                             No. 2--05--0823
______________________________________________________________________
                               ________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
                               ________

THE PEOPLE OF THE STATE            ) Appeal from the Circuit Court
OF ILLINOIS,                       ) of Lee County.
                                   )
     Plaintiff-Appellant,          ) No. 05--CF--145
                                   )
v.                                 )
                                   )
NIKOLAUS J. PANKHURST,             ) Honorable
                                   ) David T. Fritts,
     Defendant-Appellee.           ) Judge, Presiding.
______________________________________________________________________
________

       JUSTICE O'MALLEY delivered the opinion of the court

       The State appeals the judgment of the circuit court granting the motion of defendant,

Nikolaus J. Pankhurst, to quash his arrest and suppress evidence based on his high school

officials' failure to precede their questioning of him with warnings pursuant to Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We reverse and remand,

finding that the school officials were not agents of the police when they questioned

defendant and therefore were not required to provide Miranda warnings.

       Defendant was charged with possession of cannabis (720 ILCS 550/4(c) (West

2002)), delivery of cannabis on school grounds (720 ILCS 550/5.2(d) (West 2002)), and

possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2002)). The charges arose

from marijuana and drug paraphernalia seized from defendant by school officials, from an
No. 2--05--0823


incriminating statement he made to school officials, and from a later incriminating statement

he made to police. Defendant filed a motion to quash his arrest and suppress evidence. In

his motion, defendant argued (1) the school officials lacked reasonable and articulable

suspicion to search him; (2) he was in "the custody of the police" when he made his

incriminating statement to school officials yet was not given warnings pursuant to Miranda;

and (3) the Miranda violation tainted his subsequent statement to police.

       At the hearing on his motion, defendant withdrew his claim that the search of his

person by school officials violated his right against unreasonable searches and seizures

and proceeded solely on his claim that his incriminating statements were inadmissible

under Miranda. The parties stipulated to the following facts. On May 16, 2005, Mr. Grady,

principal of Dixon High School, was advised by an undisclosed source that defendant and

another student, Halfacre, were in possession of cannabis. Grady and Travis McGuire, the

dean of students, summoned defendant to Grady's office. Grady asked defendant to empty

his pockets, whereupon defendant relinquished some cannabis. Halfacre was also found

with cannabis. Grady called the police. Dixon Officers Miller and Friday responded and

learned that defendant and Halfacre were in separate rooms. Miller sought out defendant

while Friday sought out Halfacre. After Friday advised Halfacre of his Miranda rights,

Halfacre told Friday that the cannabis found on his person was given to him by defendant.

Meanwhile, Miller went to McGuire's office, where defendant was located. After a short

time, Grady entered and asked Miller to leave. Miller left, and defendant remained with

Grady and McGuire. Grady closed the door. During questioning by Grady and McGuire,

defendant admitted that he sold cannabis to Halfacre. Grady ended the interview and




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informed Miller of defendant's confession. Miller and Friday then arrested defendant. After

receiving Miranda warnings, defendant made another incriminating remark. 1

       The State called Officer Miller to testify to the events that occurred when he went to

McGuire's office. Miller testified that, when he entered the office, McGuire and defendant

were present. Miller observed cannabis on McGuire's desk and assumed that it had been

seized from defendant.       McGuire informed Miller that he was attempting to phone

defendant's family members. Miller testified that he spoke "about casual stuff" with

McGuire between his phone calls. Miller did not tell defendant that he was under arrest or

restrain him in any way. When asked if he spoke to defendant, Miller replied, "It may have


       1
           The content of this statement is not indicated in the record. Defendant's motion

simply states that "Officer Miller read [defendant] his Miranda Rights and obtained a second

confession." Neither the parties' stipulation nor Miller's testimony reveals the nature of this

statement.




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just been a name or something. It wasn't anything questioning [sic] as far as the event."

When asked if defendant was free to leave at that point, Miller replied, "Probably not, no."

Miller testified that, when Grady entered the office, he asked Miller to leave. Miller left the

office, and Grady and McGuire remained inside with defendant. Grady closed the door.

Miller testified as follows when asked about the specific circumstances of his encounter

with defendant in McGuire's office:

                "[ASSISTANT STATE'S ATTORNEY]: Officer Miller, was Mr. Grady or Mr.

         McGuire acting on your behalf when they asked you to leave the room?

                A. I don't know what their intention was.

                Q. So you hadn't given them instructions or anything of that nature?

                A. No. The only conversation I had with Principal Grady was just when he

                asked me

         to leave the room and I said okay.

                                              ***

                [THE COURT]: Officer Miller, you testified that [defendant] was not free to

leave?

                A. Well, it was a pending investigation.

                Q. But you didn't tell him to remain, did you?

                A. No, I did not.

                Q. How would he know that he wasn't free to leave?

                A: I'm assuming by the fact that the Principal closed the door, that was the

         only exit out of the room.




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              Q. That's what I was afraid of. Were you giving your answer based upon

       what you      saw that occurred or based upon the fact that he was not free to do

       because of [sic] you felt, do you think he was not free to go because of the

       Principal's actions or because of your actions?

              A. I guess it would be both."

Miller further testified that he waited in a chair about six feet from the office door while

Grady and McGuire interviewed defendant. The interview lasted 10 minutes.

       The trial court granted defendant's motion. In its written memorandum, the court

found that, when defendant gave his incriminating statement in McGuire's office, he "was

not free to go and was being restrained by both the principal and the police." The court

concluded that, because defendant was not given Miranda warnings, his statement to

Grady and McGuire was involuntary and therefore inadmissible. Although the court

suppressed both the statement to the school officials and the later statement to the officers,

the court did not provide any reason for finding the latter statement involuntary despite the

fact that it was preceded by Miranda warnings. Having filed a certificate of impairment, the

State timely appeals.

       In reviewing a trial court's ruling on a motion to suppress evidence, we accept the

trial court's factual findings unless they are against the manifest weight of the evidence, but

we review de novo the ultimate issue of whether the evidence should be suppressed.

People v. Dieppa, 357 Ill. App. 3d 847, 849 (2005). Here, because the relevant facts are

undisputed, our review is entirely de novo. Dieppa, 357 Ill. App. 3d at 849.

       In Miranda, the Supreme Court held that "the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it


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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 Court defined

a custodial interrogation as "questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any significant way."

(Emphasis added.) Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612. "The

determination of whether a defendant is 'in custody' for Miranda purposes involves '[t]wo discrete

inquiries ***: first, what were the circumstances surrounding the interrogation; and second, given

those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave.' [Citations.] *** With respect to the latter inquiry, the accepted test is what

a reasonable person, innocent of any crime, would have thought had he or she been in the

defendant's shoes. [Citation.]" People v. Braggs, 209 Ill. 2d 492, 505-06 (2003); see also Florida v.

Bostick, 501 U.S. 429, 438, 115 L. Ed. 2d 389, 400, 111 S. Ct. 2382, 2388 (1991) (in determining

whether a person has been "seized" for fourth amendment purposes, "the 'reasonable person' test

presupposes an innocent person" (emphasis in original)). "[S]tatements not induced by the police or

an agent of the police are admissible in evidence without *** compliance" with Miranda's dictates.

People v. Hawkins, 53 Ill. 2d 181, 185 (1972); see also Commonwealth v. Snyder, 413 Mass. 521,

532, 597 N.E. 2d 1363, 1369 (Mass. 1992) ("The Miranda rule does not apply to a private citizen or

school administrator who is acting neither as an instrument of the police nor as an agent of the police

pursuant to a scheme to elicit statements from the defendant by coercion or guile"). The question

here is whether Grady and McGuire acted as agents of the police in questioning defendant.

       The State claims to have "found no case directly on point that involves interrogation by

school authorities," and instead relies on People v. Fuller, 319 Ill. App. 3d 180 (2001). In Fuller, the

defendant, a store employee, was questioned on store premises by security guards about a theft that

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No. 2--05--0823


one of the guards had witnessed the defendant perpetrate. The guards had no contact with the police

prior to or during the questioning, but did contact the police after the defendant confessed. The

appellate court held that the security guards "were not acting as agents of the police." Fuller, 319 Ill.

App. 3d at 182. Fuller's relevance to the present case is limited because, unlike here, there was no

police presence on the premises during the questioning.

        We have found only two cases in Illinois addressing the relevance of Miranda to questioning

by school authorities: People v. Shipp, 96 Ill. App. 2d 364 (1968), decided by the Third District

Appellate Court, and In re E.M., 262 Ill. App. 3d 302 (1994), decided by this district. In Shipp, the

defendant, a high school student, was summoned to the principal's office and interrogated by the

principal about a false fire alarm. The principal did not advise the defendant of his Miranda rights

before the interrogation, during which the defendant confessed. The appellate court dispensed in

short order with the defendant's claim that he was in custody during the interrogation and therefore

was entitled to Miranda warnings:

                "On this appeal we hold that the calling of a student to the principal's office for

        questioning is not an 'arrest' and he is not then in custody of police or other law enforcement

        officials. This situation does not fall within the scope of the Miranda decision as the

        Supreme Court has limited it. [Citation.]" Shipp, 96 Ill. App. 2d at 367.

In Shipp, unlike the present case, there was no police officer present when the questioning occurred.

Thus, Shipp, like Fuller, is of no help in deciding when Miranda applies to questioning by private

citizens that occurs in the presence of the police.

        E.M., however, dealt with a situation quite similar to the one at hand. In E.M., the dean of

students of a high school was advised by a student that E.M. had stolen a leather jacket and placed it

in his locker. The dean opened E.M.'s locker and saw the jacket. The dean then dispatched the

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No. 2--05--0823


school's police liaison officer to bring E.M. into the dean's office. There, the dean questioned E.M.

about the theft allegation while the officer remained outside. The dean did not administer Miranda

warnings to E.M. During the questioning, E.M. confessed to stealing the jacket. When the

interview was over, the dean called the liaison officer into the office and, pursuant to school

procedure, turned E.M. over to the officer. The officer advised E.M. of his Miranda rights. When

E.M. refused to speak to the officer, he released E.M. The officer testified that the dean did not

inform him of E.M.'s confession until eight months after the incident. E.M., 262 Ill. App. 3d at

304-05. The trial court denied E.M.'s motion to suppress his confession to the dean as

obtained in violation of Miranda's requirements. The appellate court affirmed. The court

first noted that the School Code (105 ILCS 5/24--24 (West 1992)) grants educators in loco

parentis status, which extends to both disciplinary and nondisciplinary matters. E.M., 262

Ill. App. 3d at 307. The court found that the dean "was a school administrator standing in

loco parentis and acting independently of the police, when he questioned [E.M.] within a

school disciplinary proceeding about the theft." E.M., 262 Ill. App. 3d at 307. In support of

this conclusion, the court noted: (1) the dean, not the officer, opened E.M.'s locker in

response to the theft allegation; (2) the dean, not the officer, directed that E.M. be

summoned for questioning; (3) the officer was not present during the questioning; and (4)

the officer was not advised of E.M.'s confession until months after it occurred. E.M., 262 Ill.

App. 3d at 307.

       In the case at bar there is a similar independence of the school officials from the

police. By the time the officers arrived at the school, Grady and McGuire had already

initiated their investigation into the allegations of drug possession by summoning defendant

and Halfacre, searching them for drugs, and then placing them in separate rooms. When


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No. 2--05--0823


Miller arrived at McGuire's office, he did not question defendant about the allegations but at

most asked him for his name. Miller's encounter with defendant was cut short when Grady

entered the office and asked Miller to leave. Grady and McGuire saw fit to question

defendant outside Miller's presence and did not obtain any direction or advice from Miller

on how to conduct the investigation. Miller, we recognize, was immediately told about the

results of the interrogation whereas the liaison officer in E.M. was not informed of the

confession until months later--a fact found important by the appellate court in E.M. This

difference is balanced out, however, by the fact that the liaison officer in E.M. actually

escorted E.M. to the dean's office while Miller simply arrived to find defendant already

present in McGuire's office. Grady and McGuire, we conclude, acted as independently of

Miller as the principal in E.M. did of the liaison officer. See State v. Tinkham, 143 N.H. 73,

77, 719 A.2d 580, 583-84 (1998) (holding that school principal's questioning of the

defendant did not implicate Miranda because, though the principal informed the police

beforehand that she was going to question the defendant, there was no evidence of any

"affirmative act by any police officer inducing [the principal] to question the defendant," nor

did the police "[make] any suggestions to [the principal] or direct[] her course of action").

       As we did in E.M., courts in other jurisdictions have analyzed Miranda issues arising

in school settings by emphasizing that school officials are charged with maintaining order

and discipline in their schools, and though sometimes these responsibilities entail the

investigation of conduct that is not only disruptive but also criminal, this does not alone

make those officials agents of the police. In State v. Biancamano, 284 N.J. Super. 654,

661, 663, 666 A.2d 199, 202-03 (App. Div. 1995), a case that, on facts almost identical to

Shipp, reached the same conclusion, the court said:


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        "A school official must have leeway to question students regarding activities that

        constitute either a violation of the law or a violation of school rules. This latitude is

        necessary to maintain discipline, to determine whether a student should be excluded

        from the school, and to decide whether further protection is needed for the student

        being questioned or for others.

                                                      ***

                  *** School officials are neither trained nor equipped to conduct police investigations. However,

        as a matter of necessity, they must regularly conduct inquiries concerning both violations of school rules

        and violations of law. While the police may eventually be summoned, the need to question students to

        determine the existence of weapons, drugs, or potential violence in the school requires that latitude be

        given to school officials."

        Of the trend of the law in this area, authors Wayne R. LaFave, Jerold H. Israel, and Nancy J.

King have said:

        "[C]ourts have generally held that government agents not primarily charged with enforcement of the

        criminal law are under no obligation to comply with Miranda. Thus, at least where the official has not

        been given police powers, Miranda has been held inapplicable to questioning by school officials, welfare

        investigators, medical personnel, judges, prison counselors, and parole or probation officers." 2 W.

        LaFave, J. Israel & N. King, Crim. Proc. '6.10(c), at 622 (2d ed. 1999).

        Foreign authorities have generally declined to apply Miranda's protections to interrogations by school

officials in situations similar to the present case. In State v. Barrett, 683 So. 2d 331 (La. App. 1996), the

school board of the defendant's high school had a drug detection team comprised of narcotics

officers from the sheriff's department. The drug detection team regularly conducted searches of the

defendant's high school using drug detection dogs. On the occasion in question, a drug detection


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officer employed the dogs in a classroom while the students in the class, including the defendant,

waited outside. The dogs alerted on the defendant's wallet, a search of which revealed a large

quantity of cash. The defendant's bag was also searched, and a beeper was found inside. The

principal asked the defendant why he had such a large amount of cash, and the defendant replied that

he sold drugs. The defendant was sent to the principal's office, where the drug detection officer

asked him where his car was located. When the defendant pointed out his car, the officer employed

the dogs, which alerted to the hatchback of the car. A search of the car revealed marijuana. Barrett,

683 So. 2d at 334. The appellate court held that the defendant was not entitled to Miranda warnings

before he was questioned by the principal and the officer:

               "When the principal asked defendant why he was carrying the money, defendant was

       not being questioned by a law enforcement officer and had not been taken into custody,

       detained, or deprived of his freedom of action, other than as appropriate considering his

       status as a student at school. Defendant also was not in custody or being detained when [the

       officer] asked him how he got to school, and where his car was located. Thus, the

       requirements of Miranda did not apply ***." Barrett, 683 So. 2d at 339.

Notably, the principal in Barrett was acting in concert with the officer from the very beginning of the

drug sweep that ultimately led to the defendant's arrest. Thus, there was a stronger case in Barrett

for finding that the principal was the agent of the police than there is in the present case, where the

officer arrived on the scene only after defendant was searched and had no involvement in, nor was

even present in the room during, Grady and McGuire's questioning of defendant.

       In In re Drolshagen, 280 S.C. 84, 310 S.E.2d 927 (1984), the court rejected the minor's claim

that he should have been given Miranda warnings before his questioning by school officials. The

court's statement of the facts consisted entirely of the following four sentences:

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                "At the request of investigating police officers, appellant voluntarily reported to his

        school principal's office, where he was questioned by school officials, in the presence of the

        officers, as to his activities of the previous weekend. There was testimony that neither officer

        participated in the questioning. During this meeting, appellant confessed to the acts of

        vandalism of which he was subsequently convicted. At the Anderson County jail, he signed

        a written statement in the presence of his parents, after being advised of his Miranda rights."

        Drolshagen, 280 S.C. at 84-85, 310 S.E.2d at 927.

The court summarily rejected the minor's Miranda argument, holding that "[m]erely because the

questioning took place in the principal's office, in the presence of police officers, 'did not render it a

custodial interrogation.' [Citation.]" Drolshagen, 280 S.C. at 85, 310 S.E.2d at 927. Unlike in the

case at bar, the officers in Drolshagen were present in the room during the student's interrogation by

the school officials. Arguably, then, there was more evidence of an agency relationship in

Drolshagen than in the present case.

        We have found one case where school officials were considered agents of the police. In

State v. Heirtzler, 147 N.H. 344, 789 A.2d 634 (2001), the principal and the school's police liaison

officer had what the officer described as "a silent understanding" that the officer would turn an

investigation over to school officials when it appeared that he had no constitutional basis to conduct

a search or seizure based on the information he possessed. Heirtzler, 147 N.H. at 347, 789 A.2d at

637. The officer admitted that "passing information to the school when he could not act was a

technique used to gather evidence otherwise inaccessible to him." Heirtzler, 147 N.H. at 347, 789

A.2d at 637. Pursuant to this arrangement, the officer reported a possible drug transaction to the

principal, who interrogated and searched the defendant in connection with the report. The court




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agreed with the defendant that the principal was acting as the agent of the police in searching and

interrogating him. Heirtzler, 147 N.H. at 351-52, 789 A.2d at 640-41. The court wrote:

               "Because they are not law enforcement officers, when school officials search for

       contraband in order to foster a safe and healthy educational environment, they are afforded

       greater flexibility than if a law enforcement officer performed the same search. [Citation.] If

       school officials agree to take on the mantle of criminal investigation and enforcement,

       however, they assume an understanding of constitutional criminal law equal to that of a law

       enforcement officer. In such circumstances, even if school officials claim their actions fall

       within the ambit of their administrative authority, they should be charged with abiding by the

       constitutional protections required in criminal investigations."         (Emphasis omitted.)

       Heirtzler, 147 N.H. at 350-51, 789 A.2d at 640.

Neither in E.M., Drolshagen, Barrett, nor the present case was there evidence of an arrangement like

that in Heirtzler, designed to circumvent constitutional protections.

       Defendant seizes upon Officer Miller's testimony that defendant's liberty during his interview

with Grady and McGuire was restrained by Miller's own actions as well as Grady's and McGuire's.

However, Miller's opinion that he contributed to the restraint on defendant's liberty lacks support in

the record. A police officer's subjective belief regarding whether the defendant was free to leave is

not determinative if it was not communicated to the defendant. People v. Newsome, 117 Ill. App. 3d

1005, 1010 (1983). Miller did not tell defendant that he was not free to leave. The undisputed facts

show that Miller's interaction with defendant was limited to asking defendant for his name.

Although Miller's very presence outside the door may have intimidated defendant, E.M. holds that

the presence of a police officer on school premises during a school official's questioning of a student

regarding possible criminal conduct does not alone transform the official into an agent of the police.

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       Defendant cites People v. Pruitt, 278 Ill. App. 3d 194 (1996), in his favor. Pruitt, however, is

entirely inapposite as it deals not with the right against self-incrimination but with the right against

unreasonable searches and seizures. Perhaps defendant really means to argue the unreasonableness

of Grady's seizure of the cannabis. Although defendant abandoned this argument in the trial court, a

reviewing court may affirm on any basis in the record. People v. Reed, 298 Ill. App. 3d 285, 295

(1998). The record on the issue of the seizure, however, consists entirely of the parties' stipulation

that Grady was advised that defendant was in possession of cannabis and consequently searched

defendant, finding cannabis. There is no basis here for a claim that the seizure was unreasonable.

       We conclude that Grady and McGuire were not agents of the police when they questioned

defendant in McGuire's office and therefore were not required to advise defendant of his Miranda

rights. As there was no Miranda violation affecting defendant's initial confession, we obviously do

not reach defendant's argument that his subsequent confession to police was tainted by an earlier

Miranda violation.

       For the foregoing reasons, we reverse the trial court's judgment granting defendant's

motion to suppress and remand this case for further proceedings.

       Reversed and remanded.

       CALLUM, J., concurs.

       GROMETER, P.J., specially concurring:

         While I wholeheartedly agree with the majority's resolution of the issue presented in this
appeal, I write separately to emphasize that such an analysis has applicability only in the context of
Miranda violations. Lest there be any confusion, the question of whether an individual is an agent of
the police is not the same as whether an individual is a State actor. In this case, as the majority sets
forth, the former question is relevant. More often, the determination of whether an individual is a
State actor controls. See Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531
U.S. 288, 295, 148 L. Ed. 2d 807, 816, 121 S. Ct. 924, 930 (2001) ("Our cases try to plot a line
between state action subject to Fourteenth Amendment scrutiny and private conduct (however
exceptionable) that is not"); see also Ferguson v. City of Charleston, 532 U.S. 67, 76, 149 L. Ed. 2d

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205, 215, 121 S. Ct. 1281, 1287 (2001) ("Because MUSC is a state hospital, the members of its staff are
government actors, subject to the strictures of the Fourth Amendment"). This is true even in the context
of a public school. In New Jersey v. T.L.O., 469 U.S. 325, 336-37, 83 L. Ed. 2d 720, 731, 105 S. Ct.
733, 740 (1985), the Supreme Court, while recognizing the particular characteristics of a school
environment, held that, "[i]n carrying out searches and other disciplinary functions pursuant to such
policies, school officials act as representatives of the State, not merely as surrogates for the parents,
and they cannot claim the parents' immunity from the strictures of the Fourth Amendment." The
Court came to this holding despite the fact that law enforcement personnel were not involved in the
search at issue. Hence, the law as applied in this case is limited to alleged Miranda violations by
school personnel. It does not exempt school officials generally from observing the requirements of
the constitution, and it specifically has no application in fourth amendment cases.




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