Volume 154, No. 136
11, July, 2008
Ruling Connects
Constitutional Defenses
Suppose the police arrest a suspect. The Fourth Amendment presumes
that it is unreasonable to hold the suspect for longer than 48 hours
without bringing him before a judge. The police, however, ignore this
rule. Assume that after 73 hours of detention the police finally obtain a
confession. And further assume the police do not bring the suspect
before a judge for another 14 hours.
Should a court automatically suppress the confession? Three years ago
the Illinois Supreme Court considered this fact situation and said ''No.''
In People v. Willis, the court held that as long as the confession was
''voluntary'' and did not violate the Fifth Amendment, the confession
would be admissible despite the Fourth Amendment violation, i.e., an
unconstitutional delay of 87 hours before the suspect's appearance before a judge. 215 Ill.2d 517
(2005).
It is time for defense attorneys to urge the court to re-examine Willis, because a recent U.S.
Supreme Court decision suggests that the confession must be suppressed not based on either a
Fourth or Fifth Amendment analysis, but rather on a Sixth Amendment analysis.
Here's how.
The problem of police obtaining confessions during unreasonable post-arrest delays is an old one.
Beginning in 1943 the U.S. Supreme Court expressed its exasperation with federal agents engaging
in this behavior by promulgating what became known as the McNabb-Mallory rule. McNabb v. U.S.,
318 U.S. 332 (1943); Mallory v. U.S., 354 U.S. 449 (1957). This ''rule'' said that any confession voluntary or involuntary - obtained by federal agents during an unreasonable post-arrest delay
would be automatically suppressed. Note that this applied only to federal courts; it was based not
on the court's reading of the Constitution, but rather on its supervisory power over federal courts.
Consequently, the rule had no binding effect on state courts.
So what happened to McNabb-Mallory? Two things. First, Congress undermined it in 1968 when it
passed a law holding that ''voluntariness'' should be the one and only test of admissibility of
confessions in federal court. 18 U.S.C. 3501. Second, the vast majority of state courts - including
Illinois - rejected it. See, e.g., People v. Howell, 60 Ill.2d 117 (1975).
Yet some subsequent legal developments encouraged defense attorneys to revisit the issue. In
1975, the U.S. Supreme Court held that a suspect arrested without a warrant had an explicit Fourth
Amendment right to be ''promptly'' brought before a judge for a determination of whether probable
cause existed. Gerstein v. Pugh, 420 U.S. 103 (1975). The court later held that an appearance before
a judge within 48 hours of arrest was presumptively reasonable under the Fourth Amendment.
County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
Did this now mean that the McNabb-Mallory rule had a constitutional footing that made it binding
on state courts? No, for the court held in 1994 that a Gerstein violation did not necessarily mandate
suppression of any evidentiary fruits. Powell v. Nevada, 511 U.S. 79 (1994).
Yet in 2003 the 1st District Appellate Court in People v. Willis lamented the fact that, without
suppression as a remedy, the 48-hour Gerstein rule was toothless. As noted above, Willis was not
brought before a judge until after 87 hours of detention. Willis confessed 73 hours into this
unconstitutional violation. The 1st District found the 73-hour detention was ''inherently coercive''
and suppressed the resulting confession. 344 Ill.App.3d 868 (1st Dist. 2003).
However, the Illinois Supreme Court reversed, holding that ''When faced with a
Gerstein/McLaughlin violation, we ask simply whether the confession was voluntary.... If so, it is
admissible. If not, it is inadmissible.'' 215 Ill.2d 517, 535. And voluntariness is determined through
a ''totality of the circumstances'' analysis that eschews reliance on any one factor.
The Supreme Court decided Willis in 2005. So why is this a good time to re-examine such a recent
decision?
First, take a look at a brand new U.S. Supreme Court case decided June 23 called Rothgery v.
Gillespie County, Texas, No. 07-440. For our purposes the facts are irrelevant. What is important is
the holding: the Sixth Amendment right to counsel attaches at the moment a defendant makes his
initial appearance before a judge or magistrate, regardless of whether a prosecutor (as opposed to a
police officer) is involved in the case.
Now connect the dots. Illinois's version of the Gerstein hearing is codified in section 109-1 of the
Code of Criminal Procedure. 725 ILCS 5/109-1. (In fact, the statute goes beyond Gerstein by
mandating such a hearing regardless of whether the arrest was accompanied by a warrant.) And
the statute specifically provides that at this initial appearance the judge must advise the defendant
of his right to counsel and, if he is indigent, the judge shall appoint counsel. 725 ILCS 5/109-1(b)(2).
What is so significant about this is the constitutional bonus the defendant receives the moment he
retains (or accepts the appointment) of counsel at this first appearance. For the U.S. Supreme Court
has held that the police must subsequently treat the defendant as if he had actually been read his
Miranda rights and had explicitly asserted his right to counsel under Miranda. Michigan v. Jackson,
475 U.S. 625 (1986). In other words, once the right to counsel has attached at this first appearance,
police are forbidden from even trying to interrogate the defendant on that offense. (Police may,
however, attempt to interrogate him on offenses separate from the charged offense. McNeil v.
Wisconsin, 501 U.S. 171 (1991); Texas v. Cobb, 532 U.S. 162 (2001).)
The Illinois Supreme Court in Willis considered the ''confession obtained during a Gerstein
violation'' issue only from the perspectives of the Fourth and Fifth Amendment. But when you add
the Sixth Amendment, the argument for suppressing the confession becomes significantly more
compelling.
Why? Because look again at the facts in Willis. Now a defendant can argue that the confession made
after 73 hours had several constitutional consequences. For not only was the 73-hour delay a
Fourth Amendment Gerstein violation; in addition, the Gerstein violation prevented the defendant
from having his Sixth Amendment right attach under Rothgery. And being deprived of his Sixth
Amendment right had serious consequences: if he had appeared before the judge at the 109-1
hearing, the attachment of counsel would have given him Michigan v. Jackson protection from any
further police interrogation on that offense. Thus, the confession at the 73d hour was a direct fruit
of the 4th Amendment violation that prevented his 6th Amendment right from attaching, which
would have automatically given him his 5th Amendment protection from police interrogation.
In 2005, the Illinois Supreme Court in Willis found that Fourth and Fifth Amendment
considerations were not enough to suppress a confession made during an illegal detention. Yet the
new U.S. Supreme Court case of Rothgery enables defense attorneys to argue suppression based on
Fourth, Fifth, and Sixth Amendment grounds. Illinois defense attorneys should take note.