                                                               Fourth Division
                                                               August 19, 2010




No. 1-06-0824



THE PEOPLE OF THE STATE OF ILLINOIS,                           )      Appeal from the
                                                               )      Circuit Court of
                         Plaintiff-Appellant,                  )      Cook County.
                                                               )
       v.                                                      )      No. 03 CR 11006
                                                               )
TAVARES HUNT,                                                  )      Honorable
                                                               )      Fred G. Suria, Jr.,
                         Defendant-Appellee.                   )      Judge Presiding.


       JUSTICE NEVILLE delivered the opinion of the court:

       In May 2002, Tavares Hunt, the defendant, was incarcerated in the Cook County jail on a

“no bail” order. On April 13, 2003, Hunt was arrested for the murder of Shakir Beckley, and on

May 27, 2003, a Cook County grand jury indicted Hunt and charged him with 33 counts of

murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2002)), 6 counts of attempted murder (720 ILCS

5/9-1(a)(1) (West 2002)), 2 counts of armed robbery with a firearm (720 ILCS 5/18-2(a)(2)

(West 2002)), 1 count of aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2002)), 7

counts of attempted armed robbery (720 ILCS 5/18-2(a) (West 2002)), 1 count of aggravated

discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2002)), and 1 count of aggravated battery

with a weapon (720 ILCS 5/12-4(b)(1) (West 2002)).

       On January 15, 2005, Hunt filed a motion to suppress statements, 1 and on January 23,

2006, he filed a motion to exclude inaudible tape recordings that were made of his conversations

       1
            Hunt's motion to suppress statements is not included in the record.
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with Mycal Davis on July 31, 2002, and August 6, 2002. On February 22, 2006, the trial court

granted Hunt's motions. The State appealed from the trial court's February 22, 2006, order

suppressing Hunt's statements and the tape recordings that were made of his conversations on

July 31, 2002, and on August 6, 2002, and presented two issues for review: (1) whether the trial

court erred when it suppressed Hunt's statements to Davis which were made during the course of

a judicially authorized overhear of Hunt's conversations with Davis, and (2) whether the trial

court abused its discretion when it excluded the Hunt-Davis overhear tapes which the State

argued are only "partly inaudible."

        On direct appeal, this court affirmed the trial court’s order. People v. Hunt, 381 Ill. App.

3d 790 (2008). The Illinois Supreme Court reviewed the appellate court's judgment and affirmed

it in part, reversed it in part, and remanded the case for this court to consider whether Hunt’s

statements should be suppressed on fifth amendment and McCauley (People v. McCauley, 163

Ill. 2d 414 (1994)) grounds. People v. Hunt, 234 Ill. 2d 49 (2009). For the following reasons,

we affirm.

                                           BACKGROUND

        The record reveals that multiple hearings were held on the defendant's motion to suppress

statements and on his motion to exclude inaudible recordings. Below is a summary of the

testimony that is relevant to a resolution of the issues in this case.

                                      Lieutenant Joseph P. Murphy

        Lieutenant Joseph P. Murphy testified that in 2002, he was assigned as the commanding

officer of the Chicago police department’s cold case squad. He testified that in 2002 he worked


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with Detective John Murray and several other officers in the cold case squad.          Lieutenant

Murphy also stated that over a period of months prior to July 31, 2002, he worked with Assistant

State's Attorney Hovey on the investigation of Shakir Beckley's murder.

       Lieutenant Murphy recalled questioning Tavares Hunt several times in 2002 about Shakir

Beckley’s murder. He testified that his first meeting with Hunt was in May 2002. Lieutenant

Murphy's cold case squad detectives picked Hunt up from the Cook County jail, where Hunt was

incarcerated on an unrelated charge. The lieutenant explained that there was a definite procedure

for taking custody of Hunt from the Cook County jail. According to the lieutenant, the Chicago

police told Cook County jail officials that they were taking custody of Hunt for an “investigative

procedure” and that they would remove him from the jail.

       Lieutenant Murphy testified that his officers brought Hunt to the Chicago police

department's Area 4 police station for questioning on more than one occasion beginning in mid-

May 2002. He stated, “[W]e went over there, we picked him up, advised him of his rights. Then

we talked to him about our investigation, unrelated to the one he is in custody for.” Lieutenant

Murphy further testified that his detectives read Hunt his Miranda (Miranda v. Arizona, 384 U.S.

436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) rights at the Area 4 police station and that Hunt

waived his rights before talking with the lieutenant and other officers about the Shakir Beckley

murder. Lieutenant Murphy also testified that Hunt consented to a polygraph examination in

May 2002 and that Hunt may have been fingerprinted when he spent the night at the Area 4

police station in May 2002.

       Sometime in July 2002, Lieutenant Murphy testified that he began to work with Davis,


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another inmate incarcerated at the Cook County jail, on the Shakir Beckley murder investigation.

Lieutenant Murphy testified that Davis told him that Hunt had made incriminating statements in

a conversation about the Beckley murder and the lieutenant asked Davis if he could get Hunt to

repeat those statements. Lieutenant Murphy testified that he told Davis “his options” before he

agreed to wear a wire for a judicially authorized overhear. According to Lieutenant Murphy, he

and Assistant State's Attorney Hovey had numerous conversations about the Beckley

investigation, that they eventually decided to use Davis, and that he and Assistant State’s

Attorney Hovey planned the overhears of Hunt's conversations. Lieutenant Murphy stated that

on or about July 17, 2002, his cold case squad detectives removed Hunt from the Cook County

jail and brought him to the Area 4 police station for a lineup.

                                    The July 31, 2002, Overhear

       Lieutenant Murphy testified that on July 31, 2002, he spent most of that day with Davis,

the informant. Lieutenant Murphy stated that he took Davis to court to get judicial authorization

for the planned overhear on July 31, 2002.2 According to Lieutenant Murphy, he and Davis went

directly from court to the Area 4 police station, where the police wired Davis in “about five

minutes” and put him in an interview room with Hunt.

       Lieutenant Murphy further testified that Detective Murray removed Hunt from the Cook

County jail earlier on July 31, 2002, and brought him to the Area 4 police station for the planned

overhear. According to Lieutenant Murphy, Hunt was put in an interview room with Davis
       2
           It should be noted that Detective Murray testified at the suppression hearing that Judge


McSweeney-Moore approved the overhear on July 30, 2002.


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around 3 p.m. on July 31, 2002, and no one else was allowed in the room with the two men.

Lieutenant Murphy testified that the July 31, 2002, overhear began at 3 p.m. and that it ended

shortly after 4 p.m. that day. Lieutenant Murphy insisted that Hunt was brought to the Area 4

police station on July 31, 2002, “strictly for purposes of participation in a line-up” and for the

overhear. Finally, the lieutenant testified that he monitored the overhear sessions on July 31,

2002, and on August 6, 2002, and that neither he nor any of his detectives spoke to Hunt on

either of those days about the Shakir Beckley investigation.

                                  Meeting With Hunt's Attorney

       While Hunt was in the room with Davis, Lieutenant Murphy testified that he and his

detectives were in another room monitoring Hunt's conversation. When he took a break from

monitoring Hunt's conversation, Lieutenant Murphy testified that he stepped out of the room and

someone told him that a public defender, Christopher Anderson, was looking for Hunt.

       Lieutenant Murphy met with Mr. Anderson, who told him that he represented Hunt on an

unrelated charge. Mr. Anderson asked him why Hunt was at the Area 4 police station and

Lieutenant Murphy testified that he told Mr. Anderson that there was an ongoing investigation

and that a lineup was set. Lieutenant Murphy recalled that Mr. Anderson told him that he

wanted to see his client and that he wanted to be present during any lineups. According to

Lieutenant Murphy, he stopped the overhear and Mr. Anderson was allowed to meet with his

client. At the conclusion of Hunt's meeting with Mr. Anderson, Lieutenant Murphy testified that

Mr. Anderson told the lieutenant and the other officers present that he was invoking Hunt's right

to remain silent and to consult with counsel during questioning.


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                                 The August 6, 2002, Overhear

        Lieutenant Murphy testified that only one overhear was done on July 31, 2002.

However, he further testified that two separate overhears were done of Hunt and Davis’

conversations at the Area 4 police station on August 6, 2002, one in the morning and one in the

late afternoon. He further testified that on August 6, 2002, no Chicago police officers tried to

speak with Hunt about the Shakir Beckley murder. Lieutenant Murphy also testified that he

reviewed the overhear tapes of conversations that he had monitored between Davis and Hunt on

July 31, 2002, and on August 6, 2002. According to Lieutenant Murphy, the tapes he reviewed

accurately reflected the conversations that he monitored on July 31, 2002, and on August 6,

2002.

                                         Tavares Hunt

        Tavares Hunt testified that he was arrested on May 14, 2002, and locked up in the Cook

County jail for an unrelated charge. Hunt testified that on May 18, 2002, Chicago police officers

removed him from the Cook County jail and transferred him in handcuffs to the Area 4 police

station. When he got to the Area 4 police station on May 18, 2002, Hunt recalled that someone

told him that he was there for interrogation. Hunt testified that he recognized the prior witness

(Lieutenant Murphy) as one of the officers present at the Area 4 police station on May 18, 2002.

Hunt stated that he did not remember the names of the other police officers that questioned him

on May 18, 2002, about the murder they were investigating. Hunt testified that he repeatedly

told the officers that he did not know anyone in the pictures they showed him and that he had no

knowledge of and had not heard anything about the murder they were investigating.


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        Hunt recalled telling the police on May 18, 2002, that he would not talk without his

lawyer being present but the police continued to question him.            Hunt testified that after

questioning, he was taken for a polygraph test on May 18, 2002, and on the next day, May 19,

2002, he was fingerprinted by the Chicago police before being taken back to the Cook County

jail.

        Hunt testified that, at the end of June 2002, he met Christopher Anderson, his public

defender, in court on the unrelated case. Hunt recalled speaking to Mr. Anderson about the

Chicago police “snatching him” out of jail to interrogate him about another case. Hunt further

testified that he asked for Mr. Anderson's advice about the police questioning him. Hunt recalled

that Mr. Anderson told him not to talk to the police unless a lawyer was there. Hunt also stated

that he asked Mr. Anderson for his phone number that day.

        Hunt recalled that on July 18, 2002, the Chicago police again removed him from the

Cook County jail and took him to the Area 4 police station. Hunt could not remember the names

of the other detectives who questioned him that day, but he did recall that he told them that he

did not want to talk about their investigation and that he wanted to talk with a lawyer.

        Hunt testified that on July 31, 2002, Cook County jail guards told him that the Chicago

police were coming to get him to put him in a lineup. Hunt asked the Cook County guards if he

could make a phone call, the guards permitted him to make a call, and he called his lawyer. Hunt

stated that he left a voice mail message for Mr. Anderson telling him that the Chicago police

were taking him back to the Area 4 police station for a lineup, and he asked Mr. Anderson to

come to the station.


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       After he called his lawyer on July 31, 2002, the Chicago police took Hunt in handcuffs to

the Area 4 police station, where he was put into a room with a man who identified himself as

Mycal Davis. Hunt testified that he never knew Davis before the police put them in that room

together on July 31, 2002. As Hunt recalled the incident, he was in that room alone with Davis

for about an hour on July 31, 2002. Hunt testified that when he saw his public defender, later on

July 31, 2002, at the Area 4 police station, Mr. Anderson told the police that Hunt would not talk

to them without an attorney being present during questioning. Hunt recalled telling the police on

July 31, 2002, in his lawyer's presence, that he wanted to remain silent and that he wanted his

lawyer present during any questioning.

       Hunt testified that a week later, on August 6, 2002, the Chicago police removed him

again from the Cook County jail and took him to the Area 4 police station. Hunt recalled that on

that day the police, for the second time, put him in a room with Davis and he was held there for

hours this time. Hunt also testified that he did not know that Davis was wearing a wire but he

recalled eventually telling Davis to stop talking to him that day.

                               Public Defender Christopher Anderson

       Christopher Anderson testified that in June 2002, he was the public defender assigned to

Judge Garcia's courtroom and that Hunt's case was assigned to him at arraignment on June 28,

2002. Mr. Anderson recalled speaking with Hunt in the lockup on June 28, 2002, and that he

had made contemporaneous notes3 of his conversations with Hunt.
       3
           Hunt waived his attorney-client privilege to his public defender's notes covering the


period from their first meeting on June 28, 2002, until he invoked his rights, at the Area 4 police


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       Mr. Anderson testified that on June 28, 2002, Hunt told him that the Chicago police were

talking to him about an unrelated, uncharged matter, and he told Hunt not to talk to the police.

On July 12, 2002, again in Judge Garcia's lockup, Hunt told Mr. Anderson that the police were

still trying to talk with him. Mr. Anderson testified that he could not discuss the matter in the

lockup with others present but he stated that he again told Hunt not to talk to the police.

       Mr. Anderson further testified that on July 31, 2002, he got a voice mail message from

Hunt telling him that the Chicago police were removing him from the Cook County jail and

taking him to the Area 4 police station. Next, Mr. Anderson testified that he called the Area 4

police station and was told that Hunt was there.              Mr. Anderson testified, from his

contemporaneous notes, as to the events that occurred on July 31, 2002. According to Mr.

Anderson, he arrived at the Area 4 police station at 3:14 p.m. on July 31, 2002, but the police did

not permit him to meet with his client, Hunt, until 4:02 p.m. After meeting with Hunt, Mr.

Anderson told Lieutenant Murphy and Detective Murray that Hunt was invoking his right to

remain silent and to have counsel present during questioning. Finally, Mr. Anderson told the

police on July 31, 2002, that he wanted to be present at any lineups involving Hunt.

                                      Detective John Murray

       The State was allowed to call Chicago police detective John Murray as a rebuttal witness

and he testified that in May of 2002, he was assigned to the Chicago police department's cold

case unit.   He recalled that in May 2002, he was working on the Shakir Beckley murder.


station on July 31, 2002. Mr. Anderson's six pages of notes were marked as People's Group

Exhibit 2, but they were not included in the record on appeal.


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Detective Murray stated that on May 17, 2002, he made the arrangements to remove Hunt from

the Cook County jail so that he could bring him to the Area 4 police station the next day. He

also testified that on May 18, 2002, he and Detective Przepiora took Hunt from the Cook County

jail and drove him to the Area 4 police station. Detective Murray admitted that Hunt had no

choice about being brought to the Area 4 police station on May 18, 2002.

                            The May 18, 2002, Police Interrogation

        Detective Murphy testified that on the morning of May 18, 2002, he and Detective

Przepiora started questioning Hunt at the Area 4 police station. Detective Murray recalled that

he interviewed Hunt for approximately 45 minutes that morning. Detective Murray testified that

on May 18, 2002, Hunt denied any involvement in the Shakir Beckley murder and that Hunt

claimed to have an alibi.   Detective Murray also testified that he and the other cold case

detectives did not believe what Hunt was saying, so Detective Murray asked Hunt to take a

polygraph test. According to Detective Murray, Hunt agreed to take the polygraph, so he and

Detective Przepiora took Hunt to the Homan Square station for the polygraph test. Detectives

Przepiora and Murray brought Hunt back to the Area 4 police station after the test on May 18,

2002.

        After returning to the Area 4 police station from the polygraph test on May 18, 2002,

Detectives Przepiora and Murray interviewed Hunt again for approximately 45 minutes.

Detective Murray testified that Hunt denied any involvement in the Beckley murder “all day.”

Because the officers' questioning went into the night and because the officers wanted to question

Hunt further, Detective Murray stated that he and the other detectives decided to keep Hunt at


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the Area 4 police station overnight on May 18, 2002.

                              The May 19, 2002, Police Interrogation

       Detective Murray testified that on May 19, 2002, the next day, he and Detective

Przepiora interviewed Hunt again. He recalled that Lieutenant Murphy also interviewed Hunt on

May 19, 2002. Detective Murray testified that Hunt continued to deny any involvement in the

crime about which he was being questioned. Detective Murray testified that Hunt was returned

to Cook County jail later on May 19, 2002.

                     The July 16, 2002, Meeting With Police Informant Davis

       Detective Murray stated that Davis told him and other police officers on July 16, 2002,

that he knew Hunt and that Hunt was involved in the Shakir Beckley murder. Davis also told the

officers that he and Hunt had spoken about the Beckley murder and that Hunt had said that he

was the “guy” with the rifle. Davis also told the police that he thought he could get Hunt to

repeat the conversation about the Beckley murder. After the conversation with Davis, Detective

Murray testified that he and the other officers decided to set up an overhear using Davis as the

consenting party.

                          On July 30, 2002, The Judge Meets With Davis

       Detective Murray testified that, on July 30, 2002, he was present when Davis was taken

to the State's Attorney's office by Chicago police officers to sign as the consenting party for the

overhear. Detective Murray recalled that Davis was taken before Judge McSweeney-Moore for

review of the application for the eavesdropping order on that same day, July 30, 2002.4
       4
           It should be noted that Lieutenant Murphy testified that the overhear was approved by



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                                  The July 31, 2002, Overhear

       Detective Murray testified that on July 31, 2002, he and Detective Przepiora removed

Hunt from the Cook County jail around noon and took him to the Area 4 police station.

Detective Murray was certain that none of the cold case officers interviewed Hunt that day.

Detective Murray recalled that he and his team put Hunt in an interview room and left him there

alone for about three hours. The officer also testified that Hunt was not handcuffed while in the

interview room that day and that he gave Hunt food and water.

       Detective Murray testified that at about 2:45 p.m. on July 31, 2002, Davis was brought to

the Area 4 police station. He also stated that another officer took Davis into a room and put the

wire on him. Detective Murray testified further that he and his team put Davis in the interview

room with Hunt on July 31, 2002. Once Davis entered the room with Hunt, Detective Murray

stated that he went into another room to listen to the conversation between Hunt and Davis.

Detective Murray recalled that Lieutenant Murphy and another officer were in a room with

Davis on July 31, 2002. At some point during the overhear, Detective Murray recalled that

Lieutenant Murphy left the room. According to Detective Murray, when Lieutenant Murphy

came back, they listened a bit more to the conversation between Hunt and Davis before

Lieutenant Murphy ended the overhear. Shortly thereafter, Lieutenant Murphy told Detective

Murray that a public defender was there to see Hunt. After an hour on July 31, 2002, Detective

Murray testified that the overhear was stopped.




Judge McSweeney-Moore on July 31, 2002.


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                                    Meeting With Hunt's Attorney

         Detective Murray testified that he met public defender Christopher Anderson at the Area

4 police station after Mr. Anderson consulted with Hunt in an interview room on July 31, 2002.

Mr. Anderson told Detective Murray that Hunt had been advised to remain silent and not to talk

to the police without his lawyer being present. At that time, Detective Murray asked Hunt if he

was invoking his rights. According to Detective Murray, Hunt said “yes.” Finally, Detective

Murray testified that the first time Hunt invoked his rights was after the overhear was stopped on

July 31, 2002.

                       Application for Use of Eavesdropping Device Unsealed

         On January 15, 2004, the trial court ordered the State's Attorney's office to unseal the

envelopes and original application for the judicially authorized use of an eavesdropping device.

The State's Attorney's office was also ordered to retain custody of the original tapes and

application.5

                                     The June 27, 2005, Hearing

          The parties first argued the merits of Hunt's motion to suppress on June 27, 2005. The

trial court held:

                 “It is clear that prior to July 31st, defendant had indicated he did not wish

5
    We note that Supreme Court Rule 608 provides that the record on appeal must contain the

"eavesdropping orders, and any similar documents." 210 Ill. 2d R. 608(a)(6). The State had

custody of the eavesdropping application and orders but failed to include the eavesdropping

application and orders in the record as required by the rules.


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               to speak to the police regarding this case. Or wanted to have his lawyer

               with him, whichever, however you wish to phrase it.”

The trial court stated that the issue presented was not whether the recorded statements were

voluntary, but the legal effect of Mr. Anderson's representation of Hunt on an unindicted case

where counsel had actually appeared at the Area 4 police station at 3:14 p.m. on July 31, 2002,

and asked repeatedly to speak with his client. The trial court then held that Hunt had a right to

speak with his attorney on July 31, 2002, within a reasonable time after his attorney had arrived

at the Area 4 police station, and because Hunt's attorney was not present on August 6, 2002,

when Hunt spoke with Davis, that those August 6, 2002, statements were freely given. Finally,

the trial court suppressed the last 45 minutes of the July 31, 2002, tape but denied Hunt's motion

to suppress the statements recorded on the August 6, 2002, tape.

                                    The July 12, 2005, Hearing

       On July 12, 2005, on its own motion, the trial court vacated its June 27, 2005, order.

After further consideration, the trial court stated that it was satisfied that Miranda warnings were

not at issue in the case. The trial court expressed concern about what, if any, professional duty

an assistant State's Attorney has to not seek further information without the presence of defense

counsel from a person who has asked that his counsel be present during further questioning.

Therefore, after vacating its June 27, 2005, order, the trial court entered and continued the

defendant's motions to suppress for further argument.

                                 The February 15, 2006, Hearing

       On January 23, 2006, Hunt filed his motion to exclude inaudible recordings.


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Approximately one month later, on February 15, 2006, the trial court heard arguments focused

on the inaudibility of the July 31, 2002, and the August 6, 2002, tapes. The court found that all

of the tapes were inaudible and that they would not be admitted. The trial court then offered to

review in camera those portions of the tapes that the assistant State's Attorney considered

audible. The assistant State's Attorney declined the trial court's offer and requested that the trial

court admit the July 31, 2002, and August 6, 2002, tapes in their entirety. The trial judge found

that the July 31, 2002, and August 6, 2002, tapes were inaudible, but deferred entry of a final

order at the State's request.

                                 The February 22, 2006, Hearing

       On February 22, 2006, the trial court resumed the hearing on the defendant's motion to

suppress statements and entered its suppression order.           After the trial court entered its

suppression order, the assistant State's Attorney filed a notice of substantial impairment and a

notice of appeal from the trial court's February 22, 2006, order.

                                    Appellate Court’s Decision

       On March 27, 2008, this court affirmed the trial court’s order. First, this court held that,

pursuant to section 19.5 of the County Jail Act (730 ILCS 125/19.5 (West 2002)) and People v.

Campa, 217 Ill. 2d 243 (2005), a judicial order is required to transfer custody of a pretrial

detainee from the custody of the sheriff to the custody of the police for the purpose of

investigating an unrelated crime. Hunt, 381 Ill. App. 3d at 805. Next, this court held that Hunt

was illegally arrested when he was removed from the county jail on July 31, 2002, and August 6,

2002, without an arrest warrant or a court order. Hunt, 381 Ill. App. 3d at 806. This court


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further held that Hunt’s statements to Davis would not have been made but for the illegal arrests

and that Hunt's statements to Davis were the fruits of the illegal arrests that preceded Hunt's trips

to the police station on July 31, 2002, and August 6, 2002. Hunt, 381 Ill. App. 3d at 807.

Finally, this court held that the recordings were properly suppressed because they were the fruits

of Hunt’s illegal arrest and because the recordings were inaudible. Hunt, 381 Ill. App. 3d at 808-

09.

                                 Illinois Supreme Court’s Decision

       First, the Illinois Supreme Court held that the appellate court did not exceed the scope of

its review on interlocutory appeal because the trial court suppressed all of the statements and

both recordings. Hunt, 234 Ill. 2d at 58. Next, the Illinois Supreme Court held that “section 19.5

of the [Cook County] Act indicates the legislature did not intend to require a judicial order to

release a prisoner to law enforcement officials or the State’s Attorney for purpose of

investigating an unrelated criminal matter.” Hunt, 234 Ill. 2d at 64. Next, the Illinois Supreme

Court held that section 19.5 of the County Jail Act permits prisoner transfers without the need

for a court order, and reversed that portion of the appellate court’s judgment that affirmed the

trial court’s suppression of all of Hunt’s statements on fourth amendment grounds. Hunt, 234

Ill. 2d at 65. However, the Illinois Supreme Court affirmed the appellate court’s suppression of

the July 31, 2002, and August 6, 2002, recordings on the ground that the tape recordings were

inaudible. Hunt, 234 Ill. 2d at 66. Therefore, the Illinois Supreme Court affirmed in part,

reversed in part, and remanded the case to the appellate court to address the following issue:

whether Hunt's statements should be suppressed on fifth amendment and McCauley grounds.


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Hunt, 234 Ill. 2d at 67.

                                              ANALYSIS

        This court has been directed to determine whether Hunt's statements would be suppressed

under the fifth amendment or under McCauley.             We note that the fifth and fourteenth

Amendments of the United States Constitution and article I, section 10, of the Illinois

Constitution guarantee defendants the right against self-incrimination. U.S. Const., amends. V,

XIV; Ill. Const. 1970, art. I, §10. The right against self-incrimination includes the right to an

attorney. Edwards v. Arizona, 451 U.S. 477, 485-86, 68 L. Ed. 2d 378, 387, 101 S. Ct. 1880,

1885 (1981) (“The Fifth Amendment right identified in Miranda is the right to have counsel

present at any custodial interrogation”); McCauley, 163 Ill. 2d at 421. However, a defendant

may waive the right against self-incrimination, and therefore the right to an attorney, provided

that the waiver is voluntary, knowing, and intelligent. McCauley, 163 Ill. 2d at 421, citing

People v. Evans, 125 Ill. 2d 50, 74 (1988). “In determining whether a defendant knowingly and

intelligently waived his right to an attorney, a court must consider the totality of the

circumstances, including the characteristics of the defendant and the details of the interrogation,

without one circumstance or factor controlling.” McCauley, 163 Ill. 2d at 421-22, citing People

v. Reid, 136 Ill. 2d 27, 54-55 (1990). The State must prove, by a preponderance of the evidence,

that the defendant knowingly, intelligently, and voluntarily waived his or her rights. McCauley,

163 Ill. 2d at 422, citing Reid, 136 Ill. 2d at 51.

                                         Standard of Review

        The review of a trial court’s ruling on a motion to suppress evidence presents mixed


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questions of law and fact. People v. Pitman, 211 Ill. 2d 502, 512 (2004). The United States

Supreme Court has held that while a reviewing court should carefully review the factual findings

and give due weight to the trial court’s inferences from those facts, “determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v.

United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996); People

v. Sorenson, 196 Ill. 2d 425, 431 (2001). Therefore, we will accord great weight to the trial

court's factual findings and will only reverse if they are against the manifest weight of the

evidence, but we will review de novo the ultimate question of the State's legal challenge to the

trial court's order granting Hunt's motions to suppress. Sorenson, 196 Ill. 2d at 431.

                                         Fifth Amendment

       In Miranda, the United States Supreme Court held that the fifth amendment privilege

against self-incrimination prohibits the admission of statements given by a suspect during a

custodial interrogation without the accused being informed about his rights. Miranda, 384 U.S.

at 444-45, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. Specifically, the Supreme 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 “procedural safeguards” that must be employed are


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now commonly referred to as Miranda warnings: the person must be warned that he has a right

to remain silent, that any statement he does make may be used as evidence against him, and that

he has a right to the presence of an attorney, either retained or appointed.   Miranda, 384 U.S. at

444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. The Supreme Court further held that the

defendant may waive those rights, provided that the waiver is made voluntarily, knowingly and

intelligently. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612. Finally, the

Miranda Court explained that, once the warnings have been given, the following procedure must

be followed:

               “If the individual indicates in any manner, at any time prior to or

               during questioning, that he wishes to remain silent, the

               interrogation must cease. *** If the individual states that he wants

               an attorney, the interrogation must cease until an attorney is

               present. At that time, the individual must have an opportunity to

               confer with the attorney and to have him present during any

               subsequent questioning. If the individual cannot obtain an attorney

               and he indicates that he wants one before speaking to police, they

               must respect his decision to remain silent.” Miranda, 384 U.S. at

               473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28.

       The warnings set forth in Miranda were intended to preserve the fifth amendment

privilege against self-incrimination during “incommunicado interrogation of individuals in a

police-dominated atmosphere.” Miranda, 384 U.S. at 445, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.


                                                -19-
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Such an atmosphere generates “inherently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where he would not otherwise do so

freely.” Miranda, 384 U.S. at 467, 16 L. Ed. 2d at 719, 86 S. Ct. at 1624.

       In Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), the

United States Supreme Court defined the term “interrogation.” In Innis, the respondent was

arrested and advised of his Miranda rights. The respondent informed the police that he wished to

speak with an attorney, and the police placed the respondent in a police vehicle in order to

transport the respondent to the police station. While in route to the police station, two of the

police officers in the police vehicle with the respondent had a conversation in which one of the

police officers voiced his concern that it would be bad if one of the disabled children from a

local school found the missing weapon and was injured or killed. The respondent interrupted the

officers’ conversation and asked the police officers to turn the vehicle around so he could show

them where the weapon was located.

       The issue before the Supreme Court in Innis was “whether the respondent was

‘interrogated’ by the police officers in violation of the respondent’s undisputed right under

Miranda to remain silent until he had consulted with a lawyer.” Innis, 446 U.S. at 298, 64 L. Ed.

2d at 306, 100 S. Ct. at 1688. The Innis Court concluded “that the Miranda safeguards come into

play whenever a person in custody is subjected to either express questioning or its functional

equivalent.” Innis, 446 U.S. at 300-01, 64 L. Ed. 2d at 307-08, 100 S. Ct. at 1689. The Innis

Court explained that the “functional equivalent” of express questioning was “any words or

actions on the part of the police (other than those normally attendant to arrest and custody) that


                                              -20-
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 the police should know are reasonably likely to elicit an incriminating response from the

 suspect.” Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1689-90. Specifically, the

 Court found that it could not be said that the police officers should have known that their

 conversation was reasonably likely to elicit an incriminating response from the respondent.

 Innis, 446 U.S. at 302, 64 L. Ed. 2d at 309, 100 S. Ct. at 1690. The Innis Court held that, in the

 facts before it, the respondent was not interrogated within the meaning of Miranda. Innis, 446

 U.S. at 302, 64 L. Ed. 2d at 308, 100 S. Ct. at 1690.

       The United States Supreme Court expanded upon its fifth amendment jurisprudence in

Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. In Edwards, the petitioner was

arrested, brought to a police station, and informed of his Miranda rights. Initially, the petitioner

indicated that he was willing to speak with the police, but he later invoked his fifth amendment

right to have an attorney present during the custodial interrogation. The petitioner was returned to

the county jail. The following morning, the police went to the county jail in order to speak with

the petitioner. The police informed him of his Miranda rights and the petitioner subsequently

made a statement to the police implicating himself in the crime. The issue before the United

States Supreme Court was whether the fifth, sixth, and fourteenth amendments " 'require

suppression of a post-arrest confession, which was obtained after [the petitioner] had invoked his

right to consult counsel before further investigation.' " Edwards, 451 U.S. at 478, 68 L. Ed. 2d at

382, 101 S. Ct. at 1881. The Edwards Court held:

                “[W]hen an accused has invoked his right to have counsel present

                during custodial interrogation, a valid waiver of that right cannot


                                                -21-
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               be established by showing only that he responded to further police-

               initiated custodial interrogation even if he has been advised of his

               rights. *** [A]n accused ***, having expressed his desire to deal

               with the police only through counsel, 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, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at

               1884-85.

The Edwards court emphasized that “it is inconsistent with Miranda and its progeny for the

authorities, at their insistence, to reinterrogate an accused in custody if he has clearly asserted his

right to counsel.” Edwards, 451 U.S. at 485, 68 L. Ed. 2d at 387, 101 S. Ct. at 1885. The

Edwards court found that the petitioner was subjected to a custodial interrogation on the second

day, and the custodial interrogation was at the insistence of the police.              Therefore, the

Edwards court held that the petitioner's statement, made without having had access to counsel,

did not amount to a valid waiver and was inadmissible. Edwards, 451 U.S. at 487, 68 L. Ed 2d

at 388, 101 S. Ct. at 1886.

       Later, in Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 251, 110 S. Ct. 2394,

2397 (1990), the United States Supreme Court recognized that there are circumstances that do

not implicate the concerns underlying Miranda. In Perkins, an inmate informed the police that

the respondent had told him about a murder that the respondent had committed. The police


                                                 -22-
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located the respondent at a jail where the respondent was being held on an unrelated matter. An

undercover agent and an informant were placed in a cellblock with the respondent.              The

undercover agent asked the respondent if he had ever “done” anybody. The respondent said that

he had and proceeded to describe at length the events of the murder.

       The issue before the Supreme Court was “whether an undercover law enforcement officer

must give Miranda warnings to an incarcerated suspect before asking him questions that may

elicit an incriminating response.” Perkins, 496 U.S. at 295-96, 110 L. Ed. 2d at 250, 110 S. Ct.

at 2396. The Supreme Court found that “[c]onversations between suspects and undercover

agents do not implicate the concerns underlying Miranda. The essential ingredients of a ‘police-

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

freely to someone whom he believes to be a fellow inmate.” Perkins, 496 U.S. at 296, 110 L. Ed

2d at 251, 110 S. Ct. at 2397. The Supreme Court further found that Miranda forbids coercion,

but “[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the

level of compulsion or coercion to speak are not within Miranda’s concerns.” Perkins, 496 U.S.

at 297, 110 L. Ed 2d at 251, 110 S. Ct. at 2397. “Miranda was not meant to protect suspects

from boasting about their criminal activities in front of persons whom they believe to be their

cellmates.” Perkins, 496 U.S. at 298, 110 L. Ed. 2d at 252, 110 S. Ct. at 2399. The Perkins Court

held that Miranda warnings are not required whenever a suspect is in custody in a technical

sense and converses with someone who happens to be a government agent; therefore, “an

undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings

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


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Perkins, 496 U.S. at 300, 110 L. Ed. 2d at 253, 110 S. Ct. at 2399.

        In the instant case, Hunt testified that on July 18, 2002, detectives questioned him and he

told them he wanted to talk with a lawyer. The trial court found, “It is clear that prior to July

31st, defendant had indicated he did not wish to speak to police regarding this case.” The

evidence that defendant invoked his right to counsel on July 18, 2002, supports the trial court’s

finding of fact.

        We must determine whether Hunt’s statements to Davis, after invoking his right to

counsel on July 18, 2002, and July 31, 2002, were made during custodial interrogations. The

record reveals that Hunt was in police custody when he made the statements to Davis. Maryland

v. Shatzer, No. 08-680, slip op. at 14-15 (U.S. February 24, 2010) (lawful imprisonment imposed

upon conviction does not create the coercive pressures identified in Miranda, but pretrial

detainees whose continued detention as suspects rest with those controlling their interrogation

are in interrogative or custodial Miranda custody). The record further reveals that Hunt spoke

with Davis, a police agent, who was posing as a fellow inmate and was wearing a wire to assist

the State in obtaining incriminating information from Hunt. According to Perkins, although

Hunt was in custody, Hunt’s jailhouse conversation with Davis, a police agent whom Hunt

believed to be a fellow inmate, did not constitute a custodial interrogation because the police

were not in the room. Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397 (“When

a suspect consider himself in the company of cellmates and not officers, the coercive atmosphere

is lacking”). Accordingly, we find, following federal case law, that because Hunt made the

statements to Davis, an informant, and did not make the statements to the police, Hunt was not


                                               -24-
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subject to a custodial interrogation and, therefore, Miranda warnings were not required prior to

the conversation between Hunt and Davis. Perkins, 496 U.S. at 296-97, 110 L. Ed. 2d at 251,

110 S. Ct. at 2397.

          We find this case distinguishable from Edwards. As noted above, in Edwards, the police

continued to question the petitioner after the petitioner made a request that an attorney be present

during the interrogation. Although Hunt testified that he invoked his right to counsel on July 18,

2002, the police did not question Hunt on July 31, 2002, or on August 6, 2002; rather, Davis

conversed with Hunt. The Edwards rule was designed to prevent the police from badgering a

defendant into waiving his previously asserted Miranda rights. Perkins, 496 U.S. at 296-97, 110

L. Ed. 2d at 251, 110 S. Ct. at 2397; see also Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d

405, 103 S. Ct. 2830 (1983) (plurality opinion). In the instant case, the police did not badger

Hunt because they did not speak with him on July 31, 2002, or August 6, 2002, concerning the

Shakir Beckley murder.6 Here, badgering by police officers, the evil sought to be avoided in

Edwards, did not occur in the instant case because the police did not question Hunt. We find the

6
    It should be noted that in Innis, Edwards, and Perkins, the police were involved in a

conversation with each defendant. Specifically, in Innis, the police talked with the respondent

while he was riding in the back of the police vehicle. In Edwards, the police went to the jail

where the petitioner was being held in order to speak with the petitioner. In Perkins, the

undercover agent placed himself in the cellblock where the respondent was being held. In the

instant case, the police removed Hunt from the county jail and took him to the Area 4 police

station where Hunt talked with an informant or undercover police agent.


                                                  -25-
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facts in Edwards distinguishable from the facts in the instant case because the statements in

Edwards were made during a conversation between the petitioner and the police while Hunt’s

statements were made to a police informant or agent. Therefore, according to Perkins, Miranda

was not violated and Hunt’s statements to Davis did not violate Hunt’s fifth amendment

privilege against self-incrimination. Perkins, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S.

Ct. at 2397.

       The United States Supreme Court recently distinguished between interrogative or

custodial Miranda custody and the noncoercive pressures of incarceration. Shatzer, slip op. at

14-15. In Shatzer, a police detective questioned the defendant, who was incarcerated in prison

pursuant to a prior conviction, about allegations that the defendant had sexually abused his son.

The defendant invoked his Miranda right to have counsel present during questioning, and the

detective ceased questioning the defendant. The defendant was returned to prison.

Approximately 2½ years later, a different police detective again questioned the defendant, who

was still incarcerated in prison, regarding the accusations that the defendant sexually abused his

son. The defendant waived his Miranda rights and made inculpatory statements. The defendant

filed a motion to dismiss the inculpatory statements. The United States Supreme Court found

that 14 days is a sufficient break in custody to end the presumption of involuntariness set forth in

Edwards. Shatzer, slip op. at 11. The Court further found that “lawful imprisonment imposed

upon conviction of a crime does not create the coercive pressures identified in Miranda.”

Shatzer, slip op. at 14. Accordingly, the Court held that because the defendant experienced a

break in interrogative or Miranda custody that lasted more than two weeks, Edwards does not


                                               -26-
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mandate a suppression of the defendant’s inculpatory statements made during the second

interrogation. Shatzer, slip op. at 18.

        We find the facts in Shatzer distinguishable from the facts in the instant case. Unlike

Shatzer, which involved police interrogation, the instant case involved a conversation between

Davis, an informant or police agent, and Hunt. Also, unlike Shatzer, involving a convicted felon

incarcerated in a penal institution, Hunt was a pretrial detainee and suspect in a murder

investigation whose detention rested with those controlling the interrogation. Shatzer, slip op. at

14-15. Therefore, we find the facts in Shatzer distinguishable from the facts in the instant case.

        We note that the Illinois Supreme Court in McCauley recognized that Moran v. Burbine,

475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), is the controlling case for determining

whether, under the federal constitution, a defendant’s statement should be suppressed.

McCauley, 163 Ill. 2d at 423, citing Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135.

Specifically, the McCauley court noted that, “under Burbine, in determining the validity of a

custodial suspect’s waiver of the fifth amendment right to counsel, the relevant and narrow

inquiry is whether his ability to understand or comprehend his rights has been compromised by

the lack of information or the police conduct in withholding that information.” McCauley, 163

Ill. 2d at 423.

        We find the facts in Burbine distinguishable from the facts in this case. The critical facts

in Burbine were as follows: (1) the police administered the required warnings to the respondent

who was in custody on an unrelated case; (2) the police sought to assure that the respondent

understood his rights; (3) the police obtained written waivers from the respondent prior to


                                                -27-
1-06-0824


eliciting each of the three statements; (4) the respondent’s sister called a public defender on the

respondent’s behalf; (5) the police misinformed the public defender about their plans concerning

the respondent; and (6) the police failed to inform the respondent of the public defender’s efforts

to reach him. Burbine, 475 U.S. at 415-18, 89 L. Ed. 2d at 417-18, 106 S. Ct. at 1138-39. In the

instant case, the Burbine requirements were not met because (1) the police did not talk to Hunt

on July 31, 2002, and August 6, 2002, and never informed Hunt of his rights pursuant to

Miranda on July 31, 2002, or August 6, 2002; (2) the police were never assured that Hunt

understood his rights because they never Mirandized him; and (3) the police never obtained

express written waivers from Hunt prior to his discussions with Davis on July 31, 2002, and

August 6, 2002. See Burbine, 475 U.S. at 421, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141. While the

respondent in Burbine received Miranda warning before talking to the police, Perkins would not

require Miranda warnings because Hunt was talking to an informant. Perkins, 496 U.S. at 296-

97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397. Accordingly, if we followed United States Supreme

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

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

be informed about his counsel being present at the police station.

                                               McCauley

          Next, we must determine whether Hunt's statements to Davis would be suppressed under

McCauley, which was decided under Illinois' constitutional guarantees.7 McCauley, 163 Ill. 2d

7
    We note that the Illinois Supreme Court, when deciding a case under a federal constitutional

provision, has followed the United States Supreme Court and treated inmate informants similar


                                                  -28-
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at 423-24; see also Ill. Const. 1970, art. I, §10 (guaranteeing defendants the right against self-

incrimination). The McCauley court noted that the United States Supreme Court has indicated

that state courts have the authority to interpret their respective constitutional provisions more

broadly than the United States Supreme Court interprets similar federal constitutional provisions.

McCauley, 163 Ill. 2d at 426, citing Oregon v. Hass, 420 U.S. 714, 719, 43 L. Ed. 2d 570, 575-

76, 95 S. Ct. 1215, 1219 (1975). The McCauley court also noted that the United States Supreme

Court permits the States to adopt " 'different requirements for the conduct of [their] employees

and officials as a matter of state law.' " (Emphasis in original.) McCauley, 163 Ill. 2d at 426,

quoting Burbine, 475 U.S. at 428, 89 L. Ed. at 425, 106 S. Ct. at 1144. The McCauley court

further noted that federal authorities are not precedentially controlling but merely guide the

interpretation of state law. McCauley, 163 Ill. 2d at 436, citing Rollins v. Ellwood, 141 Ill. 2d

244, 275 (1990). Finally, the McCauley court held that final conclusions on the construction of

state constitutional guarantees are for the Illinois Supreme Court to decide. McCauley, 163 Ill.

2d at 436, citing Rollins, 141 Ill. 2d at 275.

        The McCauley court established that our state’s constitutional guarantees afford

defendants a greater degree of protection than does the federal counterpart. See McCauley, 163

Ill. 2d at 423 (“The day is long past in Illinois, however, where attorneys must shout legal advice

to their clients, held in custody, through the jailhouse door”). The McCauley court held that

“[o]ur State constitutional guarantees simply do not permit police to delude custodial suspects,


to undercover police officers for purposes of the fifth amendment. See People v. Manning, 182

Ill. 2d 193 (1998) (applying Perkins to a jailhouse informant).


                                                 -29-
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exposed to interrogation, into falsely believing they are without immediately available legal

counsel and to also prevent that counsel from accessing and assisting their clients during the

interrogation.”   McCauley, 163 Ill. 2d at 423-24, citing Ill. Const. 1970, art. I, §§2, 10.

Accordingly, as directed by the Illinois Supreme Court, we will apply McCauley to the facts in

this case to determine whether Hunt's statements should be suppressed under Illinois' self-

incrimination guarantee that is codified in article I, section 10 of the Illinois Constitution. Ill.

Const. 1970, art. I, §10.

        Before we review this case under McCauley, we must determine under Illinois law (1)

whether Hunt was in police custody, (2) whether Davis, the informant, was a police agent, and

(3) whether this was a custodial interrogation. The State maintained that Hunt was involved in a

judicially authorized consensual overhear and the interrogation was a noncustodial interrogation

because Hunt talked to Davis and did not talk with the police on July 31, 2002, and August 6,

2002.

        We note (1) that Hunt invoked his right to counsel on July 18, 2002, and on July 31,

2002, after consulting with his attorney; (2) that Cook County jail prisoners, like Hunt,

transferred pursuant to section 19.5 of the County Jail Act are “in custody” (Hunt, 234 Ill. 2d at

63); (3) that Hunt did not consent or initiate a conversation with the police or make a request to

go to the Area 4 police station, so it was not a voluntary transfer; (4) that an overhear order

authorized the police to place a wire on Davis, who consented to wear the wire; (5) that Davis,

an inmate, was selected by the police because they believed he could persuade Hunt to make a

statement implicating himself in the Shakir Beckley murder; and (6) that Davis was a police


                                               -30-
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agent because he was acting in concert with, and at the behest of, the police. People v. Stechly,

225 Ill. 2d 246, 301 (2007) (holding that a police agent is a party who gathers information to

pass it along to the authorities).

          Next, we must decide whether Davis’s questioning of Hunt at the Area 4 police station

constituted custodial interrogation under Illinois law. In People v. Perkins, 248 Ill. App. 3d 762

(1993), appeal denied, 153 Ill. 2d 567 (1993), the court defined “custodial interrogation” to

include questioning by police agents and informants as well as police officers. Perkins, 248 Ill.

App. 3d at 769. The legislature effectively codified the definition promulgated in Perkins in

section 103-2.1 of the Code of Criminal Procedure of 1963. See 725 ILCS 5/103-2.1 (West

2006).8 The Hunt case holds that Hunt was in custody when he was transferred from the county

jail to the Area 4 police station where he was detained. Hunt, 234 Ill. 2d at 63. Davis, the police

agent, was wired and asked Hunt questions so he could obtain incriminating information. There

was a custodial interrogation because the police involuntarily removed Hunt from the county jail

8
    It should be noted that section 103-2.1 provides that "custodial interrogation" means an

interrogation, at a place of detention or a police station, during which "(i) a reasonable person in

the subject's position would consider himself or herself to be in custody, and (ii) during which a

question is asked that is reasonably likely to elicit an incriminating response." It should also be

noted that the definition in section 103-2.1 does not limit the use of the term "custodial

interrogations" to questions that are asked by police officers; therefore, the definition in section

103-2.1 applies if a question is asked that is likely to elicit an incriminating response even if the

question is asked by an undercover police agent, informant or officer.


                                                  -31-
1-06-0824


so Hunt could be interrogated by Davis, the undercover police agent, and the police agent asked

Hunt questions likely to elicit an incriminating response. See Perkins, 248 Ill. App. 3d at 769;

see also 725 ILCS 5/103-2.1 (West 2006). Therefore, because Hunt invoked his right to counsel

on July 18, 2002, and July 31, 2002, because Hunt was transferred, involuntarily, from the

county jail on July 31, 2002, and August 6, 2002, because Hunt was in police custody and Davis

was an undercover police agent, and because the police had Davis, their agent, wired so he could

initiate questioning and obtain incriminating information about the Shakir Beckley murder from

Hunt on behalf of the police, we hold that Hunt's interrogations on July 31, 2002, and on August

6, 2002, at the Area 4 police station were custodial interrogations. McCauley, 163 Ill. 2d at 427,

438-43, 447; Perkins, 248 Ill. App. 3d at 769; see also 725 ILCS 5/103-2.1 (West 2006); Ill.

Const. 1970, art. I, §§2, 10.

        Now, because we have decided that Hunt participated in custodial interrogations,

McCauley directs this court to follow the rule in Smith, which held that under state law, the

police possessed no authority to prevent or delay communication between an arrested person and

his retained lawyer, and also that a custodial suspect's decision to waive counsel's assistance was

likely to be affected by the withheld information. McCauley, 163 Ill. 2d at 427, citing People v.

Smith, 93 Ill. 2d 179, 187-88 (1982), citing State v. Haynes, 288 Or. 59, 72-74, 602 P.2d 272,

278-79 (1979). The record reveals that on July 18, 2002, Hunt invoked his right to counsel and

that on July 31, 2002, Hunt telephoned his attorney, a public defender, and requested that he

come to the police station. Hunt's attorney came to the police station and requested access to

Hunt.    Hunt's attorney was denied access to Hunt from approximately 3:15 p.m. until


                                               -32-
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approximately 4 p.m. Following the rule in Smith, the police had no authority to “prevent or

delay” communication between Hunt and his lawyer. McCauley, 163 Ill. 2d at 427, citing Smith,

93 Ill. 2d at 187-88, citing Hayes, 288 Or. at 72-74, 602 P.2d 272, 278-79. Hunt was also

involuntarily removed from the county jail on August 6, 2002; therefore, after invoking his right

to counsel on July 31, 2002, he had a right to consult with counsel before the custodial

interrogation on August 6, 2002. See McCauley, 163 Ill. 2d at 438-43; Perkins, 248 Ill. App. 3d

at 769; see also 725 ILCS 5/103-2.1, 103-3, 103-4 (West 2006).

       Second, the McCauley court noted that under Illinois's guarantee of a person's privilege

against self-incrimination (Ill. Const. 1970, art. I, §10), if the circuit court determines that a

defendant knew that an attorney was being retained for him, that the attorney was present and

had requested access to the defendant and that the police refused to inform the defendant of the

immediate availability of the attorney, the circuit court should allow the defendant's motion to

suppress. McCauley, 163 Ill. 2d at 438, quoting People v. Griggs, 152 Ill. 2d 1, 30 (1992).

Here, the circuit court correctly suppressed Hunt's statements to Davis that occurred on July 31,

2002, because there was a custodial interrogation; because Hunt's attorney appeared at the police

station, pursuant to Hunt's telephone message, and requested access to Hunt on more than one

occasion; and because the police refused, for 45 minutes, to inform Hunt that his attorney was in

the police station so that Davis, a police agent, could conclude the interrogation of Hunt. The

trial court also correctly suppressed Hunt's statements on August 6, 2002, because, after

invoking his right to counsel on July 31, 2002, there was a custodial interrogation and Hunt was

not permitted to consult with counsel prior to the interrogation.


                                                -33-
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        Third, the McCauley court noted that the 1970 Illinois Constitutional Convention debates

indicate that the delegates intended that article I, section 10, incorporate then-existing federal

constitutional principles regarding incommunicado interrogation. McCauley, 163 Ill. 2d at 439-

40, citing People v. DiGuida, 152 Ill. 2d 104 (1992); 3 Record of Proceedings, Sixth Illinois

Constitutional Convention 1377; S. Gove & V. Ranney, Con-Con: Issues for the Illinois

Constitutional Convention, 3, 24-35, 48 (1970); G. Braden & R. Cohn, The Illinois Constitution:

An Annotated & Comparative Analysis 43-45 (1969). We find that Hunt was in police custody

and was taken to the Area 4 police station involuntarily on July 31, 2002, and August 6, 2002;

that Hunt was held incommunicado because, after invoking his right to counsel on July 18, 2002,

and July 31, 2002, a lawyer was not permitted to have access or communicate with Hunt while

Davis, a police agent, attempted to elicit incriminating information from Hunt about the Shakir

Beckley murder during the custodial interrogations on July 31, 2002, for 45 minutes, and was

denied the assistance of counsel on August 6, 2002. Therefore, we hold that the police officers'

incommunicado custodial interrogations on July 31, 2002 and August 6, 2002, violated Hunt's

article I, section 10, guarantee against self-incrimination. Ill. Const. 1970, art. I, §10.

        Fourth, the McCauley court noted that under article I, section 2, the due process clause,

the State guarantees an accused the right to the assistance as well as the presence of counsel

during any custodial interrogation. McCauley, 163 Ill. 2d at 441; Ill. Const. 1970, art. I, §2.

Hunt was denied the assistance of his counsel for 45 minutes during the custodial interrogations

on July 31, 2002, and was denied the assistance of counsel on August 6, 2002 - - Hunt was held

in a room at a police station while a police agent attempted to elicit incriminating information.


                                                  -34-
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Therefore, we hold that Hunt's article I, section 2, due process rights were violated by the police

when they denied Hunt the assistance of counsel, on July 31, 2002, and August 6, 2002, during

the custodial interrogations. Accordingly, the trial court correctly suppressed Hunt's July 31,

2002, and August 6, 2002, statements under the due process clause of Illinois's constitution.

McCauley, 163 Ill. 2d at 440-41; Ill. Const. 1970, art. I, §2.

         Fifth, the McCauley court noted that section 103-4 of the Code of Criminal Procedure of

1963 codifies a statutory right of persons in custody to consult with an attorney and a

concomitant duty on the part of public officers to admit such counsel to consult with persons in

custody. McCauley, 163 Ill. 2d at 443, citing Ill. Rev. Stat. 1987, ch. 38, par. 103-4 (now 725

ILCS 5/103-4 (West 2002)).           Here, Hunt was in the custody of the police; custodial

interrogations were conducted by the police on July 31, 2002, and August 6, 2002; and the

police, public officers, denied Hunt the assistance of counsel for 45 minutes on July 31, 2002,

and Hunt received no assistance from an attorney on August 6, 2002. Therefore, the police

officers' refusal to permit Hunt to confer with an attorney was a clear violation of the statutory

right codified in section 103-4 of the Code of Criminal Procedure. 725 ILCS 5/103-4 (West

2002).

         Finally, the McCauley court noted that the self-incrimination privilege in article I, section

10, of the Illinois Constitution only protects an accused from testimonial disclosures. McCauley,

163 Ill. 2d at 447 (“Section 10 ‘ “protects an accused only from being compelled to testify

against himself, or otherwise provide the State with evidence of a testimonial or communicative

nature *** ” ’ ”), quoting People ex rel. Bowman v. Woodward, 63 Ill. 2d 382, 385 (1976),


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quoting Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830

(1966); see also Ill. Const. 1970, art. I, §10. Section 10, the self-incrimination privilege, does

not protect against nontestimonial disclosures such as requiring a person in custody to stand or

walk in a police lineup, to speak prescribed words, to model particular clothing, or to give

samples of handwriting, fingerprints, or blood. See McCauley, 163 Ill. 2d at 447; Schmerber,

384 U.S. at 764, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832. Here, the police placed Davis, their agent

or informant, in a room with Hunt in order to record Hunt’s statements and to obtain

incriminating information for the police. While Hunt's statements to Davis, the police agent or

informant, during the custodial interrogations on July 31, 2002, and August 6, 2002, were

testimonial disclosures that violated the self-incrimination privilege (Stechly, 225 Ill. 2d at 268,

quoting Davis v. Washington, 547 U.S. 813, 822, 165 L. Ed. 2d 224, 237, 126 S. Ct. 2266, 2273-

74 (2006) (statements are testimonial when the purpose of the interrogation is to establish or

prove past events that are relevant to a later criminal prosecution)), the police would not violate

the self-incrimination privilege if they placed Hunt in a lineup. See McCauley, 163 Ill. 2d at

447; Schmerber, 384 U.S. at 764, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832. Accordingly, the trial

court correctly suppressed Hunt's July 31, 2002, and August 6, 2002, statements to Davis, the

police agent or informant, because Hunt's statements were testimonial disclosures during

custodial interrogations that violated Hunt's self-incrimination privilege. McCauley, 163 Ill. 2d

at 447; see also Stechly, 225 Ill. 2d at 268, quoting Davis, 547 U.S. at 822, 165 L. Ed. 2d at 237,

126 S. Ct. at 2273-74.




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                                       Petition for Rehearing

       In a petition for rehearing, the State argues that this court made erroneous findings of

fact. First, the State disputes our statement that Hunt invoked his right to counsel on July 18,

2002. Hunt testified that, on July 18, 2002, he told detectives he wanted to talk with a lawyer.

The trial court found, “It is clear that prior to July 31st, defendant had indicated he did not wish

to speak to police regarding this case.” The trial court’s finding that Hunt invoked his right to

counsel prior to July 31, 2002, is based on Hunt's testimony, and our statement that Hunt

invoked his right to counsel on July 18, 2002, is based on the trial court's finding.

       The State also disputes our finding that the State had custody of Hunt when Davis

questioned him.    Our supreme court, in Hunt, held that Hunt was in custody when police

transferred him from the jail to the Area 4 police station where Davis questioned him. Hunt, 234

Ill. 2d at 63. The evidence supports the finding of custody.

       The State contests our interpretation of Shatzer.         We adhere to our explanation of

Shatzer. The defendant in Shatzer experienced a break in interrogation of 2 ½ years. Here, a

break of less than two weeks intervened between Hunt’s invocation of his right to counsel during

questioning on July 18, 2002, and Davis’s interrogation of Hunt on July 31, 2002. A second

break of less than two weeks intervened between Hunt’s questioning on July 31, 2002, and the

questioning on August 6, 2002. Throughout each of the periods of less than two weeks, Hunt

remained in the intermittent custody of those who controlled the interrogation. The factual

differences between this case and Shatzer require a different result.

       Next, the State argues that we improperly applied retroactively the definition of


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“custodial interrogation” our legislature codified in section 103-2.1 of the Code of Criminal

Procedure. 725 ILCS 5/103-2.1 (West 2006). While other sections of the statute change the law

(see People v. Amigon, 388 Ill. App. 3d 26, 30-32 (2009), appeal allowed, 233 Ill. 2d 565

(2009)), we find that the definition of "custodial interrogation" codifies earlier decisions. See

Perkins, 248 Ill. App. 3d at 769. In Perkins, a police informant questioned the defendant in his

jail cell, after the defendant had requested an attorney.          The trial court suppressed the

defendant’s statements to the informant, finding that the custodial interrogation by the informant

violated the defendant’s constitutional rights. The Perkins court defined “custodial interrogation”

to include questioning by police agents and informants as well as police officers. Perkins, 248

Ill. App. 3d at 769. The definition applied in Perkins has been codified in the statutory definition.

See 725 ILCS 5/103-2.1 (West 2006). If the legislature meant to specify that “custodial

interrogation” referred to questioning only by police officers, the legislature would have so

specified. Instead, the legislature defined custodial interrogation to include any interrogation in

which "a question is asked" that may elicit an incriminating response. By using the passive

voice in the statute, the legislature indicated an intention not to limit the potential questioners to

whom the provision applies. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103,

60 L. Ed. 2d 66, 79, 99 S. Ct. 1601, 1609 (1979) (statutory use of passive voice placed no

restriction on potential plaintiffs who could sue under the statute).

       The State claims that the statutory definition of “custodial interrogation” leads to the

absurdity that the court may admit into evidence statements obtained by deception as long as the

defendant makes the statements when he is out of custody. The court in Perkins addressed this


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argument and found no absurdity. The Perkins court said:

       “Because defendant had invoked his right to counsel, the actions of the authorities

       were improper and the statements made by defendant must be suppressed.

       [Citation.] That is not to say that the authorities could not have played out the

       same scam on defendant if he had not been in custody, because it seems clear that

       they could have done so without violating defendant's constitutional rights.”

       Perkins, 248 Ill. App. 3d at 771.

Thus, the constitution may permit police to deceive the subject of an investigation when the

subject remains free from custody, but similar deceptive practices by State agents offend the

Illinois Constitution when the State has taken the subject into custody and he has invoked his

right to counsel. McCauley, 163 Ill. 2d at 423-24; Perkins, 248 Ill. App. 3d at 771. The Illinois

Constitution places special restrictions on State action once the State has placed the subject of an

investigation who has invoked the right to counsel in the coercive environment of State custody.

See McCauley, 163 Ill. 2d at 423-24; Perkins, 248 Ill. App. 3d at 771. We see no absurdity in

permitting prosecutors to use against a defendant statements obtained from the defendant by

deception when the defendant was not in custody, but barring the use of similar statements made

by the defendant while in custody.

       Finally, the State argues that the court should not suppress the statements here because

police used deception, not force, to obtain the statements. According to the State, Hunt never

proved the kind of compulsion necessary for suppression of statements under article I, section

10, of the Illinois Constitution of 1970.


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       Illinois courts have developed standards for determining when improper influence of law

enforcement agents requires suppression of statements they have obtained. See McCauley, 163

Ill. 2d at 428-39. According to the court in Perkins:

               “Miranda *** requires that the officials cease questioning a suspect

       immediately upon a request for an attorney. If the questioning continues after a

       suspect has requested an attorney, but without the attorney's presence, then a

       heavy burden is on the government to show that the suspect knowingly and

       intelligently waived his right to counsel. Further, although any statement given

       freely and voluntarily without any compelling influences is admissible in

       evidence, ‘any evidence that the accused was threatened, tricked, or cajoled into a

       waiver will, of course, show that the defendant did not voluntarily waive his

       privilege.’ Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629.”

       Perkins, 248 Ill. App. 3d at 768.

When an accused invokes his right to counsel, the Illinois Constitution forbids both direct

interrogation and “less direct techniques of persuasion.” Perkins, 248 Ill. App. 3d at 771.

       Here, as in Perkins, “the government's procedure was calculated to deceive defendant, so

that he would not know to whom he was making incriminating statements.” Perkins, 248 Ill.

App. 3d at 769. Like the court in Perkins, we find that the deception ensured that defendant did

not have the “opportunity to knowingly and intelligently waive his previously asserted right to

have counsel present during questioning.” Perkins, 248 Ill. App. 3d at 769. We cannot find a

valid waiver of the right to counsel where Hunt was involuntarily removed from the county jail


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by the police and merely responded to police-initiated custodial interrogation. Because Hunt

invoked his right to counsel on July 18, 2002, and July 31, 2002, and was involuntarily removed

from the jail, we find the actions of authorities improper, and therefore we must suppress the

statements authorities obtained from defendant. See McCauley, 163 Ill. 2d at 447; Perkins, 248

Ill. App. 3d at 771. Accordingly, we deny the petition for rehearing.

                                          CONCLUSION

       In conclusion, we find under the fifth amendment, as interpreted by the United States

Supreme Court in Miranda, Innis, Edwards, Perkins and Shatzer, that Hunt's statements to Davis,

an undercover police agent or informant, would not be suppressed because federal case law does

not consider an interrogation by an undercover police agent, informant or officer to be a

custodial interrogation. We also find, however, under Illinois’s constitution and statutes, as

interpreted by the courts in McCauley and Perkins, that Hunt's interrogation by Davis, an

undercover police agent or informant, would be considered a custodial interrogation; therefore,

the trial court properly suppressed Hunt's statements to the undercover police agent or informant.

McCauley, 163 Ill. 2d at 427, 438-43, 447; Perkins, 248 Ill. App. 3d at 769. Finally, Hunt, an

Illinois citizen, was indicted by the State's Attorney of Cook County, Illinois, charged with

violating an Illinois criminal statute and his case is pending in Illinois’s courts where his federal

fifth amendment rights were not violated, but his Illinois constitutional rights were violated;

therefore, we think that Illinois's constitution, statutes and supreme and appellate court decisions

should be followed in this case.       Accordingly, we follow McCauley and suppress Hunt’s

statements to Davis.


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      Affirmed.

      MURPHY, J., and STEELE, J., concur.




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