*1 (No. 88323 . ILLINOIS, OF Appel- THE STATE PEOPLE OF
THE VILLALOBOS, Appellant. lee, SAMUEL 21, 2000. September Opinion filed RATHJE, J„ C.J., HEIPLE, J., by HARRISON, dis- joined and senting. Zitzer, for Chicago, appellant.
Dennis of General, Attorney Springfield, James E. Ryan, (William Devine, Attorney, Chicago A. Richard State’s General, Chicago, Browers, Attorney Assistant L. L. T. and Carol Goldfarb, McCurry Kenneth Renee counsel), Gaines, Attorneys, State’s Assistant People.
JUSTICE McMORROW delivered the opinion of the court:
At issue this appeal defendant, is whether Samuel Villalobos, invoked fifth pursuant Arizona, to Miranda v. 384 U.S. 16 L. Ed. (1966), S. Ct. 1602 filing a form at a bond hearing that stated defendant would not participate in *2 “any questioning, identification process or other proce any dures on case or matter” without his counsel pres ent. The appellate court that he concluded did not. No. 1—96—1139 (unpublished order under Supreme Court 23). Rule We petition allowed defendant’s leave to ap (177 315) peal Ill. 2d R. and now affirm the judgment of appellate court.
BACKGROUND 13, 1994, On November Ronnie Johnson was shot and The killed. evidence at defendant’s trial for Johnson’s murder established that at 3:30 a.m. on November defendant and four friends Ryan drove south on the Dan Expressway, with defendant in the front passenger seat of Cadillac, the car. car encountered a white driven by Johnson. Although testimony conflicting, ap- it pears that Johnson increased his speed, and defendant told the driver of his car to accelerate and follow Johnson. Defendant then leaned out the car and fired nine shots at Johnson’s car. One bullet entered left side of Johnson’s head Roughly and killed him. 45 minutes after this shooting, defendant and friends were his arrested for possession of on drinking cannabis and a public offense way unrelated to Johnson’s killing. —an On November appeared defendant a bond on hearing of cannabis At the possession charge. bond hearing, signed a form entitled “Appearance, Preliminary Notice of and Demand for Representation form). Hearing/Trial” (hereinafter, In appearance addi- to documenting public tion both the assistant defender’s and hearing for a preliminary demand and defendant’s stating: a section trial, form contained appearance this ADVISED, defendant serves the under-signed “BE its State, on the OF REPRESENTATION NOTICE barring law enforcement officers and on all agents the presence participation, his/her identification any process questioning, De- case or matter whatsoever.” procedures other County to and Cook proceeded fendant did bond post jail. writ, two pursuant
On November jail from removed defendant Chicago officers police order question brought headquarters him police being After advised him relative Johnson’s death. writing, them defen- waiving his Miranda presence in the dant a written statement provided officer, Attorney police and a which assistant State’s shooting. Defendant was subsequently he confessed Johnson’s murder. charged arrested and his suppress Defendant moved to statement motion to suppress, the murder trial. *3 form, filing1 that
argued by signing appearance in any question- to his participation which bar attempted matter, pros- case he notice to the ing any on provided enforce- he did law speak ecution that not wish to The of counsel. personnel assistance represented defender who public assistant charge on cannabis testified hearing his bond form appearance that the suppress defendant’s motion de- every for prepared form” that she “standard represented. fendant whom she by form, although signed defendant and appearance 1The dated, stamped by the the court. assistant was not file clerk hearing suppress public defendant’s motion defender testified at by placing it “on the bench” appearance form she “filed” the that hearing. judge during presiding defendant’s bond in front of the The circuit court denied defendant’s motion to sup- press, that finding the additional on language the ap- pearance form regarding unwillingness speak law enforcement personnel “any case” was “surplusage” and bound law personnel enforcement only cannabis offense. The inculpatory statement was introduced subsequently at defendant’s bench trial the murder of Ronnie Johnson. The circuit court found defendant guilty. appealed
Defendant ground his conviction on the that the denial of his motion to suppress constituted error. He that, argued signing filing the appearance form during hearing bond on the cannabis charge, he invoked his fifth amendment pursuant counsel to Miranda. Police officers violated that when they subsequently him on an questioned unrelated offense without his counsel being present. The appellate court conviction. Quoting McNeil v. Wis- affirmed defendant’s consin, 171, 178, U.S. L. Ed. 2d 111 S. Ct. (1991), appellate court stated “in invoke the order to interest, there must be ‘at a minimum, some statement reasonably can expression construed to be an aof for the desire assis- in dealing interroga- with custodial tance of an tion by police. Requesting the assistance of an at- torney a bail hearing bear ” construction.’ (Emphasis original.) No. 1—96—1139 23). order (unpublished under Court Rule Defendant appeals appellate court’s determina- tion that the motion to suppress was denied properly because failed to invoke his fifth amendment to Miranda. pursuant
ANALYSIS Arizona, In Miranda v. Ed. U.S. 16 L. (1966), Ct. 1602 S. United States Supreme *4 safeguards Court certain required procedural
233 interrogation. suspect Mi- provided a custodial before 706-07,86 Ct. L. 2d at S. 444, 16 Ed. randa, 384 U.S. at question- (“[b]y interrogation, we mean at 1612 ing custodial person by a enforcement officers after initiated law custody”). Although not enumerated into has been taken found these Constitution, Court in the privilege necessary protect safeguards in order to compulsory against fifth under the self-incrimination 457, States, v. United 512 U.S. amendment. Davis (1994), 362, 370, 2d 114 S. Ct. 2354 129 L. Ed. Michigan quoting Tucker, 433, 444, L. Ed. v. 417 U.S. (1974). Specifically, 182, 193, Ct. 2d 94 S. custody required person be advised that a rights, including to remain silent certain attorney, any interrogation to an Miranda, 444, L. Ed. 2d 384 U.S. at law enforcement. 706-07, 86 Ct. 1612.Edwards v. Arizona further S. person expanded Miranda and held that once invokes during interrogation, he “is to counsel interrogation by subject to further the authorities him, counsel has made available unless the until been communication, himself initiates ex- accused further changes, police.” or conversations with Edwards L. Arizona, 484-85, 68 Ed. U.S.
S. Ct. single presented appeal issue in this is whether when, invoked his Miranda to counsel signed hearing, appear- the defendant a notice of a bond that the defen- ance form which included statement any questioning participate future dant would not attorney present. There no matter without his custody dispute that defendant was in while at his bond hearing. dispute defendant was not There is also no subject Nevertheless, de- at that time. argues effectively his Miranda fendant that he by filing invoked appearance form at his bond *5 234
hearing. Therefore, Miranda argues his right to counsel may be invoked prior to custodial interroga- tion.
The United
States
directly
has not
answered the
However,
issue before this court.
the Court
strongly suggested
has
that a defendant
cannot anticipa-
torily invoke his Miranda
to
at
right
prelimi-
counsel
a
McNeil,
nary hearing.
In
argued
that an
invocation
right
of his sixth amendment
to counsel acted
his Miranda
as an additional
invocation
right
to
McNeil,
counsel.
501
U.S.
115 L.
2d
11
Ed.
S. Ct. at
In
2207.
holding that a sixth amendment
invoca-
as a Miranda
tion does not operate
invocation
counsel,
right
to
Supreme Court stated
a footnote:
person
“We have
fact never held that a
can invoke his
rights anticipatorily,
Miranda
in a context other
than
interrogation’
‘custodial
a preliminary hearing will
—which
always,
usually,
not
or even
[citations].
involve
If the Mi-
randa right
to counsel can
preliminary
be invoked at a
hearing,
argued,
why
it could be
logical
there is no
reason
arrest,
it could not be
prior
invoked
a letter
or indeed
even
suspect.
identification as a
Most rights must
government
asserted when the
seeks to take the action
they protect against. The fact that we have allowed the Mi-
asserted,
right
randa
once
to be effective with
respect
to future custodial
does not necessar-
ily
initially
mean that we will allow it to be asserted
outside
interrogation,
the context of custodial
with similar future
McNeil,
n.3,
effect.”
See also U.S. at 68 L. Ed. 2d at (“[t]he 387, 101 Ct. S. at 1885 Fifth Amendment right identified in Miranda to have counsel present interrogation. at any interroga- Absent such tion, there infringement would have been no of the that Edwards invoked and there be no would occasion to waiver”); determine a whether there had been valid Innis, Rhode Island v. 291, 300-01, Ed. 2d U.S. L. (1980) (holding that one’s 100 S. Ct. subjected he is are in when place Miranda interests functional equivalent”). or its “express questioning indicated this court Subsequent exist his suspect’s Kidd, we that invocation held People v. arraignment. to counsel does not invoke the sixth Kidd, People to counsel. defendant’s holding, In so we specifically Ill. sixth amendment “although stated Washing Earl attached when private *** on the arraignment ton defendant at represented *6 fifth charges, and arson unrelated murder clearly to counsel to Miranda right pursuant Kidd, 2d did v. 147 Ill. point.” People not arise at that 532.
In
our own
of state
precedent, majority
addition to
the
in McNeil
hold
language
courts have relied on
to
that
right
one
invoke the
anticipatorily
cannot
State,
interrogation.
to custodial
Sauerheber v.
698
(“[McNeil]
(Ind. 1998)
796,
strongly suggests
N.E.2d
802
that
do
under Miranda
and Edwards
not
permit
requests
extend to
counsel
to
anticipatory
begins”);
preclude
interrogation
waiver at the time
Sapp
(Fla. 1997);
v. State,
581,
People
690 So. 2d
584-85
v.
416, 423,
320,
4th
2d
Avila, 75 Cal.
89 Cal.
App.
Rptr.
(1999);
Warness,
324
893
App.
State v.
77 Wash.
(“The
(1995)
P.2d
need for Miranda protection
does not exist
a custodial
situa
except
exists”);
right
The
it
see
tion.
cannot be invoked before
Stewart,
462, 477-78,
also
v.
2d
780 P.2d
State
113 Wash.
(1989),
296 Or.
quoting
Sparklin,
State
(1983)
to
Supreme
P.2d
(prior
Supreme Court
McNeil, Washington
Court decision in
his sixth amend
held that a defendant’s invocation of
to
not act to invoke his Miranda
right
counsel does
“
counsel,
to
because
arraignment
‘[a]t
defendant
not
confronted
coercion,
atmosphere
nor
”).
anyone
seek to gain admissions from him’
Sapp
and Avila are
The
facts
both
simi-
strikingly
lar to the
facts
the case at
bar.
Sapp,
Florida held that a defendant does not invoke
his Miranda
signing
a “claim of
Sapp,
rights” form.
So. 2d
585.
in jail
While
pur-
arrest,
suant
to a robbery
signed
defendant
and later
filed
“claim of rights” form, which stated that
the de-
fendant asserted
his
to refrain from making any
statements
regarding offenses
he
with which
was or was
charged
not
his
present.
Subsequently,
police questioned the defendant
about an unrelated of-
fense, after the defendant was
informed
and waived
Miranda
his
rights.
argued
later
“claim of
form
effectively invoked his Miranda
rights”
statement
should have been
Sapp, 690 So.
suppressed.
2d at 583. The Supreme Court
of Florida held
“claim
rights” form did not
act as an effective invocation of the defendant’s counsel because the
subject
when he
attempted
invoke his
right. Sapp,
690 So.
Rather,
585.
the court
found that “Miranda's
safeguards were intended
protect
against
the Fifth Amendment
self-
by countering
compulsion
incrimination
inheres
*7
omitted.)
in
Sapp,
interrogation.”
custodial
(Emphasis
Additionally, the California court appellate held that defendant does not invoke his Miranda when his assistant defender form public files a attempt- fifth, ing assert defendant’s sixth and fourteenth Avila, rights. 422-23, amendment 75 Cal. 89 App. 4th Avila was arrested Cal. Rptr. 2d at 325. defendant and, shooting arraignment, for a at his defense counsel
237 fifth, invoked his the defendant stating filed a form enforce- rights. Law sixth and fourteenth regarding defendant interviewed the officers later was advised offense, after the defendant an unrelated interview, During this rights. Miranda his and waived Avila, App. Cal. crime. 75 the defendant admitted 418, appel- 2d at 322. The California Rptr. 89 Cal. 4th his confes- argument rejected court late taken viola- because it was suppressed sion should Avila, App. 75 Cal. of his Miranda counsel. tion doing so, the court 421, 89 2d at 323. Rptr. 4th at Cal. defendant, neither custody, though found that arraignment. at his fearing interrogation nor facing 422, 2d at 325. Avila, Rptr. Cal. 4th at 89 Cal. App. 75 anticipatory noted an invoca- “[allowing The court ac- to counsel would extend an tion of Miranda beyond self-incrimination far privilege against cused’s Avila, intent of 75 Cal. its progeny.” 4th at 89 Cal. 2d at 325. App. Rptr.
Relying overwhelming number of courts also held that a cannot federal have defendant invoke his Miranda outside the context of custodial Grimes, interrogation. States United v. F.3d (11th 1998); LaGrone, Cir. United v. 43 F.3d States (7th 1994) (“there Cir. are certain ‘windows must Mi- which assert his opportunity’ A must invoke clearly randa counsel. at a source, to counsel from each constitutional available”); time United States v. when the is 1994) (“[the (2d 35 F.3d Cir. Thompson, did not defendant’s] [notice of the filing appearance] interrogation”); in the Alston occur context (“[b]ecause (3d 1994) Redman, Cir. F.3d setting and official inter- of both a custodial presence trigger right-to- is the Miranda rogation required other, absent one or the prophylactic, *8 (emphasis omitted)); United States v. not implicated” Wright, (9th 1992) (“[t]o 962 F.2d Cir. extend Miranda-Edwards as protection urges [the defendant] would, hand, on the other it virtually make impossible charged for defendant with one crime ever to be if, about unrelated criminal questioned activity, the first time in court on the first charged, offense he asked counsel to be present future interviews. This would prophylactic purposes Miranda”); United not serve the Cooper, (D.D.C. 2000) (“[t]he States v. Supp. F. [in footnote strongly suggests, McNeil] not although for counsel under Miranda that definitively, request a must be made within the custodial context and not at ar such proceedings”); United States v. raignment other or Barnett, (D. 1992) (find 814 F. Supp. Alaska ing that request a for counsel a grand jury proceeding constitute an invocation of the under Miranda-Edwards “assume[s] because the court McNeil that the dicta in accurately predicts United States hold an will accused cannot invoke his Fifth Amendment to counsel until custody, he taken into and interrogation, rights”). warned of those Grimes,
For example,
the defendant was arrested
charged
with writing worthless checks. The defen-
signed
rights”
dant
“claim of
form which
attempted
invoke both his fifth and sixth amendment
form
placed
counsel. The
was
in the court file and copies
Attorney
were served
both
State’s
and police
The
department.
incriminating
later made
regarding
separate
statements
offense to
undercover
and to a friend
enforcement
agent
assisting
who
law
investigators. The
that he
his
argued
invoked
by signing
rights”
the “claim of
and, therefore,
incriminating
form
statements
should
Grimes,
been
suppressed.
have
when rights” the defendant’s not invoke form did “claim of rights. 1348. Grimes, 142 F.3d *9 reasoning and state agree federal of these the We every Supreme virtually surprising that not cases. It is phrase involving opinion has used the Court interrogation interrogation.” It is custodial “custodial an the It is concerned. Miranda was with which interrogation during that Miranda custodial protects. exist outside progeny does not That and its interrogation. cannot invoke One of custodial the context yet in on a bond court not exist. While subject interrogation, hearing, and is not a defendant yet present. The not for Miranda is the need “[t]he in concern of the Court in stated Innis ‘interrogation cre environment’ that the Miranda was custody interplay by and would the ated ‘subjugate and of his examiner’ individual to will against compulsory thereby privilege self- undermine added.) (Emphasis Innis, 446 U.S. at incrimination.” (1980), quoting 306, 100 at 1688 2d at S. Ct. 64 L. Ed. 2d at 86 S. 457-58, 16 L. Ed. Miranda, 384 U.S. at Perkins, 496 U.S. Illinois v. at 1619. See Ct. also (1990) 2394, 2397 243, 251, 110 S. Ct. Ed. 2d 110 L. (“Kit danger premise of coer of Miranda that is custody official and the interaction of cion results from interrogation”). custody interplay Absent the against privilege interrogation, self- an individual’s is not threatened. incrimination rights argument support that his Miranda of the In hearing, cites to at his bond had attached (10th 1991), Kelsey, 1196 Cir. 951 F.2d United States 517, 412 N.C. S.E.2d Torres, 330 Carolina v. and North decisions on these reliance Defendant’s 20 misplaced, factually inapposite. cases are
as both 240 both Kelsey and Torres bar,
Unlike the matter involved situations where the when was imminent he she requested counsel. In Kelsey, defendant, being arrested, after searched and told essentially police officers that he would be Torres, questioned. Similarly, in the defendant was taken to the department sheriffs in a placed conference addition, room await interrogation. that, we note Kelsey, subsequent the Tenth Circuit has indicated invocations of Mi- it will not anticipatory permit randa to counsel. See United v. Bautista, States (10th 1998) (“[w]e F.3d Cir. do suggest person that a can invoke his anticipa- in situation, i.e., torily a context other than Mc- interrogation, as the Court cautioned Neil”), citing n.3, U.S. at 115 L. Ed. 2d n.3, Ct. S. at 2211 n.3.
Interrogation was not imminent case bar. Defendant was court on unrelated when crime he *10 to invoke his Miranda right to attempted counsel. There suggestion was no that defendant would be questioned on charged any the crime with which he was or other fact, crime to his subsequent hearing. bond defendant’s regarding Johnson murder occurred days hearing. two after his bond Edwards
The defendant out that under points Roberson, v. Arizona 675, 704, L. 486 U.S. 100 Ed. 2d 108 (1988), S. Ct. 2093 once suspect right a invokes his Miranda, counsel he not pursuant may interrogated be again regarding any offense unless he initiates con- McNeil, 177, 175, 501 at 115 2d at versation. U.S. L. Ed. the Mi- 2207, 111 S. Ct. at (stating that randa Therefore, right specific). to counsel is not offense notes, if an further accused invokes his Miranda to counsel when in for one of- custody fense, law enforcement cannot him personnel question unrelated that offense offense L. 677-78, 100 U.S. at Roberson, 486 v. Arizona present. Perkins, 2096; People 711, 108 S. Ct. 2d at Ed. must However, suspect App. Ill. interroga custodial during invoke imminent. was tion or when be allowed that he should argues also Defendant hearing “[i]f because at a bond Miranda assert *** only custody in continuous remains a defendant Amendment of his Fifth assertion verifiable According to defen- judge.” a one made before counsel is asserted to counsel is Miranda dant, unless the witnesses only a “the judge, in the presence court open very officers whose be for counsel would request to a If disagree. we a statement.” We it to obtain objective have to we would argument, accept were to a every suspect time to be judge present a require its Miranda and warnings. Although Miranda receives uphold safeguards certain procedural demand progeny in- against compulsory a fifth amendment person’s crimination, independent has required no case ad- suspect to attest third party present See, rights. e.g., of or his Miranda vised waived S. Ct. at 115 L. Ed. 2d 501 U.S. (“[i]f with the to communicate wish suspect tell them attorney, simply he can through an police except warnings”). Miranda We him the they give that when pro- to the Miranda layer additional decline to add that today. phylaxis invocations to allow
Stretching anticipatory beyond far extend Miranda to counsel would of the very balance upset its boundaries and effective law between balance sought protect —the In order rights. of individual enforcement and protection *11 counsel, an individual the Miranda to invoke subject custody and must be both under threat interrogation. imminent of case at the bar, not subject defendant was bond hearing. We therefore hold that defendant could invoke his effectively to counsel at the bond hearing. Defendant’s to suppress motion was cor- rectly denied.
We note that the State moved strike portions defendant’s brief. We reply ordered that motion taken deny with the case and now it.
CONCLUSION reasons, For affirm foregoing judgment we court. appellate
Affirmed. HEIPLE, JUSTICE dissenting: Today’s majority opinion erroneously holds that po- may lice a criminal interrogate suspect custody their present, without even after attorney suspect has clearly unambiguously requested assistance an attorney dealing interrogation. I therefore dissent.
FACTS On November defendant was arrested for on drinking way public felony possession cannabis. defendant’s initial court During appearance, appearance defendant’s filed her form. This signed defendant, form was and contained the follow- ADVISED, “BE ing undersigned notice: this serves NOTICE OF REPRESENTATION on the State, it’s agents [sic] and on all law enforcement officers barring pres- participation, counsel, in any ence of identification questioning, his/her or other case or what- process procedures matter Defendant did not bond and remained post soever.” custody. *12 later, he days
Just three and while was still Chicago two custody, continuous on November regarding officers defendant the shoot- police questioned death Ronnie Johnson. Defendant’s counsel was ing not present during interrogation. During this course shooting. defendant confessed to the questioning, this charged Defendant was with Johnson’s subsequently murder. trial,
Before defendant moved to his state- suppress given ment In the motion to defen- police. suppress, argued dant his fifth police violated amendment by to counsel him his questioning counsel being even after defendant had present requested as- sistance of counsel in with dealing interroga- custodial motion, however, tion. The trial court denied defendant’s finding that the for counsel was request merely “surplus- age” form, attached to appearance counsel’s and was not binding the State upon except original relation to the drinking charges. cannabis trial, At defendant’s subsequent murder the state- ment admitted against into evidence defendant. The circuit court found guilty of first mur- degree der and him years sentenced to 60 in prison.
Defendant appealed, arguing the trial court erred in refusing his statement. The suppress appel- affirmed, late court but for different reasons. Whereas the trial court had found fault with the manner in which attempted invoke his fifth amendment appellate court found with fault defen- dant’s choice of court appellate reasoned that forum. proper invocation a defendant’s fifth amendment “ minimum, requires ‘at some state- reasonably ment that can be construed to an expres- sion of a attorney desire for the assistance of an in deal- ing police. custodial Requesting the assistance of an hearing a bail ” original.) bear that construction.’ No. (Emphasis
1— 96—1139 (unpublished order under Wisconsin, McNeil 23), 171, 178, Rule quoting 501 U.S. 115 L. Ed. 2d 111 S. Ct. Ac- cordingly, the court held that appellate fifth to counsel had not been violated.
The majority today reasoning adopts the appel- court, late also goes step but one further. addition to invoke holding that a defendant cannot fifth amend- during his initial court appearance, the majority also holds that a defendant does not even have such a until begins. 193 111.2d at 239.
DISCUSSION
Both the
court and
appellate
majority today
base
their
in
holdings
large
the United
part upon
States
Wisconsin,
McNeil v.
in
opinion
Court’s
(1991).
U.S.
115 L. Ed. 2d
McNeil was arrested for an armed commit- Allis, arrest, ted in Shortly West Wisconsin. after his po- lice advised McNeil of his sought and to question him. McNeil refused to answer but questions, attorney. did not an ended request police promptly the interview. later,
Some time in court for a appeared McNeil bail hearing. by He was at that an at- represented hearing torney from the Wisconsin defender’s office. Mc- public did not in Later post custody. Neil bail remained evening, that same two detectives McNeil questioned interviews, jail. During subsequent that and and after of his informed being rights, gave McNeil state- admitting ments involvement the Caledonia crimes. trial, to confes- suppress Before McNeil moved According sion. his courtroom appearance crime constituted an the West Allis counsel, invocation of the Miranda subsequent right during waiver police-initiated questioning regarding any offense was invalid. The trial court denied motion, and McNeil was convicted of murder, degree second attempted degree murder, first robbery. and armed
The Supreme Court held that the police questioning First, McNeil was proper. the Court accepted sixth amendment to counsel had at- tached and been invoked with respect to the West Allis armed robbery at the time McNeil confessed to the Cale- donia crimes. The sixth amendment counsel, however, is offense specific. Accordingly, because defen- dant yet had not invoked his sixth amendment counsel with respect crimes, the Caledonia that right posed no bar to the admission of McNeil’s confession.
The Supreme
recognized, however,
that Mc
Neil was relying
upon
to counsel which the
United States Supreme Court had held to
implicit
***
guarantee
amendment’s
person
“[n]o
fifth
shall be
compelled
any criminal case to
abe witness
against
Const.,
himself.” U.S.
amend. V. See Miranda v.
Arizona, 384
436, 442,
U.S.
16 L. Ed. 2d
86 S.
Ct.
In contrast
to the sixth amend
the right to counsel
secured
is not offense specific. See Edwards v.
fifth
Arizona,
U.S.
68 L. Ed. 2d
Neil’s
a
assistance
appearance
counsel had been his
with counsel at his bail
hearing.
enough,
This was not
the
Supreme
because invocation of the
explained,
fifth
counsel,
minimum,
“requires,
at a
some state-
can
an
reasonably
expres-
be construed
be
in deal-
attorney
sion of a
for the
of an
desire
assistance
the
ing
interrogation by
police. Requesting
attorney
hearing
the assistance of an
at a bail
does not
McNeil,
original.)
that construction.”
in
(Emphasis
bear
169, 111
115 L. Ed. 2d at
S. Ct. at 2209.
U.S.
from
Court’s
opinion
What
is clear
McNeil is that
analysis focused not
upon
the Court’s
the defendant made his
place
request
time
when
type
of assistance of
upon
assistance of
but
McNeil,
In
requested.
counsel which
defendant
best,
had,
a desire for the assis-
expressed
bar,
hearing.
tance
counsel at a bail
the case at
however,
clearly
unequivocally expressed
in dealing
“a desire for
assistance
interrogation by
police.”
with custodial
Ac-
115 L.
2d at
from the McNeil entirety That its opinion. stated: that the result in this case will predicts
“The dissent
when,
preliminary
routinely
‘[i]n
circumvented
future
be
they, or
hearings,
counsel ... make sure that
competent
clients,
invoking
record’
their
make a statement on the
never
Miranda
[Citation.]
to counsel.
We have
fact
his rights anticipa-
person
held that a
can invoke
interrogation’—
torily, in
context other than ‘custodial
always,
usu-
hearing will not
or even
preliminary
which a
If the to counsel can
ally,
[citations].
involve
argued,
hearing, it could be
preliminary
invoked at a
why
logical reason
it could not be invoked
there is no
*15
arrest,
prior
letter
or indeed even
to identification
as a suspect.
Most
must be asserted when the
government
they protect against.
seeks to take the action
The fact
that we have
right
allowed the Miranda
asserted,
once
to be
respect
effective with
to future
custodial
necessarily
does not
mean that we
will allow it
be
initially
asserted
outside the context of
interrogation,
with similar future effect. Assum-
ing, however, that an
arraignment
assertion at
would be ef-
fective,
made,
and would
routinely
be
the mere fact that
adherence to the principle of our decisions will not have
consequences
substantial
is no
reason
abandon that
principle.
It would remain intolerable
a person
that
custody
expressed
who had
objection
being
no
questioned
unapproachable.”
would be
n.3,
The reliance on the McNeil footnote is misplaced majority for several First, reasons. as the candidly Supreme admits, the United States Court has never may addressed-the issue of whether a defendant invoke the sixth amendment to counselbefore inter- (whatever rogation begins means). or is “imminent” clearly Second, the footnote is dicta. opinion entirely
Court’s upon McNeil was based the fact that defendant had never invoked his fifth amendment place such, counsel. As the time and such invocation Third, was never at issue. the footnote does state, in dicta, even that a defendant cannot invoke his fifth amendment to counsel under the facts of merely Rather, this case. the footnote noted the existence deciding Finally, of the issue without it. the footnote was response joined by written in to a dissent which was three precisely Thus, Justices. while zero of Justices on the McNeil the fifth amendment argued explicitly could not manner invoked case claims to have employed, which the defendant this expressly argued of that Court three Justices could be invoked in this fashion. fifth amendment *16 172, 111 184, 115 Ed. 2d at S. Ct. 501 U.S. at L. Marshall (Stevens, J., dissenting, joined by JJ.). Blackmun, majority’s prediction the Accordingly, this Court would rule on how the United States speculation. issue is pure rule announced policy perspective,
From a purely arresting today, police is a bad one. After by majority to inform a any have reason longer a will no suspect his immediately until before rights suspect of Indeed, the rationale under they questioning. initiate a freely interrogate suspect now police may the majority, a “I questions states refuse to answer who handcuffs, long as are police applying as the lawyer” In ask any questions. wait until later police as the for counsel would scenario, request the suspect’s such a was not a time when have made at been" hold that such majority would Accordingly, imminent. to invoke. Such a had no fifth suspect which the with the values clearly a is inconsistent result Miranda decision was protect. meant McNeil from concern, borrowed majority’s
The fifth amendment invoke the footnote, that a could person at a straw arrest, is directed even before to counsel attempt did not this case man.2 concern, acceptance majority’s 2The additional judge every presence of a time require the defendant’s rule would did warnings, specious. Defendant is suspect receives Miranda of a rights may only waived in front be argue that Miranda now correctly points that the rule Rather, out judge. the defendant single most ef majority deprives of the by defendants adopted rights are insuring fifth amendment their fective means of rights open court. namely, of those respected, invocation by invoke his letter to arrest. On contrary, custody police defendant was continuous requested from the time he to assist him during interrogation interroga- until the time when the place. any giving event, tion took effect to the unambiguous request defendant’s clear and for counsel require under the facts of case this would not this court expand by supposed to the extremes the ma- jority. Rather, this court should rule the fifth amend- may to counsel attaches and invoked custody. defendant at time after he taken into This proper recogni- rule would strike a balance between the suspect’s right compelled tion of a to be free from self- incrimination and the interests of law enforcement in obtaining evidence. This court should further hold that the State was bound in this case to honor defendant’s request questioned attorney pres- not to be without his police questioning spite request ent, and that of this violated defendant’s constitutional under the fifth *17 Accordingly, amendment. the trial court erred when it suppress denied defendant’s motion to his confession. Defendant is entitled ato new trial.
Accordingly, respectfully I dissent.
CHIEF JUSTICE HARRISON and JUSTICE join RATHJE in this dissent.