People v. Gempel ( 2016 )

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
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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.
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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
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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
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¶ 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
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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).
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¶ 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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