People v. Pierce ( 1980 )

Mme JUSTICE SPOMER

delivered the opinion of the court:

The State appeals from an order of the circuit court of St. Clair County granting defendant Jesse Pierce’s motion to suppress his confession. On appeal the State contends: (1) the exclusionary rule was improperly applied to defendant’s confession, as the confession was not the result of prior police misconduct; and (2) the motion to suppress the confession was improperly granted because the search made previous to the confession was proper. For the following reasons, we reverse the order of the circuit court.

On the night of December 31,1978-January 1,1979, while on routine patrol, Chief Alvin Sievers of the village of Marissa, Illinois, discovered that the gate to a landfill in Marissa Township in St. Clair County had been knocked down. The landfill was owned by Mr. Bob Brown, and Sievers left a message for Brown that he notify the police if anything was missing. At the time he discovered the damaged gate, Sievers observed the defendant’s vehicle traveling up and down Bubble Stream Road, the road which passes the landfill. This road is U-shaped and leads only to the landfill and then back to the city of Marissa.

After he returned to Marissa from the landfill, Sievers stopped defendant’s automobile for a technical violation at approximately 2:30 or 3 a.m. on January 1, 1979. Defendant and a passenger, Ronald Miller, occupied the vehicle. They told Sievers they had been to a party in Marissa and were not riding around. Sievers checked defendant’s driver’s license and then told them to go home since “there had been some damage around town.” No search or arrest was made.

At approximately 9 or 10 a.m. Reese Ford, an automobile agency in Marissa, reported to Marissa police that an FM high-band radio had been stolen from a truck parked beside its place of business. That same afternoon the owner of the landfill reported that a utility shed had been broken into and some tools, grease guns and wrenches had been stolen. On January 2, 1979, Mr. Price, who had left his truck at Reese Ford to be repaired, notified police that his vehicle had sustained front-end damage. Automobile parts and tire tracks found near the gate at the landfill matched Price’s truck.

By the morning of January 3, 1979, Chief Sievers had collected five reports of thefts which had occurred either the night of December 31, 1978, or the early morning hours of January 1, 1979. He told Trooper Barker of the Illinois State Police that he had stopped defendant’s automobile on January 1, 1979, and stated he felt defendant and Ronald Miller might be involved in the burglaries. Sievers and Barker then visited Miller at his home and advised him of his rights. Chief Sievers told Miller he had seen him at the landfill at the approximate time of the crime. Miller then confessed that he and others had stolen the truck from Reese Ford. Miller named his brother Steven Miller, his cousin Gary Zettler, and defendant, Jesse Pierce, as having taken part in the theft.

Trooper Barker placed Miller under arrest, advised him of his rights and transported him to Marissa. On the way to the police station Miller told Barker and Sievers that he and Zettler had stolen a radio from a vehicle on the Reese Ford lot and that auxiliary driving lights had also been taken. The radio and a fish-finder had been thrown from defendant’s automobile in a paper bag on Bubble Stream Road as the Marissa police were approaching. The Marissa police later found these items along the road leading to the landfill at the exact place where Miller said he had thrown them.

Chief Sievers also advised Miller of his rights and took a written statement from him between 10:40 and 11:45 a.m. on January 3, 1979. Miller’s statement read as follows:

“Approximately 01:40 hours, January, 1979,1, Ronald J. Miller and my cousin, Gary Zettler, opened the driver’s side door of a black Ford Bronco that was parked on the north side of Reese Ford. Upon entering the Bronco, I, Ronald Miller, took a small knife and cut the black power of the two-way radio that was on the floor of the Bronco. Gary Zettler finished cutting the cable with the same knife. I then broke the radio loose, and put it in my coat, and I and Gary Zettler then went to the south side of Reese Ford and took a black and red 1977 Ford, license number 75 4381B, Illinois ’79 truck plates, and went to the landfill located on Bubble Stream Road just west of Marissa. I drove this vehicle. Upon arriving at the landfill, my cousin, Gary Zettler, then took over as driver of the vehicle. I then got in Jesse Pierce’s car, a green 1974 Ford Torino. Gary Zettler and my brother, Steven Miller, then ran the 1977 Ford Pick-up into the gate at the landfill. Gary Zettler and my brother then went into a field and turned off the vehicle lights. A Marissa car then came by, so Jesse Pierce and me took off south down Bubble Stream Road. Marissa Police stopped us back in Marissa. Gary Zettler and my brother, Steven Miller returned the black Ford, black and red Ford pick-up to Reese Ford. Jesse Pierce and myself picked them up. We went back to my sister’s house. Prior to the above-mentioned events, I was at my sister’s house sleeping when I was woke up and saw Gary Zettler, Steven Miller, and Jesse Pierce looking at auxiliary lights in the bedroom of my sister’s house, Barbara Miller’s residence. Barbara Miller, my sister, told Zeller, S. Miller, and J. Pierce to get the lights out of her house, and I took the lights and put them in the trunk of J. Pierce’s vehicle. I saw that there was a lot of tools and grease guns in the trunk of Pierce’s vehicle. I asked where the tools came — where they came from and which one of them — one of them said they got them from Brown’s shed at the landfill. They said they stole the lights at Reese Ford at approximately 12:00 hours, January 1st. J. Pierce, Gary Zettler then left for their house and had all the stolen items in the trunk of Pierce’s vehicle.”

Barker then contacted Trooper Leo Sprankle, who came to the Marissa police station with Trooper Ratto. Since defendant lived in Pinckneyville, the officers next went to the State’s Attorney’s office at the Perry County courthouse in that city, where they were met by Pinckneyville Chief of Police, Tom Denton. They gave Denton all the information obtained up to that point, including the defendant’s address and a description of his automobile, a 1974 green Ford Torino. Denton then went to defendant’s residence, found the automobile there, and returned to the State’s Attorney’s office with this information. At that time Chief Sievers applied for a search warrant for defendant’s automobile. The State’s Attorney’s office prepared the complaint, affidavit, and search warrant, which were taken to a judge of the circuit court of Perry County. Sievers signed the documents in the presence of the judge, who then issued the search warrant.

The search warrant was served on defendant, and his automobile was searched late that afternoon. He was not questioned prior to the serving of the warrant. Pursuant to the execution of the search warrant, the auxiliary lights from the vehicle on Reese Ford’s lot and grease guns and other tools taken from the Brown Landfill were recovered from the trunk of the automobile, and defendant was placed under arrest at 4:45 p.m. on January 3, 1979, charged with possession of stolen property in Perry County and theft and burglary in St. Clair County.

The stolen items were placed in a State police car, and defendant was transported to the Perry County jail. Trooper Barker advised defendant of his rights, and defendant signed a written waiver at 5:15 p.m. Defendant then gave a statement to Barker, which was written down by the officer from 5:30 to 6:03 p.m. Sievers witnessed defendant’s statement. At 6:10 p.m. Chief Denton also advised defendant of his rights, and defendant again signed a written waiver. An hour and 10 minutes later, from 7:20 until 7:55 p.m., defendant gave a statement to Denton. During this interim, defendant remained alone while Denton completed his “paperwork.”

The search warrant was subsequently quashed by the issuing judge in the circuit court of Perry County on the ground that the informant’s (Ronald Miller’s) credibility had not been sufficiently established to support probable cause. The evidence found pursuant to the search warrant also was quashed in Perry County on the ground that it was seized as a result of the illegal search.

On the basis of the Perry County order, the items found in defendant s car were also held to be inadmissible in St. Clair County in the case at bar. Defendant then moved to suppress the confession in St. Clair County, claiming it was the result of an illegal search.

At the motion hearing in St. Clair County, defendant testified that the officers came to his door and asked if “that was my automobile.” He answered in the affirmative, whereupon the officers gave him the search warrant and asked if they could open the trunk. Defendant gave his approval and opened the trunk for them. He further testified that he was then placetd under arrest for theft of tools and other items and for burglary, was read his Miranda rights, understood them, and waived them voluntarily. After being transported to jail, he made a statement, which was written down by one of the officers, and he read and signed it. He testified that the statement was true, he was not threatened, coerced, or intimidated in any manner, or forced to sign it. Defendant said he gave Trooper Barker the statement because, “Well, I figured they seen the stuff in my car, so I figured they had me. I just went ahead and gave them the statement.” Afterward Chief Denton came in and asked defendant if he would give him a statement, defendant answering, “Yessir, I would.” Prior to this statement, Denton again read defendant the Miranda warnings, and he signed a written waiver of rights. When asked why he gave his statement to Denton, defendant responded, “I figured since I gave the State Troopers one, I would just go ahead and give Mr. Denton one too, then I gave one because I done gave one.” He admitted that this was his own conclusion and that the police created no atmosphere which led him to confess.

In the argument on the motion to suppress in the trial court, defendant’s counsel stated:

“I am not arguing, and I am not asserting that the defendant’s statements were given as a result of his illegal arrest. Our contention is * * * defendant’s statements were taken by exploitation of the prior illegal search. We are not arguing illegal arrest.

* * *

We readily admit in this case there was no flagrant misconduct, I can’t sit here and tell you, Judge, that the police were wrong, because they did handle it right. We admit they handled it right. The problem was a search warrant is later shown by Judge Bastien was not sufficient, and the Judge quashed that search warrant, but they did — the police did do what they should have done.”

The trial court granted the motion to suppress after finding that “defendant’s statements would not have been made had not the unlawful search of the defendant’s car been conducted exposing the items which had been stolen during the theft in question. * ° He also found that proper Miranda warnings had been given and that “the primary illegality does not amount to flagrant misconduct.”

The first issue which we must consider is whether the search of defendant’s automobile was proper despite the Perry County Circuit Court’s order quashing the search warrant. The State contends that Miller’s confession, being an admission against penal interest, was sufficient to establish probable cause. No issue is raised as to validity of the search warrant itself, as the doctrine of collateral estoppel (People v. Hopkins (1972), 52 Ill. 2d 1, 4, 284 N.E.2d 283, 284) precluded the trial court in St. Clair County, and precludes us, from addressing that issue.

The totality of the circumstances presented to the investigating officers at the time of the search must be considered to determine whether a warrantless search was justified (People v. Blitz (1977), 68 Ill. 2d 287, 369 N.E.2d 1238; People v. Blackman (1978), 62 Ill. App. 3d 726, 379 N.E.2d 344). If it was otherwise justified, the legitimacy or scope of the search warrant used by police is immaterial. (People v. George (1971), 49 Ill. 2d 372, 274 N.E.2d 26.) Similarly, where probable cause for a warrantless arrest existed, the arrest is not invalidated because made pursuant to a warrant later found to be invalid. (Giordenello v. United States (1958), 357 U.S. 480, 488, 2 L. Ed. 2d 1503, 1510-11,78 S. Ct. 1245, 1251; United States v. Rabinowitz (1950), 339 U.S. 56, 60, 94 L. Ed. 2d 653, 657, 70 S. Ct. 430, 432.) Viewing the instant case in the light of these decisions, we think that the officers had sufficient justification for the search of defendant’s automobile and for defendant’s arrest. During the early morning hours Chief Sievers found the gate to Brown’s landfill damaged and out of place, and at the same time he noticed defendant’s vehicle traveling back and forth on the landfill road. This road led only to the remote area of the Brown property. When the officer stopped the vehicle for a technical violation, he found that defendant was driving and Ronald Miller was a passenger. Later that night the officer was advised that five thefts had occurred in the area, and he had reason to believe defendant and Miller were involved. When Sievers talked with Miller and read the Miranda warnings to him, Miller confessed and implicated defendant. Miller’s confession was corroborated by the finding of the physical evidence at the exact location along landfill road where Miller said he had thrown it from the car when the police were approaching. Miller had described defendant’s car and its location at defendant’s home address, 907 Taffee Street in Pinckneyville. The officer relayed this information to Chief Denton in Pinckneyville, who verified that a car of that description was located at the address given. We think the detailed accusation of Miller — itself a declaration against his penal interest — together with these corroborating facts personally known to the officers, was sufficient to form a basis for a reasonable belief that certain crimes had been committed by the defendant (United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075.) In Harris the court explained why admissions of crime are credible:

“People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.” 403 U.S. 573, 583, 29 L. Ed. 2d 723, 734, 91 S. Ct. 2075, 2082.)

Thus the search and arrest were valid, irrespective and independent of the finding by the Perry County Circuit Court that the search warrant was invalid.

The second issue raised by the State is that the exclusionary rule was improperly applied to the defendant’s confession because (1) the trial court imposed it pursuant to an improper “but for” test; (2) the police committed no misconduct which could be deterred by its application; and (3) the confession was not the result of police exploitation of an improper search.

The exclusionary rule was judicially created to prevent the use of evidence in a criminal prosecution secured through an illegal search and seizure in violation of the defendant’s fourth amendment rights (Weeks v. Untied States (1914), 232 U.S. 383, 391-93, 58 L. Ed. 652, 655, 34 S. Ct. 341), and was originally held to be applicable only to the Federal Government and its agencies. The court refused to extend the rule to the prosecution in a State court for a State crime in 1949 (Wolf v. Colorado (1949), 338 U.S. 25, 93 L. Ed. 1782, 69 S. Ct. 1359), but in 1961 that position was reversed. Mapp v. Ohio (1961), 367 U.S. 643, 660, 6 L. Ed. 2d 1081, 1093, 81 S. Ct. 1684, 1694.

Although the earlier cases held that the purpose of the exclusionary rule was to deter police conduct that violates fourth amendment rights as well as to preserve judicial integrity by removing any appearance of approval of such misconduct (Harrison v. United States (1968), 392 U.S. 219, 224 n.10, 20 L. Ed. 2d 1047, 1052 n.10, 88 S. Ct. 2008, 2011 n.10; Elkins v. United States (1960), 364 U.S. 206, 217,4 L. Ed. 2d 1669, 1677, 80 S. Ct. 1437, 1444), in the case of Stone v. Powell (1976), 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037, the Supreme Court clearly asserted that the primary justification for the rule is deterrence of police misconduct. In refusing to extend the rule to collateral review in Federal habeas corpus cases involving State cases in which the seized evidence was permitted to be introduced, the court said:

“Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search and seizure, for any ‘[reparation comes too late.’ [Citation.] Instead, ‘the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect * * * [Citations.]

* * * But despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Stone, 428 U.S. 465, 486, 49 L. Ed. 1067, 1083, 96 S. Ct. 3037, 3048.

The court noted that when the exclusionary rule is applied the focus of the trial and the attention of the participants therein are directed from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Furthermore, the physical evidence excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. Stone, 428 U.S. 465, 490, 49 L. Ed. 2d 1067, 1085, 96 S. Ct. 3037, 3080.

An exhaustive analysis of the exclusionary rule was made in the very recent case of United States v. Williams (5th Cir. 1980), 27 Crim. L. Rep. 3293, where the court sitting en banc held that henceforth in that circuit, evidence obtained by police conduct that is alleged to be unlawful shall not be suppressed if the government establishes that the conduct, if mistaken or unauthorized, was taken in the reasonable good-faith belief that it was proper, reasoning that:

“We do so because the exclusionary rule exists to deter willful or flagrant actions by police, not reasonable, good-faith ones. Where the reason for the rule ceases, its application must cease also. The costs to society of applying the rule beyond the purposes it exists to serve are simply too high — in this instance the release on the public of a recidivist drug smuggler — with few or no offsetting benefits. We are persuaded that both reason and authority support this conclusion.” (27 Crim. L. Rep. 3297.)

The court emphasized that the exclusionary rule is not itself a requirement of the Constitution, but is a “judge-made rule crafted to enforce constitutional requirements, justified in the illegal search context only by its deterrence of future police misconduct,” and continued:

“It makes no sense to speak of deterring police officers who acted in the good-faith belief that their conduct was legal by suppressing evidence derived from such actions unless we somehow wish to deter them from acting at all.” 27 Crim. L. Rep. 3298.

Nor does the rule extend to grand jury proceedings (United States v. Calandra (1974), 414 U.S. 338, 347, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 619) nor require the exclusion of evidence for impeachment purposes (Walder v. Untied States (1954), 347 U.S. 62, 98 L. Ed. 2d 503, 74 S. Ct. 354), as there must be a balancing process between the defendant’s rights under the fourth amendment and the public’s interest “in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” Alderman v. United States (1969), 394 U.S. 165, 174-75, 22 L. Ed. 2d 176, 187, 89 S. Ct. 961, 967.

The exclusionary rule has been extended to the indirect physical products of these unlawful invasions (Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182) as well as to verbal evidence (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407). In Wong Sun the court said:

“[W]e need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be urged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).’’Wong Sun 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.

In the instant case, assuming that the police violated the fourth and fourteenth amendments by use of an invalid search warrant, exclusion of defendant’s admissions would not be necessary unless his statements were the result of the invalid search. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) Since both parties cite Brown to sustain their argument on this issue, a recitation of the facts of that case is important. Brown was on his way home at 7:45 on the night in question and was climbing the last of the stairs leading to the rear entrance of his apartment in Chicago. He glanced at a window near the door and saw a man pointing a revolver at him from inside his apartment. The man said, “Don’t move, you are under arrest.” Another man with drawn gun came up behind Brown and repeated the statement that he was under arrest. The men, at gunpoint, ordered him back into the apartment, where a third man also appeared. It later developed that the three men were detectives who broke into the apartment, searched it, and arrested Brown, all without probable cause and without any warrant. They later testified that they made the arrest for the “purpose of questioning Brown as part of their investigation” of a murder committed a week earlier, having learned of Brown’s name from the victim’s brother as an “acquaintance” of the victim and not as a suspect. Following the arrest, police took Brown to an interrogation room and warned him of his Miranda rights. Following questioning, during which they told him they had damaging evidence against him, Brown gave police a statement confessing his complicity in the murder, and later, after additional Miranda warnings, he gave a second statement. His motion to suppress both statements prior to trial were denied. After a finding of guilty, Brown appealed. The Illinois Supreme Court held the arrest unlawful for lack of probable cause. However, it held the statements were admissible because the giving of the Miranda warnings per se served to break the causal connection between the illegal arrest and the giving of the statement, thus defendant’s act in confessing was sufficiently an act of free will to purge the primary taint of the unlawful invasion. On appeal, the United States Supreme Court reversed, holding that defendant’s statements were inadmissible because of his illegal arrest, and they were not made admissible solely by the giving of Miranda warnings under the facts of that particular case. Stating that each case must be determined on its own facts, the court announced these factors to be considered:

“The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and confession, the presence of intervening circumstances [citation], and, particularly, the purpose and flagrancy of the. official misconduct are all relevant.” (Emphasis added.) (Brown, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.)

The court noted that the purpose behind application of the exclusionary rule was to deter future police misconduct:

“If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. (Citation.) Arrests 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.” (Emphasis added.) (Brown, 422 U.S. 590, 602-03, 45 L. Ed. 2d 416, 426, 95 S. Ct. 2254, 2261.)

Thus, the court concluded that Miranda warnings do not provide a per se “cure-all” for all constitutional violations; at the same time, it warned that the fact that a confession would not have been given “but for” the prior illegality is not determinative.

The court then noted the “quality of purposefulness” of the illegality in the case before it and emphasized the limited nature of its holding: •

“The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ (Citation.) The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.

We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.” Brown, 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262-63.

Mr. Justice White concurred in the judgment as follows:

“Insofar as the Court holds (1) that despite Miranda warnings the Fourth and Fourteenth Amendments require the exclusion from evidence of statements obtained as the fruit of an arrest which the arresting officers knew or should have known was without probable cause and unconstitutional, and (2) that the statements obtained in this case were in this category, I am in agreement and therefore concur in the judgment.” (Emphasis added.) Brown, 422 U.S. 590, 607, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2263.)

Justice Powell, with whom Justice Rehnquist joined, was unable to conclude that the record was sufficiently complete to justify outright reversal, so he concurred only in part. He agreed with the majority in principal, and elaborated on the general factors considered by the majority as follows:

“The Court’s rejection in Wong Sun of a ‘but for’ test, reaffirmed today, * * * recognizes that in some circumstances strict adherence to the Fourth Amendment exclusionary rule imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule’s deterrent purposes. The notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost. Application of the Wong Sun doctrine will generate fact-specific cases bearing distinct differences as well as similarities, and the question of attenuation inevitably is largely a matter of degree. The Court today identifies the general factors that the trial court must consider in making this determination. I think it appropriate, however, to attempt to articulate the possible relationships of those factors in particular, broad categories of cases.

* * *

Those most readily identifiable are on the extremes: the flagrantly abusive violation of Fourth Amendment rights, on the one hand, and ‘technical’ Fourth Amendment violations, on the other. In my view, these extremes call for significantly different judicial responses.

I would require the clearest indication of attenuation in cases in which official conduct was flagrantly abusive of Fourth Amendment rights.

* * *

At the opposite end of the spectrum lie ‘technical’ violations of Fourth Amendment rights where, for example, officers in good faith arrest an individual in reliance on a warrant later invalidated or pursuant to a statute that subsequently is declared unconstitutional, see United States v. Kilgen, 445 F.2287 (CA5 1971). As we noted in Michigan v. Tucker (417 U.S. 433, 447, 94 S. Ct. 2357, 2365, 41 L. Ed. 2d 182 (1974):

‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.’

In cases in which this underlying premise is lacking, the deterrence rationale of the exclusionary rule does not obtain, and I can see no legitimate justification for depriving the prosecution of reliable and probative evidence. Thus, with the exception of statements given in the immediate circumstances of the illegal arrest — a constraint I think is imposed by existing exclusionary-rule law — I would not require more than proof that effective Miranda warnings were given and that the ensuing statement was voluntary in the Fifth Amendment sense.” Brown, 422 U.S. 590, 608-12, 45 L. Ed. 2d 416, 430-32, 95 S. Ct. 2254, 2264-66.

The majority in Brown concluded that the police illegality involved was both flagrant and purposeful, and it therefore emphasized the causal relationship between the illegality and Brown’s confessions. A careful review of the majority opinion makes it clear, however, that had the illegality been merely technical, the majority would have applied its general standards much as Justice Powell did in his concurrence. The majority emphasized that the “purpose and flagrancy of the official misconduct” — which has nothing to do with the causal relationship between the illegality and the confession — was the primary factor they considered. In its final paragraph, the majority limited its holding, deciding only that Miranda warnings, by themselves, do not always purge the taint of an illegality. It thus left open the possibility that Miranda warnings, by themselves, may under some circumstances be sufficient to purge the taint — depending on “how wanton and purposeful the Fourth Amendment violation.” (Brown, 422 U.S. 590, 602, 45 L. Ed. 2d 416, 426, 95 S. Ct. 2254, 2261.) Further, in enumerating the “purpose and flagrancy of the official misconduct” as a factor, the majority cited Kilgen with approval, the same case cited in Justice Powell’s concurrence. Kilgen concluded that a confession obtained following an arrest for violation of an ordinance later found to be unconstitutional was admissible, because the arrest was not the type of illegality deterred by the exclusionary rule. United States v. Kilgen (5th Cir. 1971), 445 F.2d 287, 289.

While a “purely technical” violation has not often been directly dealt with by the Supreme Court, the application of factors cited in Brown by the Federal circuit courts and in a recent Supreme Court case makes clear the trend. In United States v. O’Looney (9th Cir. 1976), 544 F.2d 385, cert. denied (1976), 429 U.S. 1023, 50 L. Ed. 2d 625, 97 S. Ct. 642, defendant made a confession while in custody following a questionable detention. The court found that regardless of the technical illegality of the detention, it did not justify exclusion of the confession:

“Finally, even if there were an illegal detention, the statement need not be suppressed. Brown v. Illinois, supra, relied upon by O’Looney, held that the giving of Miranda warnings did not sufficiently attenuate the taint of an illegal arrest so as to render ensuing inculpatory statements admissible. But Brown does not purport to establish a per se rule that any statement following an illegal arrest is tainted. ° * *

Examining each of (the factors enunciated in Brown), we conclude that O’Looney’s statement is not tainted by the seizure of his person, even if we assume it was illegally accomplished. The Supreme Court in Brown placed the greatest emphasis on the flagrancy of the Fourth Amendment violation. There, the police broke into and searched the defendant’s apartment without a warrant. Upon the defendant’s return home, he was arrested at gunpoint, also without a warrant. The police had no more basis for these acts than that the defendant was an acquaintance of a murder victim. Id. at 592-93, 95 S. Ct. 2254. Here, at the very least, the police had a well-founded reasonable suspicion approaching probable cause to believe that O’Looney had committed a crime. There were neither drawn guns nor police actions calculated to cause surprise, fear and confusion. The detention was no more extensive than reasonably necessary to facilitate a brief inquiry into an apparent crime. Thus we need not be concerned with deterring purposefully illegal arrests for investigatory or other improper motives. Id. at 599-600, 95 S. Ct. 2254, id. at 610-12, 95 S. Ct. 2254 (Powell, J., concurring in part.).

In comparison with Brown, the detention of O’Looney was at worst a minor violation of the Fourth Amendment. It was relatively nonintrusive on his personal privacy. He was originally detained on a public sidewalk and he voluntarily cooperated with officers in an effort to allay police suspicion, unlike the forcible seizure of Brown by surprise at his home. Where the Fourth Amendment violation is less flagrant, a lesser showing is required to purge the later statement of taint. Here we hold that O’Looney’s statement following the giving of Miranda warnings several hours after the initial detention was sufficiently an act of free will outside the causal chain of the alleged illegal detention. To hold otherwise would be to invoke the Fourth Amendment exclusionary rule for a de minimis deterrent effect on errant police behavior, at a great cost to the legitimate demands of law enforcement.” O’Looney, 544 F.2d 385, 390-91.

These factors delineated in Brown were applied similarly in United States v. Preston (5th Cir. 1979), 608 F.2d 626, where the court followed Brown and Dunaway v. New York (1979), 442 U.S. 200, 218, 60 L. Ed. 2d 824, 839-40, 99 S. Ct. 2248, 2259, in emphasizing that the most important consideration in determining whether a confession stemmed from exploitation of the illegal arrest is the nature of the police misconduct. (Preston, 608 F.2d 626, 634.) Further, the factor of “temporal proximity” cannot be considered in isolation. Preston, 608 F.2d 626, 634.

Most tellingly, the Brown factors were applied to a recent case of illegal detention in Rawlings v. Kentucky (1980), 448 U.S. _, 65 L. Ed. 2d 633, 100 S. Ct. 2556. In Bawlings six police officers went to the home of Lawrence Marquess with a warrant for his arrest on drug distribution charges. In the house at the time they arrived were four visitors, including Vanessa Cox and the petitioner Rawlings. The police searched the house for Marquess, but were unable to find him. However, they smelled marijuana smoke and saw marijuana seeds in plain view in one of the rooms. Two of the officers then left to obtain a search warrant, and the other four detained the occupants in the living room, allowing them to leave only if they consented to a body search. Cox and Rawlings did not consent to a search and remained seated on a couch with Cox’s purse in the space between them. The other officers returned with the search warrant which was read, along with Miranda warnings, to petitioner and Cox. Cox, as directed, then emptied the contents of her purse on the coffee table, and among the contents was a large amount of controlled substances. Cox immediately told petitioner to “take what was his,” whereupon he claimed ownership of all the drugs. Petitioner was then searched, and $4500 in cash was found in his shirt pocket and a knife in a sheath at his side. He was at that time placed under arrest. After indictment for possession with intent to sell controlled substances, petitioner’s motion to suppress the physical evidence and the statements was denied. On appeal the United States Supreme Court affirmed. Rawlings contended that his admission of ownership of the drugs was the fruit of an illegal detention that occurred when the police refused to let him leave the house unless he consented to a search. The court agreed that the detention was illegal and violated his fourth and fourteenth amendment rights, but repeated again that the Brown inquiry must be made to determine whether the exclusionary rule will be applied. The court noted that the short period of 45 minutes between the arrest and confession was outweighed by the congenial atmosphere prevailing during the detention period and the lack of a show of force or violence by those present. Furthermore, it emphasized that the conduct of the police was not a “conscious or flagrant misconduct requiring prophylactic exclusion of petitioner’s statements,” in contrast with Brown. (Emphasis added.) Rawlings, 448 U.S.__,__, 65 L. Ed. 2d 633, 645, 100 S. Ct. 2556, 2564.

The court in Rawlings also held that the search of petitioner’s person was legal as incident to his formal arrest, although the arrest followed the challenged search:

“Once petitioner admitted ownership of the sizable quantity of the drugs found in Cox’s purse, the police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice-versa. See Bailey v. United States, 128 U.S. App. D.C. 354, 389 F.2d 305, 308 (1967); United States v. Brown, 150 U.S. App. D.C. 113, 463 F.2d 949, 950 (1972). See also Cupp v. Murphy, 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000 (1973); United States v. Gorman, 355 F.2d 151, 160 (C.A.2 1965) (dictum), cert. denied, 384 U.S. 1024, 16 L. Ed. 2d 1027, 86 S. Ct. 1962 (1966).” 448 U.S__,_, 65 L. Ed. 2d 633, 645-46, 100 S. Ct. 2256, 2565.

The conclusion from the preceding cases is that the purpose and flagrancy of the police misconduct are premier in any analysis, and that this factor may alter or even supersede any causal or temporal proximity conclusions which might otherwise be made. This is in accord with the rejection in Brown and Wong Sun of any “but for” analysis.

These cases make it clear that the facts which distinguish the instant case from Brown justify, even require, a different result. The primary factor — conscious or flagrant misconduct — is totally absent. When police sought to search defendant’s automobile trunk, they requested a search warrant through the proper legal channels, undeniably armed with probable cause for the search. They knew exactly what crime had occurred and when it took place. They knew what had been stolen and had already recovered those stolen items which had been discarded by the burglars. They knew the names of each of the burglars, including defendant. They knew the location and description of defendant’s car and had been told what was in the trunk by the very man who had placed some of the stolen items there. All of this information was conveyed to police through a self-authenticating confession by one of defendant’s accomplices, and through their own observations. When police requested the search warrant, they had virtually passed the stage of investigation of the burglary and had reached the stage of recovering the stolen property, taking into custody those individuals they had probable cause to believe were the burglars, and garnering evidence for prosecution. There is no element of the exploratory “fishing expedition” misconduct contained in Brown. The conduct of the police at the time of the search and arrest clearly did not create “surprise, fright and confusion.” Chief Sievers testified that when the officers went to defendant’s house, defendant’s mother “wanted to know what we were doing there, and what the search warrant was for, “ * * we informed her.” We explained to her “what the procedure was, what we were doing.” When the officers first arrived at defendant’s house, “° * “Jesse came out and I asked him, I said do you remembered [sic] me, and he said, yes I do, and I said, Well, I stopped you the night in Marissa. We have a search warrant for your vehicle.” Defendant then produced his car keys upon request of the officer. Obviously, a congenial atmosphere prevailed, and it was within this frame that the Miranda warnings were given and the statements made, with no show of force, threats, or deceit, defendant himself testifying to this fact. The illegality was neither wanton nor flagrant. Defense counsel even admitted this, concluding that “the police did handle it right * “ * did do what they should have done.”

Under the totality of circumstances present, including the fact that the extent of the police misconduct was at most minimal and not conscious or flagrant; that the police had sufficient evidence which was legally obtained to provide an independent basis for the discovery of the challenged evidence; that the admittedly valid arrest occurred immediately after the search; that the stolen items were excluded from evidence; that Miranda warnings were given; and that the threshold requirement of voluntariness of defendant’s statements and their truth were admitted by defendant,¹ we find that the State has carried its burden of showing that defendant’s statements were acts of free will unaffected by a search with an invalid search warrant (assuming arguendo its invalidity) and that any taint was removed or purged from his statements. Furthermore, we think the test set forth in United States v. Williams of “reasonable and good-faith belief by the police in the propriety of their conduct” was met by the State, and in fact was unquestioned by the defendant. Strict adherence to the fourth amendment exclusionary rule on these facts would be a cost far outweighing any deterrence of the type of illegality committed by these officers, where not only is the violation merely “technical” as noted by Justice Powell’s concurrence in Brown, but the officers did in fact have probable cause for their actions. For these reasons we reverse the order of the trial court and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

KASSERMAN, J., concurs.

1 At the suppression hearing defendant admitted that he knew his Miranda rights, had waived them voluntarily, was neither coerced nor promised leniency, and admitted that his statements to the police were true.