FIFTH DIVISION

                                          December 22, 2000	 								

No. 1-99-1256

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellant,

	v.

RICHARD DeSANTIS,

		Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County

Honorable

Robert Bertucci,

Judge Presiding.

	PRESIDING JUSTICE QUINN delivered the opinion of the court:

	Defendant, Richard DeSantis, was charged with two counts of obstructing justice for leaving Illinois and concealing himself

with the intention of obstructing the prosecution of Frank Caruso,

Victor Jasas and Michael Kwidzinski, who were each charged with

attempted murder, aggravated battery and hate crimes for the

beating of a black child, Lenard Clark.  Defendant filed a motion

to suppress written and oral statements he made to police during

the investigation into the Clark beating.  Defendant claimed that

he was unable to knowingly waive his fifth amendment right to

counsel because he was unaware that his attorney was at the police

station attempting to communicate with him.  After a hearing on

defendant's motion to suppress, the trial court found that the

interrogation was not custodial and the statements were given

voluntarily.  The trial court denied the motion to suppress as to

oral statements made by defendant before his attorney arrived, but

granted the motion as to the written statement taken and signed by defendant after his attorney arrived, relying on the holding in

People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994).  The State appeals from that portion of the trial court's ruling

granting defendant's motion to suppress the written statement.  For

the reasons that follow, we reverse and remand.	

	At the suppression hearing, defendant testified that at about

1 p.m. on Saturday, March 22, 1997, his sister told him that two

detectives had come to their house looking for him and she gave him

the business card they had left.  While at Hey Bud's restaurant at

56th and Pulaski, defendant called the number on the business card.  Defendant testified that the officer told him to wait at the

restaurant until he could come and pick him up.  Defendant stated

that he did not call his lawyer after receiving the business card

from the police or after calling the police.  Approximately 15

minutes later, two officers arrived.  Defendant testified that the

officers told him to come outside with them, read him his rights,

handcuffed him, placed him in the back of their car, and took him

to Area One police headquarters.

	At Area One, defendant stated that his handcuffs were removed

and, over the course of several hours, he was moved to several

different rooms within the building.  Defendant stated that,

throughout the evening, he was questioned by police officers about

the Clark beating, which had occurred in Armor Park on the previous

evening.  Defendant testified that he denied any knowledge of the

incident and stated that he requested his attorney on several occasions.  Defendant admitted that he spoke to an assistant

State's Attorney at the time that he signed the written statement,

but claimed that he did not speak to her between the time they were

introduced and the time that he signed the written statement.  He

stated that most of the statement was incorrect but acknowledged

that the personal information and the statements regarding his

friendship with Caruso, Jasas, and Kwidzinski were true.

	Defendant stated that he was placed in a lineup and afterward

was again interviewed by the police.  After he had been in the

lineup room approximately nine hours, he recognized the voice of

John O'Malley, his attorney.  Defendant heard O'Malley mention his

name and ask for him, but the police would not permit O'Malley to

speak with him.  Defendant claimed that he signed the statement

shortly thereafter because the police told him they would let him

go if he signed the statement and that he would be charged with a

crime if he did not sign the statement.

	John O'Malley testified that he was an attorney and longtime

friend of the DeSantis family.  He stated that on March 23, 1997,

defendant's mother came to his home and told him she thought

defendant was at the police station.  O'Malley testified that he

arrived at the station at about 9:20 a.m.  He stated that he was

directed to the detective unit, where he identified himself as an

attorney and asked to see defendant.  O'Malley repeated his request

approximately 10 minutes later and was told that a detective would

be out to speak with him.  O'Malley testified that Detective Stanley Turner saw him a few minutes later and told him that he was

not sure whether defendant was going to be a witness or suspect,

but he would not allow O'Malley to see him.  O'Malley continued

waiting and asking to see his client.  After waiting for some time,

O'Malley testified that he again saw Detective Turner and asked him

why he could not see defendant.  He stated that Detective Turner

merely told him he was tired and left.  O'Malley testified that he

waited at the station for approximately two hours before he was

allowed to see defendant in the lineup room.

	Sergeant David Jarmusz of the Chicago police testified that

Detective Glen Mathews asked Jarmusz to drive him to the restaurant

to pick up defendant, a witness to a crime.  Only Mathews spoke to

defendant in the restaurant, and Jarmusz did not recall what

Mathews said.  Jarmusz stated that he did not handcuff defendant,

no one told defendant he was under arrest, and defendant traveled

with them in the police car to the station.  During the ride,

Jarmusz and Mathews did not speak to defendant.  Jarmusz testified

that when they arrived at Area One defendant was placed in the

lineup room and was never placed in a smaller room.  He testified

that the lock on the lineup room door is never utilized and that he

did not have a key.

	Detective Glen Mathews testified that he first learned of

defendant early in the afternoon of March 22, from an anonymous

caller who said that Jasas, Michael Cutler, and defendant were

involved in the Clark beating.  However, several other witnesses Mathews had spoken to about the beating had not named defendant. 

He testified that he and Jarmusz went to pick up defendant at Hey

Bud's, where defendant had suggested they meet.  At the restaurant,

Mathews asked defendant if he would return to the station with them

to help them.  Mathews stated that defendant agreed to go with them

and was not handcuffed.

	Mathews testified that defendant was taken to the lineup room,

but he was not handcuffed and he was not told he was under arrest. 

Mathews asked defendant where he had been the previous evening and

defendant responded that he had been with his girlfriend.  Mathews

stated that defendant was then placed in a lineup as a filler and

that the subject of the lineup was Caruso.  Mathews said that

defendant remained in the lineup room after the lineup, but the

door was unlocked.  Mathews left defendant in the room alone and

had a telephone conversation with defendant's girlfriend and her

mother.

	Mathews testified that he returned to the lineup room at 2

a.m., with Jarmusz.  At that time, Mathews advised defendant of his

rights under Miranda and told defendant that he knew defendant was lying to him because his girlfriend did not corroborate his story. 

Mathews stated that defendant then admitted that he saw Caruso

strike the smaller of the two black children, then saw Caruso chase

them.  According to Mathews' testimony, defendant also said that

Jasas and Kwidzinski chased Clark, but defendant did not say that

he had personally laid a hand on the victim.  Mathews reentered the lineup room after 5:40 a.m. to bring defendant breakfast.

	Mathews stated that defendant was never handcuffed, placed in

a holding cell, or fingerprinted.  He stated that he did not fill

out an arrest report or obtain a central booking number for

defendant.  He stated that defendant was never placed under arrest

and went home sometime after he gave a handwritten statement. 

Mathews testified that he never threatened or promised anything to

defendant, and defendant never requested to call his lawyer.

	Detective Stanley Turner testified that defendant was not a

suspect when he was picked up at the restaurant.  He stated that

one of the victims of the beating, Clevon Nicholson, viewed the

lineup in which defendant was a filler, identified Caruso as one of

the individuals who beat him, and identified defendant as the

person who stopped Caruso, Kwidzinski, and Jasas from beating him. 

Turner stated that another witness to the lineup identified

defendant as one of the crowd present at the beating, but he did

not say defendant harmed anyone.  Turner said that he spoke to

defendant a couple of times in the lineup room.  He asserted that

defendant was never handcuffed, told he was under arrest, or

fingerprinted.  Turner also stated that he never prepared an arrest

report for defendant.  Turner said he did not threaten or promise

defendant anything, and defendant never requested an attorney.

	Turner testified that he was present at 9:40 a.m., when

Assistant State's Attorney (ASA) Kari Mason took a written

statement from defendant.  He stated that Mason explained who she was, advised defendant of his rights, had defendant read and sign

a portion of the statement, and asked defendant questions to which

defendant gave answers.  Mason wrote down everything in the

statement in front of defendant, and when she was done writing she

asked defendant to read it.  Defendant read the statement and then

Mason read it back to him.  Turner stated that corrections were

made to the statement and defendant, Mason and Turner initialed the

corrections.  Turner and defendant signed each page, and defendant

placed his signature beneath the portion of the statement advising defendant of his rights under Miranda.  Turner testified that he never told defendant to sign the statement and he did not tell

defendant he could go home if he signed it.  Turner testified that

he did not speak to defendant again and that he did not speak to

defendant's attorney at all that day.

	ASA Kari Mason testified that she spoke to defendant, who was

not handcuffed, in the lineup room sometime after midnight. 

Mason's description of the process of taking defendant's statement

largely reflected that of Detective Turner and will not be repeated

here.  Mason testified that the entire process of taking the

written statement could have taken as much as three hours to

complete.  Mason said that she never saw defendant handcuffed, he

was always in the lineup room, and he was not charged with any

offense on March 22 or March 23.  She also stated that she never

met O'Malley.

	Charles Burns testified that he was the supervisor of the felony review unit of the Cook County State's Attorney's office on

March 23, 1997.  Burns testified that he arrived at Area One 

between 12:30 and 1 p.m. that day.  While there, Burns spoke to

O'Malley in the lineup room.  Burns testified that O'Malley

informed him that he had spoken with defendant.  Burns informed

O'Malley that defendant was to appear before the grand jury the

next day, and if he did not appear defendant would be subpoenaed. 

Burns testified that O'Malley did not appear upset and he did not

complain that he had not been allowed to see defendant.  To Burns'

knowledge, defendant was not under arrest at any time, and he did

not recall seeing Detective Turner at the station that day.

	At the conclusion of the hearing, the trial court made several

findings.  The court found that the credible evidence was that

defendant was not seized or arrested when he called the police and

agreed to meet with them on March 22, 1997. The court found that

defendant chose the place and time to meet the police, he was not

handcuffed, and he agreed to go to the station with the detectives

and cooperate with them.  The court also pointed out that no arrest

procedures took place and that there was no processing or

fingerprinting of defendant upon his arrival at Area One or later. 

The court found that, later in the evening, the police believed

defendant's statement that he had no knowledge of the incident was

not truthful, and defendant was advised of his rights under Miranda at 2 a.m.  The trial court found that defendant waived those rights

and chose to continue speaking with the police at that time.

	The trial court found that defendant's testimony that he

continually asked for an attorney was not credible.  The court

found it was credible, however, that after defendant became aware

that the statements of other witnesses showed that he was present

at the incident, he admitted his presence to the police.  The court

found that defendant voluntarily gave the oral and handwritten

statements to the police and ASA Mason, and defendant was not

coerced or threatened.

	The court found that defendant's attorney was present at Area

One and seeking to speak to defendant at the time the statement was

being written and that defendant and ASA Mason were unaware the

attorney was present.  Consequently, the court found that

defendant's waiver of his rights for the written statement was

voluntary, but not knowing, because defendant was not informed that

his attorney was at the station asking to see him.  The court ruled

that defendant's oral statements made prior to the attorney's

arrival would not be suppressed, but that the written statement

made after the attorney's arrival would be suppressed, even though

defendant was not seized or under arrest.  At a subsequent court

hearing, the trial court reiterated that defendant "was not a

custodial suspect" at the time of the interviews.

	We will first address the issue of standing, as the State

asserts that defendant had no standing to move to suppress his statements.  The law is clear that a defendant has no standing to

raise an alleged violation of a witness' fifth amendment rights.  People v. Govea, 299 Ill. App. 3d 76, 84, 701 N.E.2d 76 (1998); People v. Adams, 283 Ill. App. 3d 520, 524, 669 N.E.2d 1331 (1996).  This is so because the constitutional privilege against self-

incrimination is a personal privilege.  Adams, 283 Ill. App. 3d at 524.

	Our supreme court in People v. James, 118 Ill. 2d 214, 226, 514 N.E.2d 998 (1987), held that "[i]t is a fundamental principle

that a claim to suppress the product of a fourth amendment

violation can be asserted 'only by those whose rights were violated

by the search or seizure itself.'"  As defendant asserts that his

personal rights were violated, we find that, under the

circumstances of this case, defendant has standing to move to

suppress his statements.  See People v. Barton, 286 Ill. App. 3d 954, 959, 677 N.E.2d 476 (1997).

	On appeal, defendant concedes that, had he attended the trials

of the individuals charged with the beating of Lenard Clark, he

could not have moved to suppress his statements as the statements

do not incriminate him and that he could not have invoked his fifth

amendment rights to protect a third party from prosecution.  See

People v. Cassell, 283 Ill. App. 3d 112, 119, 669 N.E.2d 655 (1996); People v. Gossitt, 259 Ill. App. 3d 825, 829, 630 N.E.2d 1224 (1994); People v. Cooper, 202 Ill. App. 3d 336, 341, 559 N.E.2d 942 (1990) ("the fifth amendment right against self-

incrimination may only be exercised where the witness has

reasonable cause to suspect the possibility of subsequent prosecution from a direct answer").

	On appeal, the State argues that defendant's written statement

should not have been suppressed because defendant was not in

custody when the statement was given and signed by him.  As a

result, the State asserts, defendant did not have a right to

counsel under the fifth amendment because defendant was never

subjected to a custodial interrogation.  Defendant counters that

the written statement was properly suppressed because he was

deprived of his right to counsel by the failure of police to inform

him of the presence of his attorney at the station.  

	We first address the applicable standard of review.  The

Supreme Court has held that, when an appellate court reviews

rulings on a motion to suppress involving questions of probable

cause, they are reviewed de novo.  Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996).  Our supreme court recently  analyzed the applicability of Ornelas to motions to suppress statements.  The court held that reviewing courts are to

accord great deference to the trial court's factual findings,

reversing those findings only when they are against the manifest

weight of the evidence.  However, the ultimate question of whether the statement was voluntary is to be reviewed de novo.  In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003 (2000).

	In Miranda v. Arizona, 384 U.S. 436, 445, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612 (1966), the Supreme Court addressed "the

admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in

any significant way."  The Court held that "the prosecution may not

use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege

against self-incrimination."  Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.  The Supreme 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."  Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.  The ultimate

inquiry is whether there is a formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest. 

California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517, 3520 (1983).

	The Supreme Court clearly stated that its intention was to

"dispel the compulsion inherent in custodial surroundings." 

Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.  Furthermore, the Supreme Court has consistently held that the safeguards laid out in Miranda do not apply outside the context of the inherently coercive custodial interrogations for which they

were designed.  Minnesota v. Murphy, 465 U.S. 41920, 430, 79 L. Ed. 2d 409, 421, 104 S. Ct. 1136, 1143-44 (1984).

	In determining whether an interrogation is custodial, courts

consider several factors, including: (1) the time and place of the confrontation; (2) the number of police officers present; (3) the

presence or absence of family or friends; (4) any indicia of a

formal arrest procedure, such as physical restraint, the show of

weapons or force, booking or fingerprinting; and (5) the manner by

which the individual arrived at the place of the interrogation. 

People v. Melock, 149 Ill. 2d 423, 440, 599 N.E.2d 941 (1992).  The trial court's finding on the issue of custody is a question of

fact, and we will not disturb that finding unless it is manifestly

erroneous.  People v. Wheeler, 281 Ill. App. 3d 447, 458, 667 N.E.2d 158 (1996).

	Defendant argues that the police believed him to be a suspect

and asserts that this court should look to defendant's and the

police officers' subjective perspectives as well as the police

officers' intentions to determine whether defendant was in custody. 

We disagree.

	The United States Supreme Court in Stansbury v. California, 511 U.S. 318, 319-23, 128 L. Ed. 2d 293, 296-98, 114 S. Ct. 1526,

1527-29 (1994), reaffirmed its holdings regarding custody and the

applicability of the protections of Miranda:

	"Our decisions make clear that the initial determination of

custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned."  Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 298, 114 S. Ct. 1526, 1529 (1994).

	Thus, the determination of custody involves an objective

analysis of the circumstances surrounding the interview as a

reasonable and innocent person in the defendant's position would perceive them.  People v. Goyer, 265 Ill. App. 3d 160, 167, 638 N.E.2d 390 (1994).  In this case, defendant chose the time to

contact the police and the location at which they would meet. 

Defendant stated that he was cooperating with the police officers

and the trial court found that he agreed to go to the police

station with them.  Defendant rode to the station in the back of

the police car, but the court found that he was not handcuffed at

any time.  No arrest procedures ever took place, and defendant was

not processed or fingerprinted.  The court also found that

defendant was not coerced or threatened by the police at any time. 

Citing these factors, the trial court held that defendant was not

under arrest and was not a custodial suspect.  In light of the

deferential standard of review as well as the factors that support

the trial court's finding, we conclude that the trial court's

finding that defendant was not in custody is not manifestly

erroneous.  

	The fifth amendment right to counsel applies only to custodial

interrogations.  McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 168, 111 S. Ct. 2204, 2209 (1991); Melock, 149 Ill. 2d at  443.  If a defendant is not in custody, even a clear and

unequivocal request for an attorney does not implicate any

constitutionally protected right, and the police are not required

to end an interview.  Goyer, 265 Ill. App. 3d at 168.  Furthermore, the sixth amendment right to counsel "attaches only at the

initiation of adversary criminal proceedings, [citation], and before proceedings are initiated a suspect in a criminal

investigation has no constitutional right to the assistance of

counsel."  Davis v. United States, 512 U.S. 452, 456-57, 129 L. Ed. 2d 362, 369-70, 114 S. Ct. 2350, 2354 (1994).

	Defendant asks us to distinguish Goyer from this case on its facts because the defendant in Goyer was not interviewed in a police station.  However, other cases have held interviews that

took place in police stations did not involve custodial

interrogations and consequently the fifth amendment right to

counsel did not apply.  See Melock, 149 Ill. 2d at 442-43; People v. Patterson, 146 Ill. 2d 445, 455, 588 N.E.2d 1175 (1992); People v. Willoughby, 250 Ill. App. 3d 699, 718-19, 620 N.E.2d 617 (1993).  Because defendant was not in custody, his fifth amendment right to counsel had not attached at the time he gave his written statement

to ASA Mason at the police station.

	Defendant urges us to affirm the trial court's ruling based on

our supreme court's ruling in People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994).  In McCauley, as here, an attorney retained by the family of the defendant arrived at the police station where

the defendant was being interrogated and was refused permission to

see his client.

	The same factual situation was addressed by the United States

Supreme Court in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986).  The Court concluded that events occurring

outside the presence of a suspect and entirely unknown to him have no bearing on the suspect's capacity to comprehend and knowingly

waive a constitutional right.  The Court declared that "[o]nce it

is determined that a suspect's decision not to rely on his rights

was uncoerced, that he at all times knew he could stand mute and

request a lawyer, and that he was aware of the State's intention to

use his statements to secure a conviction, the analysis is complete

and the waiver is valid as a matter of law."  Moran, 475 U.S. at 422-23, 89 L. Ed. 2d at 422, 106 S. Ct. at 1141.

	Our supreme court in McCauley declined to follow Moran, relying on the proposition that state constitutional protections

may be broader than federal constitutional protections.  McCauley, 163 Ill. 2d at 421.  Article I, section 10, of the Illinois

Constitution (Ill. Const. 1970, art. I, §10) provides that "[n]o

person shall be compelled in a criminal case to give evidence

against himself nor be twice put in jeopardy for the same offense."

	In holding that the police action in McCauley violated the defendant's state constitutional rights, the majority said:

	"The day is long past in Illinois, however, where attorneys

must shout legal advice to their clients, held in custody, through the jailhouse door.  In this case, we determine that

our State constitutional guarantees afforded defendant a

greater degree of protection.  Our State constitutional

guarantees simply do not permit police to delude custodial suspects, exposed to interrogation, into falsely believing they are without immediately available legal counsel and to

also prevent that counsel from accessing and assisting their

clients during the interrogation.  (See Ill. Const. 1970, art.

I, §§ 2, 10.)" (Emphasis added.)  McCauley, 163 Ill. 2d at 423-24.

	In holding that the actions of the police in McCauley violated the defendant's due process rights, the majority said:

	"In Illinois, due process of law requires that an accused

shall be given the benefit of counsel.  (See United States ex rel. Hall v. Ragen (N.D. Ill. 1945), 60 F. Supp. 820, 821.)  Due process also requires that an accused is entitled to

counsel during any custodial interrogation.  (See 11A Ill. L. & Prac. Constitutional Law §477, at 410 (1981).)  The State due process guarantee (article I, section 2) provides the

general basis for an accused's right to the assistance as well

as presence of counsel during any custodial interrogation." 

(Emphasis in original.)  McCauley, 163 Ill. 2d at 441.

	In the instant case, the trial court found, and we agree, that

defendant was not "held in custody" or subject to "custodial

interrogation."  The evidence also supports the State's position

that defendant was not a "suspect" or an "accused."  Prior to

defendant admitting his presence at the scene of the attack, the

police had developed information from lineups and interviews with

witnesses that defendant had attempted to aid Lenard Clark. 

Defendant's statements also indicated that he was only a witness.

	Defendant argues that we should apply the holding of McCauley to defendant as the police clearly failed to tell defendant of the

presence of his attorney.  The State argues that we should hold

that McCauley does not apply to witnesses.  We decline to do either.

	We hold that McCauley does not require suppression of defendant's statements as they were not given during a custodial

interrogation.  Therefore, defendant's state constitutional rights

were not violated.  We also hold that, as defendant was never an

accused, the defendant's state due process rights were not

violated.

	As to whether the holding in McCauley would require suppression of defendant's statements if the trial court or we

found that those statements were the result of a custodial

interrogation, we do not express an opinion.  In McCauley, our supreme court condemned police actions identical to the ones taken

here.  The trial court based its ruling on our supreme court's

strong condemnation of this interference with an attorney's efforts

to see his client.  While our analysis of the applicable law leads

us to reverse the trial court's order of suppression, the actions

of the police were indefensible.

	The dissent primarily relies upon section 103-4 of the Code of 

Criminal Procedure of 1963 (725 ILCS 5/103-4 (West 1998)) which is

entitled "Right to Consult with Attorney."  The dissent asserts

that this statute was applicable to defendant as he was "restrained

of his liberty."  It would appear that the trial court's findings

that defendant was not in custody would preclude the application of

this statute.   Further, the committee comments read in part:

"Paragraph 103-4 says (an accused) has a right to consult with

counsel at any time after being taken into custody." 725 ILCS

5/103-4, Committee Comments–1963, at 56 (West 1998). Again, defendant was not an accused at the time of his interrogation, nor

was he in custody.

	By way of analogy, section 405/4-5 of the Juvenile Court Act

of 1987 requires police officers who take a minor into custody to

immediately make a reasonable attempt to notify the minor's parents

or guardian and also to take the minor without unnecessary delay to the nearest juvenile police officer.  705 ILCS 405/4-5(2)(West

1998).  Courts have held that pursuant to this statute, where an

officer questioning a juvenile learns of a person's presence in the

station, the officer has an affirmative duty to stop the

questioning and allow the parent to confer with the minor.  People v. Brown, 182 Ill. App. 3d 1046, 1053, 538 N.E. 2d 909 (1989).  However, "(f)ailure to comply with this judicial directive, though

a significant factor in the determination of voluntariness, does

not compel a finding that the confession was involuntary."  People v. McNeal, 298 Ill. App. 3d 379, 391 (1998).      

	Applying this principle to our case, even if we were to find

that the police violated section 103-4, this would only be one

factor to consider in determining whether the defendant's written

statement should have been suppressed.

	Finally, we note that in People v, Finklea, 119 Ill. App. 3d, 448 (1983), cited by the dissent, the appellate court affirmed the

denial of the defendant's motion to suppress statements as he was

not in custody at the time of the interrogation. 

	In its findings, the trial court opined that defendant could

"arguably" have been charged with obstruction of justice after the

police had broken his alibi.  Defendant asks us to consider this

fact as being a basis for defendant invoking his right against

self-incrimination.  This argument is similar to that raised by the

witnesses in Gossitt and Cooper.  In those cases, the witnesses asserted that their fear of being charged with perjury was a valid basis for invoking their rights under the fifth amendment.  This

court did not agree with that argument in those cases and we reject

it again here.

	We note that at the time defendant gave his written statement

to police, he did not have "reasonable cause to suspect the

possibility of subsequent prosecution from a direct answer"

(Cooper, 202 Ill. App. 3d at 341) and, therefore, under our holding in Cooper, the fifth amendment right against self-incrimination did not apply.  Defendant is not being prosecuted because of his

answers to the authorities.  He is being prosecuted because he

allegedly, possessing knowledge material to the prosecution of

Frank Caruso, Victor Jasas, and Michael Kwidzinski, and with the

intent to obstruct the prosecution of those individuals, knowingly

left the State of Illinois and concealed himself in violation of

section 31-4(c) of the Criminal Code of 1961. (720 ILCS 5/31-

4(c)(West 1996)).  If we were to accept defendant's argument that,

because he is now charged with a criminal offense, he had a fifth

amendment right to counsel at the time of his interviews with

police, it would encourage similarly situated witnesses who are

reluctant to testify to flee the state.

	As previously stated, we find that the trial court's

determination that defendant was not in custody at the time the

written statement was taken and signed was not against the manifest

weight of the evidence.  Therefore, as a matter of law, we reverse

the trial court's ruling suppressing the written statement as defendant was not in custody and may not invoke a fifth amendment

right to counsel.

	In addition, defendant contends that his written and oral

statements should be suppressed as the product of an unlawful

arrest under the fourth aAmendment.  Defendant argues that he was

unlawfully seized without probable cause when he was taken to the

police station, and that both the written and oral statements given

by him should have been suppressed by the trial court as the

product of an unconstitutional seizure.

	In effect, defendant seeks to cross-appeal from that part of

the interlocutory ruling that was not in his favor.  Whatever the

merits of his attack on the trial court's ruling, that attack is

not properly before this court.  It is well settled that there is

no basis for a defendant to appeal interlocutorily the order of a

trial court denying in whole or in part a motion to suppress.

People v. Busija, 155 Ill. App. 3d 741, 744-45, 509 N.E. 2d 168  (1986).  This is so even where the State appeals a trial court's

order suppressing evidence pursuant to Supreme Court Rule 604(a)(1). 

(145 Ill. 2d R.604(a)(1)).   People v. Bielawski, 255 Ill. App. 3d 635, 640, 627 N.E.2d 710 (1994).  Therefore, at this pretrial stage

of the case, we consider only the State's challenges to the

propriety of the court's order.

	For the foregoing reasons, we reverse the order of the circuit

court suppressing defendant's written statement and remand this

matter to the circuit court for further proceedings consistent with this opinion.

	Reversed and remanded.

	HARTMAN, J., concurs.

	GREIMAN, J., dissenting.

	JUSTICE GREIMAN, dissenting:

	The majority states that "the actions of the police were

indefensible."  Slip op. at 18.  Here the police took the defendant

to the police station a little after 1 p.m., placed him in a line

up, questioned him in several different rooms by several different

police officers about the tragic beating of Lenard Clark and kept

him at the station approximately 21 hours before he was allowed to

talk with his attorney.  When his attorney arrived on the

nineteenth hour, he was refused an audience with defendant and he was advised by the police that they were not sure whether defendant

was "going to be a witness or suspect."

	While I recognize the distinction urged by the majority

between a person being questioned as a witness and a person

detained as a suspect to be charged, it is difficult for me to

imagine that a defendant or his attorney has any idea of what his

status is when the police are unable to sort out whether he is a

witness or suspect.

	The philosophy of People v. McCauley, 163 Ill. 2d 414 (1994), is certainly broad enough to encompass a person held or restrained

under this hazy status.  It should be noted that to the extent that

the police refused to permit an attorney to communicate with the

defendant at the station, that is relevant in determining whether

defendant is in police custody or not.  People v. Finklea, 119 Ill. App. 3d 448 (1983).	Additionally, it should be noted that the Illinois General Assembly since 1927 has been concerned with the rights of a party to consult with an attorney.  Accordingly,

section 103-4 of the Code of Criminal Procedure of 1963 (725 ILCS

5/103-4 (West 1998)) provides:

		"103-4.  Right to Consult with Attorney.  Any person

	committed, imprisoned or restrained of his liberty for

	any cause whatever and whether or not such person is

	charged with an offense shall, except in cases of

	imminent danger of escape, be allowed to consult with

	any licensed attorney at law of this State whom such

	person may desire to see or consult, alone and in

	private at the place of custody, as many times and for

	such period each time as is reasonable."

	If this statute means anything, it means that this defendant,

perhaps a witness, perhaps a suspect, but certainly "restrained of

his liberty for any cause whatever" should have been allowed to

talk with counsel at the police station.

	Accordingly, I would affirm the thoughtful trial judge who

declined to suppress matter that was expressed before counsel's

appearance on the scene and suppressed defendant's written

statement given after counsel's efforts to talk to his client.