¶1(concurring). I concur in the majority’s result and reasoning on constraint of our recent decision in People v Conyers (68 NY2d 982). In that case, the court, for the first time and without further discussion, utilized the factors delineated in Brown v Illinois (422 US 590; see also, Rawlings v Kentucky, 448 US 98) to determine whether statements made by a defendant arrested in violation of the rule enunciated in Payton v New York (445 US 573) were sufficiently attenuated from the "illegality” to permit their admission into evidence. Despite my concurrence, here and in Conyers (supra),I continue to have serious misgivings about the unquestioning use of the Brownanalysis in cases involving Paytonviolations.
¶2As a threshold matter, before attenuation is considered, the courts must first determine whether "the challenged evidence is in some sense the product of illegal governmental activity” (United States v Crews, 445 US 463, 471). In cases such as Brown v Illinois (supra)and its progeny, an affirmative answer to that preliminary question may be assumed, since the "illegality” is the absence of probable cause and the wrong consists of the police’s having control of the defendant’s person at the time he made the challenged statement. In these cases, the "challenged evidence” — i.e., the postarrest confession — is unquestionably "the product of [the] illegal government activity” — i.e., the wrongful detention. In cases involving Paytonviolations, in contrast, the initial causal relationship between the illegality and the subsequently obtained statement is more dubious. Unlike in Brown (supra),it is not the detention itself that is wrongful, but rather the manner in which the arrest was carried out. Although we sometimes use *626legal shorthand and refer to the police action as an "illegal arrest,” the true wrong in Paytoncases lies not in the arrest but in the unlawful entry into a dwelling without proper judicial authorization.
¶3. Contrary to the majority’s assertion and the views of one commentator (see, majority opn, at 623, n 2), the misgivings I express here are far more substantial than a simple "misapplication” of the "inevitable discovery doctrine.”
¶4. The precise holding of the Supreme Court in Paytonwas not that the arrest per se was unlawful, but rather that an otherwise improper warrant-less entry into the home cannot be justified by the sovereign’s common-law right to effect an arrest without a warrant, even when the arrest is supported by probable cause. This reading of Paytonis evident both from Justice Stevens’ characterization of the question presented (445 US 573, 574 ["the constitutionality of … statutes that authorize police officers to enter a private residence without a warrant … to make a routine felony arrest”]) and from the court’s rationale (id., at 589-590): "But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home … In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
¶5The language quoted by the majority — that " 'a "basic principle of Fourth Amendment law” [is] that searches and seizures inside a home without a warrant are presumptively unreasonable’ ” (majority opn, at 623-624, quoting Payton v New York, supra, at 586 [emphasis supplied]) — is certainly not to the contrary.
¶6. In People v Riddick (51 NY2d 764), we ordered suppression of physical evidence found in a dresser drawer while the police were unlawfully on the premises without a warrant. In that case, there was a logical causative relationship between the unlawful entry and the discovery of the physical evidence on the premises. Thus, Riddickis not inconsistent with the view that it is the warrantless entry, and not the arrest, that Paytonproscribes. In contrast, there is no such logical causative relationship where, as here, the evidence to be suppressed is a confession made at the police station after the in-home arrest has been completed. Further, contrary to the majority’s suggestion (majority opn, at 624), the Supreme Court’s holding in United States v Johnson (457 US 537) is not controlling because there is no indication that the court, which was concerned with the retroactivity issue, even considered the attenuation problem that the case presented (see, People v Ford, 62 NY2d 275, 281, n).
¶7(dissenting). There is no sound *627basis in law or public policy — indeed it would seem to be against public policy — for this court to suppress a confession which was wholly the product of a defendant’s free will, unaffected by any police illegality. The majority does so in this case, ostensibly because the application of factors found relevant in Brown v Illinois (422 US 590), indicate that a second confession was not sufficiently attenuated from a prior confession. Nowhere, however, in the majority opinion, or in the Appellate Division concurring opinions, or in the trial court opinion, are there any facts from which it can be reasonably inferred that either the first confession or the second confession was the product of anything other than defendant’s independent and self-motivated decision to confess to killing his girlfriend. I do not believe that the majority’s purported establishment of a connection, in the abstract, between two completely voluntary confessions provides a basis for suppression here.
¶8The facts are unusual but uncomplicated. Defendant’s girlfriend, Thelma Staton, was killed when her throat was cut with a knife. The police, with probable cause to believe that defendant did the killing, but without an arrest warrant, went to question defendant at his home. The police knocked at the door, and, after some delay, defendant came to the door and asked "who is it.” A detective held his badge up to the peephole, and defendant then opened the door, stating "I’m glad you came for me.” Defendant was then read the Miranda warnings, which he acknowledged that he understood. He then invited the police officers to sit down, and said that he was going to fix himself a glass of wine. One detective then sat down, and told defendant that he wanted to talk to him about the death of Thelma Staton. After pouring the wine, defendant stated that he loved Thelma Staton, but that she was not bringing up her child "right,” and that he had killed Thelma Staton by cutting her throat with a knife.
¶9Defendant was then arrested and taken to the police station. The Miranda warnings were again read to him, and he indicated that he understood them. Defendant then dictated a confession to a police officer, who wrote it down as defendant spoke. When the confession was completed, defendant read it, and made one change by crossing out a section which stated that he had taken the murder weapon with him after the crime. This was changed to read that defendant had thrown the knife out of the window immediately after killing the *628victim. After this change was made, defendant signed the confession.
¶10These facts were found by the trial court, were undisturbed by the Appellate Division, and, finding support in the record, now bind this court.
¶11On these facts, the two lower courts found a Payton violation, apparently holding that defendant did not sufficiently consent to the entry of the police into his home (see, Payton v New York, 445 US 573). I agree with the concurrers at the Appellate Division that this conclusion is questionable. Indeed, although the trial court did, as the majority notes, denominate the Paytonissue "clear”, it nevertheless appears that the lower courts did not come to grips with the potentially dispositive issue of consent. But, even if there was no consent, and thus a Paytonviolation, I am at a loss to understand what legal principle necessitates suppression of the defendant’s confessions.
¶12Initially, I note that this question is reviewable by us. Both lower courts held without analysis that the first confession was suppressible. However, simply put, when using the correct legal standard together with the facts found by those courts this conclusion is without basis (Cohen and Karger, Powers of the New York Court of Appeals §§ 114, 115 [rev ed]). Indeed, the majority exercises its power to review the suppression of the second confession on this very basis.
¶13The fundamental principle here, repeated by the United States Supreme Court and this court so often as to be axiomatic, is that "it has never been enough to show that evidence must be suppressed simply because it is discovered subsequent to an illegal arrest; it must in addition be shown that the police exploited the illegal detention in such a way as to establish that it was the detention which produced the challenged statements” (People v Rogers, 52 NY2d 527, 535, cert denied 454 US 898; see, People v Conyers, 68 NY2d 982, 983; People v Arnau, 58 NY2d 27, 32; Rawlings v Kentucky, 448 US 98; Brown v Illinois, 422 US 590, supra). We have consistently rejected, and should reject again today, the notion that "a person illegally detained be forever granted immunity from prosecution or conviction” (People v Rogers, supra, at 531). Instead, our judgment should be anchored upon the settled rule that defendant’s statements may be admissible against *629him at trial provided that the statements "were acts of free will unaffected by any illegality in the initial detention” (Rawlings v Kentucky, supra, at 110).
¶14Applying these principles in Brown v Illinois (supra, at 603), the Supreme Court held that when an illegal arrest has been followed by a confession, the question becomes whether the confession was actively produced by the arrest, or by some independent force. In Brownthe court stated that relevant factors to analyze this question were the presence of Miranda warnings, temporal proximity of the arrest and confession, intervening circumstances, and the flagrancy of police misconduct (id., at 603-604). But these are only factors, none of which is dispositive, to be used as tools to assess the independence of a confession from any police illegality; mathematical summation of values accorded to each factor is no substitute for sensitive assessment of the facts of each case, and the reaching of a well-founded conclusion whether a police illegality actively caused a confession.
¶15The case law bears this out; where it is clear that a confession is the product of a force independent from an allegedly unlawful detention, the confession is admissible. For example, in People v Rogers (supra),a confession caused by defendant being confronted with legally obtained evidence was admissible; in Rawlings v Kentucky (supra),a confession caused by the police discovering physical evidence in a purse was admissible; and in People v Matos (93 AD2d 772), the defendant’s statements caused by the knowledge that his girlfriend told the police "about the rape” were admissible.
¶16Similarly, on the facts in this record, defendant’s confessions manifestly were not the product of a Paytonviolation. Defendant was expecting the arrival of the police, as shown by his reaction that he was "glad” when they got there. Nor can it reasonably be inferred that defendant was feeling any police coercion as he fixed himself a glass of wine to make himself more comfortable, and then explained how he had both loved his girlfriend and killed her. These are not the statements and actions of a man reacting to police coercion or illegality; on the contrary, these facts portray a man who quite independently had decided to confess before the police arrived, and whose decision, therefore, was formed independently from any illegal police conduct. As a result, neither the first confession, nor the second confession which followed, were in any way actively produced by any police illegality.
¶17*630Thus the case law does not require suppression here. My disagreement with the majority, however, goes beyond this. I take issue with the assertion that deterrence of Paytonviolations requires suppression in this case; indeed, I believe that suppressing this defendant’s freely and independently given confessions will, in net effect, encourage police conduct posing greater threats than are presented in this case.
¶18As to the deterrence argument: the majority asserts that if we do not suppress here we will encourage Paytonviolations. In reality, however, use of defendant’s confessions will not have this effect. Here the defendant welcomed the police, sipped wine and confessed. If we did not suppress here the rule would remain, as it has long been, that there will be suppression if the confession is actively produced by police illegality. Given this fact, the deterrence benefit furthered by this case eludes me. Armed with probable cause to arrest a suspected murderer, surely the police will not forego obtaining a warrant with hopes of meeting a congenial host, and thereby circumventing Brown v Illinois (supra).Nor should we be worried that the police will choose to run the risk that, if this oddity does not occur, the whole police investigation will be jeopardized, including not only confessions obtained, but all physical evidence discovered as well.
¶19Even more distressing, this decision will encourage more intrusive and dangerous police conduct than that which the majority erroneously believes it needs to deter. The majority suppresses here not on the usual grounds of the lack of probable cause, but, ironically, because there was probable cause. The majority’s rationale turns directly on that finding: it reasons that because there was probable cause there should have been a warrant, but because there was no warrant, suppression is required.
¶20But what is missed here is that if the police had been conducting a routine investigation, without probable cause, defendant’s confessions would be admissible. Thus in the name of deterrence, for the sake of suppressing a manifestly independent confession, the majority encourages the questioning of suspects before probable cause is obtained.
¶21Where deterrence is unnecessary, and where defendant’s confessions were not the product of police illegality, there should be no suppression. I therefore dissent.
¶22*631Judges Kaye, Alexander, Titone and Hancock, Jr., concur with Judge Simons; Judge Titone concurs in a separate opinion; Chief Judge Wachtler dissents and votes to affirm in another opinion in which Judge Bellacosa concurs.
¶23Order reversed, etc.