       interrogation requests an attorney, he is not subject to further interrogation until counsel has been

       made available to him, or he initiates further conversation with the authorities. Edwards, 451

       U.S. at 484-85. Put another way, "[l]aw enforcement authorities violate [the Edwards] rule if

       they approach the accused for further interrogation without making counsel available." People v.

       Miller, 393 Ill. App. 3d 1060, 1064 (2009).


                                                        17
¶ 68          In the present case, the defendant indisputably expressed a desire to speak to an attorney

       three times during the interview with Detectives Sheehan and Matlock (an interview which

       included approximately 37 minutes of actual questioning). The detectives completely ignored

       the defendant's first request for counsel and continued interrogating the defendant. The second

       time the defendant asked for counsel, the detectives acknowledged that they were prohibited

       from further communication with the defendant. Yet, Sheehan told the defendant that if he

       wanted to continue talking it would be "great." What is even more troubling is the fact that

       Sheehan told the defendant he did not really need an attorney.

¶ 69          While the defendant may have arguably reinitiated conversation by continuing to speak

       with the police after he asked for an attorney, we find it particularly egregious that Sheehan

       asked the defendant to expressly acknowledge that the defendant—not the police—initiated

       further communication. It is clear from a review of the videotaped interview that Sheehan was

       initiating the communication. This tactic exemplifies an obvious attempt on the part of the

       detectives to contravene the defendant's asserted rights and engage in further discussion. We

       cannot condone conduct such as this where the detectives clearly understood they were

       prohibited from initiating further communication but chose to do so anyway hoping the

       defendant would confess.

¶ 70          On the following day, the police again violated the defendant's fifth amendment right to

       counsel when Kroll took the defendant's hair sample. In doing so, Kroll ignored the defendant's

       comment, "I really want to be able to talk to an attorney. I wish there was a way to do that, you

       know what I mean, but I have got no control over that." Kroll did not respond to the defendant's

       request or make counsel available. Instead, Kroll went ahead and took the defendant's hair

       sample.


                                                       18
¶ 71          We also emphasize the fact that the detectives engaged in purposeful misconduct when

       they illegally arrested the defendant without probable cause or warrant. See Klimawicze, 352 Ill.

       App. 3d at 23 (police misconduct is also flagrant where the authorities arrest a suspect without

       probable cause while hoping that incriminating evidence, such as a confession, might eventually

       turn up). An arrest without probable cause violates the fourth amendment. People v. Marcella,

       2013 IL App (2d) 120585, ¶ 30.

¶ 72          Here, the State does not dispute the circuit court's finding that the defendant had been

       arrested without probable cause. At the time of the arrest, the police had no direct witnesses, no

       physical evidence, nor any evidence tying the defendant to the crime. Further, the defendant

       repeatedly denied involvement in the homicide, appeared voluntarily for the interview, complied

       with the detectives' requests, and did not attempt to flee the police. At no point did the detectives

       attempt to obtain an arrest warrant. In this context, we find the investigators arrested the

       defendant without probable cause hoping other evidence, such as a confession, might turn up

       after the arrest. See People v. Clay, 349 Ill. App. 3d 517, 525 (2004). This, along with the

       investigators' repeated disregard for the defendant's requests to leave and for counsel

       demonstrates a purposeful intent on the part of the police to contravene the defendant's protected

       rights with the intent to improperly obtain statements from the defendant. Providing the

       defendant with adequate food and water, cigarettes, and access to the restroom does not cure

       these glaring violations. Consequently, we conclude the police acted flagrantly. As such, this

       factor weighs against attenuation.

¶ 73                                     II. Intervening Circumstances

¶ 74          Next, we consider whether intervening circumstances exist severing the causal

       connection between the illegal arrest and the defendant's statements on November 22, 2012. At


                                                        19
       the suppression hearing, the State argued that probable cause existed based on a totality of

       circumstances. At the time police arrested the defendant, they knew the defendant lived next

       door to the victim, the defendant's face was scratched, and the victim may have been in a

       struggle before her death. They also knew the defendant was the only individual interviewed by

       police that had scratches on parts of his body. In addition, Sheehan believed the defendant

       became angry when he told the defendant the crime probably involved alcohol. Further, the

       defendant had trouble sleeping following the victim's death, paced more often, and missed work.

       There was also some evidence the defendant borrowed money from the victim at some point and

       the defendant felt irritated when the victim asked for repayment. Therefore, the State argued that

       the totality of these circumstance established probable cause to arrest the defendant when he

       interviewed with police on November 20. As discussed above, the circuit court rejected the

       State's argument and concluded the defendant had been illegally arrested without probable cause.

       The State does not challenge the circuit court's legal conclusion or the facts contained within this

       paragraph.

¶ 75          Instead, in the attenuation hearing and on appeal, the State argues that an intervening

       circumstance occurred between the time of the illegal arrest (November 20, 2012), and the

       defendant's statements (November 22, 2012). Specifically, the State contends the intervening

       circumstance is the preliminary DNA analysis results from the victim's fingernail scrapings,

       which revealed the presence of unidentified female and male DNA. Thus, the State argues that

       this fact, considered with what police already knew at the time, established intervening probable

       cause to arrest the defendant. We disagree.

¶ 76          "Intervening circumstances sever the causal connection between the taint of an illegal

       arrest and an incriminating statement by the defendant." Salgado, 396 Ill. App. 3d at 861.


                                                        20
       Specifically, evidence tending to show that the defendant committed the crime can be an

       intervening circumstance in one of two ways: (1) where a defendant is confronted with newly

       acquired evidence, that evidence may cause him to confess; or (2) new evidence may provide the

       probable cause that was previously not present. Id. The State concedes the police did not

       confront the defendant with any newly acquired evidence. Therefore, the sole question we

       consider is whether the preliminary DNA analysis provided intervening probable cause to arrest

       the defendant.

¶ 77          "Probable cause exists where the totality of circumstances and facts known to officers is

       such that a reasonably prudent person would believe that the suspect is committing or has

       committed a crime." Morris, 209 Ill. 2d at 159. The question of whether there was probable

       cause for an arrest is governed by common sense. People v. Hopson, 2012 IL App (2d) 110471,

       ¶ 9.

¶ 78          The preliminary results from the DNA analysis revealed the presence of unidentified

       male and female DNA underneath the victim's fingernails. The results did not indicate a match

       with the defendant. Likewise, the results did not match the victim. In fact, at that stage in the

       analysis, it was not possible to match the DNA to any specific individual. Further, the DNA

       analysis did not reveal the age or ethnicity of the individual's DNA. Nor did the analysis reveal

       how the DNA found its way underneath the victim's fingernails or for how long the DNA had

       been underneath the victim's fingernails.

¶ 79          In short, the DNA revelation added nothing to the information already known to the

       investigators at the time, as it did not eliminate any person on earth as a possible suspect. It

       makes no difference that the defendant was the only suspect observed by police with scratches

       on his face and body. Despite having the opportunity to do so, the investigators failed to ask the


                                                        21
       defendant or anybody else when or how the defendant came to be scratched. Further, the State

       did not offer any evidence that the victim did in fact scratch the perpetrator when she was killed.

       Therefore, applying the common sense standard, we find the DNA evidence, when considered

       with the other evidence known to the police at the time, did not establish probable cause to arrest

       the defendant. Accordingly, we find no intervening circumstance and this factor weighs against

       attenuation.

¶ 80          III. Temporal Proximity Between the Illegal Arrest and the Defendant's Statement

¶ 81          The next factor we consider is the temporal proximity between the illegal arrest and the

       defendant's statement. This can be an ambiguous factor. People v. White, 117 Ill. 2d 194, 223

       (1987). For example, where a defendant is confronted with intervening circumstances, a

       significant lapse of time between the illegal arrest and the defendant's statement may help to

       remove the taint of the arrest by allowing the defendant time to reflect on his situation. Id. On

       the other hand, where no intervening circumstances are present, like in this case, a long period of

       detention may exacerbate the taint of the illegal arrest by causing the suspect to confess. Id.

¶ 82          In present case, the defendant had been detained nearly 37 hours when he made his

       statements to the police. This prolonged detention may well have aggravated the taint of the

       defendant's illegal arrest and compelled him to make his statement. See id. at 224. Moreover,

       the significant police misconduct detailed above exacerbated the lengthy detention. See People

       v. Simmons, 372 Ill. App. 3d 735, 743-46 (2007) (finding statement had not been sufficiently

       attenuated from the defendant's illegal arrest when held for 38 hours, subjected to flagrant police

       misconduct, and had no intervening circumstances). While we acknowledge this factor may be

       ambiguous, we find that under the facts at hand, this factor weighs against attenuation.

¶ 83                                        IV. Miranda Warnings


                                                        22
¶ 84          The final factor we consider is whether the defendant was given Miranda warnings. Like

       temporal proximity, the giving of Miranda warnings can be an ambiguous factor. For example,

       the giving of Miranda warnings may mean that a suspect voluntarily waived his right against

       self-incrimination. White, 117 Ill. 2d at 223. On the other hand, repeatedly giving the suspect

       Miranda warnings may act as a coercive interrogation device indicating to the suspect that

       questioning will not end until he has confessed. Salgado, 396 Ill. App. 3d at 865.

¶ 85          In the instant case, there is no dispute police gave the defendant Miranda warnings on

       several occasions. While this fact when viewed in an isolated context arguably weighs in the

       State's favor, we hold the detectives' continuous disregard for the defendant's Miranda rights

       demonstrates that the warnings were used as a coercive interrogation device to obtain statements

       from the defendant. See People v. Jackson, 374 Ill. App. 3d 93, 103 (2007). Therefore, we find

       this factor weighs against finding attenuation.

¶ 86                                            CONCLUSION

¶ 87          In sum, we find all four factors in attenuation favor the defendant. Therefore, we

       conclude the State failed to meet its burden in demonstrating that the statements made by the

       defendant while in custody at the Romeoville police department were sufficiently attenuated

       from the taint of illegal arrest. Accordingly, we hold the circuit court properly suppressed the

       statements.

¶ 88          In reaching this conclusion, we reject the State's argument that the defendant's statements

       to police on November 22, 2012, are still admissible because the "defendant clearly reinitiated

       contact with law enforcement in order to make his statements." In making this argument, the

       State assumes that the defendant voluntarily waived Miranda when he asked to speak with Kroll

       at the end of the 37 hours in custody. We reject this assumption and hold that the defendant did


                                                         23
       not voluntarily waive Miranda. As discussed at length above, the police illegally held the

       defendant without probable cause, repeatedly ignored his requests to speak with an attorney, and

       held him nearly 37 hours before he made his statements. By that time, the defendant's

       "voluntary" waiver of Miranda was meaningless.

¶ 89          Even if we were to agree with the State and find that the defendant's statements were

       voluntarily, "[t]he fact that an illegally seized defendant ultimately received Miranda warnings,

       waived them, and voluntarily spoke to police does not automatically mean that the causal

       connection between the illegality and the arrest has been broken for fourth amendment

       purposes." People v. Lopez, 229 Ill. 2d 322, 355 (2008). The fifth amendment voluntariness

       requirement is a "threshold requirement" for fourth amendment analysis. Brown v. Illinois, 422

       U.S. 590, 604 (1975). In other words, "if the Fifth Amendment has been violated, the Fourth

       Amendment issue would not have to be reached." Dunaway v. New York, 442 U.S. 200, 218

       (1979). Thus, where the defendant gave a voluntary statement under the fifth amendment, we

       conduct attenuation analysis to determine whether police obtained the statement by exploiting an

       illegal arrest under the fourth amendment. Brown, 422 U.S. at 602. We have already found the

       police obtained statements from the defendant by exploiting the illegal arrest. Therefore, we

       reject the State's argument.

¶ 90          Moreover, to accept the State's position would substantially dilute the fourth amendment

       exclusionary rule. Dunaway, 422 U.S. at 217. Under the State's theory, " '[a]rrests made without

       warrant or without probable cause, for questioning or "investigation," would be encouraged by

       the knowledge that evidence derived therefrom could well be made admissible at trial by the

       simple expedient of giving Miranda warnings.' " Id. (quoting Brown, 422 U.S. at 602).




                                                       24
¶ 91          Finally, we find inapplicable the cases cited by the State to support the proposition that

       "[i]t is well settled that a defendant who tells police that he wants to talk to them about the

       investigation is the type of defendant reinitiation that purges any taint from an initial unfulfilled

       request for counsel." Those cases (People v. Crotty, 394 Ill. App. 3d 651, 661-62 (2009) and

       People v. Outlaw, 388 Ill. App. 3d 1072, 1085 (2009)) do not involve an illegal arrest or

       attenuation analysis. Again, in attenuation the question is not whether the State purged the taint

       of an unfulfilled request for counsel, but instead, whether the State purged the taint of an illegal

       arrest. Wong Sun, 371 U.S. at 488. We find the State has not met its burden.

¶ 92          The judgment of the circuit court of Will County is affirmed.

¶ 93          Affirmed.




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