                                No. 2--05--1093          Filed: 3-30-07
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 05--CF--583
                                       )
JOSH L. WESTMORLAND,                   ) Honorable
                                       ) Timothy Q. Sheldon,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE O'MALLEY delivered the opinion of the court:

       The State appeals the judgment of the trial court granting the motion of defendant, Josh L.

Westmorland, to suppress as involuntary the statement he gave to police while in custody on March

15, 2005. We affirm, finding that defendant's statement was involuntary under the totality of the

circumstances.

                                         BACKGROUND

       Defendant, who was born on January 8, 1988, was charged with various sexual offenses that

allegedly occurred on March 6, 2005. Defendant filed a motion to suppress, asserting that his

confession to police was coerced by their threats and inducements and by their refusal of his request

to phone his mother or a lawyer prior to his interrogation. Defendant further asserted that he "did

not make a knowing and intelligent waiver of his Miranda Rights." See Miranda v. Arizona, 384

U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
No. 2--05--1093


       At the hearing on the motion to suppress, the State called Detective John Galason of the

Carpentersville police department. Galason testified that, on March 15, 2005, between 11 and 11:20

a.m., he and fellow Carpentersville detective Todd Shaver arrived at defendant's house to investigate

a complaint that defendant had sexually assaulted several girls. Both men were dressed in casual

clothes and arrived in an unmarked squad car. They knocked at the door of the home and defendant

answered. Galason told defendant that he and Shaver needed to talk with him and that he was under

arrest. Defendant did not ask why he was under arrest and Galason did not volunteer the

information. Galason testified that he had not obtained a warrant to arrest defendant. Galason also

testified that he did not inquire if defendant's parents were home and made no effort to contact them.

       Galason testified that he and Shavers placed handcuffs on defendant and drove him in their

squad car to the police station. Galason testified that he did not speak to defendant during the drive,

which took about three or four minutes. When they arrived at the police station, defendant was

released from the handcuffs and taken to the only interview room in the station. The room was about

10 feet long and 10 feet wide, had fluorescent lighting, and was furnished with a table and two bench

seats. The room had one door, which was made of metal and had a single window. The door locked

automatically from the outside when shut and a key was needed to exit the room. After defendant

was placed in the room, the detectives left him alone for about two to four minutes while Galason

retrieved his police reports, paper, and pen.

       Galason testified that, when he and Shaver returned, they sat down on the benches with

defendant. Galason sat on the same bench as defendant while Shaver sat on the other bench.

Galason testified that he read defendant his Miranda rights from a preprinted form. After affirming

that he understood the rights, defendant signed a written Miranda waiver. The waiver was completed



                                                 -2-
No. 2--05--1093


at 11:30 a.m. Galason testified that, upon finishing the waiver, "[defendant] said he wanted to talk

with his mom." Galason replied that defendant was "17 years old and he [did not] have the right to

have his mom in the room while we are talking to him." Defendant repeated his request, and

Galason repeated his reply. Galason testified that he knew at the time that defendant was 17 years

old, because he had run a LEADS check on defendant's driver's license. Galason was also aware that

defendant had been a student at a Dundee high school, but he did not believe that defendant was still

attending high school at the time.

       Galason testified that, after denying defendant's two requests to speak with his mother,

Galason said they needed to speak about a case. Galason asked if defendant knew what case Galason

had in mind, and defendant replied that it was "one of two things." Galason said, "I am pretty sure

you know what case I want to talk to you about." Defendant responded that "it's about what

happened with [N.]."1 Galason then remarked that he had spoken to the four female alleged victims

and wanted to get defendant's side of the story. Galason testified that defendant immediately began

telling his version of the events. Galason stopped defendant at various points for clarification or to

point out variances between defendant's account and those of the alleged victims. After defendant

finished with his story, Galason obtained a written statement from him. Galason testified that about

60 minutes elapsed between the beginning of the interview and the point when defendant began

writing his statement. Galason testified that the tone of the interview was "very casual" and that

defendant's physical condition was "fine."

       Galason testified that he gave defendant several options on how to produce the written

statement, and defendant chose the question/answer method, whereby Galason would ask defendant



       1
           The minor victim's initial is used to protect her privacy.

                                                 -3-
No. 2--05--1093


a question and then transcribe defendant's answer. Galason testified that this process took 30

minutes. After defendant's written statement was completed, Galason left the room and called the

State's Attorney, who authorized charges against defendant. Galason then placed defendant in a jail

cell. Defendant gave no further statements. Galason testified that the interview with defendant

lasted a total of 90 minutes.

       Galason testified that, during the course of the entire interview, defendant did not appear to

have any difficulty understanding the questions and gave intelligent answers. The interview was

"casual," and defendant did not become emotional but remained calm. Galason testified that he

asked most of the questions because he had interviewed the alleged victims and was more familiar

with the case than Shaver. Galason testified that he neither promised defendant that he would be

released if he provided a statement nor threatened that he would be incarcerated if he did not provide

a statement. Galason testified that he gave defendant a soft drink during the interview but did not

recall whether he gave him anything to eat. Defendant was also allowed to use the restroom.

Galason assumed, but could not specifically recall, that he had his firearm with him during the

interview. Galason testified that, if he did have his firearm with him, he would not have placed it

on the table in the interview room but would have kept it in its holster.

       On cross-examination, Galason reiterated that, in response to defendant's request to speak

to his mother, Galason told defendant that he did not have the right to have his mother in the room

with him during the interview. Galason did not recall whether he told defendant that defendant had

no right "to even talk to [his mother]." Galason acknowledged that he had the authority to allow

defendant's mother to be present during the interview, but stated that he "didn't want" defendant's

mother present. Galason denied that defendant ever requested to speak to an attorney before he gave



                                                 -4-
No. 2--05--1093


his statement. Galason also reiterated his denials that he made any promises or threats to defendant

in order to obtain the statement. Galason further denied that Shaver made any threats or promises

to defendant. Galason testified that he never led defendant to believe that there was a possibility that

defendant might not be charged in connection with the victims' allegations. Galason testified that,

no matter what defendant said during the interview, he had no intention of releasing defendant before

he contacted the State's Attorney regarding charges. Galason also testified that no juvenile officer

was present during defendant's interview.

       Next, the State called Shaver. Shaver confirmed Galason's account of his and Galason's

conduct toward defendant before, during, and after the interview. Significantly, Shaver testified that

the tone of the interview was "casual, laid back, mere conversation." Shaver testified that defendant

was calm during the interview. Shaver testified that neither he nor Galason made any threats or

promises to defendant in order to obtain a statement. Although Shaver testified that it was

"possible" that defendant might have been released based on what he told the detectives, Shaver

denied that either detective ever led defendant to believe that he would be released if he gave a

statement. Shaver further denied that he or Galason told defendant that they "didn't give a shit

whether [defendant] gave a statement or not" or that "they would just throw him in a cell" if

defendant did not provide a statement. Shaver testified that he kept his firearm in its holster during

the interview and never placed it on the table in the interview room. Shaver testified that, after

defendant was apprised of and waived his Miranda rights, he asked to speak with his mother.

Galason refused the request, saying "something to the effect that [defendant] was old enough to

speak with us, that [defendant] didn't need to call his mother." Shaver testified that defendant asked

only once to speak with his mother. Shaver denied that defendant asked to speak with an attorney.



                                                  -5-
No. 2--05--1093


        Following Shaver's testimony, the State rested, and defense counsel called defendant.

Defendant testified that, on March 15, 2005, he was a junior in high school and was living with his

mother and stepfather. He testified that he was home alone on that date, when Detectives Galason

and Shaver came to his home sometime between 11:30 a.m. and 12 p.m. Galason informed

defendant that he was under arrest but did not say why. Defendant was allowed to put on socks and

shoes before he left the house with the detectives. Before placing defendant in the squad car, the

detectives handcuffed him. On the way to the police station, Galason asked defendant if he knew

why he was under arrest. Defendant replied that he had a suspicion. Galason then remarked that he

had "talked to all the girls" and that defendant was "in pretty big trouble." Galason also said that

they were "going down to the police station *** to be taking this and that." Defendant testified that

he was "terrified" by these remarks.

        Defendant testified that, when they arrived at the police station, he was released from his

handcuffs and placed in a small interrogation room. The detectives left him there for about 20

minutes. He was still "very scared" when the detectives returned. Defendant noticed that both

detectives were armed with handguns. Defendant testified that he was the first to speak when the

detectives returned, and he made a request to contact either his mother or an attorney. Galason

replied, "[W]e are not going to let you do that right now. *** [I]f you don't talk to us, if you don't

cooperate, we are just going to put you in the jail cell until you do." Galason also said, "I don't really

give a shit if you go to jail or not. I just want my evidence."

        Defendant testified that Galason proceeded to advise him of his Miranda rights, and

defendant signed a waiver of those rights. Asked if he understood the right to remain silent,

defendant replied, "Yes. And I tried to remain silent but they wouldn't allow me the phone call."



                                                   -6-
No. 2--05--1093


Defendant testified that, after he signed the waiver, he made a second request to speak to his mother

or an attorney, to which Galason replied, "I am sorry. You are not going to get a phone call."

Defendant testified that Galason responded to both requests for a phone call in a raised voice.

Defendant testified that he made the requests because he wanted "to get advice as to what to do."

Defendant testified that Galason's threat to place defendant in a jail cell unless he cooperated led him

to believe that, if he gave a statement, he would be released. Defendant admitted, however, that

neither detective expressly told him that he would be released if he made a statement.

       Defendant testified that he proceeded to give a statement because he was "scared," "didn't

think [he] had a choice in the matter," and "didn't know what to do." Defendant testified that, though

he was frightened, he did not cry during the interview. Defendant admitted that he never told the

officers that he did not want to speak to them. After he gave the statement, defendant was allowed

a phone call, and he phoned his mother. Defendant testified that the interview lasted a total of 90

minutes, exclusive of the 20 minutes he spent alone in the interrogation room. Defendant was given

a soft drink and allowed to use the bathroom during the interview. Defendant testified that he had

never been arrested before that day.

       Prior to the arguments of the parties, the trial court remarked that it felt it "important" to

describe defendant's physical characteristics for the record:

       "I know that he is 17 year [sic] old. He appears not to be a very mature 17. He strikes the

       court as being somewhat immature, a little bit pudgy with rosy cheeks. He does not look like

       a mature high school senior, some of which are already growing beards and muscular.

               *** [Defendant] does not appear to be physically mature."




                                                  -7-
No. 2--05--1093


        Following the arguments of the parties, the trial court again referenced defendant's physical

makeup and now contrasted it with that of Detective Galason:

                "The Court observed that Detective Galason was a very imposing figure. He is well

        over six feet tall. He is well over 200 pounds. He has a military-style crew cut haircut. He

        is physically fit and muscular. He appears as a dominant personality.

                The Court observed that the Defendant *** as [sic] an immature boy. He is pudgy.

        He is rosy cheeked. He is under six feet tall. He is wide-eyed. He appears frightened. He

        has no noticeable facial hair."

        The trial court determined that defendant's confession was involuntary. After summarizing

the testimony of each of the three witnesses, the trial court noted that the voluntariness of a

defendant's confession is to be evaluated under the totality of the circumstances. See In re J.J.C., 294

Ill. App. 3d 227, 234-35 (1998). The trial court quoted this court's comment in J.J.C. that "[t]he

presence or absence of a parent is a factor to consider when determining the voluntariness of a

confession." J.J.C., 294 Ill. App. 3d at 235.

        The trial court then set forth its findings of fact. With respect to the credibility of the

witnesses and the consistency of their testimony, the trial court remarked:

        "All the witnesses appear to be credible witnesses. The testimony of the three witnesses is

        consistent with the exception that the Defendant requested the right to speak to an attorney.

        The detective testified Defendant appeared calm. The Defendant testified that he was

        scared."

        The trial court then made the following findings corresponding to the various factors of the

voluntariness test:



                                                  -8-
No. 2--05--1093


             "Age. In this case the Defendant was only two months past age 16, and he was

      almost a juvenile.

             Education. He testified that he was halfway through his junior year of high school.

      He appears intelligent. The duration of questioning was one-and-one-half hours. He was

      given his constitutional rights.

             Physical punishment. He was handcuffed in the car and was abandoned in the

      interrogation room.

             Deception. He was under the impression that maybe if he cooperated, he would get

      to go home.

             Threats. The officer said to him, 'I don't give a shit if you go to jail or not.'

             Was his confession given freely? The Court would believe no.

             Was it given without inducement? He was in the mental framework that maybe he

      could go home and the charges would go away if he talked to the police.

             Was his will overcome? Yes.

             Mental ability appears to be no problem.

             English language. He speaks plain English.

             He has prior experience with the criminal law? None.

             Condition and surroundings of the interview area. There were two policemen and the

      Defendant in a closed off room. The door was closed and locked. There was only one small

      window and the door.

             The condition of the interrogators.       At least Detective Galason was big and

      intimidating. He had his weapon on and he raised his voice.



                                                -9-
No. 2--05--1093


             Alcohol, drugs or medication. None.

             Emotional state of the Defendant was scared.

             Mental state of the Defendant was terrified. He wanted his mother.

             The issues answered in this case are:

             (1) The Court finds that the State proved by a preponderance of the evidence that

      Defendant did not request permission to speak to an attorney. Both detectives said he never

      requested permission to speak to an attorney. The Court doubts that in the Defendant's

      youthful naivete, [sic] the sophistication or knowledge to request an attorney.

             (2) The Court finds that the Carpentersville police coerced the Defendant into giving

      a statement. He was intimidated. He was denied the right to call his mother. It was the

      Defendant's youthful fantasy that he would be allowed to leave if he talked. It was the

      Defendant's youthful fantasy that the charges would go away if he talked, and the detectives

      wouldn't raise their voices if he talked.

             (3) The Court finds that Defendant's will was overborne by the Carpentersville

             Police

      Department. The Defendant was only two months past age 16. He is a very immature 17-

      year-old. There were policemen with guns. The call to his mother was refused. The officers

      raised their voices. He was alone with the two officers in a very small room. The one officer

      was a big, military-type interrogator.

             The Defendant had no prior criminal law experience. The Defendant in his youthful




                                                  -10-
No. 2--05--1093


        fantasy thought he could go home if he cooperated. The Defendant in his youthful fantasy

        thought that the charges would go away when he cooperated. The psychological dominance

        was evident in this case.

                (4) The Court finds that Defendant did not knowingly, intelligently and voluntarily

        waive his right to remain silent.

                Considering all the factors and the totality of the circumstances, the Court finds that

        statement to be in violation of the Defendant's constitutional right to remain silent.

        Therefore, the motion to suppress statement is granted."

The State filed a certificate of impairment and a timely notice of appeal.

                                             ANALYSIS

        We apply a bifurcated standard of review to a trial court's decision as to whether a defendant's

confession was voluntary. We accord great deference to the trial court's findings of fact and will

disturb them only if they are against the manifest weight of the evidence. In re G.O., 191 Ill. 2d 37,

50 (2000). However, we review de novo the ultimate question of whether the confession was

voluntary. G.O., 191 Ill. 2d at 50.

        The due process clause of the fourteenth amendment provides that no State shall "deprive any

person of life, liberty, or property, without due process of law" (U.S. Const., amend. XIV). The

United States Supreme Court has held that by virtue of the clause, "certain interrogation techniques,

either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive

to a civilized system of justice that they must be condemned." Miller v. Fenton, 474 U.S. 104, 109,

88 L. Ed. 2d 405, 410, 106 S. Ct. 445, 449 (1985). "In addition to these Federal voluntariness

principles, a confession must also be voluntary in a State-law sense." People v. Scott, 148 Ill. 2d



                                                  -11-
No. 2--05--1093


479, 509 (1992). Under federal law, a confession is voluntary unless it is causally connected to

coercive police conduct (see Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515

(1986)), but under Illinois law, a confession may be deemed involuntary in the absence of police

misconduct, based entirely on the defendant's personal characteristics (see People v. Bernasco, 138

Ill. 2d 349, 368 (1990) (confession involuntary because of defendant's subnormal intelligence)).

Thus, "the issue of whether the confession is coerced for Federal constitutional purposes differs from

the issue of whether the statement was voluntary." People v. Rogers, 246 Ill. App. 3d 105, 113

(1993). In determining whether a confession was voluntary, courts consider the totality of the

circumstances. G.O., 191 Ill. 2d at 54. Relevant factors include: (1) the personal characteristics of

the defendant, such as his age, education, intelligence, prior experience with the criminal justice

system, and physical and emotional condition at the time of the questioning; (2) the legality and

duration of the questioning, including any Miranda advisory; and (3) any physical or mental abuse,

threats, or promises by the police. J.J.C., 294 Ill. App. 3d at 234.

       No single factor is determinative. J.J.C., 294 Ill. App. 3d at 234. The factors must be applied

in light of the following general principles:

       "The test for voluntariness is not whether the accused wanted to confess or would have

       confessed in the absence of interrogation. Suspects typically do not confess to the police

       purely of their own accord, without any questioning. [Citation.] Rather, the test of

       voluntariness is whether the defendant made the statements freely, voluntarily, and without

       compulsion or inducement of any sort, or whether the defendant's will was overcome at the

       time he or she confessed." People v. Gilliam, 172 Ill. 2d 484, 500 (1996).




                                                -12-
No. 2--05--1093


The State must prove by a preponderance of the evidence that the defendant's confession was

voluntary. People v. Braggs, 209 Ill. 2d 492, 505 (2003).

        Before engaging in the voluntariness inquiry, we must first address some aspects of the trial

court's factual findings. Neither party questions any of those findings, but there are some perplexities

in them just the same. The first concerns the trial court's general findings of credibility. The trial

court found all three witnesses credible yet also identified conflicts between the detectives and

defendant over whether defendant requested an attorney during the interrogation and whether he was

"calm" or "scared" during the interview. Obviously, not all the witnesses could have been credible

on these points, and so the trial court's general credibility finding must be read as qualified. The trial

court implicitly resolved the foregoing conflicts, finding that defendant was "scared" during the

interview but that he did not ask for an attorney at any point.

        There also appears to be a tension between certain of the trial court's implied findings. The

detectives disagreed with defendant over whether Galason threatened to incarcerate defendant if he

did not provide a statement. In the portion of its findings labeled "Threats," the trial court did not

find that this threat occurred, but did find that Galason raised his voice to defendant and said, "I don't

give a shit if you go to jail or not." In the section labeled "Deception," the trial court found that

defendant believed he would be released if he gave a statement. Defendant, however, testified that

this belief was an inference from the threat of incarceration that he claimed Galason made. Yet, as

just noted, the trial court implicitly found that Galason did not make this threat. We need not

attribute an inconsistency to the trial court, however. Rather, we may presume that the trial court

found that defendant believed he would be released if he gave a statement, and also found that this

belief did not arise from any threat of incarceration by Galason, because Galason made no such

                                                  -13-
No. 2--05--1093


threat. There remains, however, the oddity of the trial court attributing defendant's belief to

"Deception" without identifying what deceptive conduct by the police might have led to this belief.

Elsewhere in its findings, the trial court referred to this belief as a "youthful fantasy," implying that

it had its genesis entirely in defendant's own mind. Indeed, none of the witnesses testified to any

kind of deceptive conduct, and defendant never claimed that the detectives told him he would be

released if he gave a statement.

       The last point we must address regarding the trial court's factual findings concerns the various

specific remarks that defendant claims Galason made in the squad car and during the interview. The

only such remark that the trial court referenced in its findings was the comment, "I don't give a shit

if you go to jail or not." The remainder of the alleged remarks are not critical to the trial court's

decision, so we assume that the court implicitly found that Galason did not make them.

       Applying the relevant factors to the facts as found by the trial court, we conclude that the

State did not prove by a preponderance of the evidence that defendant gave his statement voluntarily.

Some of defendant's personal characteristics at the time of the questioning weigh in favor of

admissibility. Though, at 17 years of age, defendant was young, he was nearly the age of majority,

which in Illinois is 18 years of age (755 ILCS 5/11--1 (West 2004)). See People v. Primm, 319 Ill.

App. 3d 411, 419 (2000) (relevant for voluntariness inquiry that defendant was 16 years old and thus

had "nearly reached majority age"). Moreover, defendant was intelligent, had normal mental

capacity, and was not under the influence of alcohol or drugs or suffering from any physical or

emotional infirmities when he was taken into custody. Defendant became "scared" while in custody,

but this hardly distinguishes him from the general run of arrestees. (Of course, defendant's claim that

these emotions were the result of oppressive tactics by the detectives is a separate issue, which we

                                                 -14-
No. 2--05--1093


take up below.) Defendant's lack of experience with the criminal justice system also fails to

distinguish him in any significant way. A defendant can compensate for a lack of such experience

with his natural gifts, such as intelligence, which can assist him in handling a novel situation. The

trial court found defendant to be intelligent, and our review of his testimony confirms this judgment.



       There are, however, aspects of defendant's personal makeup that weigh in favor of

inadmissibility. The trial court found defendant "not to be a very mature 17," but to be "somewhat

immature."    The court described him as "wide-eyed," "frightened," and "pudgy."               These

characteristics suggest vulnerability, and the impact of any pressure by the police must be measured

with them in mind.

       Next, we consider the nature of the custody and interrogation. The trial court found that

defendant was subjected to "physical punishment" in that he was handcuffed on the way to the police

station and then "abandoned" in the interrogation room. The detectives did not testify why they

handcuffed defendant, but given that they released him from the handcuffs upon arriving at the

station, it appears that the restraints were a safety precaution rather than a means of coercion or

"physical punishment." We recognize, nonetheless, the psychological impact that the handcuffing

may well have had on defendant, given his youth and lack of experience with the criminal justice

system. However, the handcuffing is not dispositive of the voluntariness inquiry, but is just one of

several circumstances that we must consider. Other aspects of the interview indicate that defendant

was decently treated: he was given a soft drink and allowed to use the restroom. The detectives

were armed during the interview, but kept their guns in their holsters.




                                                -15-
No. 2--05--1093


        Additionally, the interview lasted a total of 90 minutes, which was not an unreasonable

length of time. The trial court found that defendant was "abandoned" in the interrogation room, but

the court did not address the conflict in the testimony over how much time he spent alone in the

room. Defendant testified that he was left alone for 20 minutes, but Galason claimed it was between

2 and 4 minutes. Even if we assume that the trial court believed defendant, we cannot consider 20

minutes spent alone in an interview room tantamount to an "abandonment." Moreover, because the

trial court apparently did not reject Galason's claim that he used the time to gather materials for the

interview, we do not see what basis the trial court might have had for considering it a means of

"physical punishment."

        There were, however, some quite unsettling aspects of the interrogation. The officers made

no attempt to locate defendant's parents when they arrested him and also denied his two requests

during the interview to speak to his mother. Defendant was "immature" for his age and "wide-eyed."

With defendant already vulnerable from the complete denial of parental contact, Galason raised his

voice during the interview and said, "I don't give a shit if you go to jail or not." This was the conduct

that, in the trial court's words, "terrified" defendant. Under the totality of the circumstances, which

encompass both defendant's individual psychological makeup as well as the officers' conduct, we

agree with the trial court that defendant's will was overborne.

        The State argues that it is improper for us to consider the "parental factor," as we call it for

now. The State refers to section 5--405 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5--

405 (West 2002)). Subsection (2) of that section provides:

                "A law enforcement officer who arrests a minor without a warrant *** shall, if the

        minor is not released, immediately make a reasonable attempt to notify the parent or other

                                                  -16-
No. 2--05--1093


       person legally responsible for the minor's care or the person with whom the minor resides that

       the minor has been arrested and where the minor is being held."

"The purpose of the notice requirement is to permit, where possible, a parent to confer and counsel

with the juvenile before interrogation." People v. Williams, 324 Ill. App. 3d 419, 429 (2001). As

the State notes, section 5--405 and the other "procedures *** for the investigation, arrest and

prosecution of juvenile offenders shall not apply to minors who are excluded from jurisdiction of

the Juvenile Court." 705 ILCS 405/5--130 (West 2002). Defendant does not fall under the Act

because he was over 17 years of age when he committed the alleged offenses. See 705 ILCS 405/5--

120 (West 2002) ("Proceedings may be instituted under the provisions of this Article concerning any

minor who prior to the minor's 17th birthday has violated or attempted to violate, regardless of where

the act occurred, any federal or State law or municipal or county ordinance").

       The Act, however, does not restrict the factors to be considered under the common-

law/constitutional voluntariness inquiry, which, after all, encompasses the totality of the

circumstances. Courts applying the voluntariness test have long recognized a factor similar in

content to section 5--405(2) but grounded in common-law/constitutional sources rather than

statutory authority. The early cases address the situation where a parent of the defendant was

foreclosed from consulting with the defendant during a police interview. Examples include People

v. Hopkins, 247 Ill. App. 3d 951 (1992), vacated on other grounds, 151 Ill. 2d 570 (1993); People

v. Starling, 64 Ill. App. 3d 671 (1978); People v. Smith, 56 Ill. 2d 328 (1974); and People v. Pierre,

114 Ill. App. 2d 283 (1969).

       In Pierre, the earliest in this line of cases, the police phoned the defendant's mother and made

some inquiries about him. They told the mother that the defendant was a witness to a killing. This

                                                -17-
No. 2--05--1093


was a pretext, because the police were in fact investigating the defendant for rape. Two weeks later,

the police summoned the defendant, who was 17 years old, to the police station. His mother

accompanied him. When they arrived, they were escorted to an interrogation room but the mother

was asked to leave. After the defendant waited in the room for about two hours, the police entered

and began questioning him. During the interview, which lasted about 20 minutes, the defendant

asked to see his mother but was refused. The defendant gave incriminating statements during the

interview. He later moved to suppress the statements, but the trial court denied the motion. On

appeal, the defendant argued that the statements should have been excluded because "the failure of

the police to allow him to see his mother after his request rendered all subsequent statements

inadmissible," and, alternatively, because the statements "were coerced and involuntary." Pierre, 114

Ill. App. 2d at 290. In support of the first argument, the defendant cited cases construing the right

to counsel under the sixth amendment (U.S. Const., amend. VI). The court rejected this argument:

       "The constitution affords no right to the presence of anyone other than a lawyer trained to

       protect the legal rights of those accused. While the presence or absence of a parent during

       the interrogation of a minor suspect may be a factor affecting the voluntariness of a

       confession, there is no constitutional right to the presence of a parent." (Emphasis added.)

       Pierre, 114 Ill. App. 2d at 291.

The court also rejected the defendant's claim that his statements were involuntary. The court noted

that, though the defendant was only 17 years old and had no criminal history, the interrogation was

relatively brief, he was not subjected to psychological or physical coercion or "deprived of any

necessities," and the deception that the police had employed to get the defendant and his mother to

the police station "had no coercive effect in obtaining a subsequent statement from defendant."

                                                -18-
No. 2--05--1093


Pierre, 114 Ill. App. 2d at 292. Interestingly, though the court previously recognized the parental

factor as having potential relevance to the voluntariness inquiry, it did not actually mention the factor

in its voluntariness analysis.

        The parental factor was, however, given vigor in Starling. The defendant, who was 18 years

old, was awakened in his home at 5:30 a.m. by the police, who arrested him for burglary. As the

police were advising the defendant of his Miranda rights at the police station, his father entered the

room and told him not to say anything to the police until he had an attorney. The defendant nodded

his head and said, "Okay." The police then asked the father to leave the room, and he did. The

police continued to question the defendant, at one point telling him "that he might as well tell

everything he knew because [they] knew that he was involved in the incident." Starling, 64 Ill. App.

3d at 675. The defendant gave a written statement, which he later moved to suppress on the ground

that it was involuntary under the totality of the circumstances. The trial court granted the motion,

and the appellate court affirmed. The court noted that the defendant was young, had no prior

experience with the criminal justice system, had been awakened early in the morning following a

night of drinking and only a few hours of sleep, and typically had difficulty awakening when tired.

The court also found that the police created a vulnerable situation for the defendant by expelling his

father from the interview room and subsequently exploited that vulnerability by encouraging the

defendant to "tell everything he knew because [they] knew that he was involved in the incident."

Starling, 64 Ill. App. 3d at 675. The court held that the police's behavior undermined the effect of

the prior Miranda advisory, a factor relevant to the voluntariness inquiry. See J.J.C., 294 Ill. App.

3d at 234. The court held that, though a defendant has no fifth amendment right (U.S. Const.,

amend. V) "to the presence of a parent during interrogation," "ejection of [the defendant's] father

                                                  -19-
No. 2--05--1093


after the warning about consulting an attorney could well have signaled to the defendant that to have

asserted his right to remain silent would have been futile for the officer was determined to obtain a

confession." Starling, 64 Ill. App. 3d at 675.

       In Smith, the 19-year-old defendant was arrested for aggravated battery. While in custody,

he called his father and asked him to provide bail. When the father arrived at the police station, the

police informed him that he could not yet post bail because the investigation was still pending.

When the father returned several hours later, he was informed that the defendant was charged with

murder, a nonbailable offense. Several hours later, after the defendant provided oral and written

statements, he was allowed to see his father. Smith, 56 Ill. 2d at 332. The defendant moved to

suppress the statements on the ground that they were made "before he had an opportunity to consult

with his father." Smith, 56 Ill. 2d at 331. The trial court denied the motion, and the supreme court

affirmed, reasoning:

:      "The defendant did not ask to see his father until after he had made an oral confession at

       about 6:30 P.M., and it is undisputed that the officers attempted to reach him by telephone,

       but were unable to do so immediately. As a result of their efforts, however, the defendant's

       father arrived at about 8:00 P.M. while the written confession was being taken by an assistant

       State's Attorney. He was not allowed to talk to the defendant until that statement was

       completed. In our opinion the absence of the defendant's father did not render his confession

       involuntary." Smith, 56 Ill. 2d at 332.

The defendant also claimed that, before he confessed, one of the officers said he " 'would be taken

downstairs' " if he did not give a statement, and the officers assured him that a confession could not

be used against him unless he signed it. Smith, 56 Ill. 2d at 332. The court discounted these

                                                 -20-
No. 2--05--1093


accusations because the police denied them and the defendant's father testified that his son did not

complain about the way the police had treated him. Smith, 56 Ill. 2d at 332.

        In Hopkins, the 17-year-old defendant was in custody for approximately 20 hours before

giving a written confession. During his detention, the defendant's mother arrived but was not

allowed to see him. The defendant moved to suppress his confession as involuntary. The appellate

court upheld the denial of the motion. As for the significant length of the detention, the court noted

that "[c]onfessions made after long periods of detention have been found to have been voluntary"

and also that "defendant was not subjected to long interviews, but was instead questioned for brief

intervals with long rest periods between those interviews." Hopkins, 247 Ill. App. 3d at 961. The

court also noted that the defendant was given food and drink and was allowed to use the restroom.

The court further determined that there was "ample evidence that defendant was not physically or

psychologically abused prior to making his confession." Hopkins, 247 Ill. App. 3d at 961. Though

the defendant claimed that he gave his written statement only after being beaten by police, who

bloodied his nose, he admitted that a photograph taken before he gave his written statement showed

no signs that his nose was swollen or bleeding. The court also noted that the officers denied beating

him or making any attempt "to overpower [his] will prior to his confession," and that an assistant

State's Attorney, who had asked the defendant in private whether he had been treated well by the

police, testified that the defendant made no complaints. Hopkins, 247 Ill. App. 3d at 962. As for

the refusal by the police to let the defendant's mother see him, the court explained that "the presence

or absence of a parent is only one factor in determining whether a confession was voluntary within

the totality of the circumstances" and "[i]n Illinois, a juvenile does not have a per se right to consult

with a parent before or during police questioning." Hopkins, 247 Ill. App. 3d at 962.

                                                  -21-
No. 2--05--1093


       This line of cases is remarkable in two respects. For one, there is a demonstrable evolution

of the parental factor from Pierre through Hopkins. In Pierre, the factor is recognized in a passing

and noncommittal manner and does not figure explicitly in the court's voluntariness analysis. In

Starling, the factor is given force but its nature is left somewhat unclear, because the court's

voluntariness inquiry seems to merge with a Miranda analysis. However, in Smith and Hopkins, the

factor emerges as a full-fledged consideration in the voluntariness analysis. It is also notable that

none of these cases mentions section 5--405(2) of the Act or its predecessors; rather, they derive the

parental factor from common-law or constitutional considerations.

       The existence of a nonstatutory parental factor running parallel to, yet independent of, section

5--405 and its predecessors explains why even some more recent cases examining the voluntariness

of confessions from "juveniles" who are subject to the Act do not allude to section 5--405 or its

predecessors in stating or applying the parental factor. See, e.g., G.O., 191 Ill. 2d at 54-55; J.J.C.,

294 Ill. App. 3d at 235. The supreme court's remarks in G.O., a 2000 case, are especially revealing

on this point:

                 "[W]e have recognized that the taking of a juvenile's confession is 'a sensitive

       concern.' [Citation.] Because of this, the 'greatest care' must be taken to assure that the

       confession was not coerced or suggested and that ' "it was not the product of ignorance of

       rights or of adolescent fantasy, fright or despair." ' [Citations.] Because of this concern, the

       appellate court has also recognized an additional factor that is not present in cases involving

       adults. This factor, commonly known as the 'concerned adult' factor, considers whether the

       juvenile, either before or during the interrogation, had an opportunity to consult with an adult

       interested in his welfare. [Citations.] Other facets to this factor include whether the police

                                                 -22-
No. 2--05--1093


       prevented the juvenile from conferring with a concerned adult and whether the police

       frustrated the parents' attempt to confer with the juvenile." G.O., 191 Ill. 2d at 54-55.

The court, interestingly, does not even cite section 5--405 here but instead appears to credit the

appellate court with the development of the parental factor, which by the time of G.O. has evolved

into the "concerned adult" factor. That is, the presence of a juvenile officer may now compensate

for the absence of a parent. See In re A.R., 295 Ill. App. 3d 527, 533 (1998). We think it is entirely

appropriate for courts to apply the "concerned adult" factor to confessions from individuals who are

not "minors" subject to the Act. As we stated above, the Act does not limit the factors courts may

consider under the common-law/constitutional voluntariness test.

       Notably, the nonstatutory manifestation of the concerned adult factor lacks the strict age-

based restrictions of its section 5--405(2) counterpart and is applied without regard to the age of the

defendant at the time of the alleged crime. The defendant in Smith, for instance, was quite obviously

over 17 when he committed the offense. An interesting consequence of the Act is that if the accused

commits a crime the day he turns 17, the police have no obligation under the Act to attempt to notify

a parent or other concerned adult that the accused has been arrested, and in fact may affirmatively

hinder such a third party from contacting the accused. If, however, the crime was committed just

one day before, the Act not only bars the police from frustrating the efforts of a parent or other

concerned adult to speak with the accused, but also obligates them to take affirmative steps to notify

a parent or concerned adult of the arrest. Under the nonstatutory voluntariness test, the applicability

of the concerned adult factor does not hinge on the span of a day in an individual's teenage years,

because teenagers do not mature in the span of a day. The more fluid limits of the nonstatutory




                                                 -23-
No. 2--05--1093


concerned adult factor jibe with the fact-specific nature of the voluntariness test, and with the reality

that persons mature at more varying rates during teenage years than perhaps any other period of life.

        With these considerations in mind, we compare the above cases with the present case. In

Pierre, Hopkins, and Smith, the court found that the confession was voluntary even though the

defendant was not allowed to speak to a parent during the interrogation. These cases are all readily

distinguishable from the present case. First, and most generally, in none of these cases did the trial

court remark upon the psychological maturity of the defendant, but here the trial court expressly

found that defendant was immature for his 17 years of age.

        There are other differences as well. In Smith, there was no evidence of any pressure applied

to the defendant, apart from the denial of parental contact. Here, not only was defendant two years

younger than the defendant in Smith, but the trial court expressly found that there was coercive effect

to Galason's raising his voice and saying, "I don't give a shit if you go to jail or not." In Pierre, the

police did employ a measure apart from the denial of parental contact, in that they deceived the

defendant and his mother about the nature of their investigation. Although the appellate court's

opinion did not describe any of the trial court's factual findings, it is reasonable to presume that the

appellate court was relying on an express or implied finding by the trial court when it concluded that

the deception had no coercive impact on the defendant. Here, by contrast, there was a finding of

coercion apart from the denial of parental contact. Additionally, in Pierre the mother accompanied

the defendant to the station. Here, defendant was not afforded such company nor did the police make

any effort to contact his parents.

        As for Hopkins, the appellate court specifically noted that there was "ample evidence that

defendant was not physically or psychologically abused prior to making his confession" (Hopkins,

                                                  -24-
No. 2--05--1093


247 Ill. App. 3d at 961). The court also found that the length of the detention was ameliorated by

the sporadic nature of the interrogation. Hopkins is distinguishable because here the trial court made

a specific finding of psychological coercion, and therefore the detention, though much briefer than

that in Hopkins, was arguably more intense.

       Starling is the only case in the Pierre-Hopkins line where the trial court suppressed the

defendant's confession. Defendant suggests that, just as in Starling "the ejection of [the defendant's]

father from the room signaled to the defendant that resistance to the police would be futile," so here

the refusal by the police to grant defendant's two requests to contact his mother led him to "fe[el] it

useless to resist the police." Notably, defendant was the same age as the defendant in Starling, but

the difference is that defendant was found to be psychologically immature for his age. It may be a

matter for debate how the impact of depriving a 17-year-old of all parental contact compares to

affording him the comfort of a parent's presence for a time only to take it away abruptly. Even if the

tactic used in Starling should be considered more egregious, we think the impact here was at least

equal, given defendant's maturity level.

       The present case is also similar to In re V.L.T., 292 Ill. App. 3d 728 (1997), and People v.

Knox, 186 Ill. App. 3d 808 (1989). In V.L.T., the 10-year-old respondent was interviewed twice

within a 12-hour period. She was first brought to the station for questioning at 10 p.m. Her

grandmother followed her to the station. The respondent asked to see her grandmother during the

interview, but the police refused. About 3½ hours later, after she had given some statements that

were not recorded, the respondent was allowed to see her grandmother. In the early morning hours,

the respondent was released into the grandmother's care. During their time together, the grandmother

advised the respondent to tell the truth. A few hours later, at 12 p.m., the respondent was awakened

                                                 -25-
No. 2--05--1093


in her home by the police and, before she could change out of her pajamas, was brought back to the

station for further questioning. The respondent asked again to speak to her grandmother, and the

police replied that they would call the grandmother after the interview. The police never did call the

grandmother. The respondent was read her Miranda rights and waived them. After about 20 minutes

of questioning, during which time a juvenile officer was present, the respondent gave a written

confession. She had not eaten since the prior morning. V.L.T., 292 Ill. App. 3d at 729-34.

       The appellate court held that the respondent's confession was involuntary. The foremost

consideration for the court was the police's failure to honor the respondent's request to contact her

grandmother during her second interview:

               "[W]e conclude that the trial court improperly denied respondent's motion to suppress

       her statement. We find that the absence of an adult interested in respondent's welfare, such

       as her grandmother, especially after respondent asked for her grandmother, contributed

       significantly to the coerciveness of the circumstances surrounding the confession.

       [Citations.] In addition, since respondent had little prior contact with the police, there is no

       indication that she recognized the significance of the position of a juvenile officer or took

       any special comfort in one's presence. Furthermore, the record establishes that much of the

       police officers' conduct, particularly in rushing respondent to the station and keeping her

       separate from her grandmother, suggests the police attempted to coerce a confession from

       a very young and vulnerable suspect without consideration for her general welfare.

               Other factors making up the totality of the circumstances include respondent's

       lengthy detention within the preceding 12-hour period, respondent's lack of any meaningful

       rest prior to the Sunday session, and the fact that respondent had little, if any, opportunity to

                                                 -26-
No. 2--05--1093


       eat prior to the time she wrote her confession. Unquestionably, respondent was a child of

       extreme youth, tired, hungry, frightened, and, most likely, humiliated to be wearing her

       pajamas in a police station while being questioned by adult authority figures. The coercive

       potential of questioning her under these circumstances is obvious." V.L.T., 292 Ill. App. 3d

       at 737.

The court concluded:

                 "When all of these factors are combined with the fact that respondent's grandmother,

       or someone truly interested in her welfare, should have been present and able to confer with

       her before she wrote her confession in light of her request [citation], it is clear that the police

       failed to exercise the proper care to ensure that respondent's statement was not coerced."

       V.L.T., 292 Ill. App. 3d at 737.

       In Knox, the 15-year-old defendant was arrested in his home. Also at home were the

defendant's father and the defendant's four younger siblings. His mother was at a restaurant. After

arresting the defendant, the police told the defendant's father that he was allowed to accompany the

defendant to the police station. However, the father was not able to leave the house because he was

looking after the defendant's younger siblings. The defendant's mother arrived home later and was

told of the arrest. At the station, the police interviewed the defendant for about 45 minutes. About

15 minutes into the interview, the defendant's mother arrived at the station but was told by a

detective at the front desk that she was not allowed to see the defendant. After the interview, the

detectives spoke to an assistant State's Attorney, who then came to the station. The defendant was

interviewed again for about 15 to 20 minutes, during which time he gave a confession. The

defendant's two interviews lasted about an hour combined, but he was at the police station for nearly

                                                  -27-
No. 2--05--1093


five hours. He was read his Miranda rights before each interview, but no juvenile officer was present

during either interview. The defendant did not ask to see his mother during his time at the police

station. Thomas Skol, one of the detectives who interviewed the defendant, testified that he did not

recall whether the defendant's mother arrived at the police station during the interviews, but Skol

agreed that she might have been there. Skol also testified that he did not inquire at the front desk

whether anyone had come to see the defendant. Knox, 186 Ill. App. 3d at 809-12.

       The appellate court held that the defendant's confession was involuntary. The court was "not

satisfied that the requisite care was exercised to assure defendant's statement was not [sic] free of

compulsion." Knox, 186 Ill. App. 3d at 813. The court noted that it was "most concerned that

defendant's statement was made before defendant had an opportunity to confer, prior to questioning,

with an adult interested in his welfare, either his parents or a juvenile officer." Knox, 186 Ill. App.

3d at 813. The court found that the police's offer to allow the defendant's father to accompany him

to the station was "empty" because the father's child-care obligations did not permit him to leave the

home. The court also found that "the police contributed significantly to eliminating any opportunity

defendant had from [sic] speaking to his mother at the police station." Knox, 186 Ill. App. 3d at 813.

The court acknowledged that there was a factual dispute over whether the detectives who

interviewed the defendant were aware that his mother had come to the station. However, the court

found that, even if the police did not intentionally keep the defendant from his mother, they still

failed to exercise "the great care required where a juvenile's incriminating statement is received."

Knox, 186 Ill. App. 3d at 814. The court said:

       "At worst, the police purposely precluded defendant's mother from contact with defendant

       by neglecting to see if defendant's mother had arrived until after such time as defendant had

                                                 -28-
No. 2--05--1093


       completed his confession. At best, the police simply subjected defendant to the same routine

       questioning of a criminal suspect without special regard for his youth. Either scenario is

       impermissible and casts some doubt over the voluntariness of defendant's statement." Knox,

       186 Ill. App. 3d at 814.

       The court found that the failure of the police to have a juvenile officer present during the

interviews compounded the problem:

       "That failure, in view of the failure to permit defendant's mother an opportunity to see her

       son at the police station, deprived defendant of his only chance to consult with any adult

       interested in his welfare prior to making a statement. Such is not the type of sensitivity to

       be accorded to receipt of a minor's statement." Knox, 186 Ill. App. 3d at 816.

       Of course, there are factual differences between these two cases and the case at bar. V.L.T.

is the more different of the two but still carries much force here. Though we cannot discount the age

difference between the respondent in V.L.T. (10 years) and defendant (17 years), we note the trial

court's finding that defendant was "immature" for his age and "wide-eyed." Also, though defendant

was not subjected to the humiliation or physical deprivation suffered by the respondent in V.L.T.,

the trial court did specifically find that defendant was "terrified" during the interview. Indeed, there

was evidence of coercion here that was not present in Knox or V.L.T. In neither of those cases was

there a suggestion that the demeanor of the police contributed to the pressure on the minor, but here

the trial court specifically found that Galason's conduct "terrified" defendant.

       Also, defendant had no opportunity to consult with a parent or other concerned adult before

his interview, unlike the respondent in V.L.T., who spoke with her grandmother between her two

interviews, the latter of which included her written confession. Of course, unlike in V.L.T. and

                                                 -29-
No. 2--05--1093


Knox, there was no police frustration of a concerned adult's attempt to contact defendant, but neither

did the police make any effort to notify defendant's parents that he had been arrested. In V.L.T., the

absence of the respondent's grandmother at the respondent's second interview was material in

evaluating the voluntariness of her confession at the interview, even though the grandmother did not

attempt to contact the respondent before or during the interview. Likewise, the court in Knox held

that, even if the police were ignorant of the mother's presence at the police station during the

interview, they nonetheless failed to show "the great care required where a juvenile's incriminating

statement is received." Knox, 186 Ill. App. 3d at 814.

       In G.O., our supreme court said that "a juvenile's confession should not be suppressed simply

because he was denied the opportunity to confer with a parent or other concerned adult before or

during the interrogation." G.O., 191 Ill. 2d at 55. V.L.T. and Knox, however, illustrate that courts

place an emphasis on the "concerned adult" factor where the police fail to honor a minor's request

to speak to a parent before or during an interview or where the police are indifferent to or

intentionally frustrate a parent's own efforts to contact the minor. See People v. Morgan, 197 Ill. 2d

404, 440 (2001) ("The 'concerned adult' factor is particularly relevant in situations where a juvenile

has demonstrated trouble understanding the interrogation process, has asked to speak with either his

parents or a concerned adult, or where the police have prevented the juvenile's parents from speaking

with him (emphasis added)).

       Here, the police refused defendant's two requests to contact his mother and made no effort

themselves to contact defendant's parents before or during the interview. As in Knox, there was no

juvenile officer present during the interview to offset the absence of a parent. We recognize that

defendant was given Miranda warnings and did not receive any promises or threats. The same,

                                                -30-
No. 2--05--1093


however, was true of the respondent in V.L.T. and the defendant in Knox, but in neither case did this

fact override the coercion that the court found in the remaining circumstances. Likewise, the

provision of Miranda warnings and the absence of promises or overt threats did not ameliorate the

pressure brought to bear on defendant, a 17-year-old who was "immature" for his age and became

"terrified" while in custody when his two specific requests to contact a parent were refused and when

Galason raised his voice to him and said, "I don't give a shit if you go to jail or not."

       Considering the totality of the circumstances, we conclude that the State did not prove by a

preponderance of the evidence that defendant's confession was voluntary.

       For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

       Affirmed.

       GROMETER, P.J., and CALLUM, J., concur.




                                                 -31-
