                                                       SECOND DIVISION
                                                       May 22, 2007




No. 1-06-0074

THE PEOPLE OF THE STATE OF ILLINOIS,       )      Appeal from the
                                           )      Circuit Court of
     Plaintiff-Appellee,                   )      Cook County.
                                           )
          v.                               )
                                           )
TREVELLE JACKSON,                          )      Honorable
                                           )      Thomas R. Sumner,
     Defendant-Appellant.                  )      Judge Presiding.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     The jury in this murder trial watched the videotape where

defendant Trevelle Jackson described how he took part in the

fatal shooting of Anthony Redmond.    Based on the defendant’s oral

and videotaped confessions and little else, the jury found the

defendant guilty of first degree murder.       He was sentenced to 40

years in prison.    The only issue in this appeal is whether the

defendant’s confessions were admissible.

     Before trial, the trial court granted the defendant’s motion

to quash arrest based on a lack of probable cause.      Then the

court denied defendant’s motion to suppress statements he made to

police, finding the statements were voluntary and were

sufficiently attenuated from the illegal arrest.      On appeal,

defendant makes two claims: his conviction should be reversed

because his confessions were the fruit of his illegal arrest, and
1-06-0074

the length and circumstances of his detention show his

confessions were not voluntary.    We conclude the trial court

erred when it found attenuation.       We reverse the defendant’s

conviction and remand this cause for a new trial.

FACTS

     The defendant’s first trial ended in a mistrial after the

jury failed to reach a verdict.    At the second trial, evidence

was presented that on June 19, 2001, at approximately 12:20 p.m.,

Anthony Redmond was shot and killed by the defendant and Larry

Chatman.    The shooting took place outside the Spin Cycle

Laundromat at 4258 West Madison Street in Chicago.

     Because attenuation issues are fact-intensive, we set out

the relevant facts in some detail.

     Before the first trial, the court held a hearing on

defendant’s motion to quash arrest.       Chicago police officer

Renata Keating testified that on June 19, 2001, at approximately

1:30 p.m., she received an assignment to go to 2110 West Randolph

Street for a "person wanted call."       She found defendant at the

address and asked the defendant if he would be willing to go to

the Area 4 police station to speak with detectives regarding a

homicide.    The defendant agreed to accompany her to the station.

The defendant was not handcuffed or read his Miranda rights.

They arrived at Area 4 between 1:30 and 2 p.m.       Keating placed


                                   2
1-06-0074

the defendant in an interview room at the station.    Keating

locked the door on her way out.    Keating asked no questions of

the defendant.    She informed detectives James Sanchez and Gus

Vasilopoulos that defendant was at the station.

     At about 2:30 p.m., detectives Sanchez and Vasilopoulos

spoke with the defendant in the interview room at Area 4.     The

conversation lasted 15 to 20 minutes.    Sanchez introduced himself

to the defendant and advised him of his Miranda rights.      The

defendant said he understood his rights.    The defendant said he

was at the house at 2110 West Randolph where a shooting occurred

at 9:15 that morning.    He denied any knowledge of the shooting at

the laundromat.

     The detectives called for an evidence technician to

administer a gunshot residue test on the defendant.    The

technician arrived and administered the test.    The technician

noticed a black smudge on defendant’s waistline that appeared to

be gunshot residue.    He inventoried the defendant’s shirt and

took possession of it for testing.    Defendant was given another

shirt to wear.    The detectives locked the door when they left the

room.

     Sanchez said he continued to try to locate witnesses until 8

or 9 p.m. on June 19th, then went home.    He said that at that

time the defendant was not free to leave "[b]ecause we had not


                                  3
1-06-0074

located witnesses and our investigation was still ongoing."

     Detective John Pellegrini testified he formally placed the

defendant under arrest on June 21, 2001, at approximately 4:30

p.m., after defendant made admissions concerning the shooting.

Until that time, the defendant denied any involvement in the

crime.

     The trial court granted defendant’s motion to quash arrest.

The judge found the police had no probable cause to arrest

defendant until he confessed.   He found the defendant voluntarily

went to the police station on June 19th at 1:30 p.m.   The judge

did not identify the precise moment defendant was placed under

arrest, but said it was on June 19th before Detective Sanchez

went home at the end of his shift.   He said the fact that Officer

Keating locked the door to the interview room did not necessarily

mean defendant was under arrest because it could simply be a

habit.   The State does not challenge the court’s decision to

quash the arrest.

     The court held a second hearing to decide the State’s motion

for attenuation, together with the defendant’s motion to suppress

statements.   At the hearing, Detective Sanchez repeated his

testimony about his interview with the defendant at 2:30 p.m. on

June 19.    In that interview, following the reading of his Miranda

rights, the defendant said someone named "Tricky" shot at his


                                 4
1-06-0074

aunt’s house that morning.    The defendant denied any knowledge of

or involvement in the Redmond murder.

     At approximately 4 p.m., witness Sonya Haggard came to the

station to view a lineup that included the defendant.    She was

not able to make an identification.    Following the lineup, the

detectives continued to try to locate witnesses.

     At 8:30 p.m. on the 19th, the detectives spoke with the

defendant again.    First they read defendant his Miranda rights.

Defendant again denied knowledge of the shooting.

     On June 20th, at 8:30 or 9 a.m., Detective Sanchez checked

in on the defendant, took him to the restroom, and gave him

breakfast.    Detectives Sanchez and Pellegrini returned defendant

to the interview room.    They spoke with the defendant for 15 to

30 minutes.   Detective Pellegrini read defendant his Miranda

rights.   The defendant said he had not told the truth earlier.

He said a woman named Shaquala had told him Larry Chatman had

killed Redmond.    Defendant again denied his involvement in the

shooting.    The detectives asked defendant to take a lie detector

test.   Defendant agreed to take the test.

     At 3:30 p.m., detectives Sanchez, Pellegrini, and

Vasilopoulos took defendant to the Homan Square police facility

where he was given a polygraph test.    Detective Kevin Howley, who

administered the test, said he gave the defendant a consent form


                                  5
1-06-0074

that contained Miranda warnings.       Defendant appeared to read the

form then signed his name.    The test lasted a little over three

hours.   At the conclusion of the test, Howley told the detectives

the test indicated deception as to defendant’s knowledge of and

involvement in the shooting.

     The detectives told the defendant he had failed the test.

The defendant repeated a statement he had made during the

polygraph test.   He said that on June 19th, Redmond and his

friend Parish Lundy, a/k/a "Tricky," drove by the house at 2110

West Randolph Street.   Defendant’s cousin, Byron Logan, told him

Redmond "just shot up his house, and he was going to go get him."

Later that day, the defendant saw Byron, Cornelius Jackson, and

Larry Chatman driving up Lake Street.      The defendant then walked

back to the house on Randolph.    Following the statement, the

detectives transported defendant back to Area 4.      On the way

back, they stopped and purchased food for the defendant.

     At around 8 p.m., the detectives spoke with the defendant

for 15 to 20 minutes in the interview room at Area 4.      Pellegrini

first reminded defendant of his Miranda warnings.       They told him

he was not being truthful with them.      The defendant repeated his

earlier statement.   He also said that after he returned to the

house on Randolph, he saw Byron’s girlfriend Fallon holding a box

of nine-millimeter bullets.    Fallon told him Byron had dropped


                                   6
1-06-0074

the bullets off and asked her to get rid of them.    Fallon then

dropped them in a sewer behind the house.   A girl named Shaquala

pulled up and told them that Chatman had killed Redmond.

     Following defendant’s statement, the detectives went to the

address and found nine-millimeter bullets in the sewer behind the

house.    After the crime lab arrived, the detectives returned to

Area 4.

     At around 9:30 p.m., they spoke with the defendant for about

20 minutes.   They reminded the defendant of his Miranda rights.

Defendant repeated his previous statements.   He denied

involvement in the murder.

     Detective Sanchez had no further contact with the defendant.

He denied ever "feeding" the defendant information about the

shooting.   He denied ever threatening or striking the defendant

during his detention.   All the detectives who testified denied

that defendant ever was handcuffed.

     On June 21, 2001, at about 9 a.m., detectives Pellegrini and

Vasilopoulos gave the defendant breakfast and took him to the

restroom.   Pellegrini told defendant they were going to locate

witnesses so he could participate in a lineup.     They returned at

about 1:30 p.m.   They gave defendant some food.   Defendant asked

to use the restroom.

     At around 2 p.m., as the detectives were escorting the


                                  7
1-06-0074

defendant to the restroom, the defendant saw Detective Jacqueline

Mok sitting at a computer.    The defendant asked them if he could

speak alone with Mok.    He said he knew her when she was a

tactical officer in the 13th District.    Mok was not part of the

investigation at that time.    She worked in the property crimes

division.

     Pellegrini put defendant back in the interview room.     He

spoke with Mok for about five minutes outside the defendant’s

presence.   He explained the basic facts of the investigation and

asked her if she knew the defendant.    She said she did and agreed

to speak with him.

     At 3 p.m., Mok went into the interview room to speak with

the defendant.   The conversation lasted about 10 minutes.    The

defendant told her he wanted to talk about the case.    Mok advised

him of his Miranda rights, and defendant said he understood.

     Defendant asked Mok what he should do.    Mok told him he

should tell the truth.    Defendant said he was scared because his

boys might kill him if he told the truth.    Mok told him he had to

tell the whole truth, 100% of the truth, not 90%, because

otherwise they wouldn’t believe anything he had to say.    She told

the defendant that if he was afraid of his boys, she would drive

him to his father’s house to get him out of the neighborhood.

Defendant said he wanted to tell the truth.    Mok told him she had


                                  8
1-06-0074

to get Detective Pellegrini.    Defendant said that was fine.

     When Mok and Pellegrini returned to the interview room,

Pellegrini re-advised the defendant of his Miranda rights.      They

proceeded to speak with the defendant for about an hour-and-a-

half.    For the first time, defendant implicated himself in the

killing of Anthony Redmond.    The defendant said he was at his

cousin Byron’s house when Redmond and Tricky drove by and shot at

the house.    Defendant and Byron then went to Cornelius Jackson’s

house and met with Larry Chatman.     The four of them got in a car

to look for Redmond.    They stopped at the house of a girl named

Tasha.    Jackson went inside, got a gun, and came back out.    They

began driving and saw Redmond’s car in the parking lot of a

laundromat.    They parked the car.   Chatman walked to the side of

the building and looked to see if Redmond was inside.    When

Redmond came out, Chatman ran up to him and shot him numerous

times.    He ran back to the car, and they drove away.

     Pellegrini told the defendant they knew he was not being

entirely truthful because the investigation showed there were two

shooters.    He told defendant that when they located more

witnesses, the witnesses would come in to identify defendant in a

lineup.    Defendant then said he would tell the whole truth.   He

repeated his story, except he said Jackson retrieved two handguns

from Tasha’s house.    Jackson gave one gun to Chatman and one to


                                  9
1-06-0074

the defendant.   When they arrived at the laundromat, Chatman and

the defendant got out of the car.     As Redmond left the

laundromat, both defendant and Chatman ran up to him and began

shooting.    Defendant shot three times, and Redmond started to run

away.   Chatman continued to shoot Redmond as he lay on the

ground.

     Mok testified that when she first went in to speak with the

defendant, she thought he was a witness to the shooting.     She

said she did not observe any injuries on the defendant, nor did

he tell her he had been abused by any police officers.

     Detective Pellegrini testified that at about 9 p.m., the

defendant participated in lineups and was identified by two

witnesses.   No witnesses identified the defendant at trial or

testified about identifying the defendant in a lineup.      The State

did not rely on a lineup identification during the attenuation

hearing or in this appeal.

     At 10 p.m., Mok and Assistant State’s Attorney Peter Guy

Lisuzzo spoke with the defendant.     Lisuzzo advised defendant of

his Miranda rights and talked with the defendant for 30 to 45

minutes.    They left the room and returned 15 to 20 minutes later.

Lisuzzo offered the defendant four options to memorialize his

statement.   The defendant chose a videotaped statement.    The

statement was taken at 1:42 a.m. on June 22, 2001.     The defendant


                                 10
1-06-0074

said he was giving the statement freely, and no threats or

promises had been made to him in exchange for the statement.      The

defendant did not tell Lisuzzo he had been mistreated by the

police.   The videotaped statement was substantially similar to

defendant’s oral confession, with more details.    Mok was present

during all of the videotaped confession.    She said nothing.

     The defendant took the stand and testified he was 21 years

old and had attended high school until the ninth grade.    He

identified photographs taken of his head and torso on June 26,

2001.   He said the photos showed bruising on his rib cage, chest,

back, and behind the ear.   He said the bruising and redness

resulted from Detective Sanchez hitting him over 20 times while

he was in custody.   Detective Sanchez also threatened that he

would "kick [defendant’s] ass."

     The defendant denied receiving Miranda warnings from any of

the officers.   He said he asked to use the phone several times,

but was denied.   His right hand was handcuffed to the wall the

entire time he was in the interview room.    He was not able to

sleep because he had to kneel on the floor with his arm attached

to the wall.

     The defendant said he saw Detective Mok on June 20th, when

she poked her head in the door of the interview room, then left.

She came into the room and told the defendant they "told her all


                                  11
1-06-0074

about it," and defendant "might as well tell them."      Mok told him

she would be back the next day.    The next morning, on June 21st,

Mok came back to the room.    Defendant had not asked to see her.

He asked her whether he could use the telephone.      He was not

allowed to use it.    He told her Sanchez had been beating him.

She told him, "You might as well tell him something."

       Defendant testified that before the videotaped statement, he

never told any of the detectives what happened.      He said

Detective Sanchez "fed" him the details about the shooting he

described in his videotaped statement.

       In rebuttal, Detective Mok testified defendant never asked

to use the phone.    She denied peeking in the room on June 20th.

Defendant never told her Sanchez had beaten him or threatened

him.

       Ulysses Johnson, an EMT at Cermak Health Services, performed

a physical examination of the defendant on June 23, 2001, as part

of the intake process at the jail.     Johnson did not note any

injuries on defendant’s body.    Defendant did not complain of any

injuries.

       The trial court denied defendant’s motion to suppress

statements and granted the State’s motion for attenuation.      The

judge said he did not believe defendant’s testimony that he was

beaten.    He said the photographs showed nothing.    He did not


                                  12
1-06-0074

believe defendant’s testimony that none of the officers gave him

Miranda warnings.    Nor did he believe the officers’ testimony

that they read defendant his rights every time they entered the

room.    He said the truth lay somewhere in between.   The judge

found the defendant was under arrest for about 40 hours before he

gave a statement.    The videotape was evidence that defendant’s

statement was voluntary because defendant testified he had an

opportunity to say whatever he wanted.     The judge believed the

officers’ testimony that defendant asked to speak with Detective

Mok.

       At defendant’s second trial, police officers testified

regarding the call of shots fired at 2110 West Randolph on the

morning of June 19th, and the listing of "Ant" and "Tricky" as

possible offenders.

       Sonya Haggard testified she was at the Spin Cycle Laundromat

at 4258 West Madison Street at about 12:15 p.m. on June 19th.

She saw two men standing outside.     The bigger man yelled, then

both men pulled guns from their waistbands and began shooting at

the victim.    The bigger man shot the victim a few times after he

fell.    Haggard did not get a good look at the smaller man and was

not able to identify him during a lineup.     In a later lineup, she

identified Larry Chatman as the other shooter.

       Jacob Wilder also testified he saw two people shoot the


                                 13
1-06-0074

victim.    In July 2001, Wilder identified the bigger shooter in a

lineup.    He did not say he identified the defendant in a lineup.

Neither Haggard nor Wilder identified the defendant at trial.

     A latent print examiner could not find any identifiable

fingerprints on 11 discharged cartridge cases.    A gunshot residue

analysis performed on defendant’s hands and T-shirt revealed

particles consistent with gunshot residue.    The trace evidence

analyst was not able to make a conclusive finding of gunshot

residue based on a lack of at least three unique particles.     On

cross-examination, he said the tests were "negative" for gunshot

residue.

     Defendant’s videotaped statement was played for the jury.

On the tape, defendant said Redmond shot at the house where he

was staying.    Later that day, the defendant and three other

people drove around looking for Redmond.    When they saw Redmond’s

car at the laundromat, the defendant and Chatman got out and shot

Redmond as he left the building.

     The defendant did not testify or offer any evidence.    The

jury returned a verdict of guilty of first degree murder and a

finding that defendant personally discharged a firearm at the

time of the offense.    Defendant received a sentence of 40 years’

imprisonment.

DECISION


                                 14
1-06-0074

I. Attenuation

     The defendant contends his confessions should have been

suppressed because they were the product of his illegal arrest.

The determination that a defendant’s arrest was illegal does not

resolve the issue of whether the subsequent confession is

admissible.   People v. Foskey, 136 Ill. 2d 66, 85, 554 N.E.2d 192

(1990).   The relevant inquiry is whether the confession was

obtained by exploitation of the illegality of the arrest.      Brown

v. Illinois, 422 U.S. 590, 600, 45 L. Ed. 2d 416, 425, 95 S. Ct.

2254, 2260 (1975).   Evidence obtained following an illegal arrest

need not be suppressed if such evidence was obtained " ‘by means

sufficiently distinguishable to be purged of the primary taint of

illegality.’ "   People v. White, 117 Ill. 2d 194, 222, 512 N.E.2d

677 (1987), quoting Wong Sun v. United States, 371 U.S. 471, 487-

88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963).

     "The question whether a confession is the product of a free

will under Wong Sun must be answered on the facts of each case.

No single fact is dispositive."     Brown, 422 U.S. at 603, 45 L.

Ed. 2d at 427, 95 S. Ct. at 2261.      The analysis under the fourth

amendment is distinct from the "threshold requirement" of

voluntariness under the due process clause.      People v. Lekas, 155

Ill. App. 3d 391, 411, 508 N.E.2d 221 (1987).

     Factors to be considered in determining whether a confession


                                  15
1-06-0074

was the product of an illegal arrest are: (1) whether Miranda

warnings were given; (2) the proximity in time between the arrest

and confession; (3) the presence of intervening circumstances;

and (4) the purpose and flagrancy of the police misconduct.

Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at

2261-62.    Intervening circumstances and police misconduct are

considered the key factors in attenuation analysis.     People v.

Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004).

     The State has the burden of proving attenuation.    Foskey,

136 Ill. 2d at 86; White, 117 Ill. 2d at 222.    The State must

show by clear and convincing evidence that the challenged

evidence was obtained by means sufficiently distinguishable to be

purged of the primary taint.    People v. Watson, 315 Ill. App. 3d

866, 881, 735 N.E.2d 75 (2000).

     Traditionally, where the disposition of a suppression motion

turns on factual determinations and credibility assessments, the

circuit court’s factual findings will be upheld on review unless

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

Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93 (2004).     However, a

reviewing court is free to make its own assessment of the facts

in relation to the issues presented and may draw its own

conclusions when deciding what relief should be granted.     Pitman,

211 Ill. 2d at 512.    We review de novo the ultimate question of


                                  16
1-06-0074

whether defendant’s confessions should have been suppressed on

fourth amendment grounds.   Pitman, 211 Ill. 2d at 512; People v.

Scott, 366 Ill. App. 3d 638, 646, 852 N.E.2d 531 (2006); People

v. Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004).

A. Presence of Miranda Warnings

     “Although police cannot dissipate the taint of an illegal

arrest simply by giving Miranda warnings, the presence of the

warnings prior to interrogation carries some weight.”    Wilberton,

348 Ill. App. 3d at 85.

     Here, the trial court did not believe the officers’

testimony that they read defendant his rights on each and every

occasion he was interviewed.   Nor did the trial court believe

defendant when he said none of the officers gave him Miranda

warnings.   The court found, “the truth lies somewhere in

between.”   The trial court did not determine the number of times

he believed Miranda warnings were given or when they were given.

While defendant may not have been advised of his rights before

every interrogation session, we find he was advised of his

Miranda rights more than once and perhaps several times before he

made his incriminating statement to detectives Mok and

Pellegrini.

     But the presence of Miranda warnings cuts both ways in this

case.   The fact that defendant received Miranda warnings before


                                  17
1-06-0074

he made his incriminating statement could be said to indicate he

voluntarily waived his rights and agreed to give a statement,

which weighs in favor of attenuation.   See Wilberton, 348 Ill.

App. 3d at 85.   On the other hand, the fact that defendant

continually received Miranda warnings after denials of guilt

supports defendant’s contention that the detectives would not

accept his denial of any involvement in the murder and would

continue questioning him until he confessed.

     We find the presence of Miranda warnings does not clearly

favor either suppressing or attenuating defendant’s confessions.

 B. Temporal Proximity of Arrest and Statement

     We next consider the proximity in time between defendant’s

arrest and his confessions.   First, we have to determine when and

where the illegal arrest and detention took place.

     Defendant contends 51 hours passed between his unlawful

arrest and his confessions.   The trial court found defendant’s

illegal arrest and detention began when Detective Sanchez left

for the evening on June 19, 2001, which indicates defendant was

in custody for around 40 hours before confessing.

     In People v. Ollie, 333 Ill. App. 3d 971, 984, 777 N.E.2d

529 (2002), we held the giving of Miranda warnings, while not

dispositive, is commonly recognized as an indicia of arrest.    We

held, “a reasonable innocent person, having been advised of his


                                18
1-06-0074

Miranda rights, having stated that he knew nothing about the

crime in question, and having been returned to the interview room

rather than released, would not have believed he was free to go.”

Ollie, 333 Ill. App. 3d at 984.

     In this case, Detectives Sanchez and Vasilopolous

interviewed defendant at about 2:30 p.m. on January 19, 2001.

Upon entering the interview room, they immediately advised

defendant of his Miranda rights.       The detectives then questioned

defendant for 15 to 20 minutes.    Defendant denied any knowledge

of or involvement in the murder.       After noticing a smudge mark on

defendant’s t-shirt, the detectives notified the crime lab and

submitted his shirt for a gunshot analysis.      Defendant was given

another shirt to wear.   The detectives then left defendant in the

locked interview room while they went to look for witnesses.

Defendant made his first incriminating statement at around 4:30

p.m. on June 21, 2001, 50 hours after the first interview.

     We conclude a reasonable innocent person, having been

advised of his Miranda rights, having stated that he knew nothing

about the murder in question, having had his shirt removed for a

gunshot residue analysis, and having been kept in a locked

interview room rather than released after questioning, would not

believe he was free to go.   See Ollie, 333 Ill. App. 3d at 984.

We find defendant was placed under arrest when Detectives Sanchez


                                  19
1-06-0074

and Vasilopolous read him his Miranda rights in a locked

interview room during his first interview, which, according to

Detective Sanchez’s testimony, occurred sometime around 2:30 p.m.

on January 19, 2001.   We find defendant was illegally detained

for at least 50 hours before he confessed, not 40 hours as the

trial court found.   The trial court’s finding was against the

manifest weight of the evidence.

     A lapse of time may dissipate the taint of an illegal arrest

by allowing the accused to reflect on his situation.    Scott, 366

Ill. App. 3d at 647; Wilberton, 348 Ill. App. 3d at 85.    However,

the length of time between the illegal arrest and a confession is

an ambiguous attenuation factor at best.    People v. Klimawicze,

352 Ill. App. 3d 13, 19, 815 N.E.2d 760 (2004); People v. Vega,

250 Ill. App. 3d 106, 117, 620 N.E.2d 1189 (1993).   “ ‘[W]here

intervening circumstances are present, a long period between

arrest and confession may support the inference that it was the

intervening circumstances, and not the illegal arrest, which

prompted the confession.   However, where no intervening

circumstances are present, a long and illegal detention may in

itself impel the defendant to confess.’ ”    Klimawicze, 250 Ill.

App. 3d at 19, quoting White, 117 Ill. 2d at 224.

     Here, defendant was questioned about eight times during the

50-hour period, with each session lasting only a short amount of


                                20
1-06-0074

time.   While we recognize the defendant was not relentlessly

questioned while in custody, we note the questioning proceeded in

a clockwork fashion, despite defendant’s repeated denials of any

involvement in the murder.   The inordinate length of defendant’s

detention allowed the detectives to exploit his illegal arrest.

We find the 50-hour period between defendant’s arrest and his

confessions weighs against attenuation.

C. Intervening Circumstances

     This factor requires us to examine the events that occurred

between the first moment of the unlawful detention and the

defendant’s confessions, some 50 hours later.   That is because

the mere fact that the defendant was unlawfully arrested does not

mean the subsequent confessions are inadmissible, People v.

Bates, 218 Ill. App. 3d 288, 297-98, 578 N.E.2d 240 (1991),

although the initial illegality does create a primary taint

which, if not sufficiently purged, will result in suppression.

White, 117 Ill. 2d at 222.   We will not apply a simple "but for"

test; the statements must have been obtained by exploitation of

the police illegality.   Brown, 422 U.S. at 598-99, 45 L. Ed. 2d

at 424, 95 S. Ct. at 2259.

     The fact that the trial court found no physical abuse or

coercion, a finding we accept, does not resolve the fourth

amendment issues that have been raised.   Absence of physical


                                21
1-06-0074

abuse or coercion "merely establishes the threshold requirement

for admissibility."   White, 117 Ill. 2d at 223.    The question we

must resolve is whether the State has proved the existence of

some intervening circumstance that broke the " ‘causal connection

between the illegal conduct and the confession.’ "     People v.

Austin, 293 Ill. App. 3d 784, 788, 688 N.E.2d 740 (1997), quoting

People v. Turner, 259 Ill. App. 3d 979, 993, 631 N.E.2d 1236

(1994).

     What kind of intervening circumstance will break the causal

connection and eliminate the taint of illegality?    It has to be

something that induces a voluntary desire to confess.     Wilberton,

348 Ill. App. 3d at 86.   It cannot be something that was obtained

illegally--statements from unlawfully arrested codefendants, for

instance.   People v. Clay, 349 Ill. App. 3d 517, 524, 812 N.E.2d

473 (2004).   Nor can it be information obtained by exploiting the

illegality of the defendant’s detention.   People v. Simmons, No.

1-05-3618 (Ill. App. Ct., April 18, 2007) (witness found through

defendant’s statement during unlawful detention is not a

sufficient intervening circumstance.)   This court recently found

taking an illegally held suspect to a bloody crime scene, thus

inducing a confession, cannot be said to be an intervening

circumstance that dissipates the taint of illegality because

"defendant most likely would not have been confronted by the


                                22
1-06-0074

crime scene had he not been unlawfully detained by Officer

Fassl."   People v. Scott, 366 Ill. App. 3d 638, 648, 852 N.E.2d

531 (2006).   We also have said a confession obtained by showing

the defendant his unlawfully obtained bloody shoes remains

tainted by illegality.   Turner, 259 Ill. App. 3d at 993.

     Our supreme court has held a polygraph examination conducted

during the defendant’s illegal detention is a consequence of that

detention and a form of interrogation, excluding it from

consideration as an intervening circumstance.      People v.

Franklin, 115 Ill. 2d 328, 334, 504 N.E.2d 80 (1987).      We do not

consider the polygraph examination of defendant in this case to

be an intervening circumstance.

     Where an intervening circumstance has been held sufficient

to break the causal chain it has been new information, untainted

by illegality.   Bates, 267 Ill. App. 3d at 506.    See, for

example, Wilberton, 348 Ill. App. 3d at 88-89 (a co-defendant’s

lawfully obtained statement incriminating the defendant is

sufficient to purge the taint of illegality.)   See also People v.

Gabbard, 78 Ill. 2d 88, 398 N.E.2d 574 (1979) (showing defendant

a sketch of the man identified as committing the crime was a

sufficient intervening circumstance); In re R.S., 93 Ill. App. 3d

941, 946-47, 418 N.E.2d 195 (1981) (showing defendant a stolen

clock seized pursuant to a valid search warrant was enough to


                                  23
1-06-0074

attenuate illegality.)   In addition, the fact that a defendant’s

confession was given to officers other than those who unlawfully

arrested him is not a sufficient intervening circumstance, even

though those officers know little or nothing about the

circumstances of defendant’s arrest.     White, 117 Ill. 2d at 225.

     One constant strain runs throughout the decisions: an

intervening circumstance sufficient to dissipate the taint must

be independent of the unlawful arrest.    See People v. Morris, 209

Ill. 2d 137, 159, 807 N.E.2d 377 (2004) ("The information giving

rise to probable cause was obtained independently of defendant’s

illegal arrest."); Wilberton, 348 Ill. App. 3d at 88 ("Probable

cause arose independently of defendant’s arrest, weighing heavily

in favor of attenuation.")

     The State relies on the unplanned, unanticipated appearance

of Detective Mok and the events that followed to establish

intervening circumstances sufficient to attenuate the

confessions.   The State contends the confessions were

volunteered, not made in response to police interrogation,

therefore not an exploitation of illegality.    We do not agree.

     Like the different interrogating officers in Morris, the

finding of witnesses in Simmons, and the viewing of the bloody

crime scene in Scott, the defendant’s request to talk to

Detective Mok in the interrogation room was not independent of


                                24
1-06-0074

the chain of illegality.   It was an integral part of it.

Further, contrary to the State’s contention, we believe the

defendant’s confessions, oral and tape-recorded, were obtained

through interrogation and were not volunteered.

     Before entering the interrogation room, Detective Mok met

with the investigating officer for five minutes.   Once in the

interrogation room the first thing she did was give defendant

Miranda warnings.   She told him to tell the truth, the whole

truth, not 90 percent of it.   When he said he was scared his boys

might kill him if he told the truth, she offered to protect him.

She asked no questions.    Instead, she left the room and came back

with Detective Pellegrini, who again advised the defendant of his

rights.   The detectives spoke to the defendant for 90 minutes,

posing questions.   Later, he gave a videotaped confession where

Detective Mok was present, but she said nothing to the defendant.

     "Interrogation" refers to express questioning as well as

"any words or actions on the part of the police, other than those

normally accompanying arrest and custody, that the police should

know are reasonably likely to elicit an incriminating response

from a suspect."    People v. Olivera, 164 Ill. 2d 382, 391-92, 647

N.E.2d 926 (1995), citing Rhode Island v. Innis, 446 U.S. 291,

301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90 (1980).

See, e.g., Brewer v. Williams, 430 U.S. 387, 401, 51 L. Ed. 2d


                                 25
1-06-0074

424, 97 S. Ct. 1232, 1241 (1977) (police officer interrogated

defendant when he said, "the parents of this little girl should

be entitled to a Christian burial***")   The focus is primarily on

the perceptions of the suspect, rather than the intent of the

police.   Olivera, 164 Ill. 2d at 392.   But see People v. Jones,

337 Ill. App. 3d 546, 552-53, 786 N.E.2d 243 (2003) (police

officer saying to defendant he had found a handgun in defendant’s

vehicle after a traffic stop was not interrogative because it was

not reasonably likely to elicit an incriminating response.)

     We find Detectives Mok and Pellegrini knew their words and

actions were likely to elicit incriminating responses from the

defendant.   Those responses led directly to the videotaped

confession elicited by an assistant state’s attorney.   As held in

Innis and Brewer, no formal questions are required to constitute

a police interrogation.   This defendant was interrogated.    It was

an exploitation of the initial illegality, not an intervening

circumstance.

D. Purpose and Flagrancy of Police Misconduct

     The presence of purposeful and flagrant police misconduct

weighs against attenuation.   Klimawicze, 352 Ill. App. 3d at 23;

Wilberton, 348 Ill. App. 3d at 89.   “Police action is flagrant

where the investigation was carried out in such a manner to cause

surprise, fear, and confusion, or where it otherwise has a


                                26
1-06-0074

‘quality of purposefulness,’ i.e., where the police embark upon a

course of illegal conduct in the hope that some incriminating

evidence (such as the very statement obtained) might be found.”

People v. Jennings, 296 Ill. App. 3d 761, 766, 695 N.E.2d 1303

(1998), citing Foskey, 136 Ill. 2d at 86.

     In Scott, 366 Ill. App. 3d at 648, this court held the

presence of purposeful and flagrant police misconduct weighed in

favor of suppression.   While only the defendant’s testimony

indicated any mistreatment at the hands of the police officers,

the detective admitted his objective in questioning defendant and

transporting him to the crime scene was to elicit a confession.

The court held the detective’s technique “amounted to an

exploitation of defendant’s illegal detention.”   Scott, 366 Ill.

App. 3d at 648.   The detective had no other evidence to discredit

the anonymous tip implicating the defendant, and therefore had no

probable cause to hold the defendant in his attempts to elicit

the defendant’s confession.   Scott, 366 Ill. App. 3d at 648.

     As in Scott, the conduct of the detectives in this case

suggests the presence of purposeful and flagrant police

misconduct.   While the detectives did not specifically testify

that their purpose in questioning defendant and transporting him

to the police station was to elicit a confession, Detective

Sanchez said they were looking for witnesses in the ongoing


                                27
1-06-0074

investigation while defendant was in the locked room.    We believe

their purpose was to investigate and gather incriminating

evidence regarding defendant’s involvement in the murder.    Even

though defendant repeatedly denied any involvement in the murder,

the detectives detained him alone in a locked interview room for

50 hours, removed his shirt to test for gunpowder residue,

subjected him to a polygraph examination, and conducted an

eyewitness line-up identification, which failed to identify him

as one of the suspects.    The questioning process was entirely

investigatory in nature.    The officers detained defendant for 50

hours in order to conduct a “fishing expedition” to establish

probable cause.   See Simmons, No. 1-05-3618, slip op. at 18 (“We

agree with defendant’s assertion that officers rounded up

defendant and then conducted a fishing expedition in order to

establish probable cause”); Jennings, 296 Ill. App. 3d at 766.

     We find the detectives’ flagrant and purposeful misconduct

“amounted to an exploitation of defendant’s illegal detention.”

See Scott, 366 Ill. App. 3d at 648.    This factor weighs against

attenuation.

II. Voluntariness

     To determine whether a defendant’s confession was voluntary,

courts consider the totality of the circumstances, including the

defendant’s age, intelligence, education, experience, and


                                 28
1-06-0074

physical condition at the time of the detention and interview;

whether Miranda warnings were issued; whether the defendant

suffered any physical or mental abuse; and the legality and

duration of the detention.     People v. Willis, 215 Ill. 2d 517,

536, 831 N.E.2d 531 (2005); People v. Woodard, 367 Ill. App. 3d

304, 314, 854 N.E.2d 674 (2006).

     We review de novo the trial court’s ultimate decision on the

motion to suppress.     People v. Nicholas, 218 Ill. 2d 104, 116,

842 N.E.2d 674 (2006).    The trial court’s factual findings,

however, are given deference and will be accepted unless

manifestly erroneous.     Nicholas, 218 Ill. 2d at 116.   “Manifestly

erroneous means arbitrary, unreasonable and not based on the

evidence.”    People v. Ballard, 206 Ill. 2d 151, 162, 794 N.E.2d

788 (2002).

     In this case, the record reflects defendant was 20 years old

at the time of his questioning and had 9 prior contacts with the

police.   While the trial court did not believe the officers’

testimony that they read defendant his rights every time they

entered the room, it also did not believe defendant’s testimony

that none of the officers gave him Miranda warnings.      The court

found the truth rested somewhere in between.    The trial court

also did not believe defendant’s testimony that he was beaten

during questioning.   Johnson, an EMT, did not note any injuries


                                  29
1-06-0074

on defendant’s body during the intake process at the county jail.

In denying defendant’s motion to suppress, the court found the

videotape showed defendant’s statement was voluntary because

defendant had an opportunity to say whatever he wanted.   The

court also believed Detective Mok’s testimony that defendant

asked to speak to her.   We have reviewed the videotape and we

find no evidence defendant was abused or maltreated in a way

relevant to our voluntariness analysis.

     After reviewing the record, we find the trial court did not

err in denying defendant’s motion to suppress his statements on

involuntariness grounds.   See Willis, 215 Ill. 2d at 537-39

(defendant’s confession was voluntary even though he was held in

detention for 73 hours prior to confessing.)

CONCLUSION

     We conclude the State did not prove attenuation by clear and

convincing evidence.   For that reason we reverse the defendant’s

conviction and sentence and order that the confessions made by

the defendant be suppressed.   In accord with the holding in

Olivera, 164 Ill. 2d at 393, we find the evidence submitted at

trial is sufficient to support a guilty verdict.   We therefore

remand this cause for a new trial.

     Reversed and remanded.

     SOUTH, and HALL, JJ., concur.


                                30
1-06-0074




            31
