                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                 People v. Hunt, 2012 IL 111089




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TAVARES
Court:                     HUNT, Appellee.



Docket No.                 111089
Filed                      April 19, 2012


Held                       “Custodial interrogation” was not taking place at a police station, and the
(Note: This syllabus       appellate court erred in affirming a suppression under McCauley, where
constitutes no part of     a suspect made statements while alone with an informer who was an
the opinion of the court   inmate, even though the suspect’s counsel on a different matter was
but has been prepared      unsuccessfully seeking access to him—McCauley and Miranda not
by the Reporter of         applicable.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Fred G. Suria,
                           Jr., Judge, presiding.


Judgment                   Appellate court judgment reversed.
                           Circuit court judgment reversed.
                           Cause remanded.
Counsel on               Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal                   State’s Attorney, of Chicago (Alan J. Spellberg, Annette N. Collins and
                         Susan R. Schierl Sullivan, Assistant State’s Attorneys, of counsel), for
                         the People.

                         Jack Rimland and Joshua B. Kutnick, of Chicago, for appellee.


Justices                 JUSTICE KARMEIER delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Thomas, Garman, Burke, and Theis
                         concurred in the judgment and opinion.
                         Justice Freeman specially concurred, with opinion.



                                            OPINION

¶1         On April 14, 2003, defendant, Tavares Hunt, was arrested and charged with murder in
      the shooting death of Shakir Beckley. A Cook County grand jury indicted defendant and
      charged him with 33 counts of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2002)), 6
      counts of attempted murder (720 ILCS 5/8-4, 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 5/8-4, 18-2 (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 deadly weapon (720 ILCS
      5/12-4(b)(1) (West 2002)).
¶2         Defendant filed a motion to suppress tape recordings, statements, and conversations with
      an informant during court-ordered consensual overhears, arguing that they were obtained in
      violation of his fifth amendment right to counsel (U.S. Const., amend. V) and his rights to
      counsel and due process under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 10), as
      articulated by this court in People v. McCauley, 163 Ill. 2d 414 (1994). He also filed a
      motion to exclude tape recordings of those conversations, arguing that the recordings were
      substantially inaudible. The trial court granted both motions, suppressing defendant’s
      statements and the recordings.
¶3         On interlocutory appeal, the appellate court affirmed the suppression order. People v.
      Hunt, 381 Ill. App. 3d 790, 809 (2008). This court affirmed in part, reversed in part, and
      remanded to the appellate court for its consideration of the suppression of the statements on
      fifth amendment and McCauley grounds. People v. Hunt, 234 Ill. 2d 49, 65-67 (2009). On
      remand, the appellate court affirmed the suppression of the statements on McCauley grounds.
      403 Ill. App. 3d 802, 830.
¶4         We allowed the State’s petition for leave to appeal. The sole issue on appeal is whether
      the statements were properly suppressed on McCauley grounds. For the following reasons,

                                                -2-
       we conclude that they were not. Accordingly, we reverse and remand to the trial court for
       further proceedings.

¶5                                       I. BACKGROUND
¶6          While defendant was being held in the Cook County jail on an unrelated charge, he
       became a suspect in Shakir Beckley’s murder. In May 2002, Chicago police detectives took
       him from the county jail to a Chicago police station and questioned him about the murder.
       He denied any involvement in, or knowledge of, the murder. The detectives testified that they
       read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and he waived
       those rights before he was questioned. Defendant testified, however, that he told the
       detectives he was not speaking to them unless an attorney was present, but they continued
       to question him. The detectives denied that he said he did not want to talk to them or that he
       requested an attorney. In fact, they testified that he consented to, and took, a polygraph test,
       for which he signed a written waiver. After the polygraph test, the detectives questioned him
       again, and he continued to deny any involvement in the murder. Because the questioning
       finished late and they wanted to question him further, they kept him at the police station
       overnight. The next day, they questioned him again, and he continued to deny any
       involvement in the murder. The detectives fingerprinted him before returning him to the
       county jail later that day.
¶7          On June 28, 2002, an assistant public defender was assigned to represent defendant in the
       unrelated case. Defendant testified that he told counsel that day and on July 12, 2002, that
       Chicago police detectives were questioning him about an unrelated, uncharged matter and,
       on both days, counsel told him not to talk to the police.
¶8          On July 16 or 17, 2002, the detectives took defendant from the county jail to the police
       station so Mycal Davis, who was also in the jail on an unrelated charge, could view him in
       a lineup. The lineup had to be rescheduled because defendant and Davis were put in the
       bullpen together even though they were supposed to be brought out at different times so they
       would not see each other.
¶9          After Davis had been in the bullpen with defendant, he told the detectives that he knew
       defendant; that defendant was involved in Beckley’s murder; that he and defendant had a
       conversation about Beckley’s murder, in which defendant made incriminating statements;
       and that he thought he could get defendant to repeat the statements. The detectives then
       decided to set up a judicially authorized overhear, using Davis as the consenting party.
¶ 10        Defendant testified that on July 18, 2002, the detectives took him from the county jail to
       the police station and questioned him about Beckley’s murder. Defendant testified that he
       told them he did not want to talk to them and that he wanted to talk to a lawyer.
¶ 11        On July 31, 2002, guards told defendant that the detectives were coming to put him in
       a lineup. He called counsel and left a message, asking counsel to go to the police station for
       the lineup.
¶ 12        The detectives then took defendant from the county jail to the police station, put him in
       an interview room, and left him alone for about three hours. During that time, he was not
       handcuffed and was given food and water. He was not questioned by any police officer that

                                                 -3-
       day. At about 3 p.m., Davis, who was wearing a concealed wire pursuant to a court order,
       was put in the interview room with him. The detectives recorded the conversation between
       defendant and Davis and monitored the conversation from another room. Defendant allegedly
       implicated himself in Beckley’s murder.
¶ 13       The lieutenant in charge of the Beckley investigation testified that, at some point during
       the overhear, when he took a break from monitoring the conversation, he was told that an
       attorney was there, asking to speak with defendant. He testified that he met with the attorney
       at about 4:02 p.m. The attorney said he represented defendant on an unrelated charge and
       asked why defendant was at the police station. The lieutenant responded that defendant was
       there for a lineup in a case under investigation, which was unrelated to the one for which he
       was in jail. Counsel asked to meet with defendant and to be present during the lineups. The
       lieutenant asked counsel to give him “about five minutes.” According to the lieutenant, the
       overhear ended shortly after 4 p.m., and counsel was then allowed to speak with defendant.
¶ 14       Counsel testified, from his contemporaneous notes, that, after he got defendant’s message
       on July 31, he called the police station and confirmed that defendant was there. He asked to
       speak with the detectives and was told they were “out in the field.” He said he was coming
       down to the police station. He arrived at 3:14 p.m., and the detectives were paged at 3:19
       p.m. Counsel testified that he repeatedly asked to speak with defendant but was not allowed
       to do so until sometime between 4:02 and 4:12 p.m. At 4:12 p.m., after meeting with
       counsel, defendant invoked his rights to remain silent and to have counsel present during
       questioning. According to the detectives, this was the first time defendant had invoked his
       rights.
¶ 15       On August 6, 2002, the detectives again took defendant from the county jail to the police
       station; put him in an interview room with Davis, who was wearing a concealed wire; and
       monitored and recorded the conversation, during which defendant again allegedly implicated
       himself in Beckley’s murder. He was not questioned by the police that day. The public
       defender’s office had withdrawn its representation of defendant in the unrelated case a few
       days earlier, and no counsel was present during the overhear that day.
¶ 16       Relying on McCauley, the trial court suppressed those parts of defendant’s statements
       and recordings made after counsel arrived at the police station on July 31, holding that
       defendant had a right to speak with counsel within a reasonable time after counsel arrived.
       The court denied defendant’s motion to suppress the August 6 statements and recordings
       because counsel was not present that day. The court later vacated its suppression order sua
       sponte and allowed the parties to provide additional arguments about the impact of counsel’s
       arrival on July 31.
¶ 17       Defendant subsequently filed his motion to exclude the recordings, arguing that they were
       substantially inaudible. After listening to the recordings and hearing further arguments of
       counsel, the trial court suppressed all of defendant’s statements and all of the recordings. In
       doing so, the court relied on McCauley and found that defendant had a right to speak with
       counsel within a reasonable time after counsel’s arrival at the police station at 3:14 p.m. on
       July 31 but was not allowed to do so until 4:02 p.m., after the overhear ended. The court also
       suppressed the recordings on the alternative ground that they were substantially inaudible.


                                                -4-
¶ 18        On interlocutory appeal, the appellate court affirmed the suppression order but on
       grounds not argued by the parties. Hunt, 381 Ill. App. 3d at 809. The court also affirmed the
       suppression of the recordings on the alternative ground that they were substantially inaudible.
       Id. at 808. This court reversed that part of the appellate court’s judgment affirming the
       suppression order on grounds not raised by the parties, affirmed that part of its judgment
       affirming the suppression of the recordings on the alternative ground that they were
       substantially inaudible, and remanded the cause to the appellate court for its consideration
       of the suppression of the statements on fifth amendment and McCauley grounds. Hunt, 234
       Ill. 2d at 67. On remand, the appellate court affirmed the suppression of the statements on
       McCauley grounds. 403 Ill. App. 3d at 830.
¶ 19        We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 20                                        II. ANALYSIS
¶ 21       On appeal, the State no longer argues that the recordings should not have been
       suppressed as substantially inaudible; nor does defendant argue that the statements should
       have been suppressed under the fifth amendment. Thus, the sole issue on appeal is whether
       the statements were properly suppressed on McCauley grounds.
¶ 22       A trial court’s ruling on a motion to suppress evidence is reviewed under the two-part test
       adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 699
       (1996). People v. Absher, 242 Ill. 2d 77, 82 (2011). The court’s factual findings are upheld
       unless they are against the manifest weight of the evidence. The reviewing court then
       assesses the established facts in relation to the issues presented and may reach its own
       conclusions as to what relief, if any, should be allowed. Accordingly, the ultimate legal
       question of whether suppression is warranted is reviewed de novo.
¶ 23       The fifth amendment to the United States Constitution, which applies to the states by
       virtue of the fourteenth amendment (Malloy v. Hogan, 378 U.S. 1, 6 (1964)), provides, in
       pertinent part, that “[n]o person *** shall be compelled in any criminal case to be a witness
       against himself.” U.S. Const., amend. V. In Miranda, the United States Supreme Court
       adopted prophylactic measures to protect a suspect’s fifth amendment privilege against
       compelled self-incrimination from the “inherently compelling pressures” of custodial
       interrogation. Miranda, 384 U.S. at 467. The Court noted that “incommunicado”
       interrogation in a “police-dominated atmosphere” (id. at 456-57) involves psychological
       pressures that “work to undermine the individual’s will to resist and to compel him to speak
       where he would not otherwise do so freely” (id. at 467). Thus, the Court reasoned, “[u]nless
       adequate protective devices are employed to dispel the compulsion inherent in custodial
       surroundings, no statement obtained from the defendant can truly be the product of his free
       choice.” Id. at 458.
¶ 24       To combat this inherent compulsion, and thereby protect the privilege against compelled
       self-incrimination, the Court held that a prosecutor may not use statements arising from a
       custodial interrogation of a defendant unless he can show the use of procedural safeguards
       effective to secure the defendant’s privilege against compelled self-incrimination. Id. at 444.
¶ 25       Miranda requires law enforcement officers to warn a suspect before a custodial

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       interrogation that: he has the right to remain silent; anything he says can be used against him
       in a court of law; he has the right to have an attorney present; and if he cannot afford an
       attorney, one will be appointed for him before questioning if he so desires. Id. at 479. The
       Miranda 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.” (Emphasis added.) Id. at 444.
¶ 26        On remand in the present case, as both the State and defendant acknowledge, the
       appellate court properly concluded that “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, [defendant] would not have to
       be informed about his counsel being present at the police station.” 403 Ill. App. 3d at 821.
       It reached this conclusion by analyzing the foundational doctrines within the prophylactic
       Miranda regime, which demonstrate that defendant’s conversation with Davis, an undercover
       informant and fellow inmate, was not a “custodial interrogation.” Id. at 815-19; see Illinois
       v. Perkins, 496 U.S. 292, 296-97 (1990) (Perkins I).
¶ 27        The appellate court found, however, that, under Illinois’s constitution and statutes, as
       interpreted by the courts in McCauley and People v. Perkins, 248 Ill. App. 3d 762 (1993)
       (Perkins II), defendant’s conversation with Davis, an undercover informant and fellow
       inmate, was a “custodial interrogation.” 403 Ill. App. 3d at 823-24. As we will explain
       below, that finding is erroneous.
¶ 28        In Perkins, the defendant was arrested on a Saturday for aggravated battery. Perkins II,
       248 Ill. App. 3d at 763. While he was in jail over the weekend, an undercover officer and an
       undercover informant were placed in his cellblock and elicited incriminating statements from
       him about an unrelated, uncharged murder. His statements were suppressed, and the appellate
       court affirmed. People v. Perkins, 176 Ill. App. 3d 443, 450 (1988) (Perkins I). The United
       States Supreme Court reversed, holding that “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.” Perkins I, 496 U.S. at 300. In Perkins
       I, the Court held that the statements at issue were voluntary and that there was no federal
       obstacle to their admissibility at trial. The Court explained as follows:
                    “Conversations 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. Coercion is determined
                from the perspective of the suspect. [Citations.] When a suspect considers himself
                in the company of cellmates and not officers, the coercive atmosphere is lacking.
                [Citations.] ***
                    It is the premise of Miranda that the danger of coercion results from the
                interaction of custody and official interrogation. ***
                    Miranda forbids coercion, not mere strategic deception by taking advantage of
                a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we
                recognized in Miranda: ‘Confessions remain a proper element in law enforcement.


                                                 -6-
               Any statement given freely and voluntarily without any compelling influences is, of
               course, admissible in evidence.’ [Citation.] Ploys 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. [Citations.]
                   Miranda was not meant to protect suspects from boasting about their criminal
               activities in front of persons whom they believe to be their cellmates.” Id. at 296-98.
¶ 29       On remand to the trial court, the defendant filed a second motion to suppress, alleging,
       for the first time, that he had asserted his right to counsel after his arrest for aggravated
       battery. Perkins II, 248 Ill. App. 3d at 764. His statements were again suppressed. The
       appellate court stated that the crux of the case was: “Where a suspect has asserted his fifth
       amendment right to counsel, can he be questioned by undercover agents on a separate,
       unrelated, and uncharged offense while in jail, without the presence of an attorney, and
       without an opportunity to waive his right to counsel?” Id. at 767-68. The appellate court
       affirmed the suppression of the defendant’s statements, holding that the undercover agents’
       actions violated his “fifth amendment right to counsel.” Id. at 768.
¶ 30       In reaching this conclusion, the appellate court in Perkins II relied on Rhode Island v.
       Innis, 446 U.S. 291 (1980). In Innis, the defendant was arrested for murder. Id. at 293-94.
       After he was advised of his Miranda rights, he requested an attorney. Id. at 294. On the way
       to the police station, the two transporting officers engaged in a conversation with each other
       about a gun missing from the murder scene and how terrible it would be if one of the
       children from the nearby school for handicapped children found the gun and was hurt. Id. at
       294-95. The defendant immediately told the officers to turn the car around so that he could
       show them where the gun was located. Id. at 295. He then led them to the spot where the gun
       was hidden. When the defendant made the incriminating statements, he was in custody and
       had invoked his right to counsel. Id. at 298. The issue in Innis was whether the defendant was
       “interrogated” by the officers in violation of his fifth amendment right to remain silent until
       he had consulted with a lawyer. The Innis Court explained as follows:
               “It is clear *** that the special procedural safeguards outlined in Miranda are
               required not where a suspect is simply taken into custody, but rather where a suspect
               in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the
               Miranda opinion, must reflect a measure of compulsion above and beyond that
               inherent in custody itself.
                   We conclude that the Miranda safeguards come into play whenever a person in
               custody is subjected to either express questioning or its functional equivalent. That
               is to say, the term ‘interrogation’ under Miranda refers not only to express
               questioning, but also to any words or actions on the part of the police (other than
               those normally attendant to arrest and custody) that the police should know are
               reasonably likely to elicit an incriminating response from the suspect. The latter
               portion of this definition focuses primarily upon the perceptions of the suspect, rather
               than the intent of the police. This focus reflects the fact that the Miranda safeguards
               were designed to vest a suspect in custody with an added measure of protection
               against coercive police practices, without regard to objective proof of the underlying


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                intent of the police.” Id. at 300-01.
¶ 31       The Innis Court concluded that the defendant was not “interrogated” within the meaning
       of Miranda. Id. at 302. The Court noted that the first prong of the definition of
       “interrogation” was not satisfied because the conversation between the officers included no
       express questioning of the defendant. Moreover, the Court concluded that the defendant was
       not subjected to the “functional equivalent” of questioning because it could not be said that
       the officers should have known that their conversation was reasonably likely to elicit an
       incriminating response from the defendant.
¶ 32       Relying on Innis, the appellate court in Perkins II held that the police knew or should
       have known that their actions in using an undercover law enforcement officer posing as a
       fellow inmate were reasonably likely to elicit an incriminating response and that, because the
       defendant had invoked his right to counsel, their actions amounted to the functional
       equivalent of direct questioning and violated the Court’s rulings construing the fifth
       amendment privilege against compelled self-incrimination. Perkins II, 248 Ill. App. 3d at
       771.
¶ 33       In so concluding, the appellate court in Perkins II totally disregarded the fact that, in
       Perkins I, the United States Supreme Court had already determined that “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.”
       Perkins I, 496 U.S. at 300. Implicit in this holding is that questioning by an undercover law
       enforcement officer posing as a fellow inmate is not an “interrogation” under Miranda.
¶ 34       The fact that the defendant in Perkins II requested counsel when he was arrested for
       aggravated battery did not change the fact that Miranda warnings were not required before
       he spoke to an undercover law enforcement officer posing as a fellow inmate about an
       unrelated, uncharged murder. Because, as the United States Supreme Court decided in
       Perkins I, Miranda warnings were not required before the defendant was questioned, it
       follows that he had no fifth amendment right to counsel, and it was irrelevant that he had
       requested counsel when he was arrested for the unrelated aggravated battery. Accordingly,
       the appellate court’s decision to the contrary in Perkins II, 248 Ill. App. 3d at 769, is hereby
       expressly overruled.
¶ 35       It is also interesting to note that the appellate court’s decision in Perkins II was based on
       federal, not Illinois, constitutional law. See also People v. Manning, 182 Ill. 2d 193, 206
       (1998) (“Miranda is not implicated in conversations between suspects and undercover
       agents. The essential ingredients of a police-dominated atmosphere and compulsion are not
       present when a prisoner speaks freely to an undercover agent.”).
¶ 36       We turn now to McCauley, 163 Ill. 2d 414. In McCauley, the defendant was brought to
       the police station for questioning about a murder, was advised of his Miranda rights, and did
       not request an attorney. Id. at 417-18. However, unbeknownst to the defendant, his family
       had retained an attorney for him, and the attorney had gone to the police station and asked
       to speak with him. Id. at 418-19. The police refused to allow the attorney access to the
       defendant and failed to inform the defendant that his attorney was present at the police
       station asking to speak with him. Id. at 419. The defendant subsequently gave a statement


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       to the police in response to their questioning. Id. at 420. The trial court suppressed the
       statement, and this court affirmed.
¶ 37        The McCauley court noted that, in Moran v. Burbine, 475 U.S. 412 (1986), the United
       States Supreme Court had rejected the argument that similar police conduct violated a
       defendant’s right to counsel under the fifth amendment to the United States Constitution.
       McCauley, 163 Ill. 2d at 422-23. The McCauley court then considered whether such conduct
       violated the defendant’s right to counsel under article I, section 10, of the Illinois
       Constitution of 1970, which provides, in pertinent part, that “[n]o person shall be compelled
       in a criminal case to give evidence against himself” (Ill. Const. 1970, art. I, § 10). McCauley,
       163 Ill. 2d at 423.
¶ 38        In holding that the police conduct in McCauley violated the defendant’s rights under the
       Illinois Constitution, the court explained:
                    “The day is long past in Illinois *** where attorneys must shout legal advice to
                their clients, held in custody, through the jailhouse door. In this case, we determine
                that our State constitutional guarantees afforded defendant a greater degree of
                protection [than their federal counterparts]. Our State constitutional guarantees
                simply do not permit police to delude custodial suspects, exposed to interrogation,
                into falsely believing they are without immediately available legal counsel and to also
                prevent that counsel from accessing and assisting their clients during the
                interrogation.” McCauley, 163 Ill. 2d at 423-24.
¶ 39        The McCauley court held that, under Illinois law, “ ‘when police, prior to or during
       custodial interrogation, refuse an attorney appointed or retained to assist a suspect access to
       the suspect, there can be no knowing waiver of the right to counsel if the suspect has not
       been informed that the attorney was present and seeking to consult with him.’ ” Id. at 424-25
       (quoting People v. Smith, 93 Ill. 2d 179, 189 (1982)). The McCauley court also held that “due
       process is violated when police interfere with a suspect’s right to his attorney’s assistance
       and presence by affirmatively preventing the suspect, exposed to interrogation, from
       receiving the immediately available assistance of an attorney hired or appointed to represent
       him.” McCauley, 163 Ill. 2d at 444. See Ill. Const. 1970, art. I, § 2 (“[n]o person shall be
       deprived of life, liberty or property without due process of law”). Thus, the court concluded
       that the police conduct violated the defendant’s privilege against compelled self-
       incrimination and his right to due process. McCauley, 163 Ill. 2d at 446.
¶ 40        However, the McCauley court did not eschew the Miranda regime itself; instead, it
       superimposed a state-specific right onto the existing Miranda framework. The constitutional
       justification for the Miranda regime is police custodial interrogation. Contrary to the
       appellate court’s conclusion, McCauley did not reject this foundation by taking the police out
       of the equation. Accordingly, we hold that, like a suspect’s Miranda rights, his McCauley
       right to an immediately available attorney arises only during police custodial interrogation.
¶ 41        In the present case, because defendant was not subjected to police custodial interrogation
       when he had a conversation with Davis, an undercover informant and fellow inmate, during
       the overhears, Miranda and McCauley are inapplicable. See Perkins I, 496 U.S. at 300;
       Miranda, 384 U.S. at 444, 467; McCauley, 163 Ill. 2d at 424-25, 444. Accordingly, the


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       detectives were not required to give defendant Miranda warnings before the overhears;
       defendant had no constitutional right to counsel during the overhears; the detectives were not
       required to inform defendant that his counsel in an unrelated case was at the police station,
       asking to speak with him during the first overhear; and the appellate court erred in upholding
       the suppression of the statements on McCauley grounds. We also decline to extend the
       McCauley right to protect the attorney-client relationship outside the context of police
       custodial interrogation.
¶ 42       Because our resolution of this issue is dispositive on appeal, we need not address the
       State’s other arguments—that the appellate court erred in finding that (1) defendant had
       invoked his right to counsel on July 18; and (2) he was in “Miranda custody” during the
       overhears.1

¶ 43                                      CONCLUSION
¶ 44       For the foregoing reasons, we reverse the judgments of the appellate court and the trial
       court and remand to the circuit court of Cook County for further proceedings consistent with
       this opinion.

¶ 45       Appellate court judgment reversed.
¶ 46       Circuit court judgment reversed.
¶ 47       Cause remanded.

¶ 48       JUSTICE FREEMAN, specially concurring:
¶ 49       I agree with the majority’s holding that statements made by defendant to an informant
       during a court-ordered overhear were not obtained in violation of his rights to counsel and
       to due process under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 10), as set forth
       by this court in People v. McCauley, 163 Ill. 2d 414 (1994). I therefore concur in its
       judgment. I write separately, however, to emphasize that our decision today should not be
       construed as a departure from McCauley.
¶ 50       As noted by the majority, the trial court, relying upon McCauley, suppressed statements
       made by defendant to police informant Mycal Davis during judicially authorized overhears.


               1
                The United States Supreme Court’s recent decision in Howes v. Fields, ___ U.S. ___, 132
       S. Ct. 1181 (2012), addressing the issue of the appropriate standard for determining whether a
       prisoner was in Miranda custody during police questioning, is consistent with our interpretation of
       “custodial interrogation.” As the Court explained: “As used in our Miranda case law, ‘custody’ is
       a term of art that specifies circumstances that are thought generally to present a serious danger of
       coercion.” Id. at ___, 132 S. Ct. at 1189. The Court noted that “standard conditions of confinement
       and associated restrictions on freedom will not necessarily implicate the same interests that the Court
       sought to protect when it afforded special safeguards to persons subjected to custodial interrogation.
       Thus, service of a term of imprisonment, without more, is not enough to constitute Miranda
       custody.” Id. at ___, 132 S. Ct. at 1191.

                                                   -10-
       The majority correctly points out that “the sole issue on appeal is whether the [defendant’s]
       statements were properly suppressed on McCauley grounds.” Supra ¶ 21. On that point, the
       majority notes:
                 “[T]he McCauley court did not eschew the Miranda regime itself; instead, it
                 superimposed a state-specific right onto the existing Miranda framework. The
                 constitutional justification for the Miranda regime is police custodial interrogation.
                 Contrary to the appellate court’s conclusion, McCauley did not reject this foundation
                 by taking the police out of the equation. Accordingly, we hold that, like a suspect’s
                 Miranda rights, his McCauley right to an immediately available attorney arises only
                 during police custodial interrogation.” Supra ¶ 40.
¶ 51        I believe that the better approach to resolving this case is to point out that McCauley and
       this case are not close factually.
¶ 52        McCauley involved a situation where a defendant, though Mirandized, was interrogated
       by police without having been told that his lawyer had arrived at the station and was
       prevented from seeing him.
¶ 53        In affirming suppression of the defendant’s statements, this court rejected the argument
       that the interpretation of a defendant’s right to counsel under the Illinois Constitution must
       be in complete lockstep with the Supreme Court’s decision in Moran v. Burbine, 475 U.S.
       412 (1986). Instead, we agreed with the defendant that Burbine “represent[ed] a regressive
       interpretation of fifth amendment protections” (McCauley, 163 Ill. 2d at 421), and refused
       to apply the federal constitutional analysis developed in that case.
¶ 54        Rather, we looked to the safeguards provided to the defendant under our state
       constitution, and held that they “afforded defendant a greater degree of protection” than did
       federal law. Id. at 423. In holding that the conduct of the police violated the defendant’s state
       rights against self-incrimination and to due process (Ill. Const. 1970, art. I, §§ 2, 10), we
       underscored that “[o]ur State constitutional guarantees simply do not permit police to delude
       custodial suspects, exposed to interrogation, into falsely believing they are without
       immediately available legal counsel and to also prevent that counsel from accessing and
       assisting their clients during the interrogation.” McCauley, 163 Ill. 2d at 423-24 (citing Ill.
       Const. 1970, art. I, §§ 2, 10).
¶ 55        It is my position that the fundamental, factual differences between these two cases
       renders McCauley inapplicable here. Unlike in McCauley, where counsel arrived at the
       station while the defendant was being interrogated by two police officers and the police
       prevented the attorney from consulting with his client, in this case, when counsel arrived
       defendant was engaged in a judicially sanctioned, overheard conversation with a fellow
       inmate who was operating as an informant. Id.
¶ 56        That being said, I wish to underscore that today’s decision in no way erodes McCauley’s
       holding that the police conduct which occurred there remains a clear violation of a
       defendant’s rights under our state constitution. Indeed, this court has unanimously held that
       “the McCauley decision represents this court’s refusal to allow this state’s counterpart to the
       fifth amendment right to counsel to diminish the way the federal right had in Burbine”
       (Relsolelo v. Fisk, 198 Ill. 2d 142, 152 (2001)), and has observed that “the police conduct at

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issue [in McCauley] implicated state due process concerns” (People v. Caballes, 221 Ill. 2d
282, 301 (2006)). Accordingly, the force and effect of McCauley remains unchanged.




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