## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Hun t, 2012 IL 111089

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellant, v. TAVARES HUNT, A ppellee.

Docke t No. 111089

Filed April 19, 2012

Held ( Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) “Custodial interrog ation” was not taking place at a police station, and the appellate court err ed in aff irming a suppression under McCauley
, wher e

a suspect made statements while alone with an informer who wa s an inmate, even though t h e s u s p ect’ s counsel on a differ ent matter was

unsucce ssfully seeking acc ess to him— McCauley and Mi r a n d

a not applicable

.

Dec ision Under
Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Circuit Court of Cook County
, the Hon. Fr ed G. Suria, J r., Judge, pr esiding

.

J udg ment Appellate c ourt judg ment reve rsed. Circuit court judg ment reve rsed.
Cause re manded.Counsel on

Appea l L isa Madig an, Attor ney Gene ral, of Springf ield, and Anita Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Annette N. Colli ns and Susan R. Schierl Sulli van, Assistant St at e’ s At torney s, of counsel), for the People.

J ack Rimland and Joshua B. Kutnick, of Chicag o, for a

ppellee.

J ustices J USTI CE K A RM E I ER delivere d the judgme nt of the court, with opinion.
Chief J ustice Kil bride and J ustices Tho m as , Gar man, Burke, and Theis

concur red in the judg ment and opinion.
J ustice F ree man spec ially concur red, w ith opinion.

OP INION

¶ 1 On April 14, 2003, defe ndant, Tavares Hunt, was arre sted and charg ed with murder in the shooting death of Shakir Be ckley

. A C o o k C o u n t y g rand jury indicted defe ndant and char g ed him with 33 counts of murder (720 I L CS 5/9-1(a) (1), (a) (2), (a) (3) (West 2002)), 6
counts of attempted mu rd er (720 I L CS 5/8-4, 9-1(a )(1) (West 2002)), 2 counts of arme d robber y with a firea

rm (720 I L CS 5/18-2(a )(2) (West 2002)), 1 count of ag g ravated battery with a firea

rm (720 I L CS 5/12-4.2 (West 2002)), 7 counts of attempted arme d robber y (720 I L CS 5/8-4, 18-2 (West 2002)), 1 count of ag g ravated discharg e of a firea rm (720 I L CS 5/24- 1.2(a) (2) (West 2002)), and 1 count of ag g ravated battery with a deadly wea pon (720 I L CS 5/12-4(b)( 1) (West 2002)). ¶ 2 Def

endant filed a motion to suppress tape rec ording s, statements, and conver sations with

an informant during court-or dere d consensua l overhe ars, arguing that they wer e obtained in violation of his fifth amendme nt rig ht to counsel (U.S. Const., amend. V) a nd his rig hts to counsel and due proce ss under the I llinois Constit ution (I ll. Const. 1970, art. I
, §§ 2, 10), as articulated by this court i n P eople v. McCauley
, 163 I ll. 2d 414 (1994). He also filed a motion to e x clude tape rec ording s of those conver sations, a rguing that the rec ording s wer e substantially inaudible. The trial cou rt g rante d both motions, suppressing defe ndant’s statements and the r ecor dings. ¶ 3 On interlocutory app ea l
, t h e appellate court aff irmed the suppression order

. People v

. Hunt
, 381 I ll. App. 3d 790, 809 (2008). This court aff irmed in part, re v er s ed i n part, and

rema nded to the appellate court for its consideration of the suppression of the statements on fifth amendment and McCauley g rounds. People v . Hunt , 234 I ll. 2d 49, 65-67 (2009). On

r e ma n d, the appellate court aff

irmed the suppression of the statements on McCauley g r o u n d s

. 403 I ll. App. 3d 802, 830. ¶ 4 We allowed the State’s petition for leave to appea l. The sole issue on appea l is whether the statements wer e proper ly suppressed on McCauley g rounds. For the following rea sons,

-2-we conclude that they wer e not. Acc ording ly
, we reve rse and rema nd to the trial cou rt for further proce eding s.

¶ 5 I . BA CKGROUND ¶ 6 Whil e defe ndant was being held i n t h e C o o k County jail on an unrelated char g e, he beca me a suspect in Shakir Be ckley ’s murder. In May 2002, Chicag o police detec tives took him from the county

jail to a Chicag o police station and que stioned him about the murder. He denied any involvement in, or knowledg e of, the murder. The detec tives testified that they

rea d him his rig hts pursuant to Miranda v. Arizona
, 384 U.S. 436 (1966), and he waived those ri gh t s b efore he was questioned. Def endant testified, howeve r, that he told the detec tives he was not speaking to them unless an attorney was present, but they contin ued
to question him. The detec tives denied that he said he did not want to talk to them or that he
reque sted an attorney

. In fac t, they testified that he consente d to, and took, a polyg raph test, for which he signe d a written waiver

. After the polyg raph test, the detec tives questioned him
ag ain, and he continued to deny any involvement i n t h e m u rder

. Be cause the questioning finished late an d t h ey wa n ted to question him further
, they kept him at the police station overnig ht. The next day
, they ques t i o n ed him ag ain, and he continued to deny any involvement in th e m u rd er

. The detec tives fing erpr inted him befor e returning him to the county jail later that da

y

. ¶ 7 On J une 28, 2002, an assistant public defe nder was assig ned to repr esent defe ndant in the

u nrelated case. Defenda

nt testified t hat he told counsel that day and on J uly 12, 2002, that Chicag o police detec tives wer e questioning him a bout a n unrelated, uncharg ed matter and, on both day s, counsel told him not to t alk to the police. ¶ 8 On J uly 16 or 17, 2002, the detec tives took de fenda nt f rom the county jail to the police station so My cal Da

vis, who was also in the jail on an unrelated char g e, could view him in

a lineup. The line u p h ad t o b e resc heduled beca use defe ndant and Davis wer e put in the bullpen toge ther even though they wer e supposed to be broug ht out at differ ent times so they would not see e ach othe r. ¶ 9 After Davis had been in the bullpen with defe ndant, he told the detec tives that he knew defe ndant; that defe ndant wa s i n v olved in Be ckley ’s murder; that he and defe ndant had a

conver sation about Beckle y ’s m u rd er , in which defenda nt made incriminating statements; and that he thought he coul d get d ef en dant to repe at the statements. The detec tives then decide d to set up a judicially authorized overhe ar, usingDavis as the c onsenting party

. ¶ 10 Def

endant testified that on J uly 18, 2002, the detec tives took him from the county jail to the pol ice station and questioned him about Beckle y ’s m urder

. Def endant tes t i fi ed t h at he told them he did not want to talk to them and that he wa nted to talk to a lawyer. ¶ 11 On J uly 31, 2002, g uards told defe ndant t hat t he detect i v es wer e coming to put him in

a lineup. He called counsel and left a messag e, asking counsel to g o to the police station for the lineup. ¶ 12 The detec tives then took defe ndant 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 handcuf fed and was g iven food and water

. He was not questioned by any police office r that

-3-day

. At abou t 3 p

. m

. , Davis, who was wea ring a concea led wire pursuant to a court order
, was put in the interview room with him. The detec tives rec orded the conver sation betwee n defe ndant and Davis and monitored the conver sation f r o m a n o th e r r o o m. D e f

e n d a nt a ll eg edly implicated himself in Be ckley ’s murder

. ¶ 13 The lieutenant in char g e of the Be ckley investigation testified that, at some point during the overh ear, when he took a brea k from monitoring the conver sation, he was told that an attorney was there
, asking to speak with defe ndant. He testified that he met with the attorney at about 4:02 p.m. The attorney said he repr esente d defe ndant on an u n re l at ed ch arg e and asked why defe ndant was at the police station. The lieutenant responde d that defe ndant 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 defe ndant and to be prese nt during the lineups. The lieutenant asked counsel to g ive him “about five minutes.” Acc ording to the lieutenant, the overhe ar ended shortly afte r 4 p.m., and counsel was then allowed to speak with defe ndant. ¶ 14 Co u

n s e l te s ti f ie d
, from his contempora

neous notes, that, afte r he g ot defe ndant’s mes s a g e

on J uly 31, he called the police station and confirme d that defe ndant was there

. He asked to speak with the detec tives and was told they wer e “out in the field.” He said he was coming down to the police s t at i o n

. He ar rived at 3:14 p.m., and the detec tives wer e pag ed at 3:19
p.m. Counsel testified that he repe atedly asked to speak with defe ndant but was not allowed
to do so until sometime betwee n 4 :02 and 4:12 p.m. At 4:12 p.m., afte r meeting with counsel, defe ndant invoked his rig hts to rema in silent and t o h av e counsel prese nt during questioning. A ccor ding to the de tectives, this was the f irst time defenda

nt had invoked his rig hts. ¶ 15 On August 6, 2002, the detec tives ag ain took defe ndant from the county jail to the police station; put him in an int ervie w room with Davis, who was we aringa conc eale d wire; and

mo n itored and rec orded the conver sation, during which defe ndant ag ain alleg edly implicate d himself in Be ckley ’s murd er

. He was not questioned by the police that day

. The public defe nder’ s office had withdrawn its repr esentation of defe ndant in the unrelated case a few day s ear lier, and no c ounsel was pr esent duringthe over hear that day

. ¶ 16 Relying on McCauley
, the trial court suppressed t h o s e parts of defe ndant’s stateme nts and reco rd i n gs m ade afte r counsel arr ived at the police station on J uly 31, holding that defe ndant had a

rig ht to speak with counsel within a rea sonable time after counsel a rrived. The court denied d ef

en d ant’s motion to suppress the August 6 statements and rec ording s beca use counsel was not pr esent that day

. The court later vacated its suppre ssion or der sua sponte and allowed the parties to provide additional arguments about the impact of counsel’s

arr ival on J uly

31. ¶ 17 Def

endant subsequently filed his motion to exclude th e r e c o r d in g s , a r g u ing that they

wer e substantially inaudible. After listening to t h e re cordings and hear ing further arguments of counsel, the trial court suppressed all of defe ndant’s statements and all of the rec ording s. In doing so, the court relied on McCauley and found that defe ndant had a right t o speak with counsel within a rea sonable time afte r counsel’s arr ival at the police station at 3:14 p.m. on J uly 31 but was not allowed to do so until 4:02 p.m., afte r the overhe ar ended. The court also suppressed the rec ording s on the alternative g round that they wer e substantially

inaudible.

-4-¶ 18 On interlocutory appea l, the appellate court aff i rm ed t h e s up p re s s i o n o rder but on
g rounds not argued by the parties. Hunt
, 381 I ll. App. 3d at 809. The court also aff irmed the suppression of the rec ordi n g s o n th e a lt e r native g round that they wer e substantially inaudible. Id

. at 808. This court reve rsed that part of the appellate court’s judgme nt aff i rm i n g t h e

s u p p re s s i on order on g rounds not raised by the parties, aff irmed that part of its judgme n t af fi rming the suppression of the rec ording s on the alternative g round that they wer e substantially inaudible, and rema nded the cause to the a

ppellate c ourt for its consideration of the suppression of the statements on fifth amendment and McCauley g rounds. Hunt
, 234 I ll. 2d at 67. On remand, the appellate court aff irmed t he suppression of t he st ate m ents on McCauley

g rounds. 403 I ll. App. 3d at 830. ¶ 19 We allowed the State’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010).

¶ 20 I I . ANALYSI S ¶ 21 On ap p ea l
, t h e S t at e n o l o n ger argues that the rec ording s should not have be en suppressed as substantially inaudible; nor does defe ndant arg ue that the s tatements shoul d have been suppressed under the fifth amendment. Thus, the sole issue on appea l is whether the statements we re pr operly suppressed on McCauley g rounds. ¶ 22 A trial court’s ruling on a motion to suppress evidenc e is revie wed under the two-par t test adopted by the United States Supreme Court in Ornelas v. United States
, 517 U.S. 690, 699 (1996). People v. Absher
, 242 I ll. 2d 77, 82 (2011). The court’s fac tual finding s are upheld unless they are ag ainst the manifest weig ht of the evidenc e. The revie wing cou rt t h en

assesses the established fac ts in relation to the issu es prese nted and may rea ch its own conclusions as to what relief
, if any , should be allowed. Acc ording ly
, the ultimate leg al question of whethe r suppre ssion is warra nted is review ed de novo

. ¶ 23 The fifth amendment to the United States Constit ution
, wh i ch applies to the states by virtue of the fourtee n t h 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
ag ainst himself.” U.S. Const., amend. V. In Mirand a , t h e United States Supreme Court adopted prophylactic measure s to protec t a suspect’s fi ft h amendment privileg e ag ainst compelled self-inc rimination from t h e “inherently compelling pressure s” of custodial interrog ation. Miranda
, 384 U.S. at 467. T he Court noted that “incommunicado” i n t errog ation in a “police- dominated atmosphere ” ( id. at 456-57) involves psy cholog ical
pressure s that “wor

k to undermine the individual’s will to resist and to compel him to speak wher e he would not otherwise do so fre ely” ( id. at 467). Thus, the Court rea soned, “[u] nless adequate protec tive device s are employ ed to dispel the compulsion inhere nt in custodial surrounding s, no statement obtained from the defe ndant can truly be the product of his fre e choice .” Id. at 458. ¶ 24 To combat this inhere nt compulsion, and there by protec t the privileg e ag ainst compelled self-inc rimination, the Court held t h at a prosec utor may not use statements arising from a custodial interrog ation of a defe ndant unless he ca n show the use of

proce dural saf

eguards eff ective to secur e the defe ndant’s privileg e ag ainst compelled self-inc rimination. Id. at 444. ¶ 25 Mi r a n d

a re q u i re s l aw en fo rc em en t office rs to war n a suspect befor e a custodial

-5-interrog ation that: he has the rig ht to rema in silent; any thing he say s can be used ag ainst him in a court of law; he has the rig ht to have an attorney prese nt; and if he ca n n o t afford an attorney , one will be appointed for him before questioning i f he so desires. Id. at 479. The Miranda Court define d “custodi al interrog ation” as “questioning initiated by law enforce ment officers afte r a person has been taken into custody or otherwise deprive d of his fre edom of a ction in any

signific ant way .” (Empha sis added.) Id. at 444. ¶ 26 On rema

nd in the prese nt ca s e, as b o t h t h e S t at e and defe ndant acknow ledg e, the appellate court prope rly

conclude d that “if we followed United States Supreme Court ca se law interpre ting the fifth amendment, no Miranda war nings are require d when a defe ndant is ta lking to a

n underc over ag ent or an informant; there fore
, [defendant] would not ha ve to be informed about hi s counsel be ing pr esent at the police station.” 403 I ll. App. 3d at 821. I t rea ched this conclusion by analy z i n g t h e foundational doctrines within the prophy lactic Miranda r e g im e , wh ic h d e mo n s tr a te th a t d e f e n d a nt’ s conver sation with Davis, an underc over informant and fellow inmate, was not a “custodial interrog ation.” Id. at 815-19; see Illinois v. Pe rkins , 496 U.S. 292, 296-97 (1990) ( Perkins I ). ¶ 27 T h e appellate court found, howeve r, that, under I llinois ’s constitution and statutes, as interpre ted by the courts in McCauley and People v. Perkins
, 248 I ll. App. 3d 762 (1993) ( Perkins II

), defe ndant’s conver sation with Davis, an underc over informant and fellow inmate, was a “custodial i n t er ro g ation.” 403 I ll. App. 3d at 823-24. As we will explain below, that findingis errone ous. ¶ 28 In Perkins
, the defe ndant was arr ested on a Saturday for ag g ravated battery

. Perkins II
, 248 I ll. App. 3d at 763. Whil e he was in jail over the wee kend, an underc over office r and an underc over informant wer e pla c e d in h is c e llblock and elicited incriminating statements from him about a

n u nr e la te d
, u n c h a r g ed murder. His statements wer e suppressed, and the appellate
court aff irmed. People v. Perkins
, 176 I ll. App. 3d 443, 450 (1988) ( Perkins I ). The United States Supreme Court reve rsed, holding that “an underc over law enfor ceme nt office r posing

as a fellow inmate need not g ive Miranda war nings to an incar cer ated suspect befor e asking questions that ma

y elicit an incriminating response .” Perkins I
, 496 U.S. at 300. In Perkins I
, the Court held that the statements at issue wer e vol u n t ar y and that there was no fede ral obstacle to their a dmissibi lity at trial. The Court e x plained as f ollows:
“C onversations betwee n suspects and underc over ag ents do not implicate the

conce rns underlying Mirand a

. T he essential ingr edients of a ‘police- dominated atmosphere ’ and compulsion are not prese nt when an incar cer ated person speaks fre ely to someone whom he be lieves to be a fellow inmate. Coercion is de termined from the perspe ctive of the suspect. [C itations.] When a suspect considers himself in the company of cellmates and not office rs, the coer cive atmosphere is lacking

. [C itations.] ***
I t is the p re m i s e o f Miranda that the dang er of coer cion results from the interac tion of custody

and off icial interrog ation. ***
Miranda forbids coercion, not mer e s trateg ic deception by taking advanta g e of

a suspect’s misplaced trust in one he supposes to be a fel l o w prisoner. As we

rec og nized in Miranda : ‘Confessions rema in a proper element in la w enfor ceme nt.

-6-Any statement g iven fre ely and voluntarily without any compelling influence s is, of

course , admissible in evidenc e.’ [C itation.] Ploy s to mislead a suspect or lull him into

a false sense of secur ity that d o n o t rise to the level of compulsion or coer cion to speak a re not within Miranda ’s conc erns. [Citations .] Miranda was not meant to protec t suspects fr o m b oasting about their criminal activities in front of persons whom they believe to be their cellmates.” Id. at 296-98. ¶ 29 On re mand to the trial cour t, the defe ndant filed a second motion to suppress, a lleg ing, for the first time, that he had asser ted his rig ht to counsel afte r his arr est for ag g ravated battery

. Perkins II

, 248 I ll. App. 3d at 764. His statements wer e aga i n suppressed. The appellate court stated that the crux of the ca se wa s: “Where a suspect has a sserted his fifth amendment rig ht to counsel, can he be questioned b y u nderc over ag ents on a separ ate, unrelated, and unchar g ed offe nse whi l e i n j ai l
, without the prese nce of an attorney , and without an opportunity to waive his rig ht to counsel? ” Id. at 767-68. The appellate court aff irmed the suppression of the defe ndant’s statements, holding that the underc over ag ents’ actions violated his “f

ifth amendment right to counsel.” Id. at 768. ¶ 30 In rea ching this con cl u s i o n , the appellate court in Perkins II relied on Rhode Island v. Innis , 4 4 6 U.S. 291 (1980). I n Innis
, the defendant was arr ested for murder. Id. at 293-94. After he was advised of his Miranda rig hts, he reque sted an attorney

. Id. at 294. On the way to the police station, the two transporting office rs eng ag ed in a conver sation with eac h other about a gun missing from the murder scene an d h o w terrible it would be if one of the children from the near

by school for handica

pped children found the g un and was hurt. Id. at 294-95. The defe ndant immediately told the office rs to turn the car around so that he could show them wher e the g un was located. Id. at 295. He then led them to the spot wher e the g un

was hidden. When the defe ndant made the incriminating statements, he was in custody and had invoked his rig ht to counsel. Id. at 298. The issue in Innis was whether the defe ndant was “interr og ated” by the office rs in violation of his fifth amendment rig ht to rema in silent until he had c onsulted with a lawyer. The Innis Court expl ained a s follows:
“It is clea

r *** that the specia l proce dural safe g uards outlin ed i n Miranda are require d not wher e a suspect is simply taken into custody
, but rathe r wher e a suspect in custody is su bjected to interrog ation. ‘Interrog ation,’ as conceptualized in the Miranda opinion, must ref lect a measure of compulsion ab ove and beyond that inhere nt in custody

itself.
We c onclude that the Miranda safe g uards come into play whene ver a person in custody is subjec ted to either e x press que stioning or its functional equivalent. That is to say , the term ‘i n t errog ation’ under Miranda ref ers not only to express q u es tioning, but also to any words or actions on the part of the police (other than those normally atten d an t t o arrest and custody ) that the police should know are

rea sonably likely to elicit an incriminating response from the s u s p ec t

. The latter portion of this definition focuse s primarily upon the perc eptions of the suspect, rathe r than the intent of the police. This focus ref lects the fac t that the Miranda safe g uards

wer e desig ned to vest a s u s p ect in custody with an added measure of protec tion
ag ainst coer cive police prac tices, without reg ard to objective proof of the underlying

-7-intent of the police.” Id. at 300-01.

¶ 31 The Innis Court conclude d that the defe ndant was not “interr og ated” within the meaning of Miranda

. Id. at 302. The Court noted that the first prong of the definition of “interr og ation” was not satisfied beca use the conver sation betwee n the office rs included no express questioning of the defe ndant. Moreove r, the Court conclude d that the defe ndant was not subjected to the “func tional equivalent” of questioning beca use it could not be said that the office rs s h o u l d have known that their conver sation was rea sonably likely to elicit an incriminating response from the de fenda nt. ¶ 32 R ely ing on Innis
, the appellate court in Perkins II held that the police knew or shoul d have known that their actions in using an underc over law enfor cem en t o ff i cer posing as a fellow inmate wer e rea sonably likely to elicit an incriminating response and that, beca use the d ef en d an t had invoked his rig ht to counsel, their actions amounted to the functional equivalent of direc t questioning and violated the Court’s ruling s construing the fifth amendment privileg e ag ainst compelled self-inc rimination. Perk i n s II
, 248 I ll. App. 3d at 771. ¶ 33 In so concluding
, the appellate court in Perkins II totally disreg arde d th e fa ct that, in Perkins I
, the United States Supreme Court had alre ady deter mined that “an underc over law enfor ceme nt office r posing as a fellow inmate need not g ive Mir a n d a wa rn ings to an incarce ra t ed suspect befor e asking questions that may elicit an incriminating response .” Perkins I
, 496 U.S. at 300. I mplicit in this holding is that questioning by an underc over law enfor ceme nt office r posing as a f ellow inmate is not an “inter rog ation” under Miranda

. ¶ 34 The fac t that the defe ndant in Perkins II re qu es ted counsel when he was arr ested for
ag g ravated battery did not chang e the fac t that Miranda war nings wer e not r equire d befor e he spoke to an underc over law enforce m en t office r posing as a fellow inmate about an unrelated, unchar g ed murder. Be cause , as t h e United States Supreme Court decide d in Perkins I
, Miranda war

nings wer e not require d befo re t h e d efendant was questioned, it follows that he had no fifth amendment rig ht to counsel, and it was irrele vant t h at he had
reque sted counsel when he was arr ested for the unr elated a g g ravated batter y . Acc ording ly
, the appellate court’s decision to the contra ry in Perkins II

, 248 I ll. App. 3d at 769, is here by expressly overr uled. ¶ 35 I t is also interesting to note that the appellate court’s decision in Perkins II was based on fe d er al, not I llinois
, constitutional law. See also People v. Manning
, 182 I ll. 2d 193, 206 (1998) (“ Mi r a n d a is not implicated in conver sations betwee n suspects and underc over ag ents. The essential ingr edients of a police-dominate d atmosphere and compulsion are not prese nt when a pr isoner spea ks fre ely to an under cover

ag ent.”)

. ¶ 36 We turn now to McCauley
, 163 I ll. 2d 414. In McCauley
, the defe ndant was broug ht to the police station for questioning about a murder, was advised of his Miranda rig hts, and did
not reque st an attorney

. Id. at 417-18. Howeve r, unbeknownst to the defendant, his family had retained an attorney for him, and the attorney had g one to t he poli ce station and asked
to s p ea k wi t h him. Id. at 418-19. The police ref used to allow the attorney acc ess to the defe ndant and failed to inform t h e d ef en dant that his attorney was prese nt at the police station asking to speak with him. Id. at 419. The defenda nt subsequently g ave a s t at ement

-8-to the police in response to their questioning. Id. at 420. The t rial court suppressed the

statement, and this cour

t affir med. ¶ 37 The McCauley court noted that, in Moran v. Burbine , 475 U.S. 412 (1986), the United States Supreme Co u rt h ad re jected the arg

ument that simil ar police conduct violated a defe ndant’s rig ht to counsel under the fifth am en d m ent to the United States Constit ution. McCauley
, 163 I ll. 2d at 422-23. The McCauley court then considere d whether such conduct viol at ed the defe ndant’s rig ht to counsel under article I
, section 10, of the I llinois Constit ution of 1970, which provides, in pertinent part, that “[n] o person shall be compelled in a criminal case to g ive evidenc e ag ainst himself” (I ll. Const. 1970, art. I
, § 10). McCauley
, 163 I ll. 2d at 423. ¶ 38 In holding that the police conduct in McCauley violated the defe ndant’s rig hts under the I llinois Constit ution, the court explained:

“The day is long pa st in I llinois *** wher e attorney s must shout leg al advice to their clients, held in c ustody
, throug h the jailhouse door. In this c ase, we deter mine that our State constitutional g uara ntees aff orded defe ndant a g reater deg ree of protec tio n [t han their fede ral counter parts]. Our State constitutional g uara ntees simply do not permit police to delud e custodial suspects, ex posed t o interrog ation, into falsely believing they are without immediately avai la b le leg al counsel and to also
preve nt that counsel fr o m acc essing and assisting their clients during the interrog ation.” McCauley , 163 I ll. 2d at 423-24. ¶ 39 The McCau l ey co u rt held that, under I llinois law, “ ‘whe n police, prior to or during custodial interrog ation, ref use an attorney appointed or reta ined to assist a suspect acc ess to the suspect, there can be no knowing waiver of the rig h t to counsel if the suspect has not been informed that the attorney was prese nt and seeking to consult with him.’ ” Id. at 424-25 (quoting People v. Smith
, 93 I ll. 2d 179, 189 (1982))

. The McCauley court also held that “due
proce ss is violated when police int erf ere with a suspect’s rig ht to his attorney ’s as s i s t an ce and prese nce by aff

irmatively preve nting the suspect, ex p o sed to interrog ation, from

rec eiving the immediately available assistance of an attorney hired or appointed to repr esent him.” McCauley
, 163 I ll. 2 d at 444. See I ll. Const. 1970, art. I
, § 2 (“[n]o person shall be deprive d of life, liberty or proper ty without due proce ss of law”)

. Thus, the court conclude d that the police conduct violated the defe ndant’s privileg e ag ainst compelled selfincrimination and his rig ht to due proce ss. McCauley , 163 I ll. 2d at 446. ¶ 40 Howeve r, the McCauley co u rt d i d n ot esche w the Miranda reg ime itself; instead, it superimposed a state-spe cific rig ht onto the exis ting Miranda fra mework. The constitutional justification for the Miranda reg ime is police custodial interrog atio n

. C o n t ra ry to the appellate court’s conclusion, McCauley did not reje ct this foundation by taking the police out

o f t h e equation. According ly
, we hold that, like a suspect’s Miranda rig hts, his McCaul ey rig ht to an immediately available attorney arises only during police custodial interrog ation. ¶ 41 In the prese nt case , beca use defe ndant was not subjected to police custodial interrog ation when he had a conver sation with Davis, an underc over informant and fellow inmate, during the overhe ars, Miranda and McCauley are inapplicable. See Perkins I
, 496 U.S. at 300; Miranda
, 384 U.S. at 444, 467 ; McCauley
, 163 I ll. 2d at 424-25, 444. Acc ording ly
, the

-9-detec tives wer e not require d to g ive defe ndant Miranda war nings b ef o re the overhe ars; defe ndant had no constitutional rig ht to counsel during the overhe ars; the detec tives wer e not require d to inform defe ndant that his counsel in a n unrelated case was at the police station, asking to speak with him during the first overhe ar; and the appellate court err ed in upholding the suppression of the statements on McCauley g rounds. We also decline to extend the McCauley rig ht to protec t the attorney -client relationship outside the contex t of police custodial interrog ation. ¶ 42 Be cause our resolution of this issue is dispositi ve on ap p ea l
, we n ee d not addre ss the State’s ot h er arguments—that the appellate court err ed in finding that (1) defe ndant had invoked his rig ht to counsel on J uly 18; and (2) he was in “ Miranda cus tody ” during the overhe ars. 1

¶ 43 CONCL USI ON ¶ 44 For the fore g oing rea sons, w e re verse the judg ments of the appe llate court and the trial
court and rema

nd to the circ uit court of Cook County for further proce eding s consistent with this opini on.

¶ 45 Appellate c ourt judg ment reve rsed. ¶ 46 Circuit court judg ment reve rsed. ¶ 47 Cause re manded.

¶ 48 J USTI CE FREEMAN, spe cially concur ring : ¶ 49 I ag ree with the m ajo ri t y ’s h o lding that statements m ade by defe ndant t o an informa nt duringa cour

t-order ed overhea

r were not obtained in violation of his rights to counsel and to due proce ss under the I llinois Constit ution (I ll. Const . 1970, art. I
, §§ 2, 10), as set forth by this court in People v. McCauley
, 163 I ll. 2d 414 (1994). I there fore concur in its judgme nt. I write separatel y , h oweve r, t o emphasize that our decision today should not be construed a s a depa

rture f rom McCauley

. ¶ 50 As noted by the majority
, the trial court, rely ing upon McCauley
, suppressed statements made by defe ndant to police informant My cal Davis during judicially authorized overhe ars.

T he Unit ed Sta te s Supr eme Cour t’ s re cen t dec is ion in Howes v. Fie lds
, ___ U.S. ___, 132 1 S. Ct. 1181 (20 12)
, addre ssi ng the is sue of the app rop ri at e st a n d a r d f o r det er m ini ng whet her a pri son er was in Mi ran da cus tod y dur ing pol ic e que st ion ing, is con si st ent wit h our int erpre ta ti on of “cu st odi al in te rr ogati on.” As t he Co urt exp la ine d: “As use d in our Mi ran da ca se la w, ‘c ust ody’ i s

a te rm of ar t tha t sp e c if

ie s ci rc um st anc es tha t ar e tho ught genera ll y t o pre sen t a ser iou s dan ger of

coe rc ion .” Id. at ___, 132 S. Ct. at 1189

. T he Cour t not ed tha t “st and ar d con dit ion s of con fi nement and ass oci at ed re st ri ct ion s on fr eed om wil l not nec ess ar il y implic at e the same int er est s tha t the Cour t

sou ght to pro te ct when it af for ded spe ci al saf

eguard s to per son s sub

j ect ed to cus tod ia l int er rogat ion

. T hus
, ser vice of a te rm of impris onment, wit hout m ore , is not eno ugh to c o n s t it ute Mi ran da

cus tod y.” Id. at

___ , 132 S. Ct . at 119 1.

-10-The majority corr ectly points out that “the sole issue on appea l is whether the [defendant’ s]

statements wer e proper ly suppressed on McCauley g rounds.” Supra ¶ 21. On that point, the majority notes: “[T] he McCauley court did not esche w the Miranda reg ime itself; instead, it superimposed a state-spe cific rig h t o n t o the exis ting Miranda framework. The constitutional justification for the Miranda reg ime is police custodial interrog ation. Contrary to the appellate court’s conclusion, McCauley did not reje ct this foundation by taking the police out of the equation. Acc ording ly
, we hold that, like a suspect’s Miranda rig hts, his McCauley rig ht to an immediately available attorney arises only duringpolice custodial interr og ation.” Supra ¶ 40. ¶ 51 I believe that the better approa ch to resolving this case is to point out that McCauley and this case a

re not c lose fac tually

. ¶ 52 McCauley involved a situation wher e a defe ndant, though Mirandized, was interr og ated by police without having been told that his lawy er had arr ived at the station and was preve nted from se einghim. ¶ 53 In aff

irming suppression of the defe ndant’s statements, this court reje cted the ar g ument that the interpre tation of a defe ndant’s rig ht to counsel under the I llinois Constit ution must be in complete lockstep w ith the Supreme Court’s dec ision in Moran v. Burbine
, 475 U.S. 412 (1986). Instead, we agree d with the defe ndant that Burbine “re prese nt[ ed] a regressive interpre tation of fifth ame ndment protec tions” ( McCauley , 163 I ll. 2d at 421), and refused to apply the fe dera l constituti onal ana ly sis developed in that ca se. ¶ 54 R at h er , we l o o k ed t o t h e safe g uards provided to the defe ndant under o u r s t at e constitution, and held that they “af forde d defe ndant a g reater deg ree of protec tion” than did fede ral law. Id. at 423. In holding that the conduct of the police violated the defe ndant’s state rig hts ag ainst self-inc rimination and to due proce ss (I ll. Const. 1970, art. I
, § § 2
, 1 0 ), we undersc ored that “[o] ur State constitutional g uara ntees simply do not permit police to delude custodial suspects, ex p o s ed to interrog ation, into falsely believing they are without immediately available leg al co unsel and to also preve nt that counsel from acc essing and assisting their c lients during the interrog ation.” McCauley , 163 I ll. 2d at 423- 24 (citing I ll. Const. 1970, art. I , §§ 2, 10). ¶ 55 I t is my position t h at t h e fu n d am ental, fac tual differ ence s betwee n these two case s rende rs McCauley i n ap p l i cable here

. Unlike in McCauley
, wher e counsel arr ived at the station while the defe ndant was being interrog ated by tw o p o l i ce officers and the police
preve nted the attorney from consulting with his cli en t , i n this case , when counsel arr ived defe ndant was eng ag ed in a judicially sanctioned, overhe ard conver sation with a fellow inmate who was ope ratingas an infor mant. Id

. ¶ 56 That being said, I wish to undersc ore that today ’s decision in no way erode s McCauley ’s holding that the police conduct which occur red there rema ins a clea r v i o l at i o n of a defe ndant’s rig hts under our state constitution. Indeed, this court has unanimously held that “the McCauley decision repr esents this court’s ref usal to allow this state’s counter part to the fifth amendment rig ht to couns el t o d i m i n ish the way the fede ral rig ht had in Burbine ” ( Relsolelo v. Fisk
, 198 I ll. 2d 142, 152 (2001))
, and has observe d that “the police conduct at

-11-issue [i n McCauley ] implicated state due proce ss conce rns” ( People v. Caballes
, 221 I ll. 2d 282, 301 (2006)) . Acc ording ly , the forc e and e ffe ct of McCauley rema ins unchang ed.

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