State v. Huddleston, 924 S.W.2d 666

State v. Huddleston

924 S.W.2d 666

Tenn.

1996

Check Treatment

*1 case before us. we are not the least

hesitant in concluding appellant aggravated

committed the three offenses of

rape charged. may, Punishment there-

fore, imposed for each offense without

implicating jeopardy constitutional double

provisions. ease,

In this judge the trial sentenced appellant twenty-two years imprison

ment on aggravated rape each of the three

convictions and ordered that the sentences concurrently.

be served agree We Moreover, sentencing. imposi

concurrent

tion of the concurrent sentences makes it

unnecessary for us to address the issue of legislature

whether the intended cumulative

punishment. Blackburn, See State v. (Tenn.1985).

S.W.2d 934

ANDERSON, J.,C. and DROWOTA and JJ.,

REID, concur.

WHITE, J., participating. Tennessee, Plaintiff/Appellee,

STATE of

Benjamin HUDDLESTON,

Defendant/Appellant.

No. 02S01-9410-CC-00069.

Supreme Court of

at Jackson.

June

BACKGROUND defendant, Benjamin Huddleston, The arrested without early a warrant in the after- 11, 1991, Friday, January noon of for his suspected involvement in an *3 robbery armed Crider, Tom Defender, District Public of a convenience store pre- Humboldt the Twenty-Eighth District, Trenton, Judicial vious month. immediately Huddleston was Appellant. for transported City jail to the Humboldt where Burson, Charles Attorney W. General and he was rights informed of his Miranda and Reporter, Moore, Michael E. Solicitor Gener- questioned robbery about the Humboldt al, Smith, Gordon W. Associate Solicitor Gen- robbery a similar that had occurred Tren- eral, Nashville, Clayburn Peeples, District ton, Although Tennessee. sign he refused to General, Attorney Trenton, Appellee. waiving a form rights, his Miranda Huddle-

ston questions answered some about the rob- beries, denying.his knowledge and involve- OPINION inment them.

ANDERSON, Justice. Huddleston was detained the Humboldt City jail over the weekend. He was not presents This case two issues for our de- personally taken magistrate during before a 1) termination: whether the defendant’s con- period, judicial this nor did the State seek a right stitutional to by counsel was violated probable determination of cause for the war- police questioning days that occurred three rantless arrest. after the sign defendant refused to a “waiver 2) form; Monday, January the afternoon of rights” and whether the violation given Huddleston was fresh Miranda warn- defendant’s under either Tenn. 5(a) ings again questioned by R.Crim.P. Detective Bak- or the Fourth Amendment er about requires robberies Humboldt and of his confession time, Trenton. signed This he after he the “waiver of had been detained for more than form, rights” hours, and also seventy-two executed statement sought before the State admitting judicial to both the day, crimes. The next probable determination of cause fol- Tuesday January seventy-two more than lowing a warrantless arrest. arrest, hours after Huddleston’s Detective Because we conclude that the defendant’s Baker, relying solely upon confession, sign rights” refusal to “waiver form did obtained a warrant based on a deter- not constitute an invocation of his Fifth probable Thereafter, mination of cause. counsel, right right his aggravated Huddleston was indicted for rob- However, counsel was not violated. we have bery. determined, concedes, and the State trial, sup Prior to moved defendant’s both Tenn. press, arguing that the confession was inad 5(a) R.Crim.P. and the Fourth Amendment missible because it was obtained aas result to the federal constitution were violated of the State’s failure to him take before a prompt judicial State’s failure to seek a unnecessary delay without as re cause. The viola- 5(a) quired by both Tenn.R.Crim.P. and the require of Tenn.R.Crim.P. does not Fourth Amendment to the federal constitu suppressed the confession be since tion as construed the United States Su voluntarily given was under the preme County Court’s decision in River Suppression the circumstances. of the con- McLaughlin, side however, case, required, fession is in this 1661, 114L.Ed.2d 49 result of the Fourth Amendment violation. Appeals’ the Court of Criminal When on asked cross-examination at the judgment is reversed suppression hearing why and the cause remand- Huddleston had jail weekend, ed for a new trial in which the defendant’s been held in over the Detective confession not replied, will be admissible. “I Baker was to continue the investí- warrant, evidence, charge, as an develop formal such arrest gation and additional indictment, placed preliminary on him presentment, there was hold the Tren- investigative Department pur- hearing Police a warrant ton in cases where was also poses prior also.” Detective Baker admitted arrest. State v. Mitch obtained to the ell, (Tenn.1980); he additional investi- believed some 593 S.W.2d necessary Butler, he could estab- gation (Tenn.Crim.App. before S.W.2d 1990). statement, secure a lish cause and warrant for gave At his the time the defendant’s arrest. formally charged. been Huddleston had not right his to counsel under the Sixth examination, On redirect the State at- clearly Amendment had not attached and tempted prove though that even the con- was not case. violated had been sole basis for the war- fession *4 had, application, police rant the fact at the contrast, right In the to counsel en arrest, enough through time the compassed right against within the self-in independent sources to establish protected crimination the Fifth Amend to arrest Huddleston.1 ment to States is the United Constitution At the conclusion of the hear- triggered suspect requests a whenever that the trial that ing, court ruled the State had present police-initiated counsel be 5(a), suppress refused to violated in interrogation. suspect custodial When a confession, finding Huddleston’s that it was counsel, police right vokes that to must cease voluntary the the circum- questioning present. until is Mi counsel See later stances. Huddleston was convicted of Arizona, 436, randa v. 384 U.S. 86 S.Ct. aggravated robbery, conviction was 1602, (1966); 16 L.Ed.2d 694 Edwards appeal by affirmed on the Court of Criminal Arizona, 477, 1880, 101 68 S.Ct. granted Appeals. applica- We Huddleston’s (1981); Stephenson, State v. L.Ed.2d 378 878 permission appeal to to address S.W.2d at 530. important questions proce- these of criminal dure. that to Huddleston claims his refusal sign the form an waiver of constituted

I. RIGHT COUNSEL TO right invocation Fifth Amendment to of his Initially, questioning precluded counsel which further Huddleston claims that his con- attorney. presence outside the of his Be fession was obtained in violation of his consti- given following ad right cause his confession Specifically, tutional to counsel. police questioning pres that ditional outside the argues sign his initial refusal to attorney, argues rights” ence of his Huddleston “waiver form constituted an invo- his right precluded cation of his which confession must be to counsel police questioning. further Because his con- Miranda, In Court did not subsequent police ques- fession resulted from adopt rigid a formula invocation of tioning right counsel, in violation of his to right Recently Fifth Amendment to counsel. argues sup- Huddleston it should have been States, 452, 512 114 Davis v. United U.S. pressed. however, 2350, (1994), right

The “[i]nvocation Sixth to Court stated that right requires, until counsel does not attach the adversarial Miranda to counsel at a mini- mum, judicial process begun. Michigan reasonably that can has some statement Jackson, expression 106 S.Ct. construed to be an of a desire for — Id., attorney.” 89 L.Ed.2d the assistance of an 631 State v. Ste U.S. (internal (Tenn.1994). at-, quotations phenson, 114 S.Ct. at S.W.2d omitted). judicial process “Although suspect a need not In the adversarial filing speak of the of an is initiated at the time with the discrimination Oxford Baker, questioned According stopped by the testimony from Detective robber. When officer, 1. to by police a false had a officer in Huddleston had name. Huddleston been seen addition, descrip- vicinity robbery morning car matched the on the Huddleston’s occurred, robbery. headed same direction as the tion of the car involved the Trenton in the don,” emphasized suspect pursuant a issued to Rule 3.5. the Court a citation is articulate If a person “must his desire have counsel arrested without a warrant sufficiently clearly magistrate, that a present brought reasonable before a an affidavit of complaint officer would understand statement to be shall be filed forthwith. When request attorney.” appears initially for an Id. If person the sus- an before arrested pect unambiguous fails to an magistrate, proceed make such shall statement, police questioning. not cease need with this accordance rule. Applying that standard the facts in this added.) (Emphasis case, it is clear that Huddleston made never question, Without incarceration for unambiguous request an for counsel. In re- period inherently The of time is coercive. form, fusing sign the waiver of has custodial environment been described said, signing nothing.” “I ain’t carrying “badge [though] intimidation Certainly, no in the reasonable officer physical equally is] destructive of [which understand circumstances would Arizona, human dignity.” Miranda v. attorney. request for an See also North Indeed, U.S. at at Butler, Carolina U.S. interrogation techniques used custodial (holding 60 L.Ed.2d geared producing in the accused often right despite accused waived to counsel his compulsion to confess. Id. 384 U.S. See *5 form). rights of sign his refusal to a waiver 449-56, a sus- 1615-19. When Fifth Huddleston’s pect being without taken before detained right counsel without merit. claim is person explains process, a who the neutral warnings, and that constitu- issues assures 5(a) II. RULE VIOLATION honored, intimidating tional the We must next consider Huddleston’s Nev- environment is no doubt exacerbated. that have contention his confession should ertheless, adopted a courts most have suppressed the violated been because State exclusion, require per se rule of instead 5(a) by detaining him for Tenn.R.Crim.P. given during peri- a exclusion of a confession seventy-two following hours a more than unnecessary delay only od of if an examina- judi obtaining a

warrantless arrest without totality of of the re- the circumstances Be cial determination of cause. voluntarily veals that the statement was not intimidating cause of the coercive and nature given. detention, police urges of Readus, 764 example, For in State v. adopt per requiring a se rule exclu Court the (Tenn.Crim.App.1988), S.W.2d 770 during period of all statements a sion of a Appeals of Criminal discussed the effect “unnecessary delay” in violation of Rule of 5(a) admissibility of a on violation of Rule the 5(a). “un during period of confession obtained the agrees the While State necessary delay.” Rejecting the trial court’s finding Hud- supports the lower courts’ that ruling any within confession obtained 5(a), Rule it con- detention violated dleston’s period delay” must be “unnecessary the correctly the lower courts held tends excluded, held that the Readus court instead require suppres- that the violation does not to be such a confession is the of Huddleston’s statement because sion voluntariness the traditional determined voluntarily totality given under the Middlebrooks, test. also State See 5(a) provides: Rule the circumstances. (Tenn.1992); Ky 327-28 S.W.2d except upon capi- Any person arrested a (Tenn.Crim.App.1989). ger, 787 S.W.2d present- or pursuant to an indictment specifically unnecessary holding, In so the court Readus shall be taken without ment required rejected mag- rule that would have appropriate a delay before the nearest any from suppression of confession obtained which war- county of the from the istrate “unnecessary issued, period county in an arrestee rant for arrest delay.” recognizing a violation if the While alleged which the offense occurred 5(a) could result a warrant unless arrest was made without and, if again, questioning confession the violation was a factor in the before his on Mon- involuntariness, statement’s the court in day. acknowledged Rea- He that he understood dus concluded that “the better reasoned his and he did not refuse to answer interpreting delay1 cases ‘unreasonable questions at either session. There was say this context that it is one factor to be presented no evidence about the defen- evaluating taken into account in the volun- intelligence physical dant’s or mental and confession; totality tariness of a and if the question condition which would raise a surrounding circumstances indicates that about the voluntariness of the statement. voluntarily given, confession was it shall Likewise, indicating there was no evidence solely not be excluded from evidence because abuse, any physical or mental actual or delay of a in carrying the confessor before threatened, any deprivation or of of neces- Id, magistrate.” at 774. S.W.2d contrary, sities. To the the evidence showed that he was not coerced or threat- test, adopting the voluntariness [Ujnder way ened ... approval Readus court cited People with totality of the circumstances in this Cipriano, 431 Mich. 429 N.W.2d 781 case, we cannot conclude that the unneces- (1988), Michigan Supreme a case in which the sary delay, though purposeful, even ren- following Court set forth the non-exclusive signed dered the defendant’s statement determining factors for the voluntariness of a given involuntarily. have been confession: accused; age [T]he his lack of edu- agree Ap- We with the Court of Criminal level; intelligence cation or his the extent peals that Huddleston’s statement was vol- previous experience of his police; untarily given under the cir- repeated prolonged nature of the and, therefore, cumstances need not be questioning; length of the detention of suppressed, despite the Buie violation. gave accused before he the statement *6 question; in any the lack of advice to the III. FOURTH AMENDMENT rights; accused of his constitutional wheth- VIOLATION er there unnecessary delay was an in Having suppression concluded that bringing him a before before required confession is not as a result of the gave confession; whether the accused 5(a) violation, we must determine injured drugged, intoxicated or or in whether the Fourth Amendment violation re- ill gave statement; health when he quires suppression of the confession. food, deprived whether the accused was 103, Pugh, In Gerstein v. 420 U.S. sleep attention; or medical whether the 854, (1975), the United States abused; physically accused was Supreme Court determined that the Fourth suspect whether the was threatened with prompt judicial Amendment a mandates de- abuse. probable prerequi- termination of cause as a Id., added). (emphasis 429 N.W.2d at 790 liberty site to extended restraint of after Michigan The court stressed that the focus 125, a warrantless arrest. Id. at 95 S.Ct. at unnecessary delay on solely should not be on 869. The Court in Gerstein did not define length delay, but rather on the “prompt” specify nor a time within which the delay circumstances of the and their effect on probable cause had to occur. the accused. however, Recently, in McLaughlin, supra, Applying those factors to the circum- Gerstein, holding by the Court clarified its case, stances the Court of Criminal stating “judicial prob- determinations of Appeals stated as follows: will, able cause within 48 hours of arrest as a The record of hearing re- matter, general comply promptness with the defendant, parolee, flects that the had Id., requirement of Gerstein." 500 U.S. at previous experience 111 at S.Ct. 114 L.Ed.2d at 63. obviously previous experience with incar- ceration. He was say advised of his Miranda This is not to cause rights shortly Friday after his arrest on particular passes determination in a case analogous pointing noting arguably rules simply it is two muster because

constitutional directions,3 the Powell Court de- hearing opposite provided within 48 hours. Such issue, stating on the instead if the clined to rule may violate Gerstein nonetheless question.” delayed unreasonably. it “remains an unresolved determination was Id., at-, at n. *. delay delays 511 U.S. S.Ct. Examples of unreasonable gathering additional evi- purpose for the must first determine we arrest, delay justify motivat- dence exclusionary applies at all rule individu- against ill the arrested ed will McLaughlin Fourth in the context of al, delay’s delay for sake.... or end, it is violation. To that If the cause determination history and that we consider the essential hours, forty-eight “the within does not occur exclusionary relates rule as it purpose of government to demon burden shifts to The exclusion- to the Fourth Amendment. emergency existence of a bona strate the fide remedy for the ary developed as a rule was Id., extraordinary circumstance.” or other strictures in of Fourth Amendment violation 1670, 114 57, 111 at L.Ed.2d 500 U.S. at S.Ct. States, U.S. Weeks United acknowledged Although the at 63. (1914), in which the 58 L.Ed. 652 S.Ct. probable- are free to consolidate that states seized violation of court held that evidence pretrial proceedi hearings with other must be excluded the Fourth Amendment determinations, it cau bail ngs,2 such as Recognizing government’s case. from intervening weekends nor tioned that neither destroy government “[njothing can pretrial pro required to consolidate the time its quickly than failure to observe more its extraordinary cir ceedings qualifies as an worse, laws, disregard of the its own Id., at cumstance. existence,” Mapp charter of its own Indeed, jurisdic at 63. “a 114 L.Ed.2d Ohio, 1684, L.Ed.2d proceed combined that chooses to offer (1961), exclusionary rale was also reasonably as soon as is ings must do so illegally applied suppress evidence seized feasible, 48 hours in no event later than governments. state Id. after arrest.” decision, Mapp following the For a time McLaugh- argues that Fourth Amendment violation of a defendant’s lin, rights were vio- Fourth Amendments his ob inadmissible all evidence rights rendered of the more than in this case as a result lated George C. of the violation. tained means *7 preceded which seventy-two hour detention III, Pretrial Fruit The Poisoned Thomas probable judicial determination of the initial 413, Detention, 430 N.Y.U.L.Rev. 61 that a Fourth concedes cause. The State -.”). (Hereafter at “61 N.Y.U.L.Rev. occurred, argues but violation Amendment per se rule of exclusion simplistic This not the the confession is suppression that short-lived, however, perhaps because remedy. required nature, rule, only probative, barred its Leon, v. 468 States evidence. United date, reliable the United States To 3405, 3412, 907, 897, 82 104 S.Ct. question of U.S. resolved the has not (1984) (characterizing evidence L.Ed.2d 677 exclusionary applies rule whether the in Fourth subject McLaughlin Fourth Amendment context of trustworthy tangible evi 79, 114 “inherently Nevada, cases as v. 511 U.S. Powell violation. dence”). limited the (1994). has since The Court Although 1280, 1 128 L.Ed.2d S.Ct. despite an af- suppression of evidence obtained ap- the initial 2. In most counties probable comprised judicial determination of proceeding of both pearance is ter-the-fact fixing cause, and the rule probable Fourth Amendment's violation of the Raybin, Crimi- pretrial dwelling general- David Tennessee bail. See in a against arrests warrantless Procedure, 3.2; § also Tenn. see Practice and nal Atty.Gen. Op. post-arrest suppression of a ly does not lead 20, 91-84, (September p. at 3 30, No. Louisiana, U.S. 399 See Vale v. confession. 35, 1991). 1972, (1970); 1969, 409 26 L.Ed.2d 90 S.Ct. 1640, 14, Harris, 110 S.Ct. U.S. v. 495 New York Although Fourth Amendment's violation of the 3. 109 L.Ed.2d requirement will result in for a search warrant rule,4 exclusionary necessary McLaughlin and considers it tion of is that evidence obtained remedy a Fourth illegal Amendment violation as a result of the detention will be only application likely if its is to achieve The benefit is the same as wrongdoing, substantial gained application deterrence official from the exclusion- applying ary and the cost of the rule —exclusion rule to certain warrantless arrests. It outweigh of reliable evidence —does not ig- the will deter law enforcement officials from application. noring benefits achieved its United the Fourth Amendment mandate of a Leon, 915-21, v. judicial States 468 U.S. at probable S.Ct. determination of cause. 3416-20, at at N.Y.U.L.Rev. 430. N.Y.U.L.Rev. 435. Violations avoided, McLaughlin easily ap- can be Utilizing analytical that cost-benefit frame- plying exclusionary rule to evidence ob- work, rigidly applied the Court has the exclu- illegal tained as a result of the detention will sionary involving rule eases warrantless deter further violations. cause,5 arrests made without apply has refused to Having exclusionary rule to arrests or determined that the good searches made in faith generally applies reliance on a rule in the context of a facially violation, valid statute or a McLaughlin officer’s we must next delin- specific analysis cause which are eate governs its later found error.6 application juris- in individual cases. Several employ dictions the traditional voluntariness Applying analysis the cost-benefit dis conjunction test discussed above above, cussed we conclude that the exclusion Tucker, e.g., violation. v. See ary apply police rule should when a officer 259, 111, 137 N.J. 645 A.2d 117-19 bring fails to an arrestee before a Perez-Bustamante, United States within the time McLaughlin. Ig allowed (5th Cir.1992). 48, F.2d 51-54 The State in noring requirements McLaughlin urges adopt analysis this case us to functionally making the same as warrantless well. We decline. searches or arrests when a warrant is re quired. situations, In both law enforcement The voluntariness test is not necessary judicial officials act without guid proper analyzing vehicle for objective good ance or faith. The cost of Fourth requires sup Amendment violation applying exclusionary pression sanction to a viola- of a statement. The voluntariness Salvucci, 4.United States v. 448 U.S. 100 S.Ct. presumptively search incident to arrest under a (1980) (defendants may 65 L.Ed.2d 619 valid statute that is later declared unconstitution- exclusionary only al); Leon, claim benefits of rule if their supra (exclusionary United States v. personal Fourth Amendment have been apply rule does not when a officer has violated); Havens, United States 446 U.S. good relied in faith on warrant that later turns (1980) (illegally 64 L.Ed.2d 559 out to be deficient under the Fourth Amend- impeach seized evidence is admissible to ment). testimony person whose were violat- ed); Calandra, United States v. Florida, Hayes (1974) (evidence *8 (1985); Royer, 84 L.Ed.2d 705 Florida v. 460 may seized in violation of the Fourth Amendment 491, 1319, (1983); U.S. 103 S.Ct. 75 L.Ed.2d 229 grand jury hearings); be used in United States v. 438, 2752, Georgia, Reid v. 448 U.S. 100 S.Ct. cf. Janis, 433, 3021, 428 U.S. 96 S.Ct. 49 L.Ed.2d (1980) (inadequate grounds 65 L.Ed.2d 890 (1976) (evidence 1046 seized in violation of the Illinois, temporary investigative stop); Ybarra v. may Fourth Amendment be used to a tax recover 85, 338, 444 U.S. 100 S.Ct. 62 L.Ed.2d 238 delinquency); Lopez-Mendoza, I.N.S. v. 468 U.S. (1979) (same). 1032, 3479, (1984) 104 S.Ct. 82 L.Ed.2d 778 (evidence seized in violation of the Fourth Michigan DeFillippo, supra (exclusionary v. may deportation Amendment be used in hear- inapplicable rule to evidence uncovered in a Powell, 465, ings); Stone v. 428 U.S. 96 S.Ct. presumptively 3037, search incident to arrest under a (federal habeas valid statute that is later declared unconstitution- corpus granted relief cannot be if a state defen- al); Leon, supra (exclusionary United States v. dant's Fourth Amendment claim has been the apply rule subject court); adjudication does not when a officer has of a full and fair in state 31, good Michigan relied in on a DeFillippo, v. faith warrant that later turns 99 2627, (1979) (exclusionary S.Ct. 61 L.Ed.2d out to be deficient ment). 343 under the Fourth Amend- inapplicable rule to evidence uncovered in a 674 protect if designed

test to the Fifth Amend- even the statements this case is right against voluntary ment self-incrimination ex- were found to be under the Fifth cluding that is Amendment, a statement obtained the Fourth Amendment issue result of coercion law enforcement offi- chain, remains. In order for the causal Stephenson, cials. v. at See State 878 S.W.2d illegal between the arrest the state- not address 544-45. It does the interests thereto, subsequent ments to made be bro- implicated by a Fourth Amendment violation. ken, requires merely not Wong Sun that See, e.g., People Cipriano, v. at 429 N.W.2d the meet the Fifth statement Amendment 785, (expressly recognizing n. 9 the standard of voluntariness it be arraignment requirement prompt contained to sufficiently purge an act of free will the rules is procedural within state not the same primary thus Wong taint. Sun mandates requirement as Amendment of a the Fourth consideration of a statement’s prompt light policies of the distinct interests arrest.); following a warrantless see of the Fourth Amendment. Readus, supra (adopting also the State v. 601, Illinois, Brown v. Cipriano holding). (1975) (inter- 2260-61, 416 45 L.Ed.2d contrast, exclusionary In the rule was de- omitted). quotations nal and citations signed protect guar- Fourth Amendment agree with we those searches, deterring antees lawless sei- jurisdictions rejected the zures, that have voluntari The U.S. Supreme and arrests. applied instead a “fruit of ness test and have explained has the interaction the between analysis determining poisonous tree” Fourth and Fifth as follows. Amendments or a statement obtained whether years ago, 90 Although, almost illegal must be an detention that the Fifth Court observed Amendment State, 348 264 Ind. N.E.2d Williams Fourth, with is in intimate relation State, 871 629 Black v. P.2d 35 far warnings Miranda thus have not been (Okl.Crim.1994); 61 N.Y.U.L.Rev. at 458. regarded remedying a means either of as poisonous the “fruit of the tree” anal Under deterring violations Fourth Amend- ysis, the is on whether evidence here, focus rights. Frequently, as ment by exploitation of the Fourth was obtained may appear Amendments under the two Wong illegality. Sun Amendment United coalesce since the unreasonable searches States, 407, 417, Fourth and seizures condemned U.S. always As the U.S. are almost made L.Ed.2d considering compelling give recognized, a man to when purpose of Court has himself, against which in criminal obtained violation of statement suppressed, in the Fifth Amend- must be cases is condemned the Fourth Amendment rule, however, exclusionary question ment. The “was [the statement] is “whether to effectuate the Fourth sufficiently purge when utilized of free will to an act Amendment, policies interests and serves unlawful primary taint of the invasion.’” Illinois, from those serves that are distinct at at Brown v. U.S. S.Ct. States, at unlawful the Fifth. It is directed all (quoting Wong Sun United seizures, merely 416) and not searches and (emphasis 371 U.S. at produce happened added). incrimina- those that testimony fruits.

ting material or ques Although the answer short, a confession made with- exclusion of upon particular facts dependent might warnings regarded out Miranda *9 case, suggested fac four of each the Court necessary Fifth as to effectuate the (1) pres to determination: the tors aid the Amendment, but would be sufficient (2) warnings; ence or absence of Miranda protect the Fourth. Miranda fully to the temporal of the arrest and proximity the warnings, the exclusion of a confession confession; intervening presence of alone, the them, do not suffi- made without circumstances; finally, particular sig of viola- ciently a Fourth Amendment deter nificance, (4) flagrancy of purpose the tion. prov- given illegal the official misconduct. The burden of ment was the detention. evidence, ing, by preponderance a of the Obviously, given prior the if the statement was challenged of the ripened the time the detention into a consti- Illinois, prosecution. rests on the Brown v. violation, product tutional it is not the 603-04, 2261-62; 422 U.S. at 95 S.Ct. at see illegality and should not be State, also Williams v. N.E.2d at 628. Many argued convincing- commentators have ly “illegal custody oppres- becomes more cases, illegal Unlike arrest the Fourth See, uninterrupted.” e.g., sive as it continues in McLaughlin Amendment violation cases is Israel, 1 W. LaFave & J. Criminal Proce- the unreasonable detention of an arrestee dure, 9.4(a), Thus, § at 744 when the judicial without a McLaugh- detention becomes unlawful under Initially, illegal, cause.7 detention is not lin, passage actually of time makes the ripens later into a constitutional violation. Although precise Although some modification of the violation worse. taint of an application necessary of the factors is to ac- may dissipate unlawful arrest tend to with illegal time, commodate the differences between an it is not the arrest that in is unlawful detention, illegal arrest and an we conclude violation, McLaughlin but the detention it- factors, explained the above-cited in unlawful, self. Once the detention becomes below, greater appro- detail are relevant and pressure likely to confess increases with priate determining of continuing illegal each moment of detention. appropriate evidence is in illegal detention here, Where, as the defendant did not con- State, cases. See Williams v. 348 N.E.2d at fess until he had been detained the au- 629, 61 N.Y.U.L.Rev. at 458-59. approximately seventy-two thorities hours, temporal proximity weighs factor case, In this the defendant was held against finding attenuation and favor seventy-two for more than hours without a State, suppression. See Williams cause, thus N.E.2d at at 458-59. N.Y.U.L.Rev. the burden shifted to the State “to demon strate the existence of a emergency bona fide Next, presence we consider whether the or extraordinary other circumstance.” The intervening purged circumstances the taint State offered no evidence to meet that bur illegal leading detention. The inter- den. Thus a Fourth Amendment violation vening circumstances case in the context Suppression occurred. of a statement ob There, illegal Wong an arrest is Sun. tained as a result of that required violation is voluntarily defendant was free on bail but “sufficiently unless the confession is an act of returned to the station to make a purge free will to primary taint of the Obviously, intervening statement. cir- illegal Utilizing arrest.” the four factors purged cumstance the taint of the initial ille- above, suppres identified we conclude that gality. custody Continuing is inherent required sion is this case. violation; therefore, every McLaughlin warnings- Miranda intervening present Wong circumstance prior giving police. the statement to Al- present illegal Sun will never be in an deten- determinative, though that factor is not example intervening tion case. One of an indicates that the defendant was aware of his purge that could circumstance the taint of an Fifth rights against self-incrimi- detention, however, illegal is the arrestee’s nation weighing, which is threshold factor relative, attorney, consultation with an extent, to some in favor of attenuation. friend, priest prior time a state- case,

Second, given. In ment is there is no temporal proximi- we consider the ty intervening evidence of an the arrest and the confession. circumstance. violation, Thus, McLaughlin weighs against context of a inqui- finding this factor ry point focuses on the at which the state- suppression. attenuation and favor of only pursued pression required question 7. The Fourth Amendment violation relates to that McLaughlin the defendant in this case is the alone. sup- violation. our discussion of whether *10 factor, therefore, Finally, police of this we consider whether the Consideration detention, weighs heavily suppression. in of illegality, in unlawful favor this case particularly appro- purposeful. This factor is due after consideration evaluating in of priate the context above, Huddleston’s confes- factors discussed Fourth obtained in violation of the sion, illegal in during an detention obtained suppressed, as the Amendment should be Amendment, Fourth should violation of the primary purpose of the Fourth Amendment have been exclusionary official miscon- rule is to deter case, police testified duct. In this officer CONCLUSION so that that Huddleston was detained above, For reasons discussed the de- develop investigation could “continue right to counsel was fendant’s constitutional Obviously, evidence.” the deten- additional However, case. we have not violated this product was not the tion was intentional and rights that the defendant’s determined simple inadvertence or administrative of 5(a) and the Fourth both Tenn.R.Crim.P. oversight. Inadvertence or administrative constitution were Amendment to the federal analysis oversight more akin to the Leon failure to seek violated the State’s objective weigh less good faith and would of judicial probable prompt analysis suppression in the of this in favor of of Tenn.R.Crim.P. cause. The violation Here, violation. howev- Fourth Amendment sup- require not that the confession be does er, purposeful. the detention was voluntarily given under pressed since it was Suppres- totality of the circumstances. Moreover, McLaughlin, spe- the Court however, in required, unreasonable, of the confession is delay sion cifically characterized as case, Amend- as a result of the Fourth gathering additional evi- purpose “for the Id., Accordingly, the Court ment violation. justify the arrest....” dence judgment is reversed Appeals’ at Criminal L.Ed.2d U.S. at to the trial court for the cause remanded Certainly, that characterization is confession trial in which the defendant’s principles new keeping underlying appeal of this not admissible. Costs will be prohibits arrests Fourth Amendment which for Here, are taxed to the State except probable cause. Officer upon necessary. may issue if which execution not believe he admitted that he did Baker in- additional had sufficient evidence without DROWOTA, J., BIRCH, C.J., concur. vestigation probable cause to to establish and secure a warrant officer WHITE, JJ., concur in REID and Although Bak- arrest. Officer Huddleston’s concurring opinion. separate subjective not have belief that he did er’s Justice, irrel- REID, concurring. to obtain a warrant is enough evidence actu- or not cause evant to whether ma- I in the result reached concur Duer, existed, 616 S.W.2d ally see State not confession was jority that the defendant’s his belief is (Tenn.Crim.App.1981), admissible and that the case remanded flagrancy of the relevant determine retrial. Here, violation. Officer Fourth Amendment view, because, my separately I write ar- to make a warrantless proceeded Baker 5(a) issue is analysis the Rule further proba- had though did not believe he rest necessary. Despite his belief that to do so. ble cause 5(a) of the violation of Rule agree I Amend- already violated the Fourth he had Procedure does Rules of Criminal Tennessee requirement, he inten- probable ment a confession exclusion of require problem detain- tionally compounded that However, ma- though the even every case. the Fourth in violation of ing Huddleston is inher- incarceration jority recognizes that judi- requirement prompt of a Amendment’s interrogation is ently custodial coercive and cause. Such cial determination confessions, appar- induce utilized to mandates often disregard of constitutional flagrant in its factor to that ently gave little effect by the courts. not be countenanced must *11 during a 72 hour made “totality circum- exclude confessions of the of the examination finding proof “of no warrantless detention stances” in this case. Id. 181 of defendant.” any mistreatment impact of a blatant The assessment of the Thus, that it the Court held at 334. S.W.2d 5(a) by Rule is aided an examina- violation of detention fact of a warrantless was not the history purpose of the rule. tion of the inadmissible but yielded the confession 5(a), of adoption of Rule a section Before during ... detention.” rather “the treatment required that Tennessee Code Annotated State, also, Id.-, 183 Tenn. McGhee see by “private persons” be persons arrested (1945). 826, 828 189 S.W.2d or an officer “with- taken before totality approach was also unnecessary delay.” general This out While no similar 5(a) in a by police passage after the of Rule provision existed for arrests offi- advanced cers, Appeals provided per- of the Court of Criminal “[n]o another section decision by majority. prison upon crimi- can be committed to relied son Readus, (Tenn.Crim.App.1988), matter, nal until examination thereof be first 764 S.W.2d denied, (Tenn.1989), the trial magistrate.” Wynn v. rt. had before some ce State, during a court excluded a confession made 181 Tenn. 181 S.W.2d period delay §§ in which the accused (quoting Tenn.Code Ann. brief (1932)). warrant.1 The Court of purpose The of these statutes was held without a that “if vitality presumption Appeals reversed and held was to assure the Criminal Thus, surrounding circumstances of innocence. one arrested a citizen voluntarily that a confession was or officer without the intervention of a neu- indicates from evidence given, tral was re- it shall not be excluded magis- solely delay carrying in the con quired promptly to be taken before a because role, now, magistrate.” Id. at 774. magistrate’s trate. The then as fessor before a was assure constitutional were prompted The facts which the Readus de- protected. Among those were the in strikingly different from those cision are innocence, bail, presumption right the ease at bar. Readus was indicted counsel, right right and the to be free way raping young girl on her to school. from self-incrimination. rape, arrested Within an hour of the he was warrantless, given during taken to the Confessions un- without a warrant. He was safeguarded periods pretrial performance of tests. After hospital incarceration for the they rights, chose suspect given being explained were because were at a his Miranda exculpated mo- presumptively time when a innocent accused to talk and himself. Within detective, ments, however, being “I illegally held without the benefit of Readus told the protections. help_ I need to talk about it.” constitutional order to need some arrest, than two hours after the Readus determine the of these confes- Less sions, taped A confession was two the courts focused on the circum- confessed. of hours later. Readus was taken before stances of confinement and the treatment eight hours after during magistrate approximately confinement. In a 1943 accused decision, unpublished a his arrest. The Court Crimi- this Court excluded warrantless warrantless, Appeals nal noted that “a violation of confession made custo- 5(a) of a interrogation which could result dial was described State, confession, if the violation was a factor its grilling.” Wynn “continuous See involuntariness,” However, but concluded that de- 181 S.W.2d at 333. that decision not unnec- year lay eight hours the case was was clarified the Court the next confession, There, initiated Wynn essary, nor was the v. State. the Court declined Readus, produced during periods of court held that confessions 1. In the trial reasoned ap- unnecessary delay passage complementary between confinement of Rule without a 3501(c) regardless (clarifying pearance § be excluded of volun- must statute similar to U.S.C. States, Mallory per delay a confes- tariness. v. United that sion) does not se invalidate adoption McNabb in an of the so-called resulted States, McNabb-Mallory In McNabb v. United rule in Tennessee. Mallory, L.Ed. 819 the United States *12 Readus, involuntary. Id. 772. The hold-

ing in Readus was that GENTRY, voluntariness Lois Hawkins Plaintiff and 5(a) critical standard under Rule for deter- Counter-Defendant/Appellant, mining the of confessions ob- rule, tained the violation of that

the coercive nature of extended incarceration GENTRY, Trabon Executor of the S. Es significant determining is a factor in volun- Ray Gentry, tate of Donnie Defen tariness. Id. at 774. Counter-Plaintiff, dant and pretrial inherently Because incarceration is given during periods coercive and confessions being which a defendant is held in viola- Gentry Judy Eades, Marcus Todd As inherently suspect, tion of Rule Jeffrey Natural Guardian of Robert procedure determining whether a confes- Gentry, Defendants and Counter-Plain voluntary importance. sion was is of critical tiffs/Appellees. challenged If confession was while being

the defendant was held in violation of 5(a), prove Rule the burden is on the State to at Knoxville. voluntarily that it was made under the totali- 24, 1996. June ty general- of circumstances of the case. See Hall, ly, Neb. 465 N.W.2d (1991); Smith, State v. Or. State, DeConingh

P.2d 894 (Fla.1983). In

So.2d 501 addition to the fac- generally

tors to a relevant

voluntariness, proof must address the

inherently coercive effect of custodial interro-

gation, substantially which increases with custody.

each additional hour of isolated For admissible,

the confession to be

of the circumstances must include evidence of fact or

some circumstance which would tend

to neutralize or overcome the coercive effect prolonged incarceration. proof in this does not in-

Since case

clude evidence of factor or circumstance tend to neutralize or overcome

which would

the coercive effect of incarceration viola- 5(a), I would hold that suppressed

confession should have been on ground also.

WHITE, J., concurs.