People v. Loewenstein ( 2008 )

NO. 4-05-0692 Filed 2/15/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Vermilion County
JEREMY L. LOEWENSTEIN, ) No. 05CF108
Defendant-Appellee. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In February 2005, the State charged defendant, Jeremy
L. Loewenstein, with single counts of aggravated discharge of a
firearm and unlawful possession of a weapon by a felon. In July
2005, defendant filed a motion to suppress statements, which the
trial court granted in part and denied in part.
On appeal, the State argues the trial court erred in
suppressing certain statements made by defendant to the police.
We reverse and remand for further proceedings.
I. BACKGROUND
In February 2005, the State charged defendant Loewen-
stein and codefendant Donald Huerta by information with one count
of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2)
(West 2004)), alleging defendants knowingly discharged a firearm
in the direction of another person. The State also charged
defendants with one count of unlawful possession of a weapon by a
felon (720 ILCS 5/24-1.1(a) (West 2004)), alleging defendants,
both of whom had been convicted of a felony, knowingly possessed
a handgun. Defendant Loewenstein pleaded not guilty.
In May 2005, defendant filed a motion to suppress
evidence, which the trial court denied. In July 2005, defendant
filed a motion to suppress certain statements made to the police.
Defendant stated he was taken into custody on February 20, 2005,
and interrogated by police officers. In response to questions,
defendant allegedly gave incriminating statements. Defendant
claimed the statements were involuntary and made without a
knowing and intelligent waiver of his right to remain silent and
his right to an attorney as he was not advised of those rights
prior to interrogation. Defendant also claimed statements made
on February 21, 2005, should be suppressed as having been given
as a result of the initial improper interrogation, thereby
amounting to fruit of the poisonous tree.
In August 2005, the trial court conducted a hearing on
the motion to suppress statements. Danville police detective
Bruce Stark testified he obtained defendant's consent to search a
safe in defendant's residence at 12:25 p.m. on February 20, 2005.
Stark questioned defendant about the contents of the safe but did
not read him any Miranda warnings (Miranda v. Arizona, 384 U.S.
436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Stark's police
report, admitted as defendant's exhibit No. 3, summarized the
interview as follows:
"The reporting officer[,] Bruce Stark[,]
used a Danville Police Dept. consent[-]to[-]
search form with Jeremy Loewenstein. Det.
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Stark filled out the form and it was read to
Jeremy. He was asked if he understood the
form and he stated 'Yes.' Det. Stark asked
Jeremy for consent to [a] search of a blue
Sentry safe that was located in his bedroom.
Jeremy stated the safe belonged to a guy
named Ivan who used to stay with him. Ivan
got out of prison and moved in with Jeremy.
Jeremy said he forgot what Ivan's last name
was even with Ivan living with him. Jeremy
stated Ivan got the safe to keep his personal
papers in it. When Ivan moved out a couple
of months ago, the safe was left at Jeremy's.
Jeremy stated Lupe Perez came to his
house and he had a [9-millimeter] handgun
that didn't work. Lupe Perez kept the maga-
zine and Jeremy said he put the gun in the
safe. Jeremy was asked if he knew he was a
convicted felon and he[,] Jeremy[,] said
'Yes.' Jeremy said he was going to take the
gun to a man's house on Perrysville Road that
works on guns in his garage. Jeremy said he
just never got around to doing that. Jeremy
said that his wife Nicole is also a convicted
felon, but she had no idea what was in the
safe.
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Jeremy said in the blue Sentry safe was
a blue steel [9-millimeter] handgun and some
extra bullets. Jeremy said he doesn't know
where the handgun came from other than Lupe
Perez brought it to him to try and fix.
Jeremy said the gun hasn't been fired
and there is no magazine at his house for the
gun.
Jeremy admitted to knowing the gun was
there before the safe was open. Jeremy said
that Ivan left the safe there and abandoned
it and he began using it. Jeremy said there
was nothing of Ivan's still in the safe and
Ivan moved out in December of 2004.
The blue Sentry safe was put on evidence
tag [No.] 95613.
See completed consent[-]to[-]search form
for the blue Sentry safe."
Detective Stark stated he and Detective Gene Woodard
then met with defendant at approximately 12:45 p.m. on February
20, 2005, in an interview room at the public safety building.
Stark advised defendant of his Miranda rights and presented him
with a waiver-of-rights form. Defendant indicated he understood
his rights, put his initials next to the listed rights, and
signed the waiver form. During the 30-minute interview, Stark
stated he did not threaten defendant and asked him about a
- 4 -
shooting involving Roy Delarosa. Defendant stated he was not
present at the shooting.
On February 21, 2005, Stark stated he and Detective
Keith Garrett interviewed defendant at around 11:14 a.m. at the
public safety building. Officers had by this time opened the
safe and retrieved the handgun. The officers presented defendant
with a waiver-of-rights form, and defendant initialed and signed
the form indicating he understood his rights. Stark stated he
did not threaten defendant or promise him anything during the 30-
minute interview. Stark's police report, admitted as People's
exhibit No. 3, summarized the interview as follows:
"The reporting officers[,] Bruce Stark &
Keith Garrett[,] met with Jeremy Loewenstein
and he was asked about the handgun. Jeremy
was asked where the clip-magazine was for the
[9-millimeter] handgun. Jeremy stated Lupe
Perez has it, as the handgun was his. Jeremy
said that he was holding the gun for Lupe
Perez and he was to take it to have it re-
paired.
Jeremy Loewenstein said he did forget to
tell Det. Stark one thing yesterday and that
was Nicole[,] his wife[,] when she came
home[,] answered the door when someone
knocked. Jeremy said that Nicole said it was
Hugo Torres, Greg Acuna, and one guy she
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didn't know. She told them Jeremy was in bed
sick[,] and they never came in.
Jeremy Loewenstein also said he told the
officer that the guy living with him was
possibly Ivan Brown, but since he has thought
overnight, he wasn't sure of the last name
and he didn't want to tell the officer the
wrong name. He still said the guy[']s first
name was Ivan and they called him 'Little
Man' in prison and he was paroled to Jeremy's
house, but Jeremy couldn't remember Ivan's
last name.
Jeremy said *** he did in fact handle
the gun that was in the blue safe, which the
officers took from his home."
During arguments on the motion, the State conceded the
statements given during the first interview on February 20, 2005,
should be suppressed because of the officer's failure to advise
defendant of his Miranda rights. The trial court suppressed the
first statement. The court declined to suppress the second
interview of 12:45 p.m. on February 20, 2005, finding it did not
concern the contents of the safe. The court found no evidence
that any of the statements were not voluntarily given and also
found no showing of any threats, force, or coercion.
As to the third interview, the trial court stated as
follows:
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"And then we have the conversation Feb-
ruary 21st at 11:14 a.m., that's also sought
to be suppressed. And to a very great extent
it would appear that that conversation covers
much of the same ground that was volunteered
by the defendant when he was asked for a
consent to search the safe. He talks about
there not being a clip for the handgun, that
it is a handgun, where he got [it], it was
kind of covered both times. He was
Mirandized on February 21st just before that
conversation. It's the next day, so there's
been about 24 hours passage of time. This
conversation obviously has connections to the
first conversation on February 20th before
Miranda and I think it is linked to it.
There has been a break, there's been a pas-
sage of time, a new Miranda, but I think
the--the law in the past has covered those
types of situations and I don't think that
the law allows in an improper situation where
police find things out without giving Miranda
to then go back and remedy or try to cure the
situation by [M]irandizing and questioning.
To me it's obvious the police officers were
not improperly trying to solicit information
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from Mr. Loewenstein when they spoke with him
to get the consent to search, but there was a
conversation, and then the next day a contin-
uation of that conversation, and as a result
of the topics covered both times, the [m]o-
tion to [s]uppress February 21st, 11:14 a.m.,
conversation is gonna be allowed for the
reasons stated."
The State filed a certificate of substantial impairment and
appealed the court's ruling pursuant to Supreme Court Rule 604(a)
(see 210 Ill. 2d R. 604(a)).
II. ANALYSIS
A. Burden of Proof and Standard of Review
"Where a defendant challenges the admissibility of his
confession through a motion to suppress, the State has the burden
of proving the confession was voluntary by a preponderance of the
evidence." People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d
472, 481 (2003), citing 725 ILCS 5/114-11(d) (West 2000). On
review of a trial court's ruling on the voluntariness of a
confession, the court's factual findings are accorded great
deference and will be reversed only if they are against the
manifest weight of the evidence. In re G.O., 191 Ill. 2d 37, 50,
727 N.E.2d 1003, 1010 (2000). However, the court's ruling on the
ultimate question of whether the confession was voluntary is
entitled to de novo review. People v. Morgan, 197 Ill. 2d 404,
437, 758 N.E.2d 813, 832 (2001).
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B. The Admissibility of the Second Confession
In the case sub judice, Detective Stark did not read
defendant his Miranda rights prior to his first confession on
February 20, 2005, that he possessed a handgun. A short time
later, Stark administered the Miranda warnings, but defendant
made no incriminating statements. The next day, Stark gave the
Miranda warnings before defendant admitted possessing the hand-
gun.
The State does not argue the trial court erred in
suppressing defendant's first inculpatory statement. Instead,
the State argues the court erred in suppressing the second
confession of February 21, 2005. Defendant argues the "question
first-warn later" interrogation technique utilized here requires
suppression of the second confession.
The fifth amendment to the United States Constitution
provides that no person "shall be compelled in any criminal case
to be a witness against himself." U.S. Const., amend. V.
Similarly, the Illinois Constitution provides that "[n]o person
shall be compelled in a criminal case to give evidence against
himself." Ill. Const. 1970, art. I, §10. The rule set forth in
Miranda requires suppression of statements made by a defendant in
response to custodial interrogation unless police officers warn
the defendant of certain rights, including the right to remain
silent and the right to an attorney, and obtain a voluntary
waiver of those rights. Miranda, 384 U.S. at 478-79, 16 L. Ed.
2d at 726, 86 S. Ct. at 1630.
- 9 -
In Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222,
105 S. Ct. 1285 (1985), the United States Supreme Court was
confronted with the situation where a defendant makes inculpatory
statements without the benefit of Miranda warnings and then
repeats those statements after the warnings were given. In that
case, police officers went to the defendant's home with an arrest
warrant for the offense of burglary. Elstad, 470 U.S. at 300, 84
L. Ed. 2d at 226, 105 S. Ct. at 1288. One officer spoke to the
teenage defendant's mother in the kitchen to explain the arrest
warrant, while another officer spoke with the defendant in the
living room. Elstad, 470 U.S. at 300-01, 84 L. Ed. 2d at 226-27,
105 S. Ct. at 1288-89. The defendant was informed the police
believed he was involved in the burglary, and he acknowledged
being at the scene of the crime. Elstad, 470 U.S. at 301, 84 L.
Ed. 2d at 227, 105 S. Ct. at 1289. Officers transported the
defendant to the police station, advised him of his Miranda
rights for the first time, and obtained his confession. Elstad,
470 U.S. at 301, 84 L. Ed. 2d at 227, 105 S. Ct. at 1289.
On appeal, the Supreme Court considered whether "the
Fifth Amendment requires the suppression of a confession, made
after proper Miranda warnings and a valid waiver of rights,
solely because the police had obtained an earlier voluntary but
unwarned admission from the defendant." Elstad, 470 U.S. at 303,
84 L. Ed. 2d at 228, 105 S. Ct. at 1290. The Supreme Court held
the failure to give the defendant his Miranda warnings before his
initial inculpatory statement did not require suppression of his
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later warned confession at the police station. Elstad, 470 U.S.
at 318, 84 L. Ed. 2d at 238, 105 S. Ct. at 1298.
"It is an unwarranted extension of Miranda to
hold that a simple failure to administer the
warnings, unaccompanied by any actual coer-
cion or other circumstances calculated to
undermine the suspect's ability to exercise
his free will, so taints the investigatory
process that a subsequent voluntary and in-
formed waiver is ineffective for some inde-
terminate period. Though Miranda requires
that the unwarned admission must be
suppressed, the admissibility of any subse-
quent statement should turn in these circum-
stances solely on whether it is knowingly and
voluntarily made." Elstad, 470 U.S. at 309,
84 L. Ed. 2d at 232, 105 S. Ct. at 1293.
The Supreme Court confronted the parameters of the
"question first-warn later" technique in Missouri v. Seibert, 542
U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004). There, the
defendant mother had a 12-year old son, Jonathan, afflicted with
cerebral palsy, who died in his sleep. Seibert, 542 U.S. at 604,
159 L. Ed. 2d at 650, 124 S. Ct. at 2605. As the defendant
feared charges of neglect based on bedsores on Jonathan's body,
her two teenage sons and two friends devised a plan in her
presence to conceal the death by burning down the mobile home
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with Donald Rector, a mentally ill teenager, inside so as to
avoid the appearance Jonathan was left unattended. Seibert, 542
U.S. at 604, 159 L. Ed. 2d at 650, 124 S. Ct. at 2605. The
defendant's son and his friend set the fire, and Donald died in
the blaze. Seibert, 542 U.S. at 604, 159 L. Ed. 2d at 650, 124
S. Ct. at 2605-06.
Five days later, police officers awakened the defendant
at 3 a.m. in a hospital where her son was being treated for
burns. Seibert, 542 U.S. at 604, 159 L. Ed. 2d at 650, 124 S.
Ct. at 2606. An officer made the "'conscious decision'" to
withhold Miranda warnings following her arrest. Seibert, 542
U.S. at 605-06, 159 L. Ed. 2d at 651, 124 S. Ct. at 2606. She
was then taken to the police station and left in an interview
room for 15 to 20 minutes. Seibert, 542 U.S. at 604, 159 L. Ed.
2d at 650, 124 S. Ct. at 2606. Thereafter, an officer questioned
her without Miranda warnings for 30 to 40 minutes, squeezed her
arm, and repeated, "'Donald was also to die in his sleep.'"
Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 650, 124 S. Ct. at
2606. The defendant then admitted she knew Donald was meant to
die in the fire. Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 651,
124 S. Ct. at 2606. After a 20-minute break, the officer gave
the defendant Miranda warnings, obtained a signed waiver, and
resumed questioning while confronting her with her prewarning
statements. Seibert, 542 U.S. at 605, 159 L. Ed. 2d at 650, 124
S. Ct. at 2606. The defendant gave a second confession, which
was "'largely a repeat of information ... obtained' prior to the
- 12 -
warning." Seibert, 542 U.S. at 606, 159 L. Ed. 2d at 651, 124 S.
Ct. at 2606.
On appeal, a plurality of the Supreme Court held the
second confession inadmissible because the officer's interroga-
tion technique rendered the Miranda warnings ineffective.
Seibert, 542 U.S. at 617, 159 L. Ed. 2d at 658, 124 S. Ct. at
2613 (plurality opinion of Souter, J., joined by Stevens,
Ginsburg, and Breyer, JJ.). The plurality distinguished the
police conduct in Elstad from the question-first interrogation
technique by "treating the living room conversation as a good-
faith Miranda mistake, not only open to correction by careful
warnings before systematic questioning in that particular case,
but posing no threat to warn-first practice generally." Seibert,
542 U.S. at 615, 159 L. Ed. 2d at 657, 124 S. Ct. at 2612. In
contrast, the plurality opinion found the questioning in Seibert
was "systematic, exhaustive, and managed with psychological
skill." Seibert, 542 U.S. at 616, 159 L. Ed. 2d at 657, 124 S.
Ct. at 2612. Further, the warned phase of questioning took place
shortly after a break from the first interrogation, in the same
place, and with the impression that it was a mere continuation of
the earlier questioning. Seibert, 542 U.S. at 616-17, 159 L. Ed.
2d at 658, 124 S. Ct. at 2613.
To determine the admissibility of the second confes-
sion, the plurality advocated the following multifactor test:
"The contrast between Elstad and this
case reveals a series of relevant facts that
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bear on whether Miranda warnings delivered
midstream could be effective enough to accom-
plish their object: the completeness and
detail of the questions and answers in the
first round of interrogation, the overlapping
content of the two statements, the timing and
setting of the first and the second, the
continuity of police personnel, and the de-
gree to which the interrogator's questions
treated the second round as continuous with
the first." Seibert, 542 U.S. at 615, 159 L.
Ed. 2d at 657, 124 S. Ct. at 2612.
Justice Kennedy concurred in the judgment in Seibert
but wrote separately to state the admission of statements depends
on whether "the circumstances would frustrate Miranda's central
concerns and objectives." Seibert, 542 U.S. at 619, 159 L. Ed.
2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concurring). Justice
Kennedy found the interrogation technique employed in Seibert was
designed to circumvent Miranda. Seibert, 542 U.S. at 618, 159 L.
Ed. 2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concurring).
However, the plurality's multifactor test cut "too broadly" and
might undermine the clarity of the rule set forth in Miranda.
Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at
2616 (Kennedy, J., concurring). Justice Kennedy advocated a
narrower test and would refuse to allow a postwarning confession
where "the two-step interrogation technique was used in a calcu-
- 14 -
lated way to undermine the Miranda warning." Seibert, 542 U.S.
at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at 2616 (Kennedy, J.,
concurring).
"The admissibility of postwarning state-
ments should continue to be governed by the
principles of Elstad unless the deliberate
two-step strategy was employed. If the de-
liberate two-step strategy has been used,
postwarning statements that are related to
the substance of prewarning statements must
be excluded unless curative measures are
taken before the postwarning statement is
made. Curative measures should be designed
to ensure that a reasonable person in the
suspect's situation would understand the
import and effect of the Miranda warning and
of the Miranda waiver." Seibert, 542 U.S. at
622, 159 L. Ed. 2d at 661, 124 S. Ct. at 2616
(Kennedy, J., concurring).
Absent a majority opinion as in Seibert, a holding of
the Supreme Court is viewed as that position taken by the jus-
tices who concurred on the narrowest grounds. Marks v. United
States, 430 U.S. 188, 193, 51 L. Ed. 2d 260, 266, 97 S. Ct. 990,
993 (1977); see also United States v. Ollie, 442 F.3d 1135, 1142
(8th Cir. 2006) ("Because Justice Kennedy provided the fifth vote
[in Seibert] and his concurrence resolved the case on narrower
- 15 -
grounds than did the plurality, it is his reasoning that rules
the present case").
Courts confronted with similar situations have found
Elstad continues to apply unless police officers make a deliber-
ate attempt to undermine the Miranda warning. See People v.
Lopez, 367 Ill. App. 3d 817, 825, 856 N.E.2d 471, 478 (2006)
("courts should depart from the Elstad analysis of voluntariness
only where the police set out deliberately to withhold Miranda
warnings until after a confession has been secured"); United
States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007)
(postwarning Miranda statement was governed by Elstad, not
Seibert, as failure to warn was not deliberate); United States v.
Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007) (as no
evidence indicated officers made a deliberate attempt to utilize
a two-step interrogation strategy, Elstad applied); United States
v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004) ("Where the
initial violation of Miranda was not part of a deliberate strat-
egy to undermine the warnings, Elstad appears to have survived
Seibert").
With this review of the pertinent case law in mind, we
find the facts in this case require us to follow Elstad, as
Seibert is distinguishable. Based on a review of the record, no
inference can be made that Stark deliberately employed a two-step
interrogation technique to undermine the warnings set forth in
Miranda or to evade its requirements. The dissent's view of the
facts completely ignores the purpose of the first interrogation,
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i.e., to obtain a consent to search. Nothing in the evidence
indicated Detective Stark goaded, coerced, forced, or threatened
defendant into making a statement that officers would then turn
around and use against him once they administered Miranda warn-
ings. Instead, Stark testified the conversation concerning the
contents of the safe was in conjunction with defendant's consent
to search. No evidence indicated this questioning was "system-
atic, exhaustive, and managed with psychological skill."
Seibert, 542 U.S. at 616, 159 L. Ed. 2d at 657, 124 S. Ct. at
2612 (plurality opinion). In fact, the trial court found it
"obvious the police officers were not improperly trying to
solicit information from [defendant] when they spoke with him to
get the consent to search." Because the failure to warn defen-
dant was not deliberate, Seibert is not implicated.
As Elstad applies, "[t]he relevant inquiry is whether,
in fact, the second statement was also voluntarily made. As in
any such inquiry, the finder of fact must examine the surrounding
circumstances and the entire course of police conduct with
respect to the suspect in evaluating the voluntariness of his
statements." Elstad, 470 U.S. at 318, 84 L. Ed. 2d at 238, 105
S. Ct. at 1298.
Defendant was given Miranda warnings prior to the
February 21, 2005, statements. He placed his initials next to
the warnings on the waiver-of-rights form and in signing it
indicated he made the waiver freely and voluntarily and without
any force, promises, or threats. There was no indication police
- 17 -
officers used coercive tactics to obtain the second confession.
Further, the trial court found the statements were voluntary.
Under the circumstances here, "[a] subsequent administration of
Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement."
Elstad, 470 U.S. at 314, 84 L. Ed. 2d at 235, 105 S. Ct. at 1296.
As defendant voluntarily gave his February 21st statement,
Miranda does not require suppression. Thus, the court erred in
granting the motion to suppress.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded for further proceedings.
McCULLOUGH, J., concurs.
APPLETON, P.J., dissents.
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PRESIDING JUSTICE APPLETON, dissenting:
I dissent because the majority lays the burden of proof
on defendant rather than the State. The majority says: "[W]e
find the facts in this case require us to follow Elstad, as
Seibert is distinguishable. Based on a review of the record, no
inference can be made hat Stark deliberately employed a two-step
interrogation technique to undermine the warnings set forth in
Miranda or to evade its requirements." Slip op. at 16. When
penning those lines, the majority seems to have forgotten what it
said at the beginning of its analysis: under section 114-11(d)
of the Code of Criminal Procedure of 1963, "[t]he burden of going
forward with the evidence and the burden of proving that a
confession was voluntary shall be on the State." Slip op. at 8,
quoting Braggs, 209 Ill. 2d at 505, 810 N.E.2d at 481, citing 725
ILCS 5/114-11(d) (West 2006). The lack of evidence that the two-
step interrogation was a deliberate attempt to thwart Miranda is
significant only if defendant had the burden of proving it was a
deliberate attempt to thwart Miranda. Defendant had no such
burden. The absence of an inference of deliberateness is signif-
icant only if defendant had the burden of proving that inference.
Instead, the majority should be asking if the State presented any
evidence that the two-step interrogation procedure was inadver-
tent. The State presented no evidence of inadvertence. Placing
the burden on defendant violates section 114-11(d).
Section 114-11 speaks of the voluntariness of a confes-
sion (725 ILCS 5/114-11 (West 2006)), and, therefore, at first
- 19 -
glance, the statute might seem inapplicable. Defendant does not
allege his second confession was involuntary but only that the
police obtained it in violation of Miranda. Because Miranda's
prophylactic rule sweeps more broadly than the fifth amendment
(U.S. Const., amend. V), a violation of Miranda does not neces-
sarily entail compulsion. Elstad, 470 U.S. at 306-07, 84 L. Ed.
2d at 230-31, 105 S. Ct. at 1291-92. Even "unwarned statements
that are otherwise voluntary within the meaning of the [f]ifth
[a]mendment must nevertheless be excluded from evidence under
Miranda." Elstad, 470 U.S. at 307, 84 L. Ed. 2d at 231, 105 S.
Ct. at 1292. The supreme court has interpreted section 114-11,
however, as applying to Miranda cases, even though the standards
of Miranda "go beyond what has been considered 'involuntary in
traditional terms.'" People v. Costa, 38 Ill. 2d 178, 182, 230
N.E.2d 871, 873 (1967), quoting Miranda, 384 U.S. at 457, 16 L.
Ed. 2d at 713, 86 S. Ct. at 1618; see also People v. Longoria,
117 Ill. App. 3d 241, 252, 452 N.E.2d 1350, 1357 (1983) (applying
section 114-11 to a Miranda objection); People v. Hughes, 181
Ill. App. 3d 300, 303, 536 N.E.2d 71, 72 (1989) (same). "The
word 'voluntary' *** has become a word of art in a constitutional
sense, and the references in section 114-11 to an 'involuntary'
confession and to a confession 'not voluntarily made' must be
read as embracing the constitutional standards that govern
admissibility." Costa, 38 Ill. 2d at 183, 230 N.E.2d at 874.
Thus, section 114-11 applies to this case, and under
subsection (d), the State had the burden of proving the admissi-
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bility of defendant's second confession. (It conceded the
inadmissibility of the first confession on the ground of noncom-
pliance with Miranda.) Indeed, the prosecutor expressly acknowl-
edged, at the beginning of the hearing, that the State had the
burden of proof. To prove the admissibility of the second
confession, the State had to prove what Seibert required, namely,
that the two-step interrogation procedure was inadvertent rather
than deliberate--or, if it was deliberate, adequate curative
measures intervened before defendant made his postwarning state-
ment. Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct.
at 2616 (Kennedy, J., concurring).
The circuit court stated from the bench: "To me[,]
it's obvious the police officers were not improperly trying to
solicit information from Mr. Lowenstein when they spoke with him
to get the consent to search ***." Given the record before us,
that statement is inexplicable. Of course the police improperly
tried to solicit information from defendant in the first inter-
view. They not only improperly tried to solicit information from
him; they improperly did solicit information from him. That is
why the State conceded the first confession was inadmissible
under Miranda, and that is why the court ruled it was inadmissi-
ble.
Detective Stark was the only witness to testify in the
hearing, and his testimony was uncontested and unrebutted. He
testified that at the time of the first confession, defendant
"had already been arrested and was in the interview room." That
- 21 -
fact alone makes Elstad distinguishable. In Elstad, "the offi-
cer's initial failure to warn was an 'oversight' that 'may have
been the result of confusion as to whether the brief exchange [in
the living room] qualified as a 'custodial interrogation.'"
Seibert, 542 U.S. at 614, 159 L. Ed. 2d at 656, 124 S. Ct. at
2611 (plurality), quoting Elstad, 470 U.S. at 315, 84 L. Ed. 2d
at 236, 105 S. Ct. at 1296; see also Seibert, 542 U.S. at 619,
159 L. Ed. 2d at 659, 124 S. Ct. at 2614 (Kennedy, J., concur-
ring). In the present case, defendant was under arrest and
sitting in the police station when the police interrogated him
without Miranda warnings. Defense counsel asked Stark:
"Q. So the--conversation at 12:20 [p.m.
on February 20, 2005,] involved the contents
of the safe and his knowledge of the contents
of the safe[,] is that correct?
A. Yes.
Q. And you asked him questions[,] and he
responded[,] is that correct?
A. Yes."
Of all people, Stark best knew why he used the two-step
interrogation procedure, but he never offered any explanation in
the hearing. Unless the majority's citation of section 114-11(d)
is merely decorative, the silence of the record on this crucial
point should be fatal to the State's appeal. For all we know,
Stark was following the Illinois Police Law Manual, condemned in
Seibert. The manual says: "'[O]fficers may conduct a two-stage
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interrogation. *** At any point during the pre-Miranda interro-
gation, usually after arrestees have confessed, officers may then
read the Miranda warnings and ask for a waiver. If the arrestees
waive their Miranda rights, officers will be able to repeat any
subsequent incriminating statements later in court'" (emphasis in
original) (Seibert, 542 U.S. at 609-10, 159 L. Ed. 2d at 653, 124
S. Ct. at 2608-09, quoting Police Law Institute, Illinois Police
Law Manual 83 (January 2001-December 2003)).
The State failed to come forward with any evidence that
the two-stage interrogation was not a deliberate attempt to
subvert Miranda. The second confession dealt with the same
subject matter as the first. Were there sufficient curative
measures? The circuit court mentioned the passage of time--24
hours--between the first and second confessions, but, given its
decision to suppress the second confession, the court evidently
did not deem those 24 hours as a sufficient curative measure to
ensure that a reasonable person in defendant's situation would
understand the import and effect of the Miranda warnings and of
the Miranda waiver. Seibert, 542 U.S. at 622, 159 L. Ed. 2d at
661, 124 S. Ct. at 2616 (Kennedy, J., concurring). Whether a
Miranda waiver was knowing and intelligent is a question of fact
(People v. Bernasco, 138 Ill. 2d 349, 367, 562 N.E.2d 958, 966
(1990); People v. Kolakowski, 319 Ill. App. 3d 200, 212, 745
N.E.2d 62, 74 (2001); In re M.W., 314 Ill. App. 3d 64, 68, 731
N.E.2d 358, 361 (2000)), and, as the majority says, we should
give great deference to the court's findings of fact, upholding
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them unless they are against the manifest weight of the evidence.
"[A] substantial break in time and circumstances between the
prewarning statement and the Miranda warning may suffice in most
circumstances" as a curative measure. (Emphases added.)
Seibert, 542 U.S. at 622, 159 L. Ed. 2d at 661, 124 S. Ct. at
2616 (Kennedy, J., concurring). A rational trier of fact would
not necessarily have to regard 24 hours as a "substantial break
in time." Even if 24 hours were, as a matter of law, a "substan-
tial break in time," there was no "substantial" change of "cir-
cumstances": defendant was still in jail, and the same police
officer, Stark, was interrogating him about the contents of the
safe, as he did the day before. Because the State failed to
carry its burden of proof--both as to the inadvertence of the
two-stage interrogation procedure and the intervention of ade-
quate curative measures--I would affirm the judgment.
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