Docket No. 88323–Agenda 16–May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								SAMUEL VILLALOBOS, Appellant.

Opinion filed September 21, 2000.	

	JUSTICE McMORROW delivered the opinion of the court:

	At issue in this appeal is whether the defendant, Samuel

Villalobos, invoked his fifth amendment right to counsel pursuant

to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), by filing a form at a bond hearing that stated

defendant would not participate in “any questioning, identification

process or other procedures on any case or matter” without his

counsel present. The appellate court concluded that he did not. No.

1–96–1139 (unpublished order under Supreme Court Rule 23). We

allowed defendant’s petition for leave to appeal (177 Ill. 2d R.

315) and now affirm the judgment of the appellate court.

BACKGROUND

	On November 13, 1994, Ronnie Johnson was shot and killed.

The evidence at defendant’s trial for Johnson’s murder established

that at 3:30 a.m. on November 13, defendant and four friends

drove south on the Dan Ryan Expressway, with defendant in the

front passenger seat of the car. The car encountered a white

Cadillac, driven by Johnson. Although the testimony is

conflicting, it appears that Johnson increased his speed, and

defendant told the driver of his car to accelerate and follow

Johnson. Defendant then leaned out of the car and fired nine shots

at Johnson’s car. One bullet entered the left side of Johnson’s head

and killed him. Roughly 45 minutes after this shooting, defendant

and his friends were arrested for possession of cannabis and

drinking on a public way–an offense unrelated to Johnson’s

killing.

	On November 14, 1994, defendant appeared at a bond hearing

on the possession of cannabis charge. At the bond hearing,

defendant signed a form entitled “Appearance, Notice of

Representation and Demand for Preliminary Hearing/Trial” (hereinafter, appearance form). In addition to documenting both

the assistant public defender’s and defendant’s demand for a

preliminary hearing and trial, the appearance form contained a

section stating: “BE ADVISED, the under-signed defendant serves

this NOTICE OF REPRESENTATION on the State, its agents and

on all law enforcement officers barring the defendant’s

participation, without the presence of his/her counsel, in any

questioning, identification process or other procedures on any case

or matter whatsoever.” Defendant did not post bond and proceeded

to Cook County jail.

	On November 16, 1994, pursuant to a writ, two Chicago

police officers removed defendant from jail and brought him to

police headquarters in order to question him relative to Johnson’s

death. After being advised of his Miranda rights and waiving them in writing, defendant provided a written statement in the presence

of an assistant State’s Attorney and a police officer, in which he

confessed to the shooting. Defendant was subsequently arrested

and charged with Johnson’s murder.

	Defendant moved to suppress his statement prior to the

murder trial. In his motion to suppress, defendant argued that by

signing and filing1 the appearance form, which attempted to bar his participation in any questioning on any case or matter, he

provided notice to the prosecution that he did not wish to speak to

any law enforcement personnel without the assistance of counsel.

The assistant public defender who represented defendant at his

bond hearing on the cannabis charge testified at defendant’s

motion to suppress that the appearance form was a “standard

form” that she prepared for every defendant whom she

represented.

	The circuit court denied defendant’s motion to suppress,

finding that the additional language on the appearance form regarding defendant’s unwillingness to speak with law

enforcement personnel in “any case” was “surplusage” and bound

law enforcement personnel only on the cannabis offense. The

inculpatory statement was subsequently introduced at defendant’s

bench trial for the murder of Ronnie Johnson. The circuit court

found defendant guilty.

	Defendant appealed his conviction on the ground that the

denial of his motion to suppress constituted error. He argued that,

by signing and filing the appearance form during his bond hearing

on the cannabis charge, he invoked his fifth amendment right to

counsel pursuant to Miranda. Police officers violated that right when they subsequently questioned him on an unrelated offense

without his counsel being present. The appellate court affirmed

defendant’s conviction. Quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 169, 111 S. Ct. 2204, 2209 (1991),

the appellate court stated that “in order to invoke the Miranda interest, there must be ‘at a minimum, some statement that can

reasonably be construed to be an expression of a desire for the

assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.’ ” (Emphasis in original.) 

No. 1–96–1139 (unpublished order under Supreme Court Rule

23).

	Defendant appeals the appellate court’s determination that the

motion to suppress was properly denied because defendant failed

to invoke his fifth amendment right to counsel pursuant to

Miranda.

ANALYSIS

	In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court required that

certain procedural safeguards be provided to a suspect before

custodial interrogation. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612 (“[b]y custodial interrogation, we mean

questioning initiated by law enforcement officers after a person

has been taken into custody”). Although not enumerated in the

Constitution, the Supreme Court found these safeguards necessary in order to protect the privilege against compulsory self-

incrimination under the fifth amendment. Davis v. United States, 512 U.S. 452, 457, 129 L. Ed. 2d 362, 370, 114 S. Ct. 2350, 2354

(1994), quoting Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 193, 94 S. Ct. 2357, 2364 (1974). Specifically, the Court

required that a person in custody be advised of certain rights,

including the right to remain silent and the right to an attorney,

prior to any interrogation by law enforcement. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. Edwards v. Arizona further expanded Miranda and held that once a person invokes his right to counsel during custodial interrogation, he “is

not subject to further interrogation by the authorities until counsel

has been made available to him, unless the accused himself

initiates further communication, exchanges, or conversations with

the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885 (1981).

	 The single issue presented in this appeal is whether defendant

invoked his Miranda right to counsel when, at a bond hearing, the defendant signed a notice of appearance form which included a

statement that the defendant would not participate in any future

questioning on any matter without his attorney present. There is no

dispute that defendant was in custody while at his bond hearing.

There is also no dispute that defendant was not subject to

interrogation at that time. Nevertheless, defendant argues that he

effectively invoked his Miranda right to counsel by filing the appearance form at his bond hearing. Therefore, defendant argues

his Miranda right to counsel may be invoked prior to custodial interrogation.

	The United States Supreme Court has not directly answered

the issue before this court. However, the Court has strongly

suggested that a defendant cannot anticipatorily invoke his

Miranda right to counsel at a preliminary hearing. In McNeil, the defendant argued that an invocation of his sixth amendment right

to counsel acted as an additional invocation of his Miranda right to counsel. McNeil, 501 U.S. at 174, 115 L. Ed. 2d at 166, 11 S. Ct. at 2207. In holding that a sixth amendment invocation does not operate as a Miranda invocation of the right to counsel, the Supreme Court stated in a footnote:

		“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’–which a preliminary hearing will

not always, or even usually, involve [citations]. If the

Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why

it could not be invoked by a letter prior to arrest, or

indeed even prior to identification as a suspect. Most

rights must be asserted when the government seeks to

take the action they protect against. The fact that we have

allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation

does not necessarily mean that we will allow it to be

asserted initially outside the context of custodial

interrogation, with similar future effect.” McNeil, 501 U.S. at 182 n.3,115 L. Ed. 2d at 171 n.3, 111 S. Ct. at

2211 n.3.

See also Edwards, 451 U.S. at 485-86, 68 L. Ed. 2d at 387, 101 S. Ct. at 1885 (“[t]he Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.

Absent such interrogation, there would have been no infringement

of the right that Edwards invoked and there would be no occasion

to determine whether there had been a valid waiver”); Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689 (1980) (holding that one’s Miranda interests are in place when he is subjected to “express questioning or its

functional equivalent”).

	Subsequent to McNeil, this court indicated that a suspect’s Miranda right to counsel does not exist at his arraignment. In People v. Kidd, we held that invocation of the sixth amendment right to counsel does not invoke a defendant’s Miranda right to counsel. People v. Kidd, 147 Ill. 2d 510, 532 (1992). In so holding, we specifically stated that “although defendant’s sixth amendment

right to counsel attached when private attorney Earl Washington

represented defendant at his arraignment *** on the unrelated murder and arson charges, defendant’s fifth amendment right to

counsel pursuant to Miranda clearly did not arise at that point.” People v. Kidd, 147 Ill. 2d at 532.

	In addition to our own precedent, a majority of state courts

have relied on the language in McNeil to hold that one cannot anticipatorily invoke the right to counsel prior to custodial

interrogation. Sauerheber v. State, 698 N.E.2d 796, 802 (Ind. 1998) (“[McNeil] strongly suggests that the rights under Miranda and Edwards do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins”); Sapp v. State, 690 So. 2d 581, 584-85 (Fla. 1997); People v. Avila, 75 Cal. App. 4th 416, ___, 89 Cal. Rptr. 2d 320, 324 (1999); State v. Warness, 77 Wash. App. 636, 641, 893 P.2d 665, 668 (1995) (“The need for Miranda protection does not exist except in a custodial interrogation situation. The right cannot be invoked

before it exists”); see also State v. Stewart, 113 Wash. 2d 462, 477-78, 780 P.2d 844, 853 (1989), quoting State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182, 1185 (1983) (prior to the Supreme

Court decision in McNeil, the Washington Supreme Court held that a defendant’s invocation of his sixth amendment right to

counsel does not act to invoke his Miranda right to counsel, because “ ‘[a]t arraignment defendant is not confronted with an

atmosphere of coercion, nor does anyone seek to gain admissions

from him’ ”).

	The facts in both Sapp and Avila are strikingly similar to the facts in the case at bar. In Sapp, the Supreme Court of Florida held that a defendant does not invoke his Miranda right to counsel by signing a “claim of rights” form. Sapp, 690 So. 2d at 585. While in jail pursuant to a robbery arrest, the defendant signed and later

filed a “claim of rights” form, which stated that the defendant

asserted his right to refrain from making any statements regarding

offenses with which he was or was not charged without his

attorney present. Subsequently, police questioned the defendant

about an unrelated offense, after the defendant was informed of

and waived his Miranda rights. The defendant later argued that the “claim of rights” form effectively invoked his Miranda right to counsel, and his statement should have been suppressed. Sapp, 690 So. 2d at 583. The Supreme Court of Florida held that the “claim

of rights” form did not act as an effective invocation of the

defendant’s Miranda right to counsel because the defendant was not subject to custodial interrogation when he attempted to invoke

his Miranda right. Sapp, 690 So. 2d at 585. Rather, the court found that “Miranda’s safeguards were intended to protect the Fifth Amendment right against self-incrimination by countering

the compulsion that inheres in custodial interrogation.” (Emphasis

omitted.) Sapp, 690 So. 2d at 585.

	Additionally, the California appellate court held that a

defendant does not invoke his Miranda right to counsel when his assistant public defender files a form attempting to assert the

defendant’s fifth, sixth and fourteenth amendment rights. Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 325. The defendant in

Avila was arrested for a shooting and, at his arraignment, defense counsel filed a form stating that the defendant invoked his fifth,

sixth and fourteenth amendment rights. Law enforcement officers

later interviewed the defendant regarding an unrelated offense,

after the defendant was advised of and waived his Miranda rights. During this interview, the defendant admitted to the crime. Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 322. The California

appellate court rejected defendant’s argument that his confession

should be suppressed because it was taken in violation of his

Miranda right to counsel. Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 323. In doing so, the court found that the defendant,

though in custody, was neither facing nor fearing interrogation at

his arraignment. Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 325. The court noted that “[a]llowing an anticipatory invocation

of the Miranda right to counsel would extend an accused’s privilege against self-incrimination far beyond the intent of

Miranda and its progeny.” Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 325.

	Relying on McNeil, an overwhelming number of federal courts have also held that a defendant cannot invoke his Miranda rights outside the context of custodial interrogation. United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998); United States v. LaGrone, 43 F.3d 332, 338 (7th Cir. 1994) (“there are certain ‘windows of opportunity’ in which a defendant must assert his

Miranda right to counsel. A defendant must clearly invoke his right to counsel from each constitutional source, at a time when

the right is available”); United States v. Thompson, 35 F.3d 100, 104 (2d Cir. 1994) (“[the defendant’s] filing of the [notice of

appearance] did not occur in the context of custodial

interrogation”); Alston v. Redman, 34 F.3d 1237, 1244 (3d Cir. 1994) (“[b]ecause the presence of both a custodial setting and

official interrogation is required to trigger the Miranda right-to- counsel prophylactic, absent one or the other, Miranda is not implicated” (emphasis omitted)); United States v. Wright, 962 F.2d 953, 956 (9th Cir. 1992) (“[t]o extend Miranda-Edwards protection as [the defendant] urges would, on the other hand, make

it virtually impossible for any defendant charged with one crime

ever to be questioned about unrelated criminal activity, if, the first

time in court on the first offense charged, he asked for counsel to

be present at future interviews. This would not serve the

prophylactic purposes of Miranda”); United States v. Cooper, 85 F. Supp. 2d 1, 23 (D.D.C. 2000) (“[t]he footnote [in McNeil] strongly suggests, although not definitively, that a request for

counsel under Miranda must be made within the custodial context and not at arraignment or other such proceedings”); United States v. Barnett, 814 F. Supp. 1449, 1454 (D. Alaska 1992) (finding that a request for counsel at a grand jury proceeding does not constitute

an invocation of the right to counsel under Miranda-Edwards because the court “assume[s] that the dicta in McNeil accurately predicts that the United States Supreme Court will hold that an

accused cannot invoke his Fifth Amendment right to counsel until

he is taken into custody, and prior to interrogation, warned of

those rights”).

	For example, in Grimes, the defendant was arrested and charged with writing worthless checks. The defendant signed a

“claim of rights” form which attempted to invoke both his fifth

and sixth amendment right to counsel. The form was placed in the

court file and copies were served on both the State’s Attorney and

police department. The defendant later made incriminating

statements regarding a separate offense to an undercover agent and to a friend who was assisting law enforcement investigators. The

defendant argued that he invoked his Miranda right to counsel by signing the “claim of rights” form and, therefore, his incriminating

statements should have been suppressed. Grimes, 142 F.3d at 1345-48. The Eleventh Circuit disagreed, finding that “Miranda

rights may be invoked only during custodial interrogation or when

interrogation is imminent” and thus held that the “claim of rights”

form did not invoke the defendant’s Miranda rights. Grimes, 142 F.3d at 1348.

	We agree with the reasoning of these federal and state cases.

It is not surprising that virtually every Supreme Court opinion

involving Miranda has used the phrase “custodial interrogation.” It is custodial interrogation with which Miranda was concerned. It is the right to an attorney during custodial interrogation that Miranda and its progeny protects. That right does not exist outside the context of custodial interrogation. One cannot invoke a right

that does not yet exist. While in court on a bond hearing, a

defendant is not subject to interrogation, and the need for Miranda is not yet present. The Supreme Court stated in Innis that “[t]he concern of the Court in Miranda was that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and

thereby undermine the privilege against compulsory self-

incrimination.” (Emphasis added.) Innis, 446 U.S. at 299, 64 L. Ed. 2d at 306, 100 S. Ct. at 1688 (1980), quoting Miranda, 384 U.S. at 457-58, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619. See also

Illinois v. Perkins, 496 U.S. 292, 297, 110 L. Ed. 2d 243, 251, 110 S. Ct. 2394, 2397 (1990) (“[i]t is the premise of Miranda that the danger of coercion results from the interaction of custody and

official interrogation”). Absent the interplay of custody and

interrogation, an individual’s privilege against self-incrimination

is not threatened. 

	In support of the argument that his Miranda rights had attached at his bond hearing, defendant cites to United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991), and North Carolina v. Torres, 330 N.C. 517, 412 S.E.2d 20 (1992). Defendant’s reliance on these decisions is misplaced, as both cases are factually

inapposite.

	Unlike the matter at bar, both Kelsey and Torres involved situations where the defendant’s interrogation was imminent when

he or she requested counsel. In Kelsey, the defendant, after being searched and arrested, was essentially told by police officers that

he would be questioned. Similarly, in Torres, the defendant was taken to the sheriff’s department and placed in a conference room

to await interrogation. In addition, we note that, subsequent to

Kelsey, the Tenth Circuit has indicated that it will not permit anticipatory invocations of the Miranda right to counsel. See United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998) (“[w]e do not suggest that a person can invoke his Miranda rights anticipatorily in any situation, i.e., in a context other than custodial

interrogation, as the Court cautioned in McNeil”), citing McNeil, 501 U.S. at 182 n.3, 115 L. Ed. 2d at 171 n.3, 111 S. Ct. at 2211

n.3.

	Interrogation was not imminent in the case at bar. Defendant

was in court on an unrelated crime when he attempted to invoke

his Miranda right to counsel. There was no suggestion that defendant would be questioned on the crime with which he was

charged or any other crime subsequent to his bond hearing. In fact,

defendant’s interrogation regarding the Johnson murder occurred

two days after his bond hearing.

	The defendant points out that under Edwards and Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988), once a suspect invokes his right to counsel pursuant to

Miranda, he may not be interrogated again regarding any offense unless he initiates the conversation. McNeil, 501 U.S. at 175, 177, 115 L. Ed. 2d at 166, 168, 111 S. Ct. at 2207, 2208 (stating that

the Miranda right to counsel is not offense specific). Therefore, the defendant further notes, if an accused invokes his Miranda right to counsel when in custody for one offense, law enforcement

personnel cannot question him on that offense or any unrelated offense without counsel present. Arizona v. Roberson, 486 U.S. at 677-78, 100 L. Ed. 2d at 711, 108 S. Ct. at 2096; People v. Perkins, 248 Ill. App. 3d 762, 770 (1993). However, the suspect must invoke the right to counsel during custodial interrogation or

when custodial interrogation was imminent. 

	Defendant also argues that he should be allowed to assert his Miranda rights at a bond hearing because “[i]f a defendant remains in continuous custody *** the only verifiable assertion of

his Fifth Amendment right to counsel is one made before a judge.”

According to defendant, unless the Miranda right to counsel is asserted in open court in the presence of a judge, “the only

witnesses to a request for counsel would be the very officers

whose objective it is to obtain a statement.” We disagree. If we

were to accept defendant’s argument, we would have to require a

judge to be present every time a suspect receives Miranda warnings. Although Miranda and its progeny demand certain procedural safeguards to uphold a person’s fifth amendment right

against compulsory incrimination, no case has required that an

independent third party be present to attest that a suspect was

advised of or waived his Miranda rights. See, e.g., McNeil, 501 U.S. at 180, 115 L. Ed. 2d at 170, 111 S. Ct. at 2210 (“[i]f a

suspect does not wish to communicate with the police except

through an attorney, he can simply tell them that when they give

him the Miranda warnings”). We decline to add that additional layer to the Miranda prophylaxis today.

	Stretching Miranda to allow anticipatory invocations of the right to counsel would extend Miranda far beyond its boundaries and upset the very balance that Miranda sought to protect–the balance between effective law enforcement and protection of

individual rights. In order to invoke the Miranda right to counsel, an individual must be both in custody and subject to interrogation

or under imminent threat of interrogation. In the case at bar,

defendant was not subject to interrogation at the bond hearing. We

therefore hold that defendant could not effectively invoke his

Miranda right to counsel at the bond hearing. Defendant’s motion to suppress was correctly denied.

	We note that the State moved to strike portions of defendant’s

reply brief. We ordered that motion taken with the case and now

deny it.

CONCLUSION

	For the foregoing reasons, we affirm the judgment of the

appellate court.

Affirmed.

	JUSTICE HEIPLE, dissenting:

	Today’s majority opinion erroneously holds that police may

interrogate a criminal suspect in their custody without an attorney

present, even after that suspect has clearly and unambiguously

requested the assistance of an attorney in dealing with custodial

interrogation. I therefore dissent.

FACTS

	On November 13, 1994, defendant was arrested for drinking

on a public way and for felony possession of cannabis. During

defendant’s initial court appearance, defendant’s attorney filed her

appearance form. This form was signed by defendant, and

contained the following notice: “BE ADVISED, the undersigned

defendant serves this NOTICE OF REPRESENTATION on the

State, it’s [sic] agents and on all law enforcement officers barring the defendant’s participation, without the presence of his/her

counsel, in any questioning, identification process or other

procedures on any case or matter whatsoever.” Defendant did not

post bond and remained in custody.

	Just three days later, and while still in continuous custody, on

November 16, 1994, two Chicago police officers questioned

defendant regarding the shooting death of Ronnie Johnson.

Defendant’s counsel was not present during this interrogation.

During the course of this questioning, defendant confessed to the

shooting. Defendant was subsequently charged with Johnson’s

murder.

	Before trial, defendant moved to suppress his statement given

to police. In the motion to suppress, defendant argued that police

violated his fifth amendment right to counsel by questioning him

without his counsel being present even after defendant had requested the assistance of counsel in dealing with custodial

interrogation. The trial court denied defendant’s motion, however,

finding that the request for counsel was merely “surplusage”

attached to counsel’s appearance form, and was not binding upon

the State except in relation to the original drinking and cannabis

charges.

	At defendant’s subsequent murder trial, the statement was

admitted into evidence against defendant. The circuit court found

defendant guilty of first degree murder and sentenced him to 60

years in prison.

	Defendant appealed, arguing that the trial court erred in

refusing to suppress his statement. The appellate court affirmed,

but for different reasons. Whereas the trial court had found fault

with the manner in which defendant attempted to invoke his fifth amendment right to counsel, the appellate court found fault with

defendant’s choice of forum. The appellate court reasoned that a proper invocation of a defendant’s fifth amendment right to

counsel requires “ ‘at a minimum, some statement that can

reasonably be construed to be an expression of a desire for the

assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.’ ” (Emphasis in original.)

No. 1–96–1139 (unpublished order under Supreme Court Rule

23), quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 169, 111 S. Ct. 2204, 2209 (1991). Accordingly, the

appellate court held that defendant’s fifth amendment right to

counsel had not been violated.

	The majority today adopts the reasoning of the appellate

court, but also goes one step further. In addition to holding that a

defendant cannot invoke his fifth amendment right to counsel during his initial court appearance, the majority also holds that a

defendant does not even have such a right until custodial interrogation begins. Slip op. at 9.

DISCUSSION

	Both the appellate court and the majority today base their

holdings in large part upon the United States Supreme Court’s

opinion in McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). Because the majority misreads McNeil, a thorough examination of the facts of that case is required.

	McNeil was arrested for an armed robbery committed in West

Allis, Wisconsin. Shortly after his arrest, police advised McNeil

of his Miranda rights and sought to question him. McNeil refused to answer questions, but did not request an attorney. The police

promptly ended the interview.

	Some time later, McNeil appeared in court for a bail hearing.

He was represented at that hearing by an attorney from the

Wisconsin public defender’s office. McNeil did not post bail and

remained in custody. Later that same evening, two detectives

questioned McNeil in jail. During that and subsequent interviews,

and after being informed of his Miranda rights, McNeil gave statements admitting involvement in the Caledonia crimes.

	Before trial, McNeil moved to suppress his confession.

According to McNeil, his courtroom appearance with an attorney

for the West Allis crime constituted an invocation of the Miranda right to counsel, and any subsequent waiver of that right during

police-initiated questioning regarding any offense was invalid. The trial court denied the motion, and McNeil was convicted of second

degree murder, attempted first degree murder, and armed robbery.

	The Supreme Court held that the police questioning of

McNeil was proper. First, the Court accepted that defendant’s

sixth amendment right to counsel had attached and been invoked

with respect to the West Allis armed robbery at the time McNeil

confessed to the Caledonia crimes. The sixth amendment right to

counsel, however, is offense specific. Accordingly, because

defendant had not yet invoked his sixth amendment right to

counsel with respect to the Caledonia crimes, that right posed no

bar to the admission of McNeil’s confession.

	The Supreme Court recognized, however, that McNeil was

relying upon a the right to counsel which the United States

Supreme Court had held to be implicit in the fifth amendment’s guarantee that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. See Miranda v. Arizona, 384 U.S. 436, 442, 16 L. Ed. 2d 694, 705, 86 S. Ct. 1602, 1611 (1966). In contrast to the sixth amendment right to counsel, the right to counsel secured by the fifth amendment is not offense specific. See Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). Accordingly, once a suspect

asserts the fifth amendment right to counsel for one offense, a defendant may not be approached for questioning regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).

	Despite its recognition of the broader scope of the fifth amendment right to counsel, however, the McNeil Court held that police had not violated this right because McNeil had never invoked it. The court noted that McNeil’s only expression of a desire for the assistance of counsel had been his appearance with

counsel at his bail hearing. This was not enough, the Supreme

Court explained, because invocation of the fifth amendment right to counsel, “requires, at a minimum, some statement that can

reasonably be construed to be an expression of a desire for the

assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.” (Emphasis in original.) McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 169, 111 S. Ct. at 2209.

	What is clear from the Supreme Court’s opinion in McNeil is that the Court’s analysis focused not upon the time or place when

the defendant made his request for assistance of counsel, but upon

the type of assistance of counsel which the defendant requested. In McNeil, the defendant had, at best, expressed a desire for the assistance of counsel at a bail hearing. In the case at bar, however,

defendant clearly and unequivocally expressed “a desire for the

assistance of an attorney in dealing with custodial interrogation by the police.” McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 169, 111 S. Ct. at 2209. Accordingly, McNeil does not defeat defendant’s claim in this case.

	The majority further relies upon dicta in a footnote from the McNeil opinion. That footnote, in its entirety stated:

			“The dissent predicts that the result in this case will

routinely be circumvented when, ‘[i]n future preliminary

hearings, competent counsel ... make sure that they, or

their clients, make a statement on the record’ invoking the

Miranda right to counsel. [Citation.] We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ’custodial

interrogation’–which a preliminary hearing will not

always, or even usually, involve [citations]. If the

Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why

it could not be invoked by a letter prior to arrest, or

indeed even prior to identification as a suspect. Most

rights must be asserted when the government seeks to

take the action they protect against. The fact that we have

allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation

does not necessarily mean that we will allow it to be

asserted initially outside the context of custodial

interrogation, with similar future effect. Assuming,

however, that an assertion at arraignment would be

effective, and would be routinely made, the mere fact that

adherence to the principle of our decisions will not have

substantial consequences is no reason to abandon that

principle. It would remain intolerable that a person in

custody who had expressed no objection to being questioned would be unapproachable.” McNeil, 501 U.S. at 182 n.3, 115 L. Ed. 2d at 171 n.3, 111 S. Ct. at 2211

n.3.

Based largely upon this footnote and upon decisions of other

courts relying on this footnote, the majority holds that the fifth

amendment right to counsel cannot be invoked until custodial

interrogation has begun or is imminent.

	The majority’s reliance on the McNeil footnote is misplaced for several reasons. First, as the majority candidly admits, the

United States Supreme Court has never addressed the issue of

whether a defendant may invoke the sixth amendment right to counsel before interrogation begins or is “imminent” (whatever

that means). Second, the footnote is clearly dicta. The Supreme Court’s McNeil opinion was based entirely upon the fact that defendant had never invoked his fifth amendment right to counsel. As such, the time and place of any such invocation was never at

issue. Third, the footnote does not state, even in dicta, that a defendant cannot invoke his fifth amendment right to counsel

under the facts of this case. Rather, the footnote merely noted the

existence of the issue without deciding it. Finally, the footnote was

written in response to a dissent which was joined by three Justices.

Thus, while precisely zero of Justices on the McNeil Court explicitly argued that the fifth amendment right to counsel could not be invoked in the manner which the defendant in this case claims to have employed, three justices of that court expressly

argued that the fifth amendment right could be invoked in this fashion. McNeil, 501 U.S. at 184, 115 L. Ed. 2d at 172, 111 S. Ct. at 2212 (Stevens, J., dissenting, joined by Marshall and Blackmun,

JJ.). Accordingly, the majority’s prediction of how the United

States Supreme Court would rule on this issue is pure speculation.

	From a purely policy perspective, the rule announced by the

majority is a bad one. After today, police arresting a suspect will

no longer have any reason to inform a suspect of his Miranda rights until immediately before they initiate questioning. Indeed,

under the rationale of the majority, police may now freely

interrogate a suspect who states “I refuse to answer questions

without a lawyer” as the police are applying the handcuffs, as long

as the police wait until later to ask any questions. In such a

scenario, the suspect’s request for counsel would have been made

at a time when interrogation was not imminent. Accordingly, the

majority would hold that such a suspect had no fifth amendment

right to invoke. Such a result is clearly inconsistent with the values

which the Miranda decision was meant to protect.

	The majority’s concern, borrowed from the McNeil footnote, that a person could invoke the fifth amendment right to counsel even before arrest, is directed at a straw man.2 The defendant in this case did not attempt to invoke his right to counsel by letter

prior to arrest. On the contrary, defendant was in continuous police

custody from the time he requested an attorney to assist him

during interrogation until the time when the interrogation took

place. In any event, giving effect to the defendant’s clear and

unambiguous request for counsel under the facts of this case

would not require this court to expand the right to the extremes

supposed by the majority. Rather, this court should rule that the

fifth amendment right to counsel attaches and may be invoked by

a defendant at any time after he is taken into custody. This rule

would strike a proper balance between the recognition of a

suspect’s right to be free from compelled 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 not to be questioned without his attorney

present, and that police questioning in spite of this request violated

defendant’s constitutional rights under the fifth amendment.

Accordingly, the trial court erred when it denied defendant’s

motion to suppress his confession. Defendant is entitled to a new

trial.

	Accordingly, I respectfully dissent.

	CHIEF JUSTICE HARRISON and JUSTICE RATHJE join in this dissent.