FIRST DI VISI ON May 27, 2008

No. 1-07-0224 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee,

v. RALPH HOPKI NS, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook Cou

nty No. 01 CR 696 Honorab le Ke rr y Ke nn ed y, Judge Presi ding.

PRESID ING

JUSTICE

CAHILL deliver ed the opi nion of the

court: We are asked to decide whether a state ment, made by a c odefendant or witness and used to induce an illegally

detained suspect to confess, can support attenuation absent a f inding that the statement was legally obtained. Our appellate courts have addre ssed this issue indirectly and reached different results. Compare Peopl e v. K limaw icze , 352 Ill. App. 3d 13, 815 N.E.2d 760 (2004) ( a codef

endant' s or witne ss's sta

tement ma

y se rve as a n attenua ting cir cumstanc e absent

a showing in the record that the statement was illega lly obtained), with People v. Austin , 293 I ll. App. 3d 784, 688 N.E.2d 740 (1997) (witness's statement will not break the causa l connection between an illegal arrest and subse quent confession where the witness was taken into custody under the same circumstances as the defe ndant). We hold that, absent evidence in the record that the statement was illegally obtained, the statement may be used as an attenuating factor. Following a jury

trial, defendant Ralph Hopkins was convicted of one count of ar med1-07-0224

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robbery a nd one count of attempted armed robbery and sentenced to concurrent prison terms of 12 years. This c ourt vacated the convictions and sentences on appe al after finding that the police lacked probable cause to arre st defendant. People v. Hopkins , 363 Ill. App. 3d 971, 845 N.E.2d 661 (2005) ( Hopkins I

). We remanded the matter to the trial court to hold an attenuation hear ing. Hopkins I , 363 I ll. App. 3d at 988. On

remand, the trial

court he ld defen

dant's p ost-arr

est confessions were admissible despite the illegal arr est and reinstated defendant's convictions and

sentenc es. Def

endant a ppeals th is holding . We affir

m. The facts relevant to defendant' s arrest are contained in Hopkins I and will be

repeat ed to the extent necessary

to dispose of defendant's argume nts in this appeal. Defendant was arrested on the nig ht of Dec ember 9, 2000, foll owing a report o f an atte

mpted ar med robbe

ry of Beve rly Hajek at 10:40 p.m. in Oak Lawn. Shortly after defendant was arre sted, police picked up Jeffrey Sampson, w

ho alleg edly

assisted d

efenda nt in attem

pting to r ob Hajek . Shortly

after h is arrest, Sampson made a statement implicating himself and defendant in the crime. I n the early mor

ning hours of December 10, 2000, defendant conf essed to the attempted armed robbery of Hajek. The following evening, defendant c onfessed to the armed robbery of Alfonso Casarrubias, which occurred in Evergree

n Park about one hour before the attempted armed r obbery of H ajek. At issue is whether those conf essions we

re prope rly admitted a

t trial. The il legali ty of an arr est do es not necess arily prev ent th e admi ssio n of a d efenda nt's post-arrest statement confessing to a crime. " Evidence collected following an illeg al arrest may be admissi ble if it i s sufficien tly attenuated from any illegality." Klima wicze , 352 Ill. App. 3d at 19. There are four factors to c onsider in deciding attenuation: (1) whether Miranda warni ngs1-07-0224

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were given; (2) the amount of time betwee n the defendant's arrest and his statement; (3) whether there were intervening cir cumstances; and (4) the degree of flagrancy

of police misconduct. Klima wicze , 352 Ill . App. 3d at 1 9, cit ing Brown v . Illi nois , 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62 (1975). "Typica lly, intervening c ircumstances and flagrancy of police misconduct are the two key factors in determining whether police exploited the illega l arrest to obt ain a confessi on. [Ci tations. ]" Klima wicze , 352 Ill. App. 3d at 19. We considered attenuation in defendant's first appe al and found that the record was not sufficient to address whether there wer e intervening circumstances. Hopkins I , 363 Ill. App. 3d at 983. We said: "The record shows that defenda nt testified that he did not receive Miranda warnings and that the police enga ged in misconduct. The police officers gave testimony rebutting defenda nt's cla ims, includ

ing thei r stateme nts that Miranda warnings were given r

epeatedly and that the police did not engage in misconduct. The trial court's conclusion that the officers' testimony was more cr

edible than defendant's was not aga

inst the manifest weight of the evidence and will not be disturbe d on revie

w. The am

ount of time

betwee n defend ant's a rrest an d his statement can be calculated at approximately six hours based on documents of record. The key

information that is not available in the record is on the question of whether th ere were interven ing circumst ances." Hopkins I , 363 Ill. App. 3d at 983. Intervening c ircumstances are those that break the ca usal connection between the taint of1-07-0224

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unconstitutional police conduct and the defendant's confe ssion. Klima wicze , 352 Ill. App. 3d at 20. For example, confronting a suspect with new information, such as a witness's or coconspira tor's st atement, will suppor

t attenua tion if it is c apable o f inducin g a volu ntary desire to confess and was legally

obtained. People v. Wilberton , 348 Ill. App. 3d 82, 86, 809 N.E.2d 745 (2004). In Hopkins I , we held that Samps on's sta

tement ma

y ha ve induce d a volunta

ry desire in defenda nt to conf ess, but it was uncle ar from t he record whether defe

ndant wa s confronted with the statement. Hopkins I , 363 Ill. App. 3d at 984. I t was for this reason that we remanded for a n attenuation hearing. Hopkins I , 363 Ill. App. 3d at 984. On remand, the State presented police testimony that defendant confessed to the attempted armed robbery

of Hajek immediately a

fter being confronted with Sampson's statement. Defendant did not present rebuttal evidence a nd the trial court held defendant's confe ssion was sufficiently attenua

ted from the illegal arrest to make admission of that statement prope r. Defend ant appe als. We app ly a mix ed sta ndard of revi ew in a ddres sing t he pro priet y of the tr ial co urt's finding that defendant's confe ssions were admissible despite the illegal arrest. See People v. Pitman , 211 Ill. 2d 502, 512, 813 N.E.2d 93 (2004). The trial court' s findings of fact will not be reversed unless they

are against the manifest weig ht of the evidence. Pitman , 211 Ill. 2d at 512. But "a reviewing cour

t remains free to undertake its own assessment of the fa cts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted." Pitman , 211 Ill. 2d at 512. For this reason, we de termine de novo "the ulti

mate question o f whether the ev idence shoul d be suppress ed." Pitman , 211 Ill. 2d at 512.1-07-0224

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Defendant argues that Sampson' s statement was illegally obtained and, for this reason, cannot be an attenuating circumstance . See People v. Jackson , 374 Ill. App. 3d 93, 105, 869 N.E.2d 895 (2007) (illegally obtained statement from a codefendant is not an attenuating circumst ance); People v. Clay , 349 I ll. App. 3d 517, 524, 8 12 N.E.2d

473 (2004 ) (same) ; Austin , 293 I ll. App. 3d

at 789-91 (same); People v. Beamon , 255 Ill. App. 3d 63, 70, 627 N.E.2d 316 (1993) (same). The State does not contest this rule of law. I nstead, the State argues there is no evidence in the record from which to conc lude that Sampson's arrest was illegal. Def endant responds that the Sta

te had an affirma tive duty to show tha

t Sampson' s stateme

nt was legally obtained, pointing out that it is the State's burden of proving attenuation by clear and convincing evidence (see People v. Foskey , 136 Ill. 2d 66, 86, 554 N.E.2d 192 (1990)). We find Klima

wicze persuas ive authority

for find ing that the State is not req uired to prove the legality

of intervening evidence. The def endant in Klimawicze confessed to killing her mother after being confronted with two stateme nts, one made by a c odefendant and another made by a witness. Klima

wicze , 352 Ill. App. 3d at 17-18. On appeal, this court looked a t whether those statements purged the taint of the defendant' s illegal arrest, noting that to do so, the statements must have been legally obtained. Klima

wicze 352 Ill. App. 3d at 20. The codefendant had challenge d his arrest at trial but was unsuccessful and did not raise the issue again in his direct appeal. Klima wicze 352 Ill. App. 3d at 21. The court held: "B ased on the record, we have n o reason to d oubt the l egality of [the codefen dant's] arres t." Klima wicze 352 Ill. App. 3d at 21. With respect to the witness's statement, the c ourt noted that although the defendant contended that the witness was detained without probable cause, she did not support1-07-0224

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her contention with specific facts or applicable law

. Klima wicze 352 Ill. App. 3d at 21. The court held: "Bare contentio ns lacking su fficient legal argument do no t warrant our co nsideratio n." Klima wicze 352 Ill. App. 3d at 21. The court conclude d that both statements supported attenuation. Klima

wicze 352 Ill. App. 3d at 23. The Klima

wicze court not only relied on the r ecord to determine the legality of the intervening evidence, but also implied, in the case of the w itness's statement, that the defendant had the duty to show the statement was illegally obtained. Klima wicze 352 Ill. App. 3d at 21. But cf. People v. James , 118 Ill. 2d 214, 226, 514 N.E.2d 998 (1987) (a def endant does not have standing to challenge the admission of evidence obtained in violation of another's personal privacy rights) . The majority

of Il linois cou

rts addr essing t his issue have rel ied on the record to determine the legality

of intervening evidence. See Clay , 349 Ill. App. 3d at 520-21, 525 (recor d containe d evidenc e that co defenda nt's sta tement was illega

lly o btained) ; People v. Bates , 267 I ll. App. 3d 50 3, 506-07 , 642 N.E. 2d 774 (19 94) (same); Beamon , 255 Ill. App. 3d at 64-66, 69-70 (same); People v. Avery , 180 Ill. App. 3d 146, 154-56, 534 N.E.2d 1296 (1989) (same) . But defenda nt cites Austin , where the court concluded a witness' s statement could not serve as an intervening circumstance despite the lac k of showing in the record that the statement was illegally obtaine d. Austin , 293 Ill. App. 3d at 789. Without probable cause, the police in Austin took the de fendant

and thre e other men into custody for questioning

on a murder that had been committed two months earlier. Austin , 293 Ill. App. 3d at 785. One of the men, Ke vin Taylor, made a

statement implicating the other three in the crime. Austin , 293 Ill. App. 3d at 786-87. Tay lor's statement prompted confessions from1-07-0224

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the other three. Austin , 293 Ill. App. 3d at 787. The defenda nt moved to suppress his confession on the ground that Tay

lor's statement was illegally obtained. Austin , 293 Ill. App. 3d at 789. The trial court disagreed, holding ther e was no basis on which to find that Tay lor had been illegally a rrested since Tay

lor was not charged. Austin , 293 Ill. App. 3d at 789. This court reversed the trial court, apparently relying on the fact that Tay

lor was taken into custody a t the same time as the defendant, who was arre sted without probable cause. Austin , 293 Ill. App. 3d at 789. This c ourt held

Tay lor's st atement c ould not be

used as a n interve ning cir cumstanc e to break the causal connection betwee n the defendant's illegal arr est and his subsequent confession. Austin , 293 I ll. App. 3d

at 789-91 . To the extent Austin can be read to hold that a witness's or codefendant's statement may not serve as an intervening circumstanc e without an affirmative showing in the record that the statement was legally obtained, we r espectfully disag

ree. We believe, in a case such as this one, where a w itness's or codefendant's statement induces an accused to confess, that statement will be dee med an intervening circumstance supportin g atten uation ab sent evid

ence, ma de part o f the re cord, tha

t the state ment was i llegal ly obtained . The re cord her e does not contain

evidenc e that Sam

pson's statement

was illegally obtained. Sampson pled guilty to attempted a rmed robbery

and did not challenge his arrest or confession. The fact that Sampson was arrested a t approximately the same time as defe ndant and in the same general area

is not sufficient to overcome the presumption that the statement was legally obtained. We conclude the State met its burden of proving by clear and convincing evidence that defendant's conf ession was sufficiently a

ttenuated from his illegal arrest and admissible into evidence on this ground.1-07-0224

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Defend ant alter natively argue s Sampson' s stateme nt can onl y a ct to atte nuate his confession to the attempted armed robbery of Beverly

Hajek and not his confession, made more than a day la

ter, of the armed robbery

of Alfonso Casarrubias. Defendant's a rgument fails to take into acc ount that p olice ha d interve ning pro bable ca use to kee p defend ant in custody

after h is first confession. See People v. Wilberton , 348 Ill. App. 3d 82, 87, 809 N.E.2d 745 (2004), citing People v. Morris , 209 Ill. 2d 137, 157-58, 807 N.E.2d 377 (2004) (interve ning pro bable ca use is an important factor in the attenuation analysis), overrule d in part, Pitman , 211 Ill. 2d at 513-14 (overruled Morristo the exten t it was inc onsistent w

ith the sta ndard of review s et forth i

n Ornelas v. United States , 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996)). The supreme court has explained: "it would place an unreasona ble burden on police *** to release an illega lly a rrested defenda nt and the n, based on proba ble caus e obtaine d after

an illeg al arre st, arrest him agai n when he reached t he sidewalk. " Morris , 209 Ill. 2d at 159. Defendant was legall y in custody when he c onfesse d to the ar med robbe

ry of Casar rubias. The judgment of the circuit court is affirmed. Affirmed. WOLFSON and R.E. GORDON, JJ., concur.