22 August 2000

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Modified Upon Denial of Rehearing

JUSTICE THOMAS delivered the opinion of the court:

After a jury trial, the defendant, Svondo Watson, was convicted on July 29,1998, of first-degree murder, attempted first-degree murder and aggravatedbattery. The trial court sentenced him to a term of imprisonment of 60 years forthe murder conviction, 30 years for the attempted murder conviction, and 30 yearsfor the aggravated battery conviction. The 30-year sentences were to runconcurrently with each other but consecutive to the 60-year sentence. Thedefendant appeals his convictions, contending that the trial court erred infailing to suppress his confessions to the crimes. Specifically, the defendantcontends (1) that his confessions were the tainted fruit of evidence that wasillegally seized earlier in the day, and (2) that the police denied him accessto his attorney in violation of his constitutional rights.

The record reveals that the defendant was initially convicted in this caseon June 9, 1996. However, on appeal this court reversed the defendant's convictions and remanded the cause for a new trial, finding that the defendant'strial counsel was ineffective in failing to file a motion to suppress evidenceof bullets that were found in a safe in a bedroom closet in the first-floorapartment located at 1628 North Linder, Chicago, Illinois. See People v.Watson, No. 2--95--0809 (unpublished order under Supreme Court Rule 23 (1996)). The building searched was a two-flat building that contained separate apartmentson the second floor and first floor, with an additional basement apartment. Thesearch warrant executed by police permitted the officers to search the entirebrick, two-story premises at 1628 North Linder in Chicago. However, thecomplaint requested a search warrant for "the house" that the defendant "wasfound at in Chicago." The complaint, written in narrative form by Detective CarlAlagna, also stated that the defendant's brother, Changa Harris, told police thatif the defendant was going to use a gun it would have been a .380-caliber gunthat belonged to the defendant's cousin. According to the complaint, Harris alsotold police that the defendant's cousin lived at the same house with Harris andthe defendant.

This court found that it was apparent from the officers' testimony that atthe time they requested the issuance of the warrant they knew or reasonablyshould have known that the premises consisted of separate living quarters. Additionally, the officers knew that the defendant occupied only the second-floorapartment. Thus, probable cause existed to search on the second-floor apartment,not the first-floor apartment where the incriminating evidence was found.

On remand for a new trial, the defendant filed motions to quash his arrest,to suppress evidence seized pursuant to the execution of the search warrant, andto suppress statements the defendant made to the police following his arrest. At the hearing on the defendant's motions, the State presented evidenceindicating that Leo McDaniel was fatally shot while sleeping in his apartmentduring the early morning hours of June 7, 1997. McDaniel's girlfriend, KeishaTwitty, was present during the shooting and later identified the defendant as theshooter to the police. The defendant had stayed at the apartment the previouscouple of nights and was expected to return that night. He had a key to theapartment and was the only other person besides McDaniel and Twitty with a keyto the apartment. Twitty specifically remembered locking the door before shewent to bed that night, and there was no forced entry. The police found areceipt with the defendant's address in McDaniel's apartment. When the policewent to the location mentioned on the receipt, they found a vehicle matching thedescription of the type of vehicle driven by the defendant. Upon arriving at thedefendant's apartment, the defendant told police that "Svondo Watson was notthere" and that "Watson had been in jail for the past two weeks." The trialcourt granted the defendant's motion to suppress items seized during the searchbut denied the motion to suppress the defendant's arrest.

The hearing then continued on the questions presented by the defendant'smotion to suppress the defendant's statements to police following his arrest. Lombard police detective Carl Alagna testified that he arrested the defendant andChanga Harris around 10 a.m. on June 7, 1994, at the defendant's home and broughtthem to the Lombard police department. Officer Alagna read the defendant hisMiranda warnings, and the defendant told the officer that he understood each ofhis rights, including his rights to remain silent and to have an attorneypresent. The defendant then voluntarily spoke with Alagna for about 25 minutes. Officer Sticka was also present during the conversation. At that time, thedefendant denied involvement in the shooting but acknowledged his associationwith the victim. Alagna did not remember whether he mentioned to the defendantthat Twitty had positively identified the defendant as the shooter. However,Alagna further testified that he did not believe that he did mention Twitty'sidentification to the defendant because he would have placed that fact in thepolice report if he had mentioned it.

Officer Alagna further testified that he again spoke with the defendantaround 3:30 p.m. that same day. Officer Dane Cuny was also present for thisconversation. Cuny asked the defendant if he still understood his rights, andthe defendant responded that he did. According to Alagna, the defendant did notassert any of his Miranda rights while he was present, and Alagna was not advisedby anyone that an attorney had called attempting to locate the defendant.

Lombard police lieutenant Dane Cuny testified that he interviewed thedefendant at 3:30 p.m. on June 7, 1994, at the Lombard police station. Theinterview lasted about 10 to 15 minutes. Around 5:30 p.m., Cuny was informedthat the defendant wanted to speak with him. When Cuny then went to theinterview room, he asked the defendant if he still understood the Mirandawarnings that had been read to him earlier that day and if he wanted to talk. The defendant replied that he understood his rights and wanted to tell the truth. When the defendant began describing specifics about where he discarded a weapon,Officer Cuny stopped the interview because Cuny wanted to get a notepad and bringanother officer into the interview room. About 5 or 10 minutes later, Cunyreturned to the interview room with Officer Rick Montalto. At that point, thedefendant denied the previous admissions he had made. However, the defendant didnot at any time assert any of his Miranda rights, including his right to remainsilent or his right to consult with an attorney. Cuny further noted that he hadnot told the defendant that he had been positively identified by Twitty.

Lombard police detective Rick Montalto testified that he and SergeantRichard Spika took the defendant to the polygraph examining facility about twoor three miles from the police station. They were at the facility for about 30minutes when they decided to return to the station without having the polygraphtest administered because they had received a report that the defendant'sbrother, Changa Harris, was providing some information to the police. Theyreturned with the defendant to the police station around 2:30 or 2:45 p.m. Officer Montalto did not have any further contact with the defendant until 5:30p.m., when Officer Cuny asked Montalto to come to the interview room to witnessa statement by the defendant. Montalto noted that the defendant recanted thestatement he had apparently made to Officer Cuny. Montalto was in the interviewroom with the defendant for about five minutes. The defendant was then taken toan interview room in the booking area, which was next to the room his brother wasin. Between the two rooms was a small two-way mirror and a speaker. Thedefendant got on the speaker and made some comments to his brother "about givinghim up or something to that effect." When Montalto and the other officers heardthe comments, they took Harris to a different room.

Officer Montalto further testified that he brought a McDonald's dinner tothe defendant around 6:30 p.m. The next time he had any contact with thedefendant was around 8:15 p.m., when he went into the interview room to collectthe defendant's garbage from dinner and to ask the defendant if he needed to goto the bathroom. When Montalto asked the defendant if he needed to go to thebathroom, the defendant asked Montalto "what was going on." Montalto told thedefendant that the only information he had was that "some of our detectives hadgone back to the house on Linder and served a search warrant and had recovereda couple of items, not knowing what they were. And then they were on their wayback to the station at this point." The defendant then told Montalto that hewanted to talk to him, and the defendant then made an admission with respect tothe shooting in question. The conversation between the defendant and Montaltolasted from 8:15 until 8:45 p.m. About 8:45 p.m. Montalto called Officer Spikainto the interview room and the defendant reiterated his incriminating statementsin the presence of Spika. That conversation ended about 9 p.m. The defendantthen requested to speak to Assistant State's Attorney Brian Nigohosian, who hadspoken with the defendant earlier in the day. After being paged, Nigohosianarrived at the Lombard police department about 9:20 p.m. According to Montalto,Nigohosian entered through the front door and lobby area of the building becausethat was the only way to get into the building without a security code. OfficersMontalto and Spika then talked with Nigohosian for about 10 minutes about thestatements that the defendant had made. With Officers Montalto and Spikapresent, Nigohosian then spoke to the defendant until 10 p.m., during which timethe defendant again made admissions.

Officer Montalto also testified that around 10 p.m. it was decided that thedefendant's statement should be tape-recorded. Montalto and Nigohosian then leftthe room to find a tape recorder and batteries. While they were looking forbatteries, the receptionist in the lobby advised Montalto that an attorney wasin the lobby and wanted to speak with the defendant. Montalto immediately toldNigohosian about the attorney, and the defendant was not interviewed any further. This was the first time that Montalto was aware that an attorney for thedefendant was at the police station or on the way to the police station. OfficerMontalto noted that if a person dialed 911 he or she would receive a dispatchcenter in Wheaton and not the receptionist at the Lombard station. At any rate,Montalto was also not aware of any phone calls made to the Lombard police stationfrom an attorney that day.

Assistant State's Attorney Brian Nigohosian testified that around 1 p.m.on June 7, 1994, he had a 20-minute conversation with the defendant at theLombard police station. During the conversation, Nigohosian told the defendantthat "[Twitty] had seen him, or words to that effect, and identified him as beingthe shooter." Later that same day, around 9 p.m., Nigohosian was paged andreturned to the Lombard police station. He arrived about 9:20 p.m. and enteredthrough the lobby. At the time, he did not see anyone else in the lobby area,including the defendant's family members. While he was not specifically lookingfor them, he noted that the lobby is not a very large area.

Nigohosian further testified that, when he arrived at the station, he knewthat the police had executed the search warrant and had recovered bullets and abackpack with the defendant's name on it. Nigohosian did not recall talking tothe defendant about the items recovered because their conversation dealt mainlywith the defendant telling Nigohosian facts and details. Nigohosian'sconversation with the defendant in the presence of Montalto and Spika ended about10 p.m., when the defendant agreed to give a tape-recorded statement. WhileNigohosian and the other officers were looking for a tape recorder, Nigohosianwas informed that attorney Tod Urban had arrived at the police station to see thedefendant. At that point, Nigohosian called his supervisor and then spoke withattorney Urban. Nigohosian then went back to the booking area and informed thedefendant that an attorney was at the station to see the defendant. Thedefendant indicated that he wanted to see the attorney.

Nigohosian noted that there was no further conversation with the defendantafter Nigohosian was told that an attorney was present. Nigohosian was notinformed that an attorney had called earlier that day, and the defendant did notrequest an attorney or assert his right to remain silent at any point. While hewas not positive, Nigohosian believed that Urban showed up after the interviewwith the defendant while the officers were looking for a tape recorder. Nigohosian recalled that when he went into the lobby area after talking with thedefendant around 10 p.m. he saw the defendant's family members with attorneyUrban.

Lombard police sergeant Richard Spika testified that he became aware around8:30 p.m. on June 7, 1994, that Sergeant Sticka had executed a warrant at 1628North Linder. Spika stated that, although he did not remember exactly, heprobably was advised of the execution of the warrant by either radio, phone, or a transmission from the front desk. He noted that he never asked what wasrecovered, and he did not receive any information about what was recovered. Spika stated that, prior to the time that he went into the interview room withOfficer Montalto, he told Montalto that Officer Sticka had executed the searchwarrant and was on his way back to the station. Spika noted that he did not tellMontalto about any specific items recovered because Spika did not know what hadbeen recovered.

Officer Spika further testified that around 8:45 p.m. Officer Montaltoasked him to witness a statement by the defendant. At the conclusion of thestatement, the defendant requested to talk with the assistant State's Attorney. Spika then contacted Nigohosian, and Nigohosian arrived at the station around9:20 p.m., through the lobby. Officers Spika and Montalto then explained toNigohosian what had transpired. Nigohosian then interviewed the defendant withthe two officers present. When the interview concluded around 10 p.m., Spikaleft the booking area and within minutes met Officer Sticka coming into thestation through the back door of the building with the defendant's mother,Delores Harris, and the defendant's grandmother. They went directly to aconference table in the investigations area. This was an interior part of thestation and not part of the lobby. In the presence of the defendant's mother andgrandmother, Spika sat at the conference table and counted the money seizedduring the search. It took about 15 to 20 minutes to count the money. As theyfinished counting, Officer Spika received a page from the front desk and wasadvised that attorney Urban was at the station.

Attorney Tod Urban testified that on June 7, 1994, he was in the midst ofa trial at the criminal courts building, at 26th and California in Chicago, whenhe received a message from the defendant's father. Urban spoke over thetelephone with the defendant's mother about 1 or 1:30 p.m. Urban told her thathe was in the midst of a trial and would not be able to get there until later. Urban made some phone calls and found out that the defendant was located at theLombard police department. Urban had some additional matters pending in thecriminal courts building at 4 p.m. He finally left for the Lombard policedepartment around 7:30 p.m.

Urban testified as follows with respect to the telephone calls he made thatday:

"Q. Prior to going out [to the Lombard police department] did youmake any calls to any of the dispatchers or to the dispatcher?

A. I believe I called -- One of the times I called I did inform --Honestly I don't recall who I talked to but I did tell someone when I wason my way.

Q. What did you say to the best of your knowledge?

A. That I was an attorney and been retained by the family and I wason my way from 26th Street to the police department.

Q. Did you tell them who you were there to see?

A. Yes.

Q. Who did you say you were there to see?

A. Svondo Watson.

Q. Did you give them any other directions at the time?

A. I don't know what time you are talking about.

Q. When you called the dispatcher.

A. Honestly I cannot say that I did or didn't for sure.

Q. What time did you arrive at the police station.

A. My memory is maybe 8:30, quarter to nine. Somewhere aroundthere.

Urban further testified that he did not get to the Lombard police station untilit was dark. When he arrived at the station, the defendant's mother was alreadythere. Urban had a conversation with her when he first walked into the station. Urban then went to the front desk, and, after identifying himself, he asked tosee the defendant. Urban stated that he waited "a minimum of probably fiveminutes and maybe no more than forty-five minutes" before he saw the defendant. Urban claimed that while he waited in the lobby he became very anxious and angryto get in to see the defendant and he went up to the front desk several times. Urban noted that an assistant State's Attorney eventually came out and explainedto him that the defendant had just finished making a statement and they wereabout to record it. This was the first time that Urban had seen that assistantState's Attorney. Urban told the police that there would not be a recording ofany statement and that all conversations with the defendant would cease. Urbanacknowledged that as far as he knew his requests were honored.

Delores Harris testified that in June 1994 she lived at 1628 North Linder,in Chicago, in a second-floor apartment with her two sons (the defendant andChanga Harris). She stated that the building is a two-flat but has threeseparate apartments. She noted that her brother and uncle lived in the basementand the defendant's sister lived on the first floor. When the police came toarrest her son around 10:30 a.m., she was in the first-floor apartment gettingready for work because the gas had been shut off in her apartment. She notedthat the police returned around 6 p.m. and searched the building. When thesearch was completed, the police took her to the Lombard police station. She didnot recall what time she arrived at the Lombard police station. After shearrived at the station, she talked with attorney Urban in the lobby area. Shedid not know what time it was when she saw Urban at the station.

Based on the foregoing evidence, the trial court denied the defendant'smotion to suppress the statements that he made to the police officers andAssistant State's Attorney Nigohosian following his arrest. The trial courtspecifically found that the defendant was not denied his right to an attorney. In that regard, the court found that Urban probably arrived at the Lombard policestation sometime after 10 p.m., made his presence known, and was immediately ledto the back of the station. With respect to Urban's claims that he had madephone calls to the Lombard station, the trial court noted that Urban did nottestify to anything more than "I'm looking for Svondo Watson." Moreover, Urbandid not ask to speak with the defendant and did not direct that police officersnot speak with the defendant. The trial court also found that the defendantinitiated the after-dinner conversation with Officer Montalto, that OfficerMontalto merely responded to the defendant's question about what was going on inthe case, and that Montalto did not confront the defendant with any specificitems that had been recovered in the search. Consequently, the trial courtconcluded, the defendant was not under "interrogation" when he made theinculpatory statements to the police and was not "confronted" with the proceedsfrom an unlawful search.

On appeal, the defendant first argues that the trial court incorrectlydetermined that in making his inculpatory statements the defendant had"initiated" the conversation with the police and that the conversation had notbeen an "interrogation." The defendant further argues that the trial court erredin finding that the defendant had not been "confronted" with illegally seizedevidence.

In response, the State points out that the cases cited by the defendant insupport of his argument on the interrogation issue are all distinguishable. TheState notes that, in each of the cases cited by the defendant, the suspectsexpressly asserted their rights to counsel and silence, and yet the policenevertheless subsequently obtained incriminating statements from the suspects. See Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983);Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980);People v. Olivera, 164 Ill. 2d 382 (1995); People v. Sanders, 55 Ill. App. 3d 178(1977); People v. Ruegger, 32 Ill. App. 3d 765 (1975). In contrast, the instantdefendant was warned of his Miranda rights at the outset of the interrogation,and he stated several times throughout the day that he understood them. TheState maintains that the defendant waived his rights to silence and counsel byagreeing to speak with the officers throughout the day without asserting hisrights at any time.

Generally, a trial court's ruling on a motion to suppress will not bedisturbed unless it is manifestly erroneous. People v. Gonzalez, 184 Ill. 2d402, 411 (1998). This deferential standard of review applies where thesuppression motion turns upon findings of fact and is grounded in the realitythat the trial court is in a superior position to determine and weigh thecredibility of the witnesses, observe the witnesses' demeanor, and resolve anyconflicts in the testimony. Gonzalez, 184 Ill. 2d at 412. Where only a questionof law is involved, however, the trial court's ruling is subject to de novoreview. People v. Carlson, 185 Ill. 2d 546, 551 (1999). In reviewing a rulingon a motion to suppress, a reviewing court may consider evidence presented attrial as well as evidence presented at the suppression hearing. People v. Buss,187 Ill. 2d 144, 204 (1999).

We note that the prosecution may not use statements, whether exculpatoryor inculpatory, stemming from the custodial interrogation of the defendant unlessit demonstrates the use of procedural safeguards effective to secure theprivilege against self-incrimination. Rhode Island v. Innis, 446 U.S. at 297,64 L. Ed. 2d at 305, 100 S. Ct. at 1688, citing Miranda v. Arizona, 384 U.S. 436,444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612 (1966). Those safeguards arethe now familiar Miranda warnings. Innis, 446 U.S. at 297, 64 L. Ed. 2d at 305,100 S. Ct. at 1688. The Supreme Court in Miranda held:

"Prior to any questioning, the person must be warned that he has a rightto remain silent, that any statement he does make may be used as evidenceagainst him, and that he has a right to the presence of an attorney,either retained or appointed. The defendant may waive effectuation ofthese rights, provided the waiver is made voluntarily, knowingly andintelligently. If, however, he indicates in any manner and at any stageof the process that he wishes to consult with an attorney before speakingthere can be no questioning. Likewise, if the individual is alone andindicates in any manner that he does not wish to be interrogated thepolice may not question him." Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d706-07, 86 S. Ct. at 1612.

The Court in Miranda defined "custodial interrogation" as "questioning initiatedby law enforcement officers after a person has been taken into custody orotherwise deprived of his freedom of action in any significant way." Miranda,384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612. In Innis, the SupremeCourt considered the meaning of the term "interrogation" under Miranda. Innis,446 U.S. at 298, 64 L. Ed. 2d at 306, 100 S. Ct. at 1688. There, upon beingarrested and advised of his Miranda rights, the defendant asserted his right tocounsel. Innis, 446 U.S. at 294, 64 L. Ed. 2d at 303, 100 S. Ct. at 1686. Whileen route transporting the defendant to the police station, the two officersengaged in a conversation about a missing shotgun. Innis, 446 U.S. at 294, 64L. Ed. 2d at 303-04, 100 S. Ct. at 1686. One of the officers stated that therewere a lot of disabled children in the area and it would be a shame if one of thechildren found the weapon and was hurt. Innis, 446 U.S. at 294-95, 64 L. Ed. 2dat 304, 100 S. Ct. at 1686-87. At that point, the defendant interrupted theconversation and told the officers that he could show them where the gun waslocated. Innis, 446 U.S. at 295, 64 L. Ed. 2d at 304, 100 S. Ct. at 1687. TheCourt noted that Miranda had held that, once a defendant in custody asks to speakto a lawyer, all interrogation must cease until the lawyer is present. Innis,446 U.S. at 297, 64 L. Ed. 2d at 305-06, 100 S. Ct. at 1688. The Innis Courtheld that the term "interrogation" under Miranda refers not only to expressquestioning but also its functional equivalent--any words or actions on the partof the police (other than those normally attendant to arrest and custody) thatthe police should know are reasonably likely to elicit an incriminating response. Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1689-90. The Courtthen concluded that the short conversation between the officers did not amountto an "interrogation" because it could not be said that the officers should haveknown that their conversation was reasonably likely to elicit an incriminatingresponse. Innis, 446 U.S. at 302-03, 64 L. Ed. 2d at 308-09, 100 S. Ct. at 1690-91.

From the foregoing discussion of Miranda and Innis, it is clear thatstatements made to the police pursuant to custodial interrogation are admissibleprovided that the defendant has voluntarily, knowingly, and intelligently waivedhis rights. Additionally, we note that an express written or oral statement bythe accused of his desire to waive the right to remain silent or the right tocounsel is not required for a valid waiver, although it is considered strongproof of waiver. North Carolina v. Butler, 441 U.S. 369, 373, 60 L. Ed. 2d 286,292, 99 S. Ct. 1755, 1757 (1979); People v. Rogers, 123 Ill. 2d 487, 495 (1988). A defendant's silence, coupled with an understanding of his rights and a courseof conduct indicating waiver, may support a conclusion that the defendant haswaived his rights. Butler, 441 U.S. at 373, 60 L. Ed. 2d at 292, 99 S. Ct. at1757. Waiver can be inferred from the actions and words of the personinterrogated. Butler, 441 U.S. at 373, 60 L. Ed. 2d at 292, 99 S. Ct. at 1757. The question of waiver must be determined on the particular facts andcircumstances surrounding the case, including the background, experience, andconduct of the accused. Butler, 441 U.S. at 374-75, 60 L. Ed. 2d at 293, 99 S.Ct. at 1758. Once an accused has been advised of his Miranda warnings andacknowledges his understanding of them, the voluntariness of his subsequentstatement is not compromised by the police's failure to repeat the warnings ateach successive interview. People v. Hobley, 159 Ill. 2d 272, 294 (1994). TheState need prove waiver of Miranda rights only by a preponderance of theevidence. Colorado v. Connelly, 479 U.S. 157, 168, 93 L. Ed. 2d 473, 485, 107S. Ct. 515, 522 (1986); People v. Reid, 136 Ill. 2d 27, 54-56 (1990).

Because we find that the college-educated defendant clearly waived hisrights to silence and counsel by stating that he understood his rights andagreeing to talk to the officers throughout the day without asserting thoserights until sometime after the statements were made, we conclude that thedefendant's statements were admissible even if the defendant was subjected to"custodial interrogation" at the time of the statements. Thus, the authoritiescited by the defendant in support of his argument are all distinguishable and donot indicate that, under the facts of the present case, the defendant'sstatements must be suppressed simply because he may not have technically"initiated" the questioning and may have been under "custodial interrogation" atthe time of his statements.

The defendant relies on the Illinois Supreme Court's decision in Oliverain support of his position. Unlike the defendant in the present case, thedefendant in Olivera invoked his right to the presence of counsel, and hisattorney visited him while in custody and advised him not to make any statementsto police. Olivera, 164 Ill. 2d at 386-87. The defendant was then taken to alineup. Afterwards, the defendant asked the police officer, "What happened?" The officer responded by telling the defendant that he had been positivelyidentified. Olivera, 164 Ill. 2d at 387. The defendant then asked the officer,"What happens next?" The officer then readvised the defendant of his rights, andthen the defendant made incriminating statements to the officer. Olivera, 164Ill. 2d at 387. The supreme court noted the rule that, once the defendantinvokes his right to counsel, he cannot be questioned further unless he initiatesthe questioning "in a way evincing a willingness and a desire for a generalizeddiscussion concerning the investigation" and subsequent events indicate a waiverof the right to have counsel present during interrogation. Olivera, 164 Ill. 2dat 390, citing Bradshaw 462 U.S. at 1445-46, 77 L. Ed at 412, 103 S. Ct. at 2835(there, the defendant invoked his right to counsel, later he "initiated" furtherconversation, and then he knowingly and voluntarily waived his right to silenceand counsel). The court in Olivera concluded that the defendant's statement wasnot admissible because his initial question after the lineup did not evince awillingness for a generalized discussion about the investigation, and the properresponse on the part of the police to the question would have been to advise thedefendant of his rights. Olivera, 164 Ill. 2d at 290-92. Given that thedefendant in Olivera asserted his right to counsel before making his statement,we find Olivera to be distinguishable from the present case. Each of the othercases cited by the defendant in support of his position is similarlydistinguishable. See, e.g., United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d115, 100 S. Ct. 2183 (1980) (incriminating statements were made by accused toundercover informant while in custody after sixth amendment right to counsel hadattached); People v. Sanders, 55 Ill. App. 3d 178 (1977) (incriminatingstatements made by accused after he asserted his Miranda rights); Ruegger, 32Ill. App. 3d 765 (incriminating statements made after the defendant asserted hisright to silence).

We now turn to the defendant's contention that his confession wasinadmissible because he was "confronted" with the fruits of an illegal search andthe confrontation was a factor in his decision to confess. See People v. Bates,267 Ill. App. 3d 503, 507 (1994). The defendant claims that Officer Montalto'sversion regarding what he told the defendant had been recovered during the searchwas not credible. Specifically, the defendant points out that Montalto testifiedthat he did not know at the time of the confession what had been recovered duringthe search, but Assistant State's Attorney Nigohosian testified that Nigohosianknew about the bullets that had been recovered during the search before heinterviewed the defendant. The defendant suggests that Montalto told Nigohosianabout the bullets before the defendant's statement and that the record might haveexplicitly shown that fact if the defendant had been allowed to ask Nigohosianwho told him about the bullets. However, the trial court sustained the State'sobjection to the questioning on the matter, finding that it was an attempt toimpeach Montalto on a collateral matter. Citing People v. Melock, 149 Ill. 2d423 (1992), the defendant argues that the trial court improperly prevented himfrom presenting the circumstances surrounding his confession.  In response, theState argues that the trial court properly denied the defendant's attempt toimpeach Montalto because, even assuming that Montalto told Nigohosian at 9:20p.m. about the bullets, that fact would not indicate that Montalto had suchinformation when he talked to the defendant at 8:15 p.m.

We find that the trial court properly denied the defendant's attemptedimpeachment of Montalto in asking Nigohosian who had told him about the bullets. The defendant did not lay a proper foundation for the testimony by first givingMontalto an opportunity to deny that he told Nigohosian about the bullets. Wealso agree that it was a collateral matter because, even if Montalto had toldNigohosian about the bullets at 9:20 p.m., it would not have shown that Montaltoknew about the bullets at the time Montalto told the defendant of the search.

The defendant's reliance on Melock is unpersuasive. There, the court heldthat the defendant was entitled to present the results of a polygraph examinationsolely for purposes of determining the reliability of his confession where thedefendant claimed that the examiner falsely told the defendant that he failed thetest. Melock, 149 Ill. 2d at 458-65. Unlike Melock, the defendant in thepresent case was not deprived of his ability to present the circumstancessurrounding his confession.

The defendant argues that, even if Montalto only told him that the officershad recovered "a couple of items" during the search, it would still be asufficient confrontation with "fruit from the poisonous tree" to warrant thesuppression of the defendant's statements.

If a defendant's knowledge that illegally seized evidence was recovered mayhave been a factor in his decision to confess, then suppression may be proper. People v. Bates, 267 Ill. App. 3d 503, 507 (1994). As a general rule,confronting a suspect with evidence tends to induce a confession by demonstratingthe futility of remaining silent. People v. Turner, 259 Ill. App. 3d 979, 991(1994). In Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct.407 (1963), the Supreme Court stated the following:

"We need not hold that all evidence is 'fruit of the poisonous tree'simply because it would not have come to light but for the illegal actionsof the police. Rather, the more apt question in such a case is 'whether,granting establishment of the primary illegality, the evidence to whichthe instant objection is made has been come at by exploitation of thatillegality or instead by means sufficiently distinguishable to be purgedof the primary taint.'" Wong Sun, 371 U.S. at 487-88, 9 L. Ed. 2d at 455,83 S. Ct. at 417, quoting J. Maguire, Evidence of Guilt 221 (1959).

The question of whether a confession has been obtained by the exploitation of aprior illegal police action must be answered based on all the facts of each case,and no single fact is dispositive. Brown v. Illinois, 422 U.S. 590, 603, 45 L.Ed. 2d 416, 427, 95 S. Ct. 2254, 2261 (1975). Among the relevant factors to beconsidered in making the determination of whether the statement is sufficientlyattenuated from prior illegal conduct are (1) whether Miranda warnings weregiven; (2) the temporal proximity of the primary illegality and the confession;(3) the presence of intervening circumstances; and (4) particularly, the purposeand flagrancy of the official misconduct. Brown, 422 U.S. at 603-04, 45 L. Ed.2d at 427, 95 S. Ct. at 2254. The burden of showing admissibility rests on theprosecution. Brown, 422 U.S. at 604, 45 L. Ed. at 427, 95 S. Ct. at 2261-62. Once a defendant establishes the illegality of the police conduct and shows itsconnection to what is alleged to be the fruit of that illegality, the State hasthe burden of proving by clear and convincing evidence that the challengedevidence--in this case, the defendant's inculpatory statements--was obtained bymeans sufficiently distinguishable to be purged of the primary taint. Turner,259 Ill. App. 3d at 992.

In the instant case, the trial court found that the defendant had not been"confronted" with the proceeds from an illegal search. The trial court based itsruling on the fact that the defendant was not being questioned or interrogatedat the time the police officer told him about the search, the defendant initiatedthe conversation with the officer, and the officer merely answered thedefendant's question. Furthermore, the court found that the officer did notmention any particular items that had been recovered during the search and thedefendant did not ask what had been recovered. The trial court found that theofficer was a credible and truthful witness. The trial court also specificallyfound that the officer did not know what had been recovered during the search atthe time he responded to the defendant's question. The court noted the completelack of any intent on the part of the officer to use specific items of the searchto confront the defendant. Finally, the court noted that it was likely that thedefendant decided to confess at the point he did because he knew that KeishaTwitty had survived the shooting and would be able to identify him, and he knewthat his brother was also being questioned by police and the defendant apparentlythought that his brother had "given him up."

In Turner, the police illegally searched the defendant's parents' house andseized a pair of bloodstained shoes. Turner, 259 Ill. App. 3d at 982. Thepolice confronted the defendant with the bloodstained shoes and with the factthat his alibi had proved to be false. Turner, 259 Ill. App. 3d at 983. TheState argued that it was the defendant's knowledge that his alibi proved to befalse that induced his subsequent confession. Turner, 259 Ill. App. 3d at 991. The appellate court applied the Brown factors and concluded that, because thedefendant's knowledge of the illegally seized evidence may have been a factor inhis decision to confess and the police "exploited the fruits" of that illegalseizure, the trial court should have suppressed the defendant's confession. Turner, 259 Ill. App. 3d at 991-94.

In Bates, the defendant was confronted with the incriminating statementsof his codefendant and the gun and drugs found as a result of the codefendant'sstatement. Bates, 267 Ill. App. 3d at 506. The codefendant's statements hadbeen illegally coerced. Bates, 267 Ill. App. 3d at 506. As a result, theappellate court found that, because the defendant's knowledge of the illegallyseized evidence may have played a part in his decision to confess, thedefendant's confession had to be suppressed. Bates, 267 Ill. App. 3d at 506-07.

In People v. Jennings, 296 Ill. App. 3d 761, 763 (1998), the defendant wasarrested without probable cause. He confessed at the police station afterofficers illegally seized his jacket. Jennings, 296 Ill. App. 3d at 763. Thedefendant had also been confronted with other proper evidence prior to hisconfession. Jennings, 296 Ill. App. 3d at 766. The court considered the issueof attenuation and applied the Brown factors. The court noted that admittedlythe defendant was not "confronted," in the literal sense of the word, with thejacket, i.e., he was never directly told a witness to the murder had identifiedthe perpetrator as wearing the exact same jacket. Jennings, 296 Ill. App. 3d at767. Nevertheless, the illegal seizure of the defendant's jacket occurred as hewas being led into the interrogation room in which he would admit to shooting thevictim. Jennings, 296 Ill. App. 3d at 767. Moreover, the court noted, the factthat the defendant was wearing the jacket inside out suggested that he was awareof the potentially incriminating nature of the jacket. Jennings, 296 Ill. App.3d at 767.

Turning to the present case, we believe that the trial court correctlyconcluded that the defendant was not confronted with the proceeds of an illegalsearch as were the defendants in Turner, Bates, and Jennings. Here, OfficerMontalto did not mention any specific items that had been recovered during thesearch and only mentioned the search in passing and in response to thedefendant's question. Although the defendant in Jennings was not technically"confronted" with his jacket, the fact that the police seized the jacket from hisperson and that he was wearing it inside out at the time suggested that he wasaware of the incriminating nature of the jacket. Jennings, 296 Ill. App. 3d at767. In contrast, nothing in the present case indicates that the defendant wasaware that the police had recovered any incriminating evidence during theirsearch. Because the defendant was not "confronted" with the proceeds of anillegal search, we hold that under the peculiar facts of the present case, thedefendant failed to show a sufficient connection between the illegal search andthe defendant's confession.

The defendant relies upon United States v. Patino, 830 F.2d 1413 (7th Cir.1987), and United States v. Fazio, 914 F.2d 950 (7th Cir. 1990), in support ofhis argument that it was not necessary that the defendant be literally"confronted" with the proceeds from the illegal search for the "fruit of thepoisonous tree" doctrine to apply. However, we find the defendant's reliance onPatino and Fazio to be misplaced.

In Patino, Federal Bureau of Investigation (FBI) agents illegally entered defendant's apartment, pointed a shotgun at her, and held her in her bathroomwhile agents searched the apartment and arrested her codefendant. Patino, 830F.2d at 1414. The agents told the defendant that they could prove that she hadbeen involved in four bank robberies. Patino, 830 F. 2d at 1414. About 20minutes after the search began, defendant made a confession, which was taken ather apartment by the agents over a 2