Thе defendant, Roderick Dean Walker, was convicted by jury verdict of first-degree murder. * 1 He contends that (1) incriminating clothing he was wearing while he was being interrogated at Detroit police headquarters was improperly seized and, therefore, should not have been admitted into evidеnce, and (2) there was insufficient evidence to show the deliberation and premeditation required to increase the degree of the offense from second-degree murder to first-degree murder, and (3) there was instructional error. We affirm.
Walker was employed at a gas station managed by the victim, Joseph Risek. Shortly before Risek was killed he discharged Walker — Walker thought unjustifiably. On the evening the crime was committed Risek and Walker met at the gas station and an argument ensued. Later, when Risek left the station, they seemed to have patched up their differencеs and Walker drove off with Risek in Risek’s automobile.
*612 Risek and Walker left the station shortly after 9 p.m. Risek’s body was discovered in his automobile at approximately 4 a.m. the following morning. Between 11 and 12 p.m., i.e., less than three hours after Risek and Walker left the station, passersby noticed the automоbile at the location where it was later found containing Risek’s body.
Walker testified that Risek dropped him off a few blocks from the gas station and that he then proceeded to his girlfriend’s home and stayed there until about 11:15 p.m. when he left to go back to work at the gas station.
A witness testifiеd that Walker said that he had been in an argument with Risek that night and had left him unconscious. Another witness testified that at 11:30 p.m. that night Walker said he had killed Risek.
Walker needed money to pay back some money his girlfriend’s mother thought he had taken. Risek had over $500 with him when he left for the gas station that evening. Whеn his body was found the money was gone. His body was lying face down with his hands bound behind him; his head had been bashed in, and a tire iron, which appeared to have traces of blood on it, was near the body.
It is apparent that there was ample evidence from which the jury could infer that Risek’s murderеr had deliberated and premeditated the crime.
It is claimed that the following portion of the judge’s charge to the jury is defective because the reference to deliberation and premeditation was an afterthought and deemphasized:
“I charge you that if you are convinced beyond a reasonable doubt that Roderick Dean Walker killed Joe Risek as the result of cruelty or wickedness of the heart or recklessness of disposition, that the *613 crime would be murder and that would be murder in the first degree, that is, if it was done with deliberation and premeditation. If it was done without deliberation and premeditation but with malice, it would be murder of the second degree”. (Emphasis supplied.)
The instruction was a correct statement of the law. Elsewhere in his charge the judge repeatedly-emphasized the distinction between second-degreе murder and first-degree murder and elaborated on the additional fact findings required to convict the defendant of the more aggravated offense. At the conclusion of the charge the judge gave both the people’s and Walker’s lawyers an opportunity to voice objections to the charge. None were expressed by Walker’s lawyer. There was no instructional error.
Walker was at the gas station when investigating police officers drove in at 7 a.m. shortly after Risek’s body was discovered. The police were aware that Walker was one of the persons with Risek when he was last seen alive. Walker was asked to account for his whereabouts during the hours the crime was committed. After he responded, the officers asked him and another person at the station to accompany them downtown to Detroit police headquarters for questioning. Within an hour of Walker’s arrival at police headquarters an officer noticed what appeared to him to be blood on Walker’s shoes. Walker was then placed under arrest for murder, the Miranda 2 warnings were given and the shoes and other clothing were tаken. Upon scientific analysis the shoes and some of the other clothing were shown to be stained with human blood.
*614 Walker’s trial attorney objected to the admission of the clothing. A hearing was then conducted out of the jury’s presence to determine whether Walker was actually arrested before his formal arrest, when the blood stains were spotted, and whether the police had probable cause to arrest him before the blood was seen. The judge did not rule when the arrest occurred or if there was probable cause to arrest before the formal arrest. He ruled that the clothing was admissible, but that he would not allow any questioning of the officers regarding any statements Walker may have made to them.
The defendant’s trial and appellate lawyers contend that the clothing- was inadmissible because it was taken from the defendant without benefit of counsel and because he was not given the Miranda warnings. The record shows, however, that Walker conceded that the Miranda warnings were given before the clothing was taken. More importantly and more to the point, the Miranda warnings are required to be given before custodial interrogation, not as a condition precedent to the seizure of evidence. 3 An attorney need not be appointed for аn accused person before evidence may be seized.
A more difficult question is whether the discovery in the police station that Walker was wearing bloodstained clothing was a “fruit” of an unlawful detention requiring that the clothing evidence be suppressed.
Under the “fruit of the poisоnous tree” doctrine evidence obtained as a result of an unconstitutional infringement of an accused person’s rights may be inadmissible at trial. In
Silverthorne Lumber Co
*615
v.
United States
(1920),
In
Nardone
v.
United States
(1939),
And in
Wong Sun
v.
United States
(1963),
Through these formulations the United States Supreme Court has cautioned against exclusion of all evidence traceable to illegal police activity, a warn *616 ing which has not gone unheeded in the lower courts. The tendency of adjudication is to administer the fruits rule with great caution lest the effort to control police behavior free too many guilty persons.
We address оurselves to the question posed by the United States Supreme Court of whether the officers discovered the incriminating clothing at the police station by “exploiting” an unlawful detention or by “sufficiently distinguishable” means. Our conclusion that the means were “sufficiently distinguishable”, that there was no “exploitation”, makes it unnecessary for us to decide whether Walker’s presence at the police station was an unlawful detention. 4
The fruit of the poisonous tree doctrine seeks to discourage unlawful police practices by depriving the people of advаntage flowing from the “primary illegality”. In applying the doctrine in particular cases, we are mindful that the exclusionary rule has its limitations as a tool of judicial control and that in some contexts “the rule is ineffective as a deterrent. * * * Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. * * * [A] rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll *617 in human injury and frustration of efforts to рrevent crime”. 5
Various approaches have been taken by the courts in deciding whether in particular cases the people have taken advantage of or exploited the primary illegality. One test, suggested by some commentators 6 and applied by some courts, 7 and which makes sense to us, is whether it was reasonably foreseeable by the police when they acted that by engaging in the illegal behavior they might obtain evidence of the kind they obtained. Physical evidence is the reasonably foreseeable product of a search; responsive statements are the reasonably foreseeable product of interrogation.
If one starts with the premises that all evidence derived illegally will not necessarily he suppressed and that the purpose of the exclusionary rule is to discourage unlawful police practices, then it clearly is important to consider as a factor whether suppression of the derivative evidence in the case at hand is likely to deter repetition of the illegal behavior. 8 In our opinion, a police officer, aware of the illegality and, nevertheless, willing to engage in the illegal practice, will not be deterred by the suppression of evidence that he could not have anticipated obtaining when he indulged in the prohibited practice.
Measuring by that foreseeability standard, we think the trial judge correctly refused to suppress *618 the bloodstained clothing. The discovery of the incriminating bloodstains could not have been reasonably anticipated. When Walker was asked by the police to accompany them downtown they had already viewed him and presumably had not spotted the bloodstains although it was аlready daylight. Both their declared and apparent purpose in asking Walker to accompany them downtown was to question him, not to search for physical evidence, especially evidence in plain view on his person. The police could not have antiсipated that by taking Walker downtown they might discover evidence already in their line of vision.
If Walker had been required to remove any clothing, an entirely different question would be presented. 9 It would be difficult to distinguish the discovery of evidence following removal of clothing from the acquisition of evidence through interrogation, 10 fingerprinting 11 or as a result of a lineup identification, 12 in which kinds of cases evidence has been excluded where it was derived from an illegal detention or other prohibited action. But in all those *619 eases not only was it reasonably foreseeable that the illegal activity might result in the acquisition of evidence, through the means of interrogation, fingerprinting or lineup identification, but it was also necessary for the police to take affirmative action to exploit the primary illegality; to question, to fingerprint, to place the accused person in a lineup or tо require the removal of clothing. The affirmative means employed in those cases to obtain the evidence which was suppressed can be differentiated from the passive means — observation of the defendant’s clothing while still on his person — by which the evidence here sоught to be suppressed was obtained. The means here are “sufficiently distinguishable” to be purged of the primary taint.
Affirmed.
Notes
MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
Miranda
v.
Arizona
(1966),
The police do not rely on a consent to search and, therefore, there is not presented the question whether a
Miranda-type
specific warning related to Fourth Amendmеnt rights should he given a suspect in custody before he is asked for consent to conduct a search. See
People
v.
Smith
(1969),
The protection of the Fourth Amendment against unreasonable searches and seizures applies to the investigatory as well as the accusatory stage.
Davis
v.
Mississippi
(1969),
There is а substantial question whether the police request that Walker accompany them to headquarters was precatory or would be understood by a reasonable man, as Walker claimed he understood it, to be a polite order. Or, to state the inquiry as one court has: whether the suspect is “physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.”
People
v.
Arnold
(1967), 66 Cal 2d 438, 448 (58 Cal Rptr 115, 121,
Terry
v.
Ohio
(1968),
Note, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U of Pa L Rev 1136, 1148 (1967); Pitler, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Cal L Rev 579, 588, 597, 598 (1968).
LeBlanc
v.
United States
(CA 1, 1968), 391 F2d 916;
cf. United States
v.
Perdiz
(SDNY, 1966),
Pitler, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Cal L Rev 579, 588, 589 (1968); Note, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U of Pa L Rev 1136, 1147 (1967).
See
People
v.
Gardner
(1968), 266 Cal App 2d 19 (71 Cal Rptr 568);
Dujay
v.
State
(Tex Crim, 1963),
Wong Sun
v.
United States
(1963),
Bynum
v.
United States
(1958), 104 App DC 368 (262 F2d 465);
Davis
v.
Mississippi
(1969),
Gatlin v. United States (1963), 117 App DC 123 (326 F2d 666).