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SECOND DIVISION
April 20, 2004

PRESIDING JUSTICE WOLFSON delivered the opinion of thecourt:

The single issue before us is whether the defendant'sconfessions to murder were independent of the taint of hisillegal arrest.

This case is before us for the second time. Following ajury trial, defendant Reginald Wilberton was found guilty offirst degree murder, attempted first degree murder, andaggravated discharge of a firearm. The trial court sentenceddefendant to 35 years' imprisonment for first degree murder and aconcurrent 30-year term for attempted murder.

In the first appeal, this court rejected all of defendant'scontentions but one: we vacated defendant's conviction afterfinding the police lacked probable cause to arrest him. Peoplev. Wilberton, No. 1-01-1481 (2002) (unpublished order pursuant toSupreme Court Rule 23). We remanded the cause to the circuitcourt for a determination of whether defendant's inculpatorystatements were sufficiently attenuated from the illegal arrest. After a hearing, the trial judge found sufficient attenuation andreinstated defendant's conviction. Defendant now appeals thetrial court's order, contending his statements were notattenuated from his arrest. We affirm.

FACTS

At the attenuation hearing, Chicago police sergeant JohnPallohusky testified he arrested defendant at 12:30 a.m. onAugust 11, 1998, for his suspected involvement in the murder ofLarion Jackson and attempted murder of Chris Jackson. At thetime, police knew a man nicknamed "Bird" was involved in theshooting. Derrold Davis, who was another suspect already incustody for questioning in another case, told police thatReginald Wilberton was known as "Bird" and gave them defendant'saddress. Sergeant Pallohusky did not interview defendant afterhis arrest.

Detective James Gilger interviewed Davis at 6 p.m. on August11, 1998. After being advised of the Miranda warnings, Davistold Detective Gilger that he drove defendant and two other mento a house on Laramie Street. They went there to shoot rivalgang members. Defendant had a shotgun and the other men had a.357 revolver and a .45 caliber handgun. Defendant said he wouldshoot first. Defendant and the two men got out of the car andfired shots at people sitting on the front porch of the house. Gilger testified that Davis' statement was corroborated byphysical evidence collected at the crime scene, where Gilgerfound an empty shotgun shell casing and wadding from the shell. He also found several shell casings consistent with a .45 calibergun.

Detective Gilger interviewed defendant at 9 p.m. on August11, 1998. After advising defendant of his Miranda rights,Detective Gilger told defendant Davis had implicated him in theshooting of Larion Jackson, that Davis said defendant used ashotgun. Defendant denied any involvement and agreed to take apolygraph examination the next morning.

Detective Gilger interviewed defendant again at 6 p.m. onAugust 12, 1998, about 42 hours after defendant's arrest. Afterreading defendant the Miranda warnings, Detective Gilger againtold defendant Davis had given a statement and that Davis wascharged with shooting Larion Jackson. Defendant then made astatement implicating himself in the shooting; he later repeatedhis statement for the assistant State's Attorney and a court-reporter. These were not the first inculpatory statements madeby defendant.

The parties stipulated to the trial testimony of KevinHowley. At trial, Howley testified he administered a polygraphexamination to defendant at noon on August 12, 1998, afteradvising defendant of his Miranda rights. After the test, Howleytold defendant that the test results indicated deception. Defendant then gave an inculpatory statement to Howley, admittinghe rode with three other individuals to Laramie Street. There,defendant took a shotgun and fired two shots into the gangway ofthe building. He returned to the car and fled the scene with thethree other men.

Detective Kenneth Berris testified he escorted defendant tothe polygraph examination. After the examination, DetectiveBerris read defendant the Miranda warnings, and defendantindicated he understood his rights. Defendant then gave aninculpatory statement to Berris.

Assistant State's Attorney Karen Kerbis testified she spokewith defendant at 11:15 p.m. on August 12, 1998, about 47 hoursafter his arrest. She advised defendant of his Miranda rights,and defendant indicated he understood his rights. Defendant madean inculpatory statement to Kerbis and agreed to allow a courtreporter to record his statement. In his court-reportedstatement, dated August 13, 1998, at 12:44 a.m., defendantadmitted firing a shotgun twice toward the porch of a house onLaramie Street. He also made statements regarding the otherparticipants and the guns they used. Defendant said the policegave him food and drink, allowed him to use the bathroom, allowedhim to rest, and treated him "fine". Defendant's statement asrecorded by the court reporter was admitted into evidence attrial.

The trial court found Davis' statement to police implicatingdefendant in the shooting and the polygraph examination wereintervening circumstances. Those circumstances, together withthe presence of Miranda warnings and lack of police misconduct,sufficiently attenuated defendant's statement from the illegalarrest. The trial court reinstated defendant's conviction andsentence.

DECISION

I. Standard of review

The parties do not contest the facts or credibility of thewitnesses. When neither the facts nor witness credibility aredisputed, we review the trial court's attenuation determinationde novo. People v. Berry, 314 Ill. App. 3d 1, 15-16, 731 N.E.2d853 (2000), citing People v. Foskey, 136 Ill. 2d 66, 76, 554N.E.2d 192 (1990).

II. Attenuation

Defendant contends his court-reported statement should havebeen suppressed because it followed an illegal arrest. "The factof an illegal arrest, standing alone, does not make a subsequentconfession inadmissible." People v. Wright, 294 Ill. App. 3d606, 612, 691 N.E.2d 94 (1998). Instead, it becomes the burdenof the prosecution to show by clear and convincing evidence thatthe confession was " 'a product of the defendant's free will,independent of any taint of the illegal arrest.' " Wright, 294Ill. App. 3d at 612, quoting People v. Pierson, 166 Ill. App. 3d558, 563, 519 N.E.2d 1185 (1988).

Courts use four factors to determine whether a confession ispurged of the taint of illegality: (1) whether the confessorreceived Miranda warnings; (2) the temporal proximity of thearrest and the confession; (3) the presence of interveningcircumstances; and (4) the purpose and flagrancy of the policemisconduct. People v. Willis, 344 Ill. App. 3d 868, 884, 801N.E.2d 47 (2003), pet. for leave to appeal granted, No. 97454(January 28, 2004); Brown v. Illinois, 422 U.S. 590, 603-04, 45L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62 (1975). The last twofactors, intervening circumstances and police misconduct, areconsidered key factors in attenuation analysis. Willis, 344 Ill.App. 3d at 884-85.

A. Presence of Miranda warnings

Although police cannot dissipate the taint of an illegalarrest simply by giving Miranda warnings, the presence of thewarnings prior to interrogation carries some weight. Wright, 294Ill. App. 3d at 614. Here, it is undisputed that all questionersadvised defendant of his Miranda rights before statements weremade. Six times defendant waived his rights and agreed to give astatement. This factor weighs in favor of attenuation.

B. Temporal proximity of arrest and statement

Next, we consider the length of time between the illegalarrest and defendant's inculpatory statement. In this case,defendant gave his first inculpatory statement to the polygraphexaminer 36 hours after his arrest. His second inculpatorystatement was made to a detective, shortly after the statement tothe polygraph examiner. He agreed to give a court-reportedstatement 48 hours after his arrest.

A lapse of time may dissipate the taint of an illegal arrestby allowing the accused to reflect on his situation. People v.Ollie, 333 Ill. App. 3d 971, 985, 777 N.E.2d 529 (2002). Here,defendant was not incessantly interrogated, giving him plenty oftime to ponder not only his situation, but also Davis' statementagainst him. Nonetheless, this factor is ambiguous and itssignificance depends on the facts of each case, particularly ifthere are additional indicia of coercion. Willis, 344 Ill. App.3d at 886; Ollie, 333 Ill. App. 3d at 985 (a significant lapse oftime enhances the coercive nature of a custodial setting). Itfollows, then, our focus must be on the two remaining factors --intervening circumstances and police misconduct.

C. Intervening circumstances

" 'An intervening circumstance is one that dissipates thetaint of unconstitutional police conduct by breaking the causalconnection between the illegal conduct and the confession.' "People v. Austin, 293 Ill. App. 3d 784, 788, 688 N.E.2d 740(2000). Intervening circumstances support attenuation when theyare capable of inducing a voluntary desire to confess. Austin,293 Ill. App. 3d at 788. Illinois courts have found confrontinga suspect with new information, such as a co-conspirator'sstatement, is an intervening circumstance which purges theprimary taint of illegality, so long as the statement was legallyobtained. Wright, 294 Ill. App. 3d at 613; Foskey, 136 Ill. 2dat 87; Berry, 314 Ill. App. 3d at 16-17.

In this case, the trial court found two interveningcircumstances: (1) Davis' statement implicating defendant in theshooting, and (2) the polygraph examination. The State contendsthe trial court's attenuation determination was correct becauseDavis' statement served as an intervening circumstance in twoways. First, the statement purged the taint of defendant'sillegal arrest by providing police with the probable cause theypreviously lacked. Second, when police confronted defendant withDavis' statement, it sparked a voluntary desire to confess.

Defendant contends intervening probable cause is notsufficient grounds for attenuation (see People v. Ornelas, 295Ill. App. 3d 1037, 1046, 693 N.E.2d 1247 (1998)). Defendantpoints to the delay between the time he was told Davis named himas the shooter, around 9 p.m. on August 11, 1998, and the time hemade his first inculpatory statement, around noon on August 12. That delay, he contends, demonstrates that Davis' statement didnot produce a voluntary desire to confess. Defendant contendshis first inculpatory statement was the result of learning theresults of his polygraph examination, which is not an interveningcircumstance. See People v. Franklin, 115 Ill. 2d 328, 334, 504N.E.2d 80 (1987) (a polygraph examination is equivalent tointerrogation and does not alone purge the taint of an illegalarrest).

First, we consider whether intervening probable cause purgesthe taint of an illegal arrest. Intervening acquisition ofprobable cause is "an important factor in the attenuationanalysis," even though it does not always assure the police didnot exploit a Fourth Amendment violation. People v. Morris, No.87645, slip op. at 16 (Ill. March 18, 2004); Pierson, 166 Ill.App. 3d at 564, citing United States v. Cherry, 759 F.2d 1196,1212 (5th Cir. 1985). "[T]he development of independent probablecause weighs heavily in favor of finding that the taint ofdefendant's illegal arrest had been purged prior to the time hegave his statements to the police." Morris, slip op. at 18. Illinois courts repeatedly have found intervening probable causesupports attenuation. Morris, slip op. at 18; Wright, 294 Ill.App. 3d at 613; Pierson, 166 Ill. App. 3d at 564.

"[I]t would place an unreasonable burdenon police to release an illegally arresteddefendant and then, based on probable causeobtained after an illegal arrest, arrest himagain when he reached the sidewalk." Morris,slip op. at 17-18.

In Pierson, the defendant was detained without probablecause. Before the defendant was questioned, an informant namedJones told police he witnessed the defendant commit the shooting. Defendant told Jones earlier he intended to rob a store, andJones witnessed the event from across the street. Jonesdescribed the gun used by the defendant and how the shootingoccurred. As the defendant fled the scene, he ran past Jones andremoved a brown ski mask that Jones had given him. Later,defendant showed Jones four expended bullet casings from the gunhe used. The details of Jones' statement were corroborated byother information the police had collected, including anothereyewitness account that the shooter wore a ski mask. Pierson,166 Ill. App. 3d at 559-60.

This court found Jones' statement provided sufficientprobable cause for the defendant's arrest because his detailedeyewitness account was corroborated by other evidence. Pierson,166 Ill. App. 3d at 563. The defendant was advised of hisMiranda rights and this court found no flagrant policemisconduct. Pierson, 166 Ill. App. 3d at 563. Even though thedefendant's inculpatory statement came only two hours after hisillegal arrest, this court held the statement was sufficientlyattenuated by the intervening probable cause. Pierson, 166 Ill.App. 3d at 564.

In Wright, 294 Ill. App. 3d 606, the defendant's brotherimplicated the defendant in two killings before police questionedthe defendant, who had been detained without probable cause. Thedefendant did not challenge the legality of his brother's arreston an outstanding warrant. Wright, 294 Ill. App. 3d at 613. Within 14 hours of his arrest, the defendant waived his Mirandarights six times and gave six different statements. Afterfinding no flagrant police misconduct, this court found theintervening probable cause derived from the brother's statementand the confrontation of the defendant with that statement wereboth intervening events that purged any taint of illegality. Wright, 294 Ill. App. 3d at 613-14; see also Berry, 314 Ill. App.3d at 15-17 (codefendant's incriminating statement providedprobable cause to further detain the defendant in custody;confronting the defendant with the statement served as anintervening circumstance for attenuation).

As in Pierson and Wright, Davis' statement gave police anintervening source of probable cause. A codefendant'sincriminating statement will establish probable cause and serveas an intervening circumstance, so long as the statement isreliable and legally obtained. See People v. Thomas, 186 Ill.App. 3d 782, 795, 542 N.E.2d 881 (1989); Austin, 293 Ill. App. 3dat 790.

In this case, Davis' statement meets both of these criteria. The statement was reliable because he took part in the crime andthe details of his statement were independently corroborated byphysical evidence already collected by police. Specifically, hisdescription of the weapons used in the crime was supported by thebullet casings found at the scene. With this information, policehad probable cause to detain defendant before he made his firststatement. At that point, the police were able to questiondefendant without exploiting the illegality of the arrest. Probable cause arose independently of defendant's arrest,weighing heavily in favor of attenuation. Cf. Morris, slip op.at 18.

Second, defendant does not challenge the legality of Davis'arrest. Based on the record, we know Davis was originallyapprehended for questioning in another case. Absent any evidenceshowing otherwise, we conclude Davis' statement was obtainedlegally.

We are not persuaded by defendant's contention he wascompelled to confess only by learning his polygraph examinationresults. While confronting a suspect with polygraph results isnot an intervening circumstance by itself (Franklin, 115 Ill. 2dat 334), this case involves other intervening events. We are notrequired to consider each event in isolation. Although defendantinitially denied involvement, we believe confronting defendantwith Davis' statement and, later, the results of the polygraphtest likely had a cumulative effect, leading defendant to confessfive times. See generally People v. Matthews, 205 Ill. App. 3d371, 407-08, 562 N.E.2d 1113 (1990) (finding sufficientattenuation where the defendant was given long periods of timealone to reflect on the investigation, the statements given byother witnesses which contradicted his own, and his failedpolygraph examination). We believe Davis' statement gave policeprobable cause to arrest defendant, thus purging the primarytaint of illegality before defendant made his inculpatorystatement. Additionally, confronting defendant with Davis'statement was an intervening circumstance capable of inducing avoluntary, although not immediate, desire to confess.

D. Purpose and flagrancy of police misconduct

Finally, we consider the purpose and flagrancy of any policemisconduct.

"[A]ttenuation is less likely to befound where the police misconduct in bringingabout the illegal arrest is flagrant. Policeaction is flagrant where the investigationwas carried out in such a manner to causesurprise, fear, and confusion, or where itotherwise has a 'quality of purposefulness,'i.e., where the police embark upon a courseof illegal conduct in hope that someincriminating evidence (such as the verystatement obtained) might be found." Peoplev. Jennings, 296 Ill. App. 3d 761, 765, 695N.E.2d 1303 (1998), citing Foskey, 136 Ill.3d at 86.

In this case, we find no evidence of flagrant policemisconduct. The police did not mistreat defendant during hisdetention and provided food, drink, and the opportunity to sleep. Moreover, defendant was not relentlessly interrogated after hisarrest.

Although their conduct fell just short of probable causewhen they arrested defendant, the police officers did not exploitthe illegality when obtaining defendant's statement. Beforedefendant gave his first inculpatory statement to police, Davis'incriminating statement, which was corroborated by previously-collected physical evidence, gave police probable cause to detaindefendant and attempt to illicit a confession. Defendant neverchallenged the legality of Davis' arrest, so there is nothingbefore us to suggest Davis' statement was the product of policemisconduct. Compare Wright, 294 Ill. App. 3d at 613 (confrontinga defendant with a reliable and legally-obtained statementincriminating him is an intervening circumstance), with People v.Beamon, 255 Ill. App. 3d 63, 70, 627 N.E.2d 316 (1993) ("theState's use of evidence obtained as a result of the illegalarrest of [a codefendant] may not serve to attenuate the taint of[another codefendant's] illegal arrest").

Finding no purposeful or flagrant misconduct, we believe thedeterrent purpose of the exclusionary rule would not be served byexcluding defendant's statements. See Ornelas, 295 Ill. App. 3dat 1047; Willis, 344 Ill App. 3d at 878 ("[t]he exclusionary ruleis a judicially-created remedy which serves to deter lawenforcement officials from violating the [Fourth Amendment] inthe future").

CONCLUSION

We believe Davis' statement to police was an interveningcircumstance that, in light of the other attenuation factors,sufficiently purged the taint of defendant's illegal arrestbefore he gave his court-reported statement. Accordingly, weaffirm the judgment of the circuit court.

Affirmed.

CAHILL, and GARCIA, JJ., concur.