ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Hunt, 2012 IL 111089

Caption in Supreme

Court:

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TAVARES

HUNT, Appellee.

 

Docket No. 111089

Filed April 19, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

“Custodial interrogation” was not taking place at a police station, and the

appellate court erred in affirming a suppression under McCauley, where

a suspect made statements while alone with an informer who was an

inmate, even though the suspect’s counsel on a different matter was

unsuccessfully seeking access to him—McCauley and Miranda not

applicable.

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that court

on appeal from the Circuit Court of Cook County, the Hon. Fred G. Suria,

Jr., Judge, presiding.

Judgment Appellate court judgment reversed.

Circuit court judgment reversed.

Cause remanded.
Counsel on

Appeal

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,

State’s Attorney, of Chicago (Alan J. Spellberg, Annette N. Collins and

Susan R. Schierl Sullivan, Assistant State’s Attorneys, of counsel), for

the People.

Jack Rimland and Joshua B. Kutnick, of Chicago, for appellee.

Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Burke, and Theis

concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion.

OPINION

¶ 1 On April 14, 2003, defendant, Tavares Hunt, was arrested and charged with murder in

the shooting death of Shakir Beckley. A Cook County grand jury indicted defendant and

charged him with 33 counts of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2002)), 6

counts of attempted murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2002)), 2 counts of armed

robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2002)), 1 count of aggravated battery

with a firearm (720 ILCS 5/12-4.2 (West 2002)), 7 counts of attempted armed robbery (720

ILCS 5/8-4, 18-2 (West 2002)), 1 count of aggravated discharge of a firearm (720 ILCS 5/24-

1.2(a)(2) (West 2002)), and 1 count of aggravated battery with a deadly weapon (720 ILCS

5/12-4(b)(1) (West 2002)).

¶ 2 Defendant filed a motion to suppress tape recordings, statements, and conversations with

an informant during court-ordered consensual overhears, arguing that they were obtained in

violation of his fifth amendment right to counsel (U.S. Const., amend. V) and his rights to

counsel and due process under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 10), as

articulated by this court in People v. McCauley, 163 Ill. 2d 414 (1994). He also filed a

motion to exclude tape recordings of those conversations, arguing that the recordings were

substantially inaudible. The trial court granted both motions, suppressing defendant’s

statements and the recordings.

¶ 3 On interlocutory appeal, the appellate court affirmed the suppression order. People v.

Hunt, 381 Ill. App. 3d 790, 809 (2008). This court affirmed in part, reversed in part, and

remanded to the appellate court for its consideration of the suppression of the statements on

fifth amendment and McCauley grounds. People v. Hunt, 234 Ill. 2d 49, 65-67 (2009). On

remand, the appellate court affirmed the suppression of the statements on McCauley grounds.

403 Ill. App. 3d 802, 830.

¶ 4 We allowed the State’s petition for leave to appeal. The sole issue on appeal is whether

the statements were properly suppressed on McCauley grounds. For the following reasons,

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we conclude that they were not. Accordingly, we reverse and remand to the trial court for

further proceedings.

¶ 5 I. BACKGROUND

¶ 6 While defendant was being held in the Cook County jail on an unrelated charge, he

became a suspect in Shakir Beckley’s murder. In May 2002, Chicago police detectives took

him from the county jail to a Chicago police station and questioned him about the murder.

He denied anyinvolvement in, or knowledge of, the murder. The detectives testified that they

read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and he waived

those rights before he was questioned. Defendant testified, however, that he told the

detectives he was not speaking to them unless an attorney was present, but they continued

to question him. The detectives denied that he said he did not want to talk to them or that he

requested an attorney. In fact, they testified that he consented to, and took, a polygraph test,

for which he signed a written waiver. After the polygraph test, the detectives questioned him

again, and he continued to deny any involvement in the murder. Because the questioning

finished late and they wanted to question him further, they kept him at the police station

overnight. The next day, they questioned him again, and he continued to deny any

involvement in the murder. The detectives fingerprinted him before returning him to the

county jail later that day.

¶ 7 On June 28, 2002, an assistant public defender was assigned to represent defendant in the

unrelated case. Defendant testified that he told counsel that day and on July 12, 2002, that

Chicago police detectives were questioning him about an unrelated, uncharged matter and,

on both days, counsel told him not to talk to the police.

¶ 8 On July 16 or 17, 2002, the detectives took defendant from the county jail to the police

station so Mycal Davis, who was also in the jail on an unrelated charge, could view him in

a lineup. The lineup had to be rescheduled because defendant and Davis were put in the

bullpen together even though they were supposed to be brought out at different times so they

would not see each other.

¶ 9 After Davis had been in the bullpen with defendant, he told the detectives that he knew

defendant; that defendant was involved in Beckley’s murder; that he and defendant had a

conversation about Beckley’s murder, in which defendant made incriminating statements;

and that he thought he could get defendant to repeat the statements. The detectives then

decided to set up a judicially authorized overhear, using Davis as the consenting party.

¶ 10 Defendant testified that on July 18, 2002, the detectives took him from the county jail to

the police station and questioned him about Beckley’s murder. Defendant testified that he

told them he did not want to talk to them and that he wanted to talk to a lawyer.

¶ 11 On July 31, 2002, guards told defendant that the detectives were coming to put him in

a lineup. He called counsel and left a message, asking counsel to go to the police station for

the lineup.

¶ 12 The detectives then took defendant from the county jail to the police station, put him in

an interview room, and left him alone for about three hours. During that time, he was not

handcuffed and was given food and water. He was not questioned by any police officer that

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day. At about 3 p.m., Davis, who was wearing a concealed wire pursuant to a court order,

was put in the interview room with him. The detectives recorded the conversation between

defendant and Davis and monitored the conversation from anotherroom.Defendant allegedly

implicated himself in Beckley’s murder.

¶ 13 The lieutenant in charge of the Beckley investigation testified that, at some point during

the overhear, when he took a break from monitoring the conversation, he was told that an

attorneywas there, asking to speak with defendant. He testified that he met with the attorney

at about 4:02 p.m. The attorney said he represented defendant on an unrelated charge and

asked why defendant was at the police station. The lieutenant responded that defendant was

there for a lineup in a case under investigation, which was unrelated to the one for which he

was in jail. Counsel asked to meet with defendant and to be present during the lineups. The

lieutenant asked counsel to give him “about five minutes.” According to the lieutenant, the

overhear ended shortly after 4 p.m., and counsel was then allowed to speak with defendant.

¶ 14 Counsel testified,from his contemporaneous notes, that, after he got defendant’s message

on July 31, he called the police station and confirmed that defendant was there. He asked to

speak with the detectives and was told they were “out in the field.” He said he was coming

down to the police station. He arrived at 3:14 p.m., and the detectives were paged at 3:19

p.m. Counsel testified that he repeatedly asked to speak with defendant but was not allowed

to do so until sometime between 4:02 and 4:12 p.m. At 4:12 p.m., after meeting with

counsel, defendant invoked his rights to remain silent and to have counsel present during

questioning. According to the detectives, this was the first time defendant had invoked his

rights.

¶ 15 On August 6, 2002, the detectives again took defendant from the county jail to the police

station; put him in an interview room with Davis, who was wearing a concealed wire; and

monitored and recorded the conversation, duringwhich defendant again allegedlyimplicated

himself in Beckley’s murder. He was not questioned by the police that day. The public

defender’s office had withdrawn its representation of defendant in the unrelated case a few

days earlier, and no counsel was present during the overhear that day.

¶ 16 Relying on McCauley, the trial court suppressed those parts of defendant’s statements

and recordings made after counsel arrived at the police station on July 31, holding that

defendant had a right to speak with counsel within a reasonable time after counsel arrived.

The court denied defendant’s motion to suppress the August 6 statements and recordings

because counsel was not present that day. The court later vacated its suppression order sua

sponte and allowed the parties to provide additional arguments about the impact of counsel’s

arrival on July 31.

¶ 17 Defendant subsequentlyfiled his motion to exclude the recordings, arguingthat they were

substantially inaudible. After listening to the recordings and hearing further arguments of

counsel, the trial court suppressed all of defendant’s statements and all of the recordings. In

doing so, the court relied on McCauley and found that defendant had a right to speak with

counsel within a reasonable time after counsel’s arrival at the police station at 3:14 p.m. on

July 31 but was not allowed to do so until 4:02 p.m., after the overhear ended. The court also

suppressed the recordings on the alternative ground that they were substantially inaudible.

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¶ 18 On interlocutory appeal, the appellate court affirmed the suppression order but on

grounds not argued by the parties. Hunt, 381 Ill. App. 3d at 809. The court also affirmed the

suppression of the recordings on the alternative ground that theywere substantiallyinaudible.

Id. at 808. This court reversed that part of the appellate court’s judgment affirming the

suppression order on grounds not raised by the parties, affirmed that part of its judgment

affirming the suppression of the recordings on the alternative ground that they were

substantially inaudible, and remanded the cause to the appellate court for its consideration

of the suppression of the statements on fifth amendment and McCauley grounds. Hunt, 234

Ill. 2d at 67. On remand, the appellate court affirmed the suppression of the statements on

McCauley grounds. 403 Ill. App. 3d at 830.

¶ 19 We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 20 II. ANALYSIS

¶ 21 On appeal, the State no longer argues that the recordings should not have been

suppressed as substantially inaudible; nor does defendant argue that the statements should

have been suppressed under the fifth amendment. Thus, the sole issue on appeal is whether

the statements were properly suppressed on McCauley grounds.

¶ 22 A trial court’s ruling on a motion to suppress evidence is reviewed under the two-part test

adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 699

(1996). People v. Absher, 242 Ill. 2d 77, 82 (2011). The court’s factual findings are upheld

unless they are against the manifest weight of the evidence. The reviewing court then

assesses the established facts in relation to the issues presented and may reach its own

conclusions as to what relief, if any, should be allowed. Accordingly, the ultimate legal

question of whether suppression is warranted is reviewed de novo.

¶ 23 The fifth amendment to the United States Constitution, which applies to the states by

virtue of the fourteenth amendment (Malloy v. Hogan, 378 U.S. 1, 6 (1964)), provides, in

pertinent part, that “[n]o person *** shall be compelled in any criminal case to be a witness

against himself.” U.S. Const., amend. V. In Miranda, the United States Supreme Court

adopted prophylactic measures to protect a suspect’s fifth amendment privilege against

compelled self-incrimination from the “inherently compelling pressures” of custodial

interrogation. Miranda, 384 U.S. at 467. The Court noted that “incommunicado”

interrogation in a “police-dominated atmosphere” (id. at 456-57) involves psychological

pressures that “work to undermine the individual’s will to resist and to compel him to speak

where he would not otherwise do so freely” (id. at 467). Thus, the Court reasoned, “[u]nless

adequate protective devices are employed to dispel the compulsion inherent in custodial

surroundings, no statement obtained from the defendant can truly be the product of his free

choice.” Id. at 458.

¶ 24 To combat this inherent compulsion, and thereby protect the privilege against compelled

self-incrimination, the Court held that a prosecutor may not use statements arising from a

custodial interrogation of a defendant unless he can show the use of procedural safeguards

effective to secure the defendant’s privilege against compelled self-incrimination. Id. at 444.

¶ 25 Miranda requires law enforcement officers to warn a suspect before a custodial

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interrogation that: he has the right to remain silent; anything he says can be used against him

in a court of law; he has the right to have an attorney present; and if he cannot afford an

attorney, one will be appointed for him before questioning if he so desires. Id. at 479. The

Miranda Court defined “custodial interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” (Emphasis added.) Id. at 444.

¶ 26 On remand in the present case, as both the State and defendant acknowledge, the

appellate court properly concluded that “if we followed United States Supreme Court case

law interpreting the fifth amendment, no Miranda warnings are required when a defendant

is talking to an undercover agent or an informant; therefore, [defendant] would not have to

be informed about his counsel being present at the police station.” 403 Ill. App. 3d at 821.

It reached this conclusion by analyzing the foundational doctrines within the prophylactic

Miranda regime,which demonstrate that defendant’s conversation with Davis, an undercover

informant and fellow inmate, was not a “custodial interrogation.” Id. at 815-19; see Illinois

v. Perkins, 496 U.S. 292, 296-97 (1990) (Perkins I).

¶ 27 The appellate court found, however, that, under Illinois’s constitution and statutes, as

interpreted by the courts in McCauley and People v. Perkins, 248 Ill. App. 3d 762 (1993)

(Perkins II), defendant’s conversation with Davis, an undercover informant and fellow

inmate, was a “custodial interrogation.” 403 Ill. App. 3d at 823-24. As we will explain

below, that finding is erroneous.

¶ 28 In Perkins, the defendant was arrested on a Saturday for aggravated battery. Perkins II,

248 Ill. App. 3d at 763. While he was in jail over the weekend, an undercover officer and an

undercover informant were placed in his cellblock and elicited incriminating statements from

him about an unrelated, uncharged murder. His statements were suppressed, and the appellate

court affirmed. People v. Perkins, 176 Ill. App. 3d 443, 450 (1988) (Perkins I). The United

States Supreme Court reversed, holding that “an undercover law enforcement officer posing

as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking

questions that may elicit an incriminating response.” Perkins I, 496 U.S. at 300. In Perkins

I, the Court held that the statements at issue were voluntary and that there was no federal

obstacle to their admissibility at trial. The Court explained as follows:

“Conversations between suspects and undercover agents do not implicate the

concerns underlying Miranda. The essential ingredients of a ‘police-dominated

atmosphere’ and compulsion are not present when an incarcerated person speaks

freely to someone whom he believes to be a fellow inmate. Coercion is determined

from the perspective of the suspect. [Citations.] When a suspect considers himself

in the company of cellmates and not officers, the coercive atmosphere is lacking.

[Citations.] ***

It is the premise of Miranda that the danger of coercion results from the

interaction of custody and official interrogation. ***

Miranda forbids coercion, not mere strategic deception by taking advantage of

a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we

recognized in Miranda: ‘Confessions remain a proper element in law enforcement.

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Any statement given freely and voluntarily without any compelling influences is, of

course, admissible in evidence.’ [Citation.] Ploys to mislead a suspect or lull him into

a false sense of security that do not rise to the level of compulsion or coercion to

speak are not within Miranda’s concerns. [Citations.]

Miranda was not meant to protect suspects from boasting about their criminal

activities in front of persons whom they believe to be their cellmates.” Id. at 296-98.

¶ 29 On remand to the trial court, the defendant filed a second motion to suppress, alleging,

for the first time, that he had asserted his right to counsel after his arrest for aggravated

battery. Perkins II, 248 Ill. App. 3d at 764. His statements were again suppressed. The

appellate court stated that the crux of the case was: “Where a suspect has asserted his fifth

amendment right to counsel, can he be questioned by undercover agents on a separate,

unrelated, and uncharged offense while in jail, without the presence of an attorney, and

without an opportunity to waive his right to counsel?” Id. at 767-68. The appellate court

affirmed the suppression of the defendant’s statements, holding that the undercover agents’

actions violated his “fifth amendment right to counsel.” Id. at 768.

¶ 30 In reaching this conclusion, the appellate court in Perkins II relied on Rhode Island v.

Innis, 446 U.S. 291 (1980). In Innis, the defendant was arrested for murder. Id. at 293-94.

After he was advised of his Miranda rights, he requested an attorney. Id. at 294. On the way

to the police station, the two transporting officers engaged in a conversation with each other

about a gun missing from the murder scene and how terrible it would be if one of the

children from the nearby school for handicapped children found the gun and was hurt. Id. at

294-95. The defendant immediately told the officers to turn the car around so that he could

show them where the gun was located. Id. at 295. He then led them to the spot where the gun

was hidden. When the defendant made the incriminating statements, he was in custody and

had invoked his right to counsel. Id. at 298. The issue in Innis was whetherthe defendant was

“interrogated” by the officers in violation of his fifth amendment right to remain silent until

he had consulted with a lawyer. The Innis Court explained as follows:

“It is clear *** that the special procedural safeguards outlined in Miranda are

required not where a suspect is simply taken into custody, but rather where a suspect

in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the

Miranda opinion, must reflect a measure of compulsion above and beyond that

inherent in custody itself.

We conclude that the Miranda safeguards come into play whenever a person in

custody is subjected to either express questioning or its functional equivalent. That

is to say, the term ‘interrogation’ under Miranda refers not only to express

questioning, but also to any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect. The latter

portion of this definition focuses primarilyupon the perceptions of the suspect, rather

than the intent of the police. This focus reflects the fact that the Miranda safeguards

were designed to vest a suspect in custody with an added measure of protection

against coercive police practices, without regard to objective proof of the underlying

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intent of the police.” Id. at 300-01.

¶ 31 The Innis Court concluded that the defendant was not “interrogated” within the meaning

of Miranda. Id. at 302. The Court noted that the first prong of the definition of

“interrogation” was not satisfied because the conversation between the officers included no

express questioning of the defendant. Moreover, the Court concluded that the defendant was

not subjected to the “functional equivalent” of questioning because it could not be said that

the officers should have known that their conversation was reasonably likely to elicit an

incriminating response from the defendant.

¶ 32 Relying on Innis, the appellate court in Perkins II held that the police knew or should

have known that their actions in using an undercover law enforcement officer posing as a

fellow inmate were reasonablylikely to elicit an incriminating response and that, because the

defendant had invoked his right to counsel, their actions amounted to the functional

equivalent of direct questioning and violated the Court’s rulings construing the fifth

amendment privilege against compelled self-incrimination. Perkins II, 248 Ill. App. 3d at

771.

¶ 33 In so concluding, the appellate court in Perkins II totally disregarded the fact that, in

Perkins I, the United States Supreme Court had already determined that “an undercover law

enforcement officer posing as a fellow inmate need not give Miranda warnings to an

incarcerated suspect before asking questions that may elicit an incriminating response.”

Perkins I, 496 U.S. at 300. Implicit in this holding is that questioning by an undercover law

enforcement officer posing as a fellow inmate is not an “interrogation” under Miranda.

¶ 34 The fact that the defendant in Perkins II requested counsel when he was arrested for

aggravated battery did not change the fact that Miranda warnings were not required before

he spoke to an undercover law enforcement officer posing as a fellow inmate about an

unrelated, uncharged murder. Because, as the United States Supreme Court decided in

Perkins I, Miranda warnings were not required before the defendant was questioned, it

follows that he had no fifth amendment right to counsel, and it was irrelevant that he had

requested counsel when he was arrested for the unrelated aggravated battery. Accordingly,

the appellate court’s decision to the contrary in Perkins II, 248 Ill. App. 3d at 769, is hereby

expressly overruled.

¶ 35 It is also interesting to note that the appellate court’s decision in Perkins II was based on

federal, not Illinois, constitutional law. See also People v. Manning, 182 Ill. 2d 193, 206

(1998) (“Miranda is not implicated in conversations between suspects and undercover

agents. The essential ingredients of a police-dominated atmosphere and compulsion are not

present when a prisoner speaks freely to an undercover agent.”).

¶ 36 We turn now to McCauley, 163 Ill. 2d 414. In McCauley, the defendant was brought to

the police station for questioning about a murder, was advised of his Miranda rights, and did

not request an attorney. Id. at 417-18. However, unbeknownst to the defendant, his family

had retained an attorney for him, and the attorney had gone to the police station and asked

to speak with him. Id. at 418-19. The police refused to allow the attorney access to the

defendant and failed to inform the defendant that his attorney was present at the police

station asking to speak with him. Id. at 419. The defendant subsequently gave a statement

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to the police in response to their questioning. Id. at 420. The trial court suppressed the

statement, and this court affirmed.

¶ 37 The McCauley court noted that, in Moran v. Burbine, 475 U.S. 412 (1986), the United

States Supreme Court had rejected the argument that similar police conduct violated a

defendant’s right to counsel under the fifth amendment to the United States Constitution.

McCauley, 163 Ill. 2d at 422-23. The McCauley court then considered whethersuch conduct

violated the defendant’s right to counsel under article I, section 10, of the Illinois

Constitution of 1970, which provides, in pertinent part, that “[n]o person shall be compelled

in a criminal case to give evidence against himself” (Ill. Const. 1970, art. I, § 10). McCauley,

163 Ill. 2d at 423.

¶ 38 In holding that the police conduct in McCauley violated the defendant’s rights under the

Illinois Constitution, the court explained:

“The day is long past in Illinois *** 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 [than their federal counterparts]. Our State constitutional guarantees

simply do not permit police to delude custodial suspects, exposed to interrogation,

into falselybelieving theyarewithout immediatelyavailable legal counsel and to also

prevent that counsel from accessing and assisting their clients during the

interrogation.” McCauley, 163 Ill. 2d at 423-24.

¶ 39 The McCauley court held that, under Illinois law, “ ‘when police, prior to or during

custodial interrogation, refuse an attorney appointed or retained 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 attorneywas present and seeking to consult with him.’ ” Id. at 424-25

(quotingPeople v. Smith, 93 Ill. 2d 179, 189 (1982)). The McCauley court also held that “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.” McCauley, 163 Ill. 2d at 444. See Ill. Const. 1970, art. I, § 2 (“[n]o person shall be

deprived of life, liberty or property without due process of law”). Thus, the court concluded

that the police conduct violated the defendant’s privilege against compelled selfincrimination and his right to due process. McCauley, 163 Ill. 2d at 446.

¶ 40 However, the McCauley court did not eschew the Miranda regime itself; instead, it

superimposed a state-specific right onto the existing Miranda framework. The constitutional

justification for the Miranda regime is police custodial interrogation. Contrary to the

appellate court’s conclusion, McCauley did not reject this foundation bytaking the police out

of the equation. Accordingly, we hold that, like a suspect’s Miranda rights, his McCauley

right to an immediately available attorney arises only during police custodial interrogation.

¶ 41 In the present case, because defendant was not subjected to police custodial interrogation

when he had a conversation with Davis, an undercover informant and fellow inmate, during

the overhears, Miranda and McCauley are inapplicable. See Perkins I, 496 U.S. at 300;

Miranda, 384 U.S. at 444, 467; McCauley, 163 Ill. 2d at 424-25, 444. Accordingly, the

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detectives were not required to give defendant Miranda warnings before the overhears;

defendant had no constitutional right to counsel during the overhears; the detectives were not

required to inform defendant that his counsel in an unrelated case was at the police station,

asking to speak with him during the first overhear; and the appellate court erred in upholding

the suppression of the statements on McCauley grounds. We also decline to extend the

McCauley right to protect the attorney-client relationship outside the context of police

custodial interrogation.

¶ 42 Because our resolution of this issue is dispositive on appeal, we need not address the

State’s other arguments—that the appellate court erred in finding that (1) defendant had

invoked his right to counsel on July 18; and (2) he was in “Miranda custody” during the

overhears.1

¶ 43 CONCLUSION

¶ 44 For the foregoing reasons, we reverse the judgments of the appellate court and the trial

court and remand to the circuit court of Cook County for further proceedings consistent with

this opinion.

¶ 45 Appellate court judgment reversed.

¶ 46 Circuit court judgment reversed.

¶ 47 Cause remanded.

¶ 48 JUSTICE FREEMAN, specially concurring:

¶ 49 I agree with the majority’s holding that statements made by defendant to an informant

during a court-ordered overhear were not obtained in violation of his rights to counsel and

to due process under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 10), as set forth

by this court in People v. McCauley, 163 Ill. 2d 414 (1994). I therefore concur in its

judgment. I write separately, however, to emphasize that our decision today should not be

construed as a departure from McCauley.

¶ 50 As noted by the majority, the trial court, relying upon McCauley, suppressed statements

made by defendant to police informant Mycal Davis during judicially authorized overhears.

The United States Supreme Court’s recent decision in Howes v. Fields, ___ U.S. ___, 132 1

S. Ct. 1181 (2012), addressing the issue of the appropriate standard for determining whether a

prisoner was in Miranda custody during police questioning, is consistent with our interpretation of

“custodial interrogation.” As the Court explained: “As used in our Miranda case law, ‘custody’ is

a term of art that specifies circumstances that are thought generally to present a serious danger of

coercion.” Id. at ___, 132 S. Ct. at 1189. The Court noted that “standard conditions of confinement

and associated restrictions on freedomwill not necessarily implicate the same interests that theCourt

sought to protect when it afforded specialsafeguards to persons subjected to custodial interrogation.

Thus, service of a term of imprisonment, without more, is not enough to constitute Miranda

custody.” Id. at ___, 132 S. Ct. at 1191.

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The majority correctly points out that “the sole issue on appeal is whether the [defendant’s]

statements were properly suppressed on McCauley grounds.” Supra ¶ 21. On that point, the

majority notes:

“[T]he McCauley court did not eschew the Miranda regime itself; instead, it

superimposed a state-specific right onto the existing Miranda framework. The

constitutional justification for the Miranda regime is police custodial interrogation.

Contrary to the appellate court’s conclusion, McCauley did not reject this foundation

by taking the police out of the equation. Accordingly, we hold that, like a suspect’s

Miranda rights, his McCauley right to an immediately available attorney arises only

during police custodial interrogation.” Supra ¶ 40.

¶ 51 I believe that the better approach to resolving this case is to point out that McCauley and

this case are not close factually.

¶ 52 McCauley involved a situation where a defendant, though Mirandized, was interrogated

by police without having been told that his lawyer had arrived at the station and was

prevented from seeing him.

¶ 53 In affirming suppression of the defendant’s statements, this court rejected the argument

that the interpretation of a defendant’s right to counsel under the Illinois Constitution must

be in complete lockstep with the Supreme Court’s decision in Moran v. Burbine, 475 U.S.

412 (1986). Instead, we agreed with the defendant that Burbine “represent[ed] a regressive

interpretation of fifth amendment protections” (McCauley, 163 Ill. 2d at 421), and refused

to apply the federal constitutional analysis developed in that case.

¶ 54 Rather, we looked to the safeguards provided to the defendant under our state

constitution, and held that they “afforded defendant a greater degree of protection” than did

federal law. Id. at 423. In holding that the conduct of the police violated the defendant’s state

rights against self-incrimination and to due process (Ill. Const. 1970, art. I, §§ 2, 10), we

underscored that “[o]ur State constitutional guarantees simply do not permit police to delude

custodial suspects, exposed to interrogation, into falsely believing they are without

immediately available legal counsel and to also prevent that counsel from accessing and

assisting their clients during the interrogation.” McCauley, 163 Ill. 2d at 423-24 (citing Ill.

Const. 1970, art. I, §§ 2, 10).

¶ 55 It is my position that the fundamental, factual differences between these two cases

renders McCauley inapplicable here. Unlike in McCauley, where counsel arrived at the

station while the defendant was being interrogated by two police officers and the police

prevented the attorney from consulting with his client, in this case, when counsel arrived

defendant was engaged in a judicially sanctioned, overheard conversation with a fellow

inmate who was operating as an informant. Id.

¶ 56 That being said, I wish to underscore that today’s decision in no way erodes McCauley’s

holding that the police conduct which occurred there remains a clear violation of a

defendant’s rights under our state constitution. Indeed, this court has unanimously held that

“the McCauley decision represents this court’s refusal to allow this state’s counterpart to the

fifth amendment right to counsel to diminish the way the federal right had in Burbine”

(Relsolelo v. Fisk, 198 Ill. 2d 142, 152 (2001)), and has observed that “the police conduct at

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issue [in McCauley] implicated state due process concerns” (People v. Caballes, 221 Ill. 2d

282, 301 (2006)). Accordingly, the force and effect of McCauley remains unchanged.

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