THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. AUBREY McCAULEY, Appellee.
No. 73800
Supreme Court of Illinois
Opinion filed December 22, 1994
Rehearing denied January 30, 1995
Affirmed.
MILLER, J., joined by HEIPLE, J., also concurring in part and dissenting in part.
HEIPLE, J., also concurring in part and dissenting in part.
Roland W. Burris and James E. Ryan, Attorneys General, of Springfield, and Jack O‘Malley, State‘s Attorney, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Renee Goldfarb, Randall Roberts, Brian Clauss and Kenneth T. McCurry, Assistant State‘s Attorneys, of counsel), for the People.
Alan D. Blumenthal and William Walters, of Chicago, and Elisha Rosenblum, law student, for appellee.
David J. Bradford, Locke E. Bowman III and Kathleen M. Banar, of Niles (Cynthia G. Bowman, of Chicago,
Harvey M. Grossman and Jane M. Whicher, of Chicago, for amicus curiae American Civil Liberties Union of Illinois.
Roslyn C. Lieb and Cynthia A. Wilson, of Chicago, for amicus curiae Chicago Lawyers Committee for Civil Rights Under Law, Inc.
John J. Rekowski, Public Defender, of Edwardsville, for amicus curiae Illinois Public Defenders Association.
JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Aubrey McCauley, was indicted for first degree murder (
The following evidence was presented at the pretrial hearing. Detective Robert Kocan testified that on November 20, 1988, at about 5:30 p.m., Chicago police
Attorney William O. Walters testified that, shortly before 7 p.m. on that same evening, he received a telephone call from members of defendant‘s family. Walters immediately telephoned a police station located at 61st and Racine Streets as well as the Area 3 police station to learn where defendant was being held. Police officers, answering the telephone at each station, told Walters that defendant was not present there. At 7 p.m., Walters proceeded to the 61st Street station and was again told by an unidentified police officer that defendant was not present and that Walters should perhaps call the Area 3 station. At about 7:30 p.m., Walters telephoned Area 3 and was told by another unidentified officer that defendant was also not there. Walters, nonetheless, proceeded to the Area 3 station, spoke to the desk sergeant and asked to speak with defendant. The desk sergeant telephoned upstairs to the third floor and advised Walters that an officer would come downstairs to speak with him. According to Walters, the time was 7:40 p.m.
Bonke testified that he was called downstairs from his third-floor office sometime after 7 p.m. According to Bonke, he conversed with Walters and advised him that defendant had not been charged and that, to Bonke‘s knowledge, defendant had left the station with the two detectives and that there probably would be a lineup. Bonke denied telling Walters that he could not speak with defendant and denied that Walters asked him to tell defendant that Walters was present. Bonke could not say that he actually knew the detectives were interviewing defendant before they left the station because he was not closely involved. Bonke, however, knew that defendant was a suspect. Bonke also claimed that he had not seen defendant, nor did he know in which interview room he was being held.
Sometime between 8 and 8:15 p.m., Detectives Kocan and Byron returned to the Area 3 station. No one told them that Walters had been at the station. After being unable to locate alibi witnesses, the detectives
The trial court found that Walters was credible and that Bonke was not. The trial court suppressed evidence of the lineup identification of defendant and any statements he had made after Walters was prevented from conferring with him.
On review, the appellate court affirmed the suppression of defendant‘s statement and lineup identification on the basis that police violated defendant‘s right against self-incrimination under article I, section 10, of the Illinois Constitution (
ISSUES
The issues present in this appeal are whether the trial court properly suppressed defendant‘s (a) statement and (b) lineup identification as resulting from a violation of either Federal or State constitutional protections where police dеnied a retained attorney access to his defendant-client and failed to inform the defendant-client that the attorney was present and available, seeking to consult with him.
Suppression of Statement
The State argues that where a custodial suspect is unaware that an attorney has been retained to represent him, a valid waiver of the right to counsel may be found under both the fifth amendment of the Federal Constitution and section 10 of article I of the Illinois
Defendant responds that where police have failed to inform a custodial suspect that his attorney is present and available, seeking to consult with him, there cannot have been a valid waiver of the right to counsel found under section 10, and the suspect‘s subsequent statements are properly suppressed. Defendant contends that Burbine represents a regressive interpretation of fifth amendment protections, which this court should not rely on in interpreting section 10. According to defendant, People v. Smith (1982), 93 Ill. 2d 179, and Griggs, 152 Ill. 2d 1, reject the Federal constitutional analysis developed in Burbine and, thus, necessarily speak for our State constitutional guarantees. Defendant further contends that the police conduct violated his State constitutional rights of due process.
A defendant‘s right against self-incrimination is guaranteed by the
In Moran v. Burbine, the United States Supreme Court decided the validity of a custodial suspect‘s waiver of the fifth amendment right to counsel under circumstances similar to those presented here. The issue presented was whether a custodial suspect‘s waiver was valid where either “police misinformed an inquiring attorney about their plans concerning the suspect or because they failed to inform the suspect of the attorney‘s efforts to reach him.” (Burbine, 475 U.S. at 420, 89 L. Ed. 2d at 420, 106 S. Ct. at 1140.) In Burbine, an attorney retained by the defendant‘s sister telephoned the police station where the defendant was being held and stated that she would act as the defendant‘s counsel in the event police decided to question him. Police misrepresented to the attorney that the defendant would not be questioned. Applying traditional waiver principles, the Court held that neither deliberate deception of a custodial suspect‘s attorney by police nor their failure to inform him of his attorney‘s efforts to contact him was conduct relevant to the validity of his waiver of fifth amendment rights. The Court reasoned that a custodial suspect‘s capacity to comprehend and knowingly relinquish constitutional rights could “surely” not be affected by events of which he was unaware. (Burbine, 475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.) While the Court conceded that the withheld information would have likely affected the defendant‘s decision to waive his constitutional rights, it was not information which was essential to his “comprehension” of those rights. Burbine, 475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.
Thus, under Burbine, in determining the validity of a custodial suspect‘s waiver of the fifth amendment right to counsel, the relevant and narrow inquiry is whether his ability to understand or comprehend his rights has been compromised by the lack of information or the police conduct in withholding that information. Because very few, if any, forms of withheld information, police conduct, or outside events can conceivably compromise a custodial suspect‘s ability to understand or comprehend, Burbine necеssarily decided, for purposes of waiver under Federal constitutional law, any question concerning the level of police culpability, the manner in which the attorney was retained, or the suspect‘s awareness of that fact.
Burbine is controlling here in terms of any Federal constitutional basis for suppressing defendant‘s statements. Defendant‘s waiver of the right to counsel was therefore valid and suppression of defendant‘s statements was insupportable on fifth amendment grounds.
The day is long past in Illinois, however, where attorneys must shout legal advice to their clients, held in custody, through the jailhouse door. In this case, we determine that our State constitutional guarantees afforded defendant a greater degree of protection. Our State constitutional guarantees simply do not permit police to delude custodial suspects, exposed to interrogation, into falsely believing they are without immediately
Three decisions inform our waiver analysis, People v. Smith (1982), 93 Ill. 2d 179, People v. Holland (1987), 121 Ill. 2d 136, and People v. Griggs (1992), 152 Ill. 2d 1. These decisions, along with the 1970 Constitutional Convention proceedings, demonstrate that requirements under our State constitutional guarantee (
We also reject the notion that little regard should be accorded to defendаnt‘s due process claim. Illinois courts have long recognized that the State due process guarantee (
We address first the validity of defendant‘s waiver. It is unquestionable that State courts have the authority to interpret their respective constitutional provisions more broadly than United States Supreme Court interpretations of similar Federal constitutional provisions. (See Oregon v. Hass (1975), 420 U.S. 714, 719, 43 L. Ed. 2d 570, 575-76, 95 S. Ct. 1215, 1219.) The United States Supreme Court expressly recognized that its Burbine decision was at odds with decisions by the majority of State courts, including Smith, as well as the policy recommendations of the American Bar Association. (Burbine, 475 U.S. at 427-28, 89 L. Ed. 2d at 425, 106 S. Ct. at 1144.) The Court consequently stated, “Nothing we say today disables the States from adopting different requirements for the conduct of [their] employees and officials as a matter of state law.” (Emphasis added.) Burbine, 475 U.S. at 427-28, 89 L. Ed. 2d at 425, 106 S. Ct. at 1144.
A close review of Smith, Holland and Griggs reveals that Illinois accepted this invitation and developed different requirements which are supported under our State constitution and its laws.
Well before the Supreme Court decided Burbine, this court, in Smith, addressed the issue of whether a custodial suspect‘s statements were properly suppressed as violative of the right to counsel during custodial interrogation. (See Smith, 93 Ill. 2d 179.) In Smith, police told an associate of counsel retained by the defendant that she could not see the defendant because he was undergoing withdrawal from drugs. In deciding whether the defendant‘s waiver of the fifth amendment right to counsel was knowing and intelligent, Smith relied extensively not on Federal precedent, but on a
Smith‘s analysis also relied to a more limited extent on previous statements by the United States Supreme Court indicating that police prevention of a custodial suspect‘s attorney from consulting with him, under certain circumstances, constituted a violation of the sixth amendment right to counsel. Smith, 93 Ill. 2d at 188-89, quoting Miranda v. Arizona (1966), 384 U.S. 436, 465 n.35, 16 L. Ed. 2d 694, 718 n.35, 86 S. Ct. 1602, 1623 n.35 (referring to Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758); see also Holland, 121 Ill. 2d at 167-68 (Clark, C.J., specially concurring) (providing historical background to State-law decisions which are at odds with Burbine).
This court held in Smith, relying primarily on State authorities:
“[W]hen police, prior to or during custodial interrogation, refuse an attorney appointed or retаined to assist a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him.” Smith, 93 Ill. 2d at 189.
Because of the scope of its holding, Burbine, however, necessarily overruled Smith sub silentio as grounded in the fifth amendment and, therefore, Federal constitutional law. Recall that Burbine essentially holds that unless a custodial suspect‘s “capacity” or “ability” to “comprehe[nd]” his abstract fifth amendment right to an attorney is affected, no form of police conduct towards the suspect‘s attorney, personally retained or otherwise, present or otherwise, or the failure of the police to inform the suspect of the attorney‘s efforts to reach him can invalidate the suspect‘s waiver of those rights. (See Burbine, 475 U.S. at 422, 423, 89 L. Ed. 2d at 421, 422, 106 S. Ct. at 1141, 1142.) Burbine conceded that while such conduct or information, if known by the suspect, might affect the suspect‘s “decision” to waive his rights, this was not “knowledge” essential to his “ability” to “understand” the “nature” of his rights. (See Burbine, 475 U.S. at 423, 89 L. Ed. 2d at 422, 106 S. Ct. at 1142.) Burbine clearly conflicts with Smith, as standing on Federal law, in terms of the relevance both of police conduct and of information that retained counsel is available.
Moreover, while Burbine may be factually distinguishable from Smith in several respects, those distinctions carry absolutely no legal significance for purposes of deciding a knowing waiver under the fifth amendment. (In Burbine, the defendant was unaware of counsel‘s retention and counsel did not request access to the defendant, nor was counsel ever present at the police station. In Smith, the defendant retained an attorney whose associate was present at the police
In response to the Supreme Court‘s express invitation to the States to adopt different requirements as a matter of State law (Burbine, 475 U.S. at 427-28, 89 L. Ed. 2d at 425, 106 S. Ct. at 1144), State courts uncomfortable with Burbine‘s reasoning rejected it and formulated requirements resting on State constitutional grounds. State v. Stoddard (1988), 206 Conn. 157, 537 A.2d 446; Bryon v. State (Del. 1990), 571 A.2d 170; Haliburton v. State (Fla. 1987), 514 So. 2d 1088; People v. Wright (1992), 441 Mich. 140, 490 N.W.2d 351; State v. Reed (1993), 133 N.J. 237, 627 A.2d 630.
In Holland, the defendant requested that this court follow Smith, rather than Burbine, to decide a claimed violation under article I, section 10, of the Illinois Constitution. In deciding the State constitutional claim, the court declined to apply Smith, finding that Smith and Burbine were factually distinguishable, but that the facts of Holland were consistent with those of Burbine. The court relied on two points: as in Burbine, relatives had hired the attorney so that the defendant was unaware that the attorney had been retained; and, as in Burbine, the attorney had simply telephoned police, asking to be contacted if the defendant was questioned. The Holland court found Smith distinguishable because
Parenthetically, Holland‘s factual reliance on Burbine is problematic. Burbine holds that a knowing waiver of the right to counsel only implicates a suspect‘s abilities and capacities to understand the nature of his rights; information affecting a suspect‘s decision to waive those rights is irrelevant. Given such a broad, conceptually based holding, Burbine‘s application to a given case cannot depend on factual variables such as the manner or the suspect‘s awareness of the attorney‘s retention, the attorney‘s mode of communicating with police, or whether police denied him access to the suspect. The problem with Holland is that it adopts Burbine‘s conclusion (the waiver was knowing and therefore valid) based simply on a finding that certain legally insignificant facts in Burbine were similar. The full import of Burbine‘s holding was apparently not appreciated or considered by Holland. Simply put, the fifth amendment holding in Burbine is much broader than its facts, and Holland, seemingly, did not recognize this. See Burbine, 475 U.S. at 413-14, 89 L. Ed. 2d at 416, 106 S. Ct. at 1136-37.
Returning to the subject of legal grounds, it is significant that this court did not overrule Smith. This fact is significant because, after the Burbine decision, there is no basis on which Smith can stand as a Federal law de-
Griggs presented this court with a second opportunity to reexamine Smith and Burbine. In Griggs, the indications that this court intended to preserve Smith‘s requirements for police conduct as State law became even stronger. In this regard, Griggs bears close examination, not only in terms of its substance, but also in terms of the grounds supporting the decision. Griggs is grounded in State law.
First, Griggs’ analysis relied almost entirely on State decisional law. Griggs referred extensively to pre-Burbine and post-Burbine State-constitutional-law deci-
Griggs is also a State-constitutional-law decision in terms of the substance of its analysis. In Griggs, this court unequivocally rejected Burbine‘s fundamental premises that police interfеrence with an attorney‘s access to a custodial-suspect client is irrelevant to waiver of the right to counsel during custodial interrogation and that the information that a retained attorney is available is simply helpful and constitutionally irrelevant to a knowing waiver. Griggs stated, directly contrary to the holding of Burbine:
“We do not consider that police interference with an attorney‘s access to a client has ‘no bearing on [a defendant‘s] capacity to comprehend and knowingly relinquish a constitutional right.’ [Citation.] Since we do not deem constitutionally irrelevant police interference with an attorney‘s access to a client, we do not agree that a waiver so obtained may be said to have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. ” (Emphasis added.) (Griggs, 152 Ill. 2d at 27, quoting Burbine, 475 U.S. at 421-22, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.)
Similarly, Griggs stated:
“[T]o have specifically informed defendant of the attorney‘s immediate availability in no way would have required the police to supply a ‘flow of information’ designed to help the defendant ‘calibrate his self-interest.’ ” Griggs, 152 Ill. 2d at 28, quoting Burbine, 475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.
Relying on the Burbine dissenters’ reasoning, Griggs again expressed disagreement with the majority‘s reasoning concerning the constitutional significance of the withheld information:
“There is a valid distinction to be made between failure to provide generally useful information and ‘affirmative police interference in a communication between an attorney and a suspect [when the information withheld by the police] bears directly on the right to counsel that police are asking the suspect to waive.’ ” (Griggs, 152 Ill. 2d at 27-28, quoting Burbine, 475 U.S. at 456 n.42, 89 L. Ed. 2d at 443 n.42, 106 S. Ct. at 1159 n.42.)
Indeed, Griggs expressed the view, soundly rejected by Burbine, that not requiring the police to inform a suspect resulted in his impermissible isolation. Griggs, 152 Ill. 2d at 28.
In concluding the analysis, Griggs quoted both the holding of Smith and a statement from a post-Burbine State-law decision, which disagreed with Burbine‘s reasoning:
By endorsing this view, Griggs rejected both Burbine‘s notion that information of certain events could have no bearing on a suspect‘s “capacity” or “ability” to comprehend his rights and that a suspect‘s waiver decision does not implicate the opportunity to be advised by counsel. It could not be any clearer that this court, in Griggs, completely disagreed with the United States Supreme Court about what constitutes a knowing waiver of the constitutional right to counsel during custodial interrogation. It could not be any clearer that this court also accepted the Supreme Court‘s invitation concerning requirements for police conduct grounded in State law. While Griggs relied to a limited extent on a factual distinction (the suspect‘s awareness that counsel was retained), which might support the decision as being grounded in Federal law, that distinction is dwarfed in comparison to Griggs’ fundamental rejection of Burbine‘s basic premises.
The State, itself, acknowledges that there is an “unnecessary tension” between Burbine and Griggs. The State, however, views Griggs as a Federal decision which simply “deviat[es]” from Burbine, rather than a State-law decision which rejects the very premises of Burbine‘s constitutional analysis.
The extent of this court‘s disagreement with Burbine‘s basic premises and the extent of its reliance on other State-law authorities make clear, however, that Griggs represents State constitutional law. (See Welsh, Reconsidering the Constitutional Relationship Between State and Federal Courts: A Critique of Michigan v.
Both parties in the present case claim that Griggs supports their respective positions. We note that the State‘s argument obtains regardless of the fact that Griggs represents State-constitution decisional law. The State claims that the present case is factually distinguishable from Griggs because defendant here was unaware that an attorney had been retained.
We first note that in the context of deciding State guarantees, Federal authorities are not precedentially controlling; they merely guide the interpretation of State law. See Rollins v. Ellwood (1990), 141 Ill. 2d 244, 275 (while this court may, in construing State due process guarantee, look for “guidance and inspiration” to constructions of Federal guarantee by Federal courts, final conclusions on construction of State guarantee are for this court to decide).
There is little indication in the Griggs decision regarding the basis for its factual distinction. In Holland, the defendant‘s awareness that counsel had been retained was seemingly related to his invocation of the right to counsel as opposed to establishing his knowledge for purposes of waiver. (See Holland, 121 Ill. 2d at 153 (distinguishing the facts from Smith, the court stated that “[h]ere, as in Burbine, a relative secured counsel for the suspect; the suspect was unaware” and “[i]n Smith, the suspect actually met with an attorney after his arrest and personally retained him“).) The Griggs court, however, later appeared to view Holland as turning on the fact that there had been no wrongful denial of attorney access as opposed to the unawareness of counsel‘s retention by the defendant. See Griggs, 152 Ill. 2d at 24 (“[s]ince there was no evidence that the attorney requested access to the client, there could have been no wrongful denial of attorney access and no reason to apply the rule of Smith“).
Very significantly, Smith‘s rule, as originally stated, has application regardless of the manner in which the attorney-client relationship arises. (Smith, 93 Ill. 2d at 189 (“when police *** refuse an attorney appointed or retained ***“) (emphasis added).) In point of fact, also, Smith‘s rule was based on decisions where relatives had retained counsel for the suspect, without mention of whether he was aware of counsel‘s retention or not. Smith, 93 Ill. 2d at 186-88 (citing cases).
We believe that this factual distinction, based on the defendant‘s awareness of counsel‘s retention, was unnecessary to both the result in Griggs as well as its rationale. The distinction is susceptible to being eliminated from the opinion without substantially affecting either. Certainly, Griggs’ conceptual disagreement with Burbine does not depend whatsoever on this legally irrelevant distinction. It would seem that Griggs relied on this factual difference simply to bolster its rejection of Burbine and as an attempt, as well, to apply the facts of Smith, in the narrowest possible sense, to the State claim before it. The rule of Smith, however, applies where a suspect is not informed that his attorney is present, unsuccessfully seeking access to him. A suspect‘s awareness of his attorney‘s retention or the manner of the attorney‘s hire is simply not decisive of Smith‘s application.
We do not accept that this highly questionable factual distinction is a sufficient basis to differentiate this case from the reasoning and result in Griggs. Although in both cases the defendant‘s family retained counsel for him, in Griggs the defendant was fortunate enough to allege that he knew about it. It is more than
Further and more importantly, we are not prepared to allow the interpretation of our State constitutional requirements to turn on such an arbitrary and unprincipled distinction. What is the legal significance, in terms of our State guarantee, of a suspect‘s awareness of counsel‘s retention? The stated holding in Griggs bears witness to the utter lack of a conceptual difference between that case and the present case:
“If the circuit court finds that defendant knew that an attorney was being retained for him, that the attorney was present and had requested access to defendant *** and that police refused to so inform defendant of the immediate availability of his attorney, the circuit court shall allow defendant‘s motion to suppress. *** Under these circumstances, there would have been no knowing waiver of defendant‘s constitutional right against self-incrimination.” (Emphasis added.) (Griggs, 152 Ill. 2d at 30.)
It is highly unlikely that any defendant, including the defendant here, if offered the opportunity to show that he was somehow aware of counsel‘s retention, would not be able to do so. Thus, to the extent that this distinction is advanced as legally significant, a different result in this case as compared to that in Griggs would be unfair.
We conclude that Holland preserved the Smith rule as an appropriate interpretation of our State constitutional guarantees. (See Holland, 121 Ill. 2d at 166 (Clark, C.J., specially concurring).) This court in Griggs then expressly reaffirmed and relied on Smith‘s rationale as
Justice Simon‘s admonition bears repeating. “It is the nature of the Federal system that we, as the justices of the Illinois Supreme Court, are sovereign in our own sphere; in construing the State Constitution we must answer to our own consciences and rely upon our own wisdom and insights. ‘If we would guide by the light of reason, we must let our minds be bold.‘” People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 147 (Simon, J., specially concurring), quoting New State Ice Co. v. Liebmann (1932), 285 U.S. 262, 311, 76 L. Ed. 747, 771, 52 S. Ct. 371, 387 (Brandeis, J., dissenting, joined by Stone, J.).
That our State self-incrimination guarantee does not countenance the police conduct here is evidenced by yet another consideration. The 1970 Illinois Constitutional Convention debates indicate that the delegates intended that
Delegate Weisberg, a member of the Committee on the Bill of Rights, who had argued Escobedo before the Supreme Court, assured the convention at large that the committee had decided that “whichever phrasing were to be put into ***
Based on Smith, Holland, Griggs and the proceedings of the constitutional convention, it is clear that the suppression of defendant‘s statements was supported under our State guarantee against self-incrimination.
This court has not consistently applied the so-called lockstep doctrine as an assist in interpreting
Due process preserves an individual‘s personal and property rights from the arbitrary action of public officers. (See People v. Belcastro (1934), 356 Ill. 144, 147.) “The essence of due process is ‘fundamental fairness.‘” (Burris, 147 Ill. 2d at 310 (Bilandic, J., dissenting), quoting Lassiter v. Department of Social Services (1981), 452 U.S. 18, 24, 68 L. Ed. 2d 640, 648, 101 S. Ct. 2153, 2158.) Due process essentially requires “fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizеn‘s cardinal constitutional protections.” (See Burbine, 475 U.S. at 467, 89 L. Ed. 2d at 450, 106 S. Ct. at 1165 (Stevens, J., dissenting, joined by Brennan and Marshall, JJ.).) Furthermore, due process contemplates that police act in an accusatorial, not an inquisitorial, manner. See Walls v. State (Fla. 1991), 580 So. 2d 131, 133.
In Illinois, due process of law requires that an accused shall be given the benefit of counsel. (See United States ex rel. Hall v. Ragen (N.D. Ill. 1945), 60 F. Supp. 820, 821.) Due process also requires that an accused is entitled to counsel during any custodial interrogation. (See 11A Ill. L. & Prac. Constitutional Law § 477, at 410 (1981).) The State due process guarantee (
As a general matter, the right to the assistance of counsel has been afforded historically a certain degree of judicial solicitude and due process protection in Illinois. Along with other circumstances, the deliberate denial to a suspect of counsel‘s assistance has resulted in an involuntary confession violative of due process. (See People v. Price (1962), 24 Ill. 2d 46, 58.) So too, the failure to appoint counsel, under certain circumstances,
Concerning, in particular, the right to the presence of counsel during custodial interrogation, it is not sufficient for authorities to merely advise a suspect of a generalized right to an attorney. (Cf. Haynes, 288 Or. at 71, 602 P.2d at 278 (right enforced is not generalized right to counsel, but “more concretely, the derivative right to the benefit of counsel‘s efforts to forestall involuntary incriminating disclosures“) (emphasis added).) There are certain requirements that are affixed to the right which seek to ensure its practical effectuation. Authorities must inform suspects that if they cannot afford an attorney, one will be provided, and that they may ask for one at any time and upon doing so, the interrogation must cease. Furthermore, it is not required that a suspect‘s request for counsel be absolutely articulate, because a sufficient but clear indication of a desire for counsel will trigger the entitlement. See People v. Krueger (1980), 82 Ill. 2d 305, 310-11.
In addition, the citizens of Illinois have historically
Considering these facts and principles, it is clear that the constitutional and statutory policies of our State favor a person having the assistance of counsel during custodial interrogation and contemplate prohibiting interference with that assistance by governmental authorities. If a defendant is entitled to the benefit of an attorney‘s assistance and presence during custodial interrogation and this right is guarded, certainly fundamental fairness requires that immediately available assistance and presence not be denied by police authorities. Put another way, due process is violated when police interfere with a suspect‘s right to his attorney‘s assistance and presence by affirmatively preventing the suspect, exposed to interrogation, from receiving the immediately available assistance of an attorney hired or appointed to represent him. (See Bryan v. State (Del. 1990), 571 A.2d 170 (holding that the police denial of the assistance of counsel to the defendant violated Delaware‘s due process provision); Haliburton v. State (Fla. 1987), 514 So. 2d 1088 (holding that the police denial of an attorney‘s access to his client violated Florida due process provision).) To do so is clearly and fundamentally unfair. “[P]olice interferenсe in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause
The trial court properly suppressed defendant‘s statements based on State decisional law (Smith and Griggs) interpreting the privilege against self-incrimination under the Illinois Constitution. The record shows that police refused defendant‘s retained attorney‘s access to defendant and did not inform defendant that his attorney was present at the station, seeking to consult with him. Under such circumstances, the State failed to satisfy its heavy burden of showing that there had been a knowing waiver of the right to counsel under
“’Miranda warnings refer only to an abstract right to counsel. That a suspect validly waives the presence of cоunsel only means that for the moment the suspect is foregoing the exercise of that conceptual privilege ***. To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice ***. A suspect indifferent to the first offer may well react quite differently to the second.‘” (Stoddard, 206 Conn. at 168, 537 A.2d at 453, quoting Haynes, 288 Or. at 72, 602 P.2d at 280.)
Certainly, “when the opportunity to consult is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.” (Haynes, 288 Or. at 75, 602 P.2d at 280.) “The critical inquiry is whether the information
Moreover, the police conduct here is not simply a failure to supply generally useful information, but a failure to apprise defendant of communications from his attorney bearing directly on the right to counsel. (See Burbine, 475 U.S. at 456 n.42, 89 L. Ed. 2d at 443 n.42, 106 S. Ct. at 1160 n.42 (Stevens, J., dissenting).) Defendant was thus denied information necessary to knowingly and intelligently waive his right to his attorney‘s presence as well as the actual and immediately available assistance of his own attorney. (Cf. People v. Hobson (1976), 39 N.Y.2d 479, 348 N.E.2d 894 (attempt by State authorities to secure waiver of right to counsel in absence of the retained or assigned attorney constituted breach of
Suppression of Lineup Identification
The State argues that exclusion of defendant‘s lineup identification is insupportable under either
While we have found that defendant‘s statement was properly suppressed due to the invalidity of a purported waiver of the right to counsel under
The question of the right to counsel at a pretrial lineup may only involve the right which is conferred by the
In this case, there is no question that adversary judicial proceedings had not been initiated at the time that defendant underwent the lineup. Defendant, then, was not entitled to the assistance of counsel at the lineup, and his right to counsel under
Since defendant possessed no right to counsel at the lineup under either
Suppression of defendant‘s lineup identification here is also insupportable under
For the foregoing reasons, we would affirm the trial court‘s order suppressing any statements defendant made after his attorney was present at the station and refused access to him. We would reverse the trial court‘s order suppressing evidence of the lineup identification of defendant. The judgments of the appellate and circuit courts are therefore affirmed in part and reversed in part, and the cause is remanded to the circuit court for further proceedings.
Appellate court affirmed in part
and reversed in part;
circuit court affirmed in part
and reversed in part;
cause remanded.
CHIEF JUSTICE BILANDIC, concurring in part and dissenting in part:
In appropriate cases, this court certainly has the right and the obligation to construe provisions of our State constitution more liberally than similar provisions in the Federal Constitution. (People v. Perry (1982),
The court in Smith suppressed the defendant‘s inculpatory statements because the police failed to inform the defendant that his attorney was present and seeking to consult with him. The court specifically stated, however, that it “rest[ed] [its] conclusion upon the defendant‘s right to counsel during custodial interrogation. That right stems from the fifth amendment protection against self-incrimination.” (Emphasis added.) (Smith, 93 Ill. 2d at 185.) Smith never cited оr discussed the Illinois constitutional privilege against self-incrimination. Rather, the Smith decision was based solely upon a construction of the scope of the Federal Constitution, which the United States Supreme Court later declined to adopt.
In People v. Holland (1987), 121 Ill. 2d 136, this court was asked to reconsider the Smith decision in light of the Supreme Court‘s decision in Burbine. The defendant in Holland urged the court to reject the Supreme Court‘s
People v. Griggs likewise did not hold that a defendant‘s right to counsel under the State constitution is broader than the right to counsel under the
The majority concludes, however, that the grounds on which Griggs sought to distinguish Burbine were “conceptually meaningless as a statement of Federal law” (163 Ill. 2d at 435) and that “there is no tenable basis in Federal constitutional law for the Griggs decision” (163 Ill. 2d at 435). Even assuming arguendo that the majority is correct in concluding that Griggs improperly construed the scope of the
Having concluded that
There is nothing in the text of our constitution that suggests that the State privilege against self-incrimination is broader than its Federal counterpart.
There is likewise no evidence in the committee report to the constitutional convention or in the debates to suggest that the drafters of the 1970 Constitution intended
In fulfilling our obligation to interpret the scope of
In Burbine, the Supreme Court held that the fifth amendment to the Federal Constitution does not require the suppression of a suspect‘s inculpatory statements simply because the police failed to tell the suspect of a lawyer‘s unilateral efforts to contact him. The defendant claimed that the failure of the police to inform him that an attorney had called tainted his “otherwise valid” waiver of his fifth amendment right to counsel, because the police deprived him of information crucial to his ability to waive his rights knowingly and intelligently. The Court rejected this claim, concluding that events occurring outside of a suspect‘s presence and entirely unknown to him have no bearing on the suspect‘s capacity to comprehend and knowingly relinquish a constitutional right. The Court stated:
“Once it is determined that a suspect‘s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State‘s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Burbine, 475 U.S. at 422-23, 89 L. Ed. 2d at 422, 106 S. Ct. at 1141.
The Court in Burbine also refused to modify Miranda to incorporate a rule requiring the police to inform a suspect of an attorney‘s efforts to reach him. The Court noted that the purpose of the Miranda warnings is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of a suspect‘s fifth amendment rights. (Bur-bine, 475 U.S. at 425, 89 L. Ed. 2d at 423, 106 S. Ct. at 1143.) The Court concluded that the rule proposed by the defendant would contribute little, if anything, to Miranda‘s goal of dispelling the compelling nature of custodial interrogation. Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423, 106 S. Ct. at 1143.
The Court also noted that, even if the rule added marginally to Miranda‘s goal of dispelling compulsion, several practical considerations counseled against its adoption. First, the proposed rule would undermine Miranda‘s central “‘virtue of informing police and prosecutors with specificity ... what they may do in conducting [a] custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible.‘” (Burbine, 475 U.S. at 426, 89 L. Ed. 2d at 424, 106 S. Ct. at 1143, quoting Fare v. Michael C. (1979), 442 U.S. 707, 718, 61 L. Ed. 2d 197, 208, 99 S. Ct. 2560, 2568.) The Burbine Court concluded that the proposed rule would undermine the clarity of Miranda‘s application and would raise a myriad of legal questions, such as:
“To what extent should the police be held accountable for knowing that the accused has counsel? Is it enough that someone in the station house knows, or must the interrogating officer himself know of counsel‘s efforts to contact the suspect? Do counsel‘s efforts to talk to the suspect concerning one criminal investigation trigger the obligation to inform the defendant before interrogation may proceed on a wholly separate matter?” Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423-24, 106 S. Ct. at 1143.
The Burbine Court also concluded that the proposed rule would result in an inappropriate shift in the subtle balance that Miranda struck between society‘s legitimate law enforcement interests and the protection of an accused‘s privilege against self-incrimination. (Burbine, 475 U.S. at 426, 89 L. Ed. 2d at 424, 106 S. Ct. at 1143.) The Court in Miranda recognized that custodial interrogation is a legitimate and necessary means of obtaining
The Court in Burbine concluded that a rule requiring the police to inform a suspect of an attorney‘s efforts to contact him would upset the delicate balance struck in Miranda. Such a rule was not necessary to dispel the compulsion inherent in custodial interrogation. Any benefit achieved by the rule, in terms of dispelling compulsion, would be offset by the substantial cost imposed upon society‘s legitimate interest in securing admissions of guilt. Burbine, 475 U.S. at 427, 89 L. Ed. 2d at 424-25, 106 S. Ct. at 1144.
I believe that the Supreme Court‘s analysis in Burbine adequately safeguards a suspect‘s privilege against self-incrimination. Accordingly, I would adopt that analysis and hold that the right to counsel under
I do not disagree with the principle that the police have an ethical obligation to inform a suspect that an attorney is present at the station, attempting to contact him. I simply disagree with the majority‘s conclusion that a suspect has a constitutional right to be so informed. Where a suspect has validly waived his right to counsel, that waiver should not become invalid simply because an attorney happens to arrive at the police station. The constitutional right to have counsel present during questioning belongs solely to the defendant and may not be invoked by his attorney.
For the reasons stated, I respectfully dissent from that portion of the majority opinion which affirms the suppression of the defendant‘s statements.
JUSTICES MILLER and HEIPLE join in this partial concurrence and partiаl dissent.
JUSTICE MILLER, also concurring in part and dissenting in part:
I agree with the majority that the lineup identification evidence was improperly suppressed, and I concur in the majority‘s resolution of that issue. I do not agree, however, that the defendant‘s own statements were taken from him in violation of either his Federal or his State constitutional rights, and accordingly I dissent from that portion of the majority opinion.
I dissented in People v. Griggs (1992), 152 Ill. 2d 1, and I continue to believe that Moran v. Burbine (1986),
The reasons offered by the majority in support of today‘s holding are not persuasive. First, the majority labors mightily in an attempt to establish that earlier decisions of this court addressing the same question were based on State and not Federal constitutional guarantees. 163 Ill. 2d at 426-39 (discussing Griggs, 152 Ill. 2d 1, People v. Holland (1987), 121 Ill. 2d 136, aff‘d on other grounds (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803, and People v. Smith (1982), 93 Ill. 2d 179).
The problem with the majority‘s analysis, however, is that it fails to recognize that the principal opinions in those cases did not purport to rely on or apply the Illinois Constitution. Only in concurring opinions filed by Justice Clark in two of those cases is there found the contention that the Illinois Constitution requires that law enforcement officers inform custоdial suspects of their attorneys’ efforts to reach them. (See Griggs, 152 Ill. 2d at 33-35 (Clark, J., specially concurring); Holland, 121 Ill. 2d at 166-72 (Clark, C.J., specially concurring).) In the end, the majority‘s discussion demonstrates not that Griggs, Holland, and Smith are explicable as a matter of State constitutional law, but simply that they would now be sustainable only on those terms.
The majority next turns briefly to a consideration of the drafting of the self-incrimination privilege of the Illinois Constitution. (163 Ill. 2d at 439-40.) The majority argues that the framers of the 1970 Constitution
Offering a third ground in support of today‘s holding, the majority opinion refers to the due process clause of the Illinois Constitution (
The majority‘s analysis of
JUSTICE HEIPLE joins in this partial concurrence and partial dissent.
JUSTICE HEIPLE, also concurring in part and dissenting in part:
I agree with the majority‘s decision that the lineup identification of the defendant should not have been suppressed. However, the majority opinion breaks new ground in the area of evidence suppression and extends yet further proсedural protections to persons accused of crime. Here, the defendant was a suspected murderer. He was under arrest and at the police station. After being given the requisite warnings, including his right to remain silent and his right to be represented by counsel, he willingly waived those rights and proceeded to talk.
Meanwhile, and unknown to the defendant, his family had retained a lawyer to represent him. The lawyer went to the police station but his efforts to speak with the defendant were rebuffed. The defendant‘s statements were later suppressed on the ground that the defendant had not been informed that a lawyer was asking to speak with him. That suppression order was affirmed by the appellate court and is again affirmed by the majority opinion.
I suggest that no reasonable person would ever take those words to mean that the defendant in the instant case has been compelled to give evidence against himself. Indeed, the majority itself does not quite do that. Rather, the majority reaches its decision by considering a body of State and Federal cases which interpret the meaning of the cited words in our State and Federal Cоnstitutions. Having done that in this case, it is fair to say that the decisions up to now have ruled, in essence, that a person who has been denied a lawyer or who has been denied access to his retained lawyer cannot, under such circumstances, have his statements used against him. The statements are deemed involuntary. That is to say, they are deemed compelled.
What the instant case does is to take that line of authority one step further and decree that the denial of access to a lawyer who is both unknown to the defendant and unretained by the defendant has the same effect. However, the extension of that protection to this case is unwarranted. This extension is unwarranted because it is the defendant‘s awareness of the lawyer and his capacity as the defendant‘s lawyer that should be the dispositive factor. Here, the defendant was offered a lawyer by the police and waived that offer. He was offered the right to remain silent and waived that offer.
Accordingly, I respectfully dissent from that portion of the majority‘s opinion which affirms the suppression of the defendant‘s statements.
(Nos. 74151, 75293, 75323, 75358 cons. — FIELDS JEEP-EAGLE, INC., et al. (Grossinger Motors et al., Appellants), v. CHRYSLER CORPORATION et al., Appellees.
Opinion filed December 22, 1994. — Rehearing denied January 30, 1995.
HARRISON, J., joined by NICKELS, J., dissenting.