A recent Illinois Appellate Court opinion addressed whether a confession that followed an illegal arrest was admissible against the defendant.
The defendant in People v. Salgado was found guilty of first degree murder after a bench trial and sentenced to 55 years in prison. The case was first appealed on the issue of whether or not the defendant's incriminating statements should have been suppressed. The Appellate Court vacated the conviction and sentences. The case was remanded (sent back) to the trial court for an attenuation hearing. On remand the trial court held the incriminating statements were admissible. The judgment (finding of guilty) and sentence were reinstated. The second appeal followed. [Note: the first appellate decision was not published, pursuant to Illinois Supreme Court Rule 23.]
The defendant was charged with the murder of a fellow gang member. On January 28, 2000, the victim, defendant, and a 3rd gang member (Navarro) were driving around. The defendant asked Navarro to pull into an alley. Defendant got out of the car and shot the victim several times. Defendant told Navarro to keep his mouth shut and they left.
The investigating detective quickly learned the victim was last seen with the defendant and Navarro on the night of his murder. On February 3, 2000 the detective went to Navarro's home. Though not under arrest, Navarro went to the police station. On February 4, 2000 (about 5 hours later) he told the detective he saw the defendant commit the murder.
On February 3, 2000 defendant was also brought to the police station. He denied involvement in the murder. Despite his denial he was kept in the interview room. His attorney (probably from FDLA) arrived on the morning of February 4, 2000. He advised defendant of the first degree murder charge based on Navarro's statement. The attorney told police defendant was not to be questioned, left his business card, and walked out.
But on February 5, 2000, the defendant suddenly told the detective he wanted to talk. He was advised that he had a lawyer and didn't have to speak with any police. Defendant, however, confessed to 2 detectives. He also showed police where he threw the murder weapon. That night defendant signed a waiver of attorney and gave a video taped confession. As a side note, all murder interrogations and confessions in Illinois have to be video recorded by law.
Sounds like an open and shut case, right? Not so fast. Apparently after defendant denied involvement in the murder he was detained illegally, until Navarro implicated him as the shooter that is.
Confessions that follow illegal arrests are per se inadmissible against the defendant. But they can be admissible if the statements are sufficiently attenuated from the illegal arrest. What this means is that if too much time has elapsed between the illegal arrest and the confession, the confession might not be admissible. But other factors than just time are considered in answering whether or not attenuation has occurred.
The factors are: were Miranda warnings given, time between arrest and confession, whether there was an intervening circumstance, and the flagrancy of police conduct.
Defendant was at the police station for about 36 hours before he confessed and 47 hours before he gave the video taped statement.
The legal analysis is very thorough and dense. In the first appeal, the court held defendant was being illegally detained starting at midnight on February 4, 2000, after he denied involvement. On second appeal, the court, however, concluded that probable cause to arrest defendant was established at 2:00 am on February 4, 2000 when Navarro told detectives defendant was the shooter. Thus, according to the court's analysis, defendant was only illegally detained for 2 hours.
The court discussed that Navarro was never a real suspect but rather was a witness that could have left the police station at any time. Thus, Navarro, himself, was never seized or arrested but was just a cooperative citizen. Had Navarro's statement inculpating defendant been illegally obtained, defendant's confession would likely have been suppressed.
The Appellate Court ultimately upheld the trial court's guilty verdict and sentence.
I want to comment a little about this case. The first thing I find confusing is the mention of an illegal arrest. Why was it illegal? Ok, I think it was probably illegal but why did the Court acknowledge it was so? Why is the Court inline with my thinking?
I am sure CPD had an investigative alert out for BOTH defendant and Navarro. On the streert an investigative alert has the effect of an arrest warrant. These alerts are initiated by a detective and entered into the CPD's computer.
If someone with an investigative alert is found by police, they are arrested and taken in for questioning. Apparently that's legal. I have a problem with it on 4th amendment grounds, but it's normal around here. The CPD has tactical teams that just go around and arrest people with active investigative alerts. And often these arrests occur in the defendant's home where by law a felony arrest warrant is required. Again, a bit constitutionally flagrant, but it's normal here in Chicago.
Once in police custody, the cops have 48 hours to either release the person or bring him (or her) before a judge after felony charges are approved. The 48 hour bit is where Gerstein is implicated.
[I have yet to hear a Gerstein hearing as I think the U.S. Supreme Court envisioned, but in Illinois bond hearings pass themselves off as Gerstein hearings. Someday it might get addressed. I ranted about this issue in an NPR interview last year. It didn't help.]
How it works in the real world is quite different from the Appellate Court's understanding. The person under arrest is usually handcuffed to a wall for a little while in a very small room with no windows. After waiting for hours, and usually overnight, a detective finally comes in. Usually by this time, the suspect has been given a can of soda and maybe a candy bar. If the suspect tells the detective what's wanted (confession), McDonalds will likely be brought in. That's fair. A confession for a Big Mac and fries.
In this case, I am sure Navarro was led to believe he was going to be charged with the murder. Remember, the police can lie during interrogations and often do. It's called trickery and I dislike it. Very much.
The Appellate Court's determination that Navarro was simply a good citizen and was at the police station of his own free will is naive. That's not how it happened. He was told he was going to the police station and probably put in handcuffs (although the record states he was not). The case reads that Navarro testified he asked for an attorney. The detective testified he did not.
Navarro was probably told he wasn't going to see his family again because people on the street were saying he killed the victim. Is that coercion? I don't know but it worked because he gave up the real shooter within 5 hours.
The detectives are trained in the art of criminal interrogation. And they are all taught the Reid method. I have seen video of murder interrogations where the detectives try to talk the suspect into admitting guilt by various benign suggestions and irrelevant examples. False confessions exist. They do. The psychology behind them is fascinating.
Apparently, however, the Reid method works, because a lot of people confess after they have sat long enough. In this case, it took 36 hours to break Mr. Salgado.
Question: once someone in custody via an investigative alert denies involvement in the crime being investigated, are they being illegally detained? Apparently not as long as someone gives police probable cause. But in the initial appeal, the Appellate Court held defendant's arrest was illegal for lack of probable cause (that is why it was remanded to the trial court with the verdict and sentence vacated).
It wasn't until the second appeal that it was determined the illegal detention only lasted 2 hours. According to the court, 2 hours wasn't so bad. The defendant's 4th amendment rights were only mildly violated, I guess. But if 2 hours isn't enough, how many is? 5? 10? 40? At what point does one get a working 4th amendment? How or when is the right triggered?
The logical extension is that all arrests by investigative alert that lack probable cause are illegal. I wrote something about this very topic early last year and declared they were illegal. I later learned that every investigative alert notes whether or not probable cause to arrest exists. But on the street does it matter? I don't think so. If found, you're going in, probable cause or not. Make the arrest. Close the case. The lawyers can sort it out later.
The legality of CPD investigative alerts has never been closely judicially scrutinized. And even in this case the words "investigative alert" never appear. But I know that's how both Navarro and the defendant ended up at the police station.
I have had mothers call me who said a detective called looking for their son. The detective said they just needed to talk to him to clear his name about some crime. Oddly the crime which they list is never the real one being investigated. Hmmm, trickery on a mother. Nice.
The mother tells the son about the call. The son denies knowing anything about the crime and goes to talk to the detectives. After all, he has nothing to hide. But very few suspects ever walk out of the police station after speaking to detectives. In fact, the detectives usually have enough of a case to pass felony review already. Whether they got the right guy is not as important as clearing and closing the case. I think everyone is lead to believe they will go home if they say the right thing. The truth, however, is anything they say usually makes things worse.
Some might say this was all simply good police work. The detective learned who the victim was last seen with. Both were pulled in for questioning. One fingered the other and the shooter confessed. I guess justice was served. The system worked. The bad guy is in prison.
However, I think the Appellate Court bent its analysis around the case to uphold the conviction. Their discussion, or lack thereof, of the mechanics of the police work involved troubled me. The court had the opportunity to analyze the legality of investigative alerts and punted.
At the very least the court could have addressed whether someone who is detained through an investigative alert is under arrest for 4th amendment purposes. Clearly Mr. Salgado was, but when? Thanks to the court we know when his arrest became illegal. But was he under a lawful arrest before it was illegal? I don't know. And I wish I did.
The black letter law is that once you're no longer free to leave, you're under arrest. But, there is also the totality of circumstances analysis. And if a reasonable person would believe they were not free to leave, the 4th amendment is probably implicated.
I doubt anyone in a CPD interview room feels free to leave at any time, especially when detectives are questioning them. Or if they are handcuffed to the wall. Or the door is locked. Everything else is academic.
A neutral judge or magistrate has to issue a felony arrest warrant, much like a search warrant. I think often investigative alerts side-step judicial review and give arrest warrant power to the police, who are not supposed to have it.
I have a feeling this case is going to be looked at again on higher appeal. Someday the Illinois Supreme Court is going to address this issue. I hope I live to see that day.