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Docket No. 97454-Agenda 2-January 2005.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROY M. WILLIS, Appellee.

Opinion filed June 3, 2005.

JUSTICE FITZGERALD delivered the opinion of the court:

The fourth amendment prohibits unreasonable searches andseizures, and consequently prohibits an unreasonable delay betweena warrantless arrest and a probable cause determination. The fifthamendment prohibits involuntary self-incrimination, and consequentlyprohibits the admission of an involuntary confession into evidence attrial. When the defendant makes a confession during such a delay, theprotections provided by these amendments intersect. The central issuein this case is whether a confession that may comport with the fifthamendment must be suppressed because it was obtained after a delaythat violated the fourth amendment.

The appellate court decided that the proper test for theadmissibility of such a confession is whether it was attenuated fromthe taint of the delay and that the defendant's confession failed thattest. The appellate court reversed the defendant's felony criminaldamage to property conviction. 344 Ill. App. 3d 868. We concludethat the proper test for the admissibility of such a confession iswhether it was voluntary and that the defendant's confession passedthat test. We reverse the appellate court.

BACKGROUND

On the night of June 14, 1999, a fire started on the second-floorrear porch of a Chicago Heights apartment building. MorganBeauchamp, a 70-year-old resident of the building, died of smokeinhalation. The next day, the Chicago Heights police departmentassigned the fire investigation to Detective Michael Lueser.

Detective Lueser first spoke with Ralph Lawson, Beauchamp'snext-door neighbor. On the night of the fire between 8 and 9 p.m.,Lawson saw Kimbery Broadnex, the defendant's girlfriend andBeauchamp's reported paramour, retrieving a sweater from an areawhere she kept some clothes on Beauchamp's rear porch. Lawsonsaw Broadnex leave and less than an hour later, between 9:30 and9:45 p.m., saw the defendant looking for her. The defendant appearedangry and asked Lawson if he had seen Broadnex. Lawson answeredthat he had seen her, but that she had left. The defendant walked tothe rear of Beauchamp's apartment building and disappeared fromLawson's view. The defendant then reappeared a short time later andwalked away from the rear of the building. Lawson soon smelledsmoke and noticed a fire on the second-floor rear porch. Lawson sawBeauchamp standing on his front porch and told him to leave thebuilding, but Beauchamp went inside. Lawson did not see him again.

Detective Lueser then spoke with Broadnex. Broadnex had beenliving with the defendant until the day of the fire, when she moved herbelongings from the defendant's apartment to Beauchamp's rearporch. She was not near Beauchamp's apartment building when thefire started. Broadnex had a criminal case pending against thedefendant for beating her, but, after talking to Lawson about hisencounter with the defendant, she visited the defendant the nextmorning. The defendant told Broadnex that he was looking for her thenight before. She detected a burning odor emanating from under thedefendant's bed, but did not inquire about it.

Detective Lueser reviewed the fire marshal's reports. In an initialreport, the fire marshal stated that the fire started on the second-floorrear porch, but could not determine its origin or cause. In the officialreport, the fire marshal again concluded that the fire started on thesecond-floor rear porch. It was intentionally set with an open flame,but without an accelerant.

Almost a month later, on July 13, 1999, Detective Lueser finallylocated the defendant. Lueser and another officer asked the defendantto accompany them to the Chicago Heights police department; thedefendant agreed. He was not handcuffed and rode to the station in anunmarked squad car. At approximately 4 p.m., the defendant wasplaced in an interview room. Detective Lueser read Miranda warningsto the defendant from a preprinted form. The defendant said heunderstood his rights and signed the form. Over the course of severalhours, the defendant spoke with Lueser and his superiors, SergeantGary Miller and Sergeant Jeff Bohlen. The defendant denied anyinvolvement in the fire and denied going to the apartment building onthe night of the fire. At 8:30 p.m., when the defendant requested toleave, Detective Lueser refused and instead placed him under arrest.The defendant was moved to the lockup. According to Lueser, thedefendant was held pending further investigation. Detective Lueserleft work at 9 p.m. In his absence, no other officer worked on the caseagainst the defendant.

When Detective Lueser returned to work the next day at 1 p.m.,he attempted to track down Lawson, Broadnex, and any otherpossible witnesses to the fire. Although Lueser spent "more than half"of his eight-hour shift working on the defendant's case, he did notspeak to the defendant on July 14; nor did any other officers. Lueserleft work at 9 p.m. On July 15, 1999, while Detective Lueser againattempted to locate witnesses, Sergeant Miller asked the defendant ifhe would take a polygraph test. The defendant consented. SergeantMiller and another officer transported the defendant to the Chicagopolice department for the test. The polygraph examiner read Mirandawarnings to the defendant and administered the test. After the test, thepolygraph examiner told the defendant that he had failed and that hewas not telling the truth about his involvement in the fire. Thedefendant insisted the test was inaccurate. The officers took thedefendant back to the Chicago Heights police department, whereDetective Lueser spoke briefly with him around 8 p.m. about theresults of the polygraph test. The defendant continued to deny anyinvolvement in the fire.

On July 16, 1999, the police located Lawson and Broadnex andbrought them to the station. Around 5 p.m., Lueser again interviewedthe defendant. Detective Lueser repeated Miranda warnings to thedefendant. The defendant said he understood his rights, signed thepreprinted form, and spoke with Lueser for 20 minutes.Approximately 73 hours after his detention began, the defendantadmitted his involvement in the fire and agreed to make a writteninculpatory statement. In this statement, the defendant acknowledgedthat on the night of the fire he went to Beauchamp's rear porch tolook for Broadnex. The defendant did not find Broadnex, but noticedsome of her clothing hanging from a shelf and stuffed into pillowcases, as well as several boxes of her belongings. The defendantbecame upset and flicked a cigarette near the pillow cases because he"wanted to start some of her clothing on fire." According to thedefendant,

"My sole intention was to burn some of her property ***. Iknew that the cigarette would light everything on fire but Ididn't think it would spread beyond the storage room. AfterI threw the cigarette, I shut the storage door and then Iwalked outside ***."

Lawson later identified the defendant in a lineup. The next day at 7:30a.m., more than 87 hours after his detention began, the policepresented the defendant to a judge for a bond hearing.

The defendant was indicted on five counts of first degree murder.See 720 ILCS 5/9-1 (West 1998). He filed a motion to quash hisarrest. The circuit court of Cook County denied this motion, findingthat the police had probable cause to arrest him. The defendant alsofiled a motion to suppress his inculpatory statement, arguing, interalia, that his confession was involuntary. The trial court denied thismotion as well, stating:

"It seems clear to me that Mr. Willis was kept at the policestation so that they could question him and try to get astatement from him. The issue though is whether given theamount of time involved and the totality of the circumstancesthe statement made was involuntary.

I find that the statement made-the State has met theirburden of showing that the statement was voluntary based ondefendant's age, education, his intelligence. Even though theamount of time was long, that the totality of thecircumstances, for instance, he voluntarily went and took thepolygraph after 48 hours, and they were at adding another 24[hours]. There is no indication that he was otherwise coercedor attacked or anything during the subsequent 24 hours. Sothat will be the finding of the Court."

After a bench trial, the defendant was convicted of felony criminaldamage to property (see 720 ILCS 5/21-1 (West 1998)) andsentenced to three years' imprisonment. He appealed.

The appellate court affirmed the trial court's ruling on the motionto quash, but reversed its ruling on the motion to suppress. 344 Ill.App. 3d 868. Following Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d54, 95 S. Ct. 854 (1975), and County of Riverside v. McLaughlin,500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991), the appellatecourt stated that the defendant's "lawful detention became unlawfulin violation of the fourth amendment to the United States Constitutionafter the passage of 48 hours." 344 Ill. App. 3d at 878. The appellatecourt turned to the appropriate remedy for the fourth amendmentviolation and decided that the exclusionary rule should apply. 344 Ill.App. 3d at 884.

The appellate court then concluded that, under Brown v. Illinois,422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), thedefendant's inculpatory statement was not sufficiently attenuated fromhis illegal detention and should have been suppressed: "We find nointervening circumstances to explain defendant's decision to confessafter twice denying involvement, which leads us to believe theinherently coercive nature of the 73-hour detention produced aconfession that was not sufficiently an act of free will, purged ofprimary taint." 344 Ill. App. 3d at 886. Because the remainingevidence against the defendant did not provide proof beyond areasonable doubt, the appellate court reversed the defendant'sconviction. 344 Ill. App. 3d at 887.

We allowed the State's petition for leave to appeal. 177 Ill. 2d R.315(a). On the legal issues in this appeal, our review is de novo. SeePeople v. Burdunice, 211 Ill. 2d 264, 267 (2004).

ANALYSIS

Recently, in People v. Ballard, 206 Ill. 2d 151 (2002), wetouched upon the principles involved in this case. In discussingstatutory rules of presentment, we quoted the committee commentsto article 109 of the Code of Criminal Procedure of 1963. Ballard,206 Ill. 2d at 176. Because they succinctly frame the problem beforeus, we return to these comments:

"The most tedious and perplexing problem in the area iswhat happens between arrest and taking before a judicialofficer (magistrate) for a judicial hearing on probable cause.In practice, the time between arrest and hearing is that inwhich police officers question the accused and obtain, ifpossible, a confession. If the case is weak, there is a tendencyto delay. If a confession is obtained during such delay, shouldit be admissible in evidence at the trial?

Illinois continues to look at the confession cases solely inthe light of the voluntary-involuntary test. This basis isgrounded in the historical fact that involuntary confessionsare untrustworthy and should not be admissible [citation]. In1936 the federal courts began to exercise an influence in thisarea. [Citation.] This influence increased with the holding thatunnecessary detention alone between arrest and hearingbefore a commissioner was sufficient to render inadmissiblein evidence a confession obtained during such period, eventhough voluntary. [Citations.] Illinois, along with most states,has refused to follow the federal exclusionary rule in this areaand still tests the confession against all factors and applies thevoluntary-involuntary test [citation]." 725 ILCS Ann., art.109, Committee Comments-1963, at 3 (Smith-Hurd 1992)(revised in 1970).

The committee comments predicted that, because the United StatesSupreme Court adopted the exclusionary rule for fourth amendmentviolations in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct.1684 (1961), "it may not be long before the federal rule is extendedto the states in unnecessary delay cases, and it is not too inconceivablethat mere unnecessary delay, without a confession to consider, will beheld to be a violation of Due Process under the 14th Amendment."725 ILCS Ann., art. 109, Committee Comments-1963, at 3 (Smith-Hurd 1992) (revised in 1970).

This forecast proved too dire in one respect. The Court neverimposed the federal exclusionary rule-the so-called McNabb-Malloryrule⁽¹⁾-on the states. Instead, it remained a rule of evidence in federalcourt because it lacked a constitutional source. See People v. Jackson,23 Ill. 2d 274, 277 (1961), citing Gallegos v. Nebraska, 342 U.S. 55,63-64, 96 L. Ed. 86, 93-94, 72 S. Ct. 141, 146-47 (1951). However,the Court did eventually address the constitutionality of "mereunnecessary delay," five years after the committee comments wererevised, in Gerstein.

The Gerstein Court observed, "To implement the FourthAmendment's protection against unfounded invasions of liberty andprivacy, the Court has required that the existence of probable cause bedecided by a neutral and detached magistrate whenever possible."Gerstein, 420 U.S. at 112, 43 L. Ed. 2d at 64, 95 S. Ct. at 862. TheCourt then conceded that warrantless arrests are a practicalcompromise in which

"a policeman's on-the-scene assessment of probable causeprovides legal justification for arresting a person suspected ofcrime, and for a brief period of detention to take theadministrative steps incident to arrest. Once the suspect is incustody, however, the reasons that justify dispensing with themagistrate's neutral judgment evaporate. There no longer isany danger that the suspect will escape or commit furthercrimes while the police submit their evidence to a magistrate.And, while the State's reasons for taking summary actionsubside, the suspect's need for a neutral determination ofprobable cause increases significantly." Gerstein, 420 U.S. at113-14, 43 L. Ed. 2d at 65, 95 S. Ct. at 863.

Accordingly, the Court held that a judicial determination of probablecause must precede an "extended restraint of liberty following arrest."Gerstein, 420 U.S. at 114, 43 L. Ed. 2d at 65, 95 S. Ct. at 863. TheCourt left the states free to fashion appropriate procedures, providedthey afford a fair and reliable judicial determination of probable causeeither before or "promptly" after an arrest. Gerstein, 420 U.S. at 125,43 L. Ed. 2d at 71-72, 95 S. Ct. at 868-69.

The Court defined "promptly" in McLaughlin. The Court initiallyobserved, "Gerstein held that probable cause determinations must beprompt-not immediate." McLaughlin, 500 U.S. at 54, 114 L. Ed. 2dat 61, 111 S. Ct. at 1669. Noting that this flexibility provedproblematic for lower courts left to grapple with systematic challengesto state procedures that tried to meet this vague standard, the Courtstated:

"Our task in this case is to articulate more clearly theboundaries of what is permissible under the FourthAmendment. Although we hesitate to announce that theConstitution compels a specific time limit, it is important toprovide some degree of certainty so that States and countiesmay establish procedures with confidence that they fall withinconstitutional bounds. Taking into account the competinginterests articulated in Gerstein, we believe that a jurisdictionthat provides judicial determinations of probable cause within48 hours of arrest will, as a general matter, comply with thepromptness requirement of Gerstein. For this reason, suchjurisdictions will be immune from systematic challenges."McLaughlin, 500 U.S. at 56, 114 L. Ed. 2d at 62-63, 111 S.Ct. at 1670.

The Court further stated that even if a probable cause hearing isheld within this 48-hour window, the State may still violate Gersteinif the defendant can prove unreasonable delay-for example, delay togather additional evidence to justify retroactively the defendant'sarrest, delay to show ill will toward the defendant, or delay for its ownsake. McLaughlin, 500 U.S. at 56, 114 L. Ed. 2d at 63, 111 S. Ct. at1670. The Court continued:

"Where an arrested individual does not receive a probablecause determination within 48 hours, the calculus changes. Insuch a case, the arrested individual does not bear the burdenof proving an unreasonable delay. Rather, the burden shifts tothe government to demonstrate the existence of a bona fideemergency or other extraordinary circumstance."McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, 111 S. Ct.at 1670.

Here, the defendant was held for more than 87 hours after hiswarrantless arrest before he was presented to a judge for a probablecause determination. He confessed after 73 hours. The appellate courtwas correct: the State has never contended or attempted to show thatthis delay was defensible due to an emergency or extraordinarycircumstance. 344 Ill. App. 3d at 878. The defendant's detention thusran afoul of Gerstein and McLaughlin, and we must decide the properremedy. Since McLaughlin, the Supreme Court has remained silent onthis issue, declining to answer whether an inculpatory statementobtained during an unreasonably long delay must, for that reason, besuppressed. See Powell v. Nevada, 511 U.S. 79, 84-85, 128 L. Ed. 2d1, 7-8, 114 S. Ct. 1280, 1283-84 (1994).

The vast majority of jurisdictions have approached this problem,like the trial court did here, as a simple matter of voluntariness. See 2W. LaFave, Criminal Procedure