¶1dissenting.
¶2I respectfully dissent.
¶3The facts in this case are not in dispute, and are ably summarized in the majority opinion. However, I must differ from the majority’s view of the application to the situation presented here of the standards articulated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
¶4Both Wong Sunand Brownaddressed the question of under what circumstances an illegal arrest would taint a subsequent confession, and render that confession inadmissible. Wong Sunanswered that question in terms of a standard of free will somewhat higher than the traditional standard of vol-untariness. The vagueness of that standard led to some confusion, which the Supreme Court attempted to eliminate in Brown.
¶5Under Brown, a confession obtained subsequent to an illegal arrest must satisfy the following criteria to be admissible. First, it must pass the “threshold requirement” of voluntariness, 422 U.S. at 604, 95 S.Ct. 2254, required of all confessions under the Fifth Amendment. However, this is not sufficient. A confession may be voluntary un*924der the Fifth Amendment, and yet be tainted by the prior violation of the defendant’s Fourth Amendment rights. The question becomes, in the language of the Court, under what circumstances can that taint be purged, rendering the confession admissible. It is to determine the answer to this question that the factors set out by the Court in Brownare to be considered:
1) whether Miranda warnings were given
2) the temporal proximity of the arrest and the confession
3) the presence of any intervening circumstances
4) the purpose and flagrancy of the official misconduct.
¶6No one factor provides a certain guide. One must balance the factors, and attempt to determine, in the final analysis, whether the illegal arrest was a proximate contributing cause of the confession.
¶7When applying the rationale of Brownto the instant case, it must be remembered that the facts of the two cases are not precisely analogous. In Brown, the crucial issue was raised by an illegal arrest. Here, we must deal with the effects of both an illegal arrest and an illegal confinement. Thus, the factors that were deemed relevant in Brownare not necessarily so here. For instance, the Court in Brownnoted that the amount of time between the illegal arrest and the subsequent confession was one criterion by which one might judge whether the taint had been purged. The greater that time, the more likely that the illegal arrest had a minimal effect on the subsequent confession. However, when one considers the effects of an illegal arrest in addition to those of an illegal confinement, it is apparent that this factor is placed on the other pan of the balance — the longer that confinement, the greater the chance that it to some extent served to induce the confession.
¶8Thus, one cannot base a decision in this case on a consideration of precisely the same factors as were considered in Brown. However, the ultimate question to be answered is the same as that in both Brownand Wong Sun: Is the causal connection between the illegal arrest and confinement and the subsequent statements sufficiently tenuous so that the illegal acts can be said not to have been a proximate contributing cause of the statements? I believe that it is not, and thus that the defendant’s statements should not have been admitted at trial.
¶9I am compelled to reach this conclusion by the very nature of the improper police procedure in this case. The defendants’ statements were made after a prolonged period of illegal confinement. Even if it is granted that the police committed no coercive acts, the defendants were subjected to “the compulsion inherent in custodial surroundings.” Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1966). We need not determine whether the statements were obtained by the active “exploitation of the illegality” by the police. The mere fact of the illegal confinement was inherently coercive of the defendants’ will.
¶10This is not to say that an illegal arrest or confinement serves to taint any and all subsequent statements by a defendant. Later events, such as an arraignment or hearing, may sufficiently attenuate the effects of the prior illegal confinement so as to render any subsequent statements made by the defendant admissible.
¶11However, on the facts of this case, that question does not present itself, and we need not deal with it here. The defendants’ statements were made prior to their arraignment, and there were no events which even arguably mitigated the effects of their illegal confinement. I would hold any statements made in the course of that confinement inadmissible.
¶12The foregoing is, I believe, more than sufficient cause to affirm the judgment rendered by the Court of Criminal Appeals. There is, however, a more compelling reason for doing so.
¶13The majority is critical of the procedure employed by the police in this case, and *925justifiably so. The actions complained of constitute a clear violation of the defendants’ constitutional rights, as well as of the explicit command of T.C.A. Sec. 40-604. I agree with the majority that those actions are deserving of censure. I do not believe that mere censure is sufficient.
¶14The issue presented here goes beyond the question of whether the statements obtained in the course of an illegal confinement were voluntary, or whether the taint of the improper procedure was purged. Those questions turn primarily on the detriment suffered by the defendant. Of greater import is the question of what effect the decision reached in this case will have on subsequent police procedure.
¶15The exclusionary rule does not serve merely to minimize the injury suffered by a particular defendant as a result of illegal police procedure. “Its purpose is to deter— to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it". Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669, 1677 (1960). It is unfortunate that the courts have no better way to deter police conduct inconsistent with what we believe to be the standards necessary to a free society. In many cases, this may result in a windfall for the defendant. That is regrettable, but unavoidable. For us to do otherwise requires that we implicitly both sanction and encourage illegal acts by the police. “We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944, 953 (1928), (Holmes, J., dissenting).
¶16To the extent that this decision serves to encourage acts by the police such as took place in this case, this Court plays such a part, and contributes, however slightly, to the erosion of those freedoms we are sworn to protect.
¶17I will not be party to it.
¶18I would affirm.