State v. Wilfred E. Tobias, 196 Wis.2d 53, 538 N.W.2d 843 (Ct. App. 1995)
For Tobias: Barbara A. Cadwell
The primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint. Anderson, 165 Wis.2d at 447-48, 477 N.W.2d at 281. In Anderson, our supreme court reaffirmed that the analytical framework to apply in attenuation cases was set forth in Brown. Anderson, 165 Wis.2d at 447, 477 N.W.2d at 281. Under Brown, the threshold requirementis the voluntariness of the challenged statements. United States v. Patino, 862 F.2d 128, 132 (7th Cir. 1988). The remaining factors bearing on admissibility are the temporal proximity of the illegal conduct and the confession, the presence of any intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04. The burden of showing admissibility rests on the prosecution. Id. at 604.
Whether evidence should be suppressed because it was obtained pursuant to a Fourth Amendment violation is a question of constitutional fact. Anderson, 165 Wis.2d at 447, 477 N.W.2d at 280. We independently review constitutional fact questions. Id.
Issue/Holding2: Statement sufficiently attenuated from illegal arrest, where: (1) “The nonthreatening conditions of the interrogation support our conclusion that the one and one-half hours that elapsed between Tobias’s arrest and his statements weighs in favor of attenuation.” (2) “Tobias’s confrontation with untainted evidence legally obtained from his stepfather’s apartment was an intervening circumstance that purged the taint of his illegal arrest. Tobias … incriminated himself not because of the illegal arrest, but because he was confronted with information pointing toward his involvement in the crime…. Because Tobias’s incriminating statements were an act of free willinduced not by the illegal arrest but by the confrontation with untainted evidence, we conclude this Brown factor weighs in favor of attenuation.” (3) The illegality didn’t amount to flagrant misconduct, in that probable cause was “a close call,” the police didn’t simply arrest Tobias in the hope something would turn up.
Temporal proximity language in Tobias seems to blithely suggest that 90 minutes is a short enough time to dissipate the taint of an illegal arrest, at least where the “interrogation was nonthreatening.” For a case taking a somewhat different view, see, U.S. v. Reed, 7th Cir. 02-2378, 11/13/03: Temporal proximity factor isn’t susceptible to an “bright-line” test, although Supreme Court has ordered suppression of statements made up to 6 hours after illegal arrest. And, largely because of inherent ambiguity of this factor, “we must consider the temporal proximity factor in conjunction with the presence of intervening circumstances.” Here, too, the court’s analysis diverges from Tobias, holding that Miranda waringings don’t by themselves purge the taint of an illegal arrest and, more importantly, that “non-confrontational interviews” by the police and periods in which the suspect enjoys “solitary reflection” do not amount to intervening circumstances sufficient to purge taint. The most critical factor is “the purpose and flagrancy of the official misconduct.” Note that application of these factors in the manner ordered by the 7th Circuit would still probably yield the same result in Tobias — there was simply no flagrant misconduct (the most important factor) and there is no reason to doubt that exploiting untainted evidence is a valid intervening circumstance. See, e.g., U.S. v. Paradis, 1st Cir. 03-1643, 11/18/03 (confronting arrestee with legally seized ammunition “truncated” the role played by illegally seized gun in eliciting statement). But Tobias‘s uncritical consideration of temporal proximity as militating in favor of admissibility should not be taken as the last word.