On petition for writ of certiorari to the Supreme Court of New
Jersey.
The petition for writ of certiorari is denied.
Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
The question presented in this case is whether petitioner's
confession, obtained by police after he had been arrested without
probable cause, held in custody for some 18 hours, and confronted
with the confessions of three other participants in the crime,
should have been excluded at petitioner's trial as an inadmissible
fruit of an unconstitutional arrest.
On J., was robbed. Investigation revealed information sufficient
for the issuance of an arrest warrant for Archie Murphy. On the
evening of January 15,
Page 454 U.S.
1017 , 1018
1976, police went to an East Orange, N.J., apartment building to
execute the arrest warrant for Murphy. Upon arrival, one officer
saw petitioner Edward Barry standing outside the building.
Recognizing him from his investigation of another robbery one year
earlier, the officer arrested petitioner and gave him Miranda
warnings. Murphy was arrested inside the building.
Petitioner and Murphy were first taken to the East Orange police
station, then to Montclair Police Headquarters. Petitioner was
transferred to the Glen Ridge jail for overnight lodging. In the
early morning hours of January 16, Murphy made a statement
incriminating himself and identifying petitioner as the driver of
the getaway car. At midday on January 16, after petitioner had been
in custody for approximately 18 hours, he was taken from Glen Ridge
jail to Montclair for questioning. He was again given Miranda
warnings and was told that his brother, Murphy, and another suspect
had all confessed to the robbery and that he had been implicated.
He was also shown the weapons used in the robbery. Confronted with
these matters, petitioner gave a written statement revealing his
participation in the robbery.
Petitioner was convicted. His confession was the principal
evidence against him. The Appellate Division reversed, holding that
petitioner's confession should have been excluded from evidence as
the product of an illegal arrest. 171 N.J.Super. 543, 547-548,
410 A.2d 259, 262 (1979). The Supreme Court of New Jersey
reinstated the judgment of conviction. It agreed with the lower
court that the arrest was illegal because "the police at that time
were without probable cause to arrest," 86 N.J. 80, 88,
429 A.2d
581, 585 (1981), but went on to determine whether the
confession resulted from exploiting the illegal arrest or instead
was the product of petitioner's free will, the taint of the illegal
arrest having been removed. The court held that the intervening
circumstances, including Murphy's confession and the recov-
Page 454 U.S.
1017 , 1019
ery of the guns used in the robbery, severed any causal link
between the illegal arrest and the subsequent confession and
therefore the confession was properly admitted. Other courts have
arrived at very similar results, 1 but I have serious doubt that
these cases can be squared with our own recent decisions.
In order for a statement given to police after an illegal arrest
to be admissible at trial, the statement must not only be voluntary
by Fifth Amendment standards, but it must also not be the result of
exploiting the illegal arrest; rather, it must be "an act of free
will [sufficient] to purge the primary taint." Wong Sun v. United
States,
371 U.S.
471, 486, 416 (1963); Brown v. Illinois,
422 U.S.
590, 602, 2261 (1975). Brown held that Miranda warnings, by
themselves, cannot always make a confession "sufficiently a product
of free will to break, for Fourth Amendment purposes, the causal
connection between the illegality and the confession." 422 U.S., at
603, 95 S. Ct. at 2261. By focusing on the causal connection
between an illegal arrest and a subsequent confession, Brown sought
to implement the policies behind the use of the exclusionary rule
to effectuate the Fourth Amendment . Dunaway v. New York,
442 U.S. 200, 218-219,
2259-2260 (1979). It identified three factors for determining
whether it is necessary to exclude a confession obtained following
an illegal arrest: "The temporal proximity of the arrest and the
confession, the presence of intervening circumstances, . . . and,
particularly, the purpose and flagrancy of the official misconduct
are all relevant." Brown v. Illinois, supra, 422 U.S., at
603-604-2262 ( footnotes omitted).
Page 454 U.S.
1017 , 1020
Brown obviously raises serious questions about the admissibility
of petitioner's confession. That petitioner confessed after being
held for 18 hours while the defendant in Brown confessed after only
2 hours is not dispositive. As Justice STEVENS has observed: "The
temporal relationship between the arrest and the confession may be
an ambiguous factor. If there are no relevant intervening
circumstances, a prolonged detention may well be a more serious
exploitation of an illegal arrest than a short one ." Dunaway v.
New York, supra, 442 U.S., at 220 ( concurring opinion). See also
Hale v. Henderson,
485 F.2d
266, 267-269 ( CA 6 1973) (ordering suppression of statement
made 42 hours after illegal arrest), cert. denied, 415 U.S. 930
(1974), cited in Brown v. Illinois, supra, 422 U.S., at 603, n. 8,
n. 8; 3 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment 633-634 (1978).
The court below held that the causal chain between the illegal
arrest and the confession was broken by disclosing Murphy's
confession to petitioner and showing him the weapons used in the
robbery. But in Brown, as here, the police gave the defendant
Miranda warnings, confronted him with the evidence they had against
him, and this Court held the ensuing confession was inadmissible.
422 U.S., at 594. The events between the illegal arrest and the
confession were characterized in unequivocal terms: "Brown's first
statement was separated from his illegal arrest by less than two
hours, and there was no intervening event of significance
whatsoever." Id., at 604 (emphasis added). We have thus rejected
the notion that the causal chain between an illegal arrest and a
subsequent confession is broken by merely confronting the accused
with evidence of his guilt in an effort to elicit an incriminating
response. Rather, "some demonstrably effective break in the chain
of events leading from the illegal arrest to the statement" is
required. Id., at 611 (POWELL, J., concurring in part ). See
Johnson v. Louisiana,
406 U.S.
356, 365 (1972) (appearance before neutral magistrate and
Page 454 U.S.
1017 , 1021
representation by counsel at lineup purged lineup of taint from
illegal arrest), cited in Brown v. Illinois, supra, 422 U.S., at
604. See also Wong Sun v. United States, supra, 371 U.S., at 491,
83 S. Ct., at 419 (actual release from detention prior to
confession breaks chain).
In terms of the purposes of the exclusionary rule, allowing a
confrontation such as occurred in this case to qualify as an
intervening circumstance would permit the police to seize and
detain any person without probable cause, secure in the knowledge
that a confession later obtained by confronting the accused with
evidence against him would be admissible. I had thought that this
is what the Court sought to prevent in Brown and Dunaway, since
"[h]ostility to seizures based on mere suspicion was a prime
motivation for the adoption of the Fourth Amendment ." Dunaway v.
New York, supra, 442 U.S., at 213.
The third Brown factor to be considered is the purpose and
flagrancy of the police conduct. Although the police conduct here
was not designed to cause fright and confusion as it was in Brown,
422 U.S., at 605, 95 S. Ct., at 2262, the police admittedly lacked
probable cause to arrest petitioner, and the purpose of the arrest
was to detain "in the hope that something might turn up." Ibid.
This purpose is itself sufficient to exclude a confession, absent a
sufficient intervening event. Dunaway v. New York, supra, 442 U.S.,
at 218.2
Perhaps the decision below should stand, but the tension between
it and our own cases such as Brown is apparent, and it should
either be reversed or our own decisions reconsidered and modified.
I would grant the petition for certiorari.
Footnotes
Footnote 1 See, e. g., In re
R.S., 93 Ill.App.3d 941, 49 Ill.Dec. 551, 418 N.E.2d 195 (1981);
People v. Finch, 86 Ill.App.3d 493, 41 Ill.Dec. 741, 408 N.E.2d 87
(1980); People v. Emanuel, 98 Mich.App. 163, 295 N.W.2d 875 (
1980); People v. Gabbard,
78 Ill. 2d
88, 34 Ill.Dec. 750,
398 N.E.2d
574 ( 1979); State v. Lewis, 19 Wash. App. 35, 573 P.2d 1347
(1978); Commonwealth v. Bogan, 482 Pa. 151,
393
A.2d 424 (1978); but cf. United States v. Butler,
495 F.
Supp. 679 (ED Ark.1980).
Footnote 2 As one
commentator has suggested: "[I]n light of the inherent difficulties
in establishing that police acted with an improper motive, it does
not follow from this that an otherwise inadmissible confession
deserves to be admitted into evidence simply because there has been
no showing of a flagrant and purposeful Fourth Amendment violation.
This is a factor, not the controlling factor . . . and thus must be
considered with . . . 'the presence of intervening circumstances.'
" 3 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment 635-636 (1978) ( footnotes omitted).
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