Find Legal Information

Docket No. 88323-Agenda 16-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SAMUEL VILLALOBOS, Appellant.

Opinion filed September 21, 2000.

JUSTICE McMORROW delivered the opinion of the court:

At issue in this appeal is whether the defendant, SamuelVillalobos, invoked his fifth amendment right to counsel pursuantto Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.1602 (1966), by filing a form at a bond hearing that stateddefendant would not participate in "any questioning, identificationprocess or other procedures on any case or matter" without hiscounsel present. The appellate court concluded that he did not. No.1-96-1139 (unpublished order under Supreme Court Rule 23). Weallowed defendant's petition for leave to appeal (177 Ill. 2d R.315) and now affirm the judgment of the appellate court.

BACKGROUND

On November 13, 1994, Ronnie Johnson was shot and killed.The evidence at defendant's trial for Johnson's murder establishedthat at 3:30 a.m. on November 13, defendant and four friendsdrove south on the Dan Ryan Expressway, with defendant in thefront passenger seat of the car. The car encountered a whiteCadillac, driven by Johnson. Although the testimony is conflicting,it appears that Johnson increased his speed, and defendant told thedriver of his car to accelerate and follow Johnson. Defendant thenleaned out of the car and fired nine shots at Johnson's car. Onebullet entered the left side of Johnson's head and killed him.Roughly 45 minutes after this shooting, defendant and his friendswere arrested for possession of cannabis and drinking on a publicway-an offense unrelated to Johnson's killing.

On November 14, 1994, defendant appeared at a bond hearingon the possession of cannabis charge. At the bond hearing,defendant signed a form entitled "Appearance, Notice ofRepresentation and Demand for Preliminary Hearing/Trial"(hereinafter, appearance form). In addition to documenting boththe assistant public defender's and defendant's demand for apreliminary hearing and trial, the appearance form contained asection stating: "BE ADVISED, the under-signed defendant servesthis NOTICE OF REPRESENTATION on the State, its agents andon all law enforcement officers barring the defendant'sparticipation, without the presence of his/her counsel, in anyquestioning, identification process or other procedures on any caseor matter whatsoever." Defendant did not post bond and proceededto Cook County jail.

On November 16, 1994, pursuant to a writ, two Chicagopolice officers removed defendant from jail and brought him topolice headquarters in order to question him relative to Johnson'sdeath. After being advised of his Miranda rights and waiving themin writing, defendant provided a written statement in the presenceof an assistant State's Attorney and a police officer, in which heconfessed to the shooting. Defendant was subsequently arrestedand charged with Johnson's murder.

Defendant moved to suppress his statement prior to themurder trial. In his motion to suppress, defendant argued that bysigning and filing⁽¹⁾ the appearance form, which attempted to barhis participation in any questioning on any case or matter, heprovided notice to the prosecution that he did not wish to speak toany law enforcement personnel without the assistance of counsel.The assistant public defender who represented defendant at hisbond hearing on the cannabis charge testified at defendant'smotion to suppress that the appearance form was a "standardform" that she prepared for every defendant whom sherepresented.

The circuit court denied defendant's motion to suppress,finding that the additional language on the appearance formregarding defendant's unwillingness to speak with lawenforcement personnel in "any case" was "surplusage" and boundlaw enforcement personnel only on the cannabis offense. Theinculpatory statement was subsequently introduced at defendant'sbench trial for the murder of Ronnie Johnson. The circuit courtfound defendant guilty.

Defendant appealed his conviction on the ground that thedenial of his motion to suppress constituted error. He argued that,by signing and filing the appearance form during his bond hearingon the cannabis charge, he invoked his fifth amendment right tocounsel pursuant to Miranda. Police officers violated that rightwhen they subsequently questioned him on an unrelated offensewithout his counsel being present. The appellate court affirmeddefendant's conviction. Quoting McNeil v. Wisconsin, 501 U.S.171, 178, 115 L. Ed. 2d 158, 169, 111 S. Ct. 2204, 2209 (1991),the appellate court stated that "in order to invoke the Mirandainterest, there must be 'at a minimum, some statement that canreasonably be construed to be an expression of a desire for theassistance of an attorney in dealing with custodial interrogation bythe police. Requesting the assistance of an attorney at a bailhearing does not bear that construction.' " (Emphasis in original.) No. 1-96-1139 (unpublished order under Supreme Court Rule23).

Defendant appeals the appellate court's determination that themotion to suppress was properly denied because defendant failedto invoke his fifth amendment right to counsel pursuant toMiranda.

ANALYSIS 

In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.Ct. 1602 (1966), the United States Supreme Court required thatcertain procedural safeguards be provided to a suspect beforecustodial interrogation. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at706-07, 86 S. Ct. at 1612 ("[b]y custodial interrogation, we meanquestioning initiated by law enforcement officers after a personhas been taken into custody"). Although not enumerated in theConstitution, the Supreme Court found these safeguards necessaryin order to protect the privilege against compulsory self-incrimination under the fifth amendment. Davis v. United States,512 U.S. 452, 457, 129 L. Ed. 2d 362, 370, 114 S. Ct. 2350, 2354(1994), quoting Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed.2d 182, 193, 94 S. Ct. 2357, 2364 (1974). Specifically, the Courtrequired that a person in custody be advised of certain rights,including the right to remain silent and the right to an attorney,prior to any interrogation by law enforcement. Miranda, 384 U.S.at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. Edwards v.Arizona further expanded Miranda and held that once a personinvokes his right to counsel during custodial interrogation, he "isnot subject to further interrogation by the authorities until counselhas been made available to him, unless the accused himselfinitiates further communication, exchanges, or conversations withthe police." Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed.2d 378, 386, 101 S. Ct. 1880, 1885 (1981).

The single issue presented in this appeal is whether defendantinvoked his Miranda right to counsel when, at a bond hearing, thedefendant signed a notice of appearance form which included astatement that the defendant would not participate in any futurequestioning on any matter without his attorney present. There is nodispute that defendant was in custody while at his bond hearing.There is also no dispute that defendant was not subject tointerrogation at that time. Nevertheless, defendant argues that heeffectively invoked his Miranda right to counsel by filing theappearance form at his bond hearing. Therefore, defendant argueshis Miranda right to counsel may be invoked prior to custodialinterrogation.

The United States Supreme Court has not directly answeredthe issue before this court. However, the Court has stronglysuggested that a defendant cannot anticipatorily invoke hisMiranda right to counsel at a preliminary hearing. In McNeil, thedefendant argued that an invocation of his sixth amendment rightto counsel acted as an additional invocation of his Miranda rightto counsel. McNeil, 501 U.S. at 174, 115 L. Ed. 2d at 166, 11 S.Ct. at 2207. In holding that a sixth amendment invocation does notoperate as a Miranda invocation of the right to counsel, theSupreme Court stated in a footnote:

"We have in fact never held that a person can invoke hisMiranda rights anticipatorily, in a context other than'custodial interrogation'-which a preliminary hearing willnot always, or even usually, involve [citations]. If theMiranda right to counsel can be invoked at a preliminaryhearing, it could be argued, there is no logical reason whyit could not be invoked by a letter prior to arrest, or indeedeven prior to identification as a suspect. Most rights mustbe asserted when the government seeks to take the actionthey protect against. The fact that we have allowed theMiranda right to counsel, once asserted, to be effectivewith respect to future custodial interrogation does notnecessarily mean that we will allow it to be assertedinitially outside the context of custodial interrogation,with similar future effect." McNeil, 501 U.S. at 182n.3,115 L. Ed. 2d at 171 n.3, 111 S. Ct. at 2211 n.3.

See also Edwards, 451 U.S. at 485-86, 68 L. Ed. 2d at 387, 101 S.Ct. at 1885 ("[t]he Fifth Amendment right identified in Mirandais the right to have counsel present at any custodial interrogation.Absent such interrogation, there would have been no infringementof the right that Edwards invoked and there would be no occasionto determine whether there had been a valid waiver"); RhodeIsland v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 308, 100S. Ct. 1682, 1689 (1980) (holding that one's Miranda interests arein place when he is subjected to "express questioning or itsfunctional equivalent").

Subsequent to McNeil, this court indicated that a suspect'sMiranda right to counsel does not exist at his arraignment. InPeople v. Kidd, we held that invocation of the sixth amendmentright to counsel does not invoke a defendant's Miranda right tocounsel. People v. Kidd, 147 Ill. 2d 510, 532 (1992). In so holding,we specifically stated that "although defendant's sixth amendmentright to counsel attached when private attorney Earl Washingtonrepresented defendant at his arraignment *** on the unrelatedmurder and arson charges, defendant's fifth amendment right tocounsel pursuant to Miranda clearly did not arise at that point."People v. Kidd, 147 Ill. 2d at 532.

In addition to our own precedent, a majority of state courtshave relied on the language in McNeil to hold that one cannotanticipatorily invoke the right to counsel prior to custodialinterrogation. Sauerheber v. State, 698 N.E.2d 796, 802 (Ind.1998) ("[McNeil] strongly suggests that the rights under Mirandaand Edwards do not extend to permit anticipatory requests forcounsel to preclude waiver at the time interrogation begins"); Sappv. State, 690 So. 2d 581, 584-85 (Fla. 1997); People v. Avila, 75Cal. App. 4th 416, ___, 89 Cal. Rptr. 2d 320, 324 (1999); State v.Warness, 77 Wash. App. 636, 641, 893 P.2d 665, 668 (1995)("The need for Miranda protection does not exist except in acustodial interrogation situation. The right cannot be invokedbefore it exists"); see also State v. Stewart, 113 Wash. 2d 462,477-78, 780 P.2d 844, 853 (1989), quoting State v. Sparklin, 296Or. 85, 89, 672 P.2d 1182, 1185 (1983) (prior to the SupremeCourt decision in McNeil, the Washington Supreme Court heldthat a defendant's invocation of his sixth amendment right tocounsel does not act to invoke his Miranda right to counsel,because " '[a]t arraignment defendant is not confronted with anatmosphere of coercion, nor does anyone seek to gain admissionsfrom him' ").

The facts in both Sapp and Avila are strikingly similar to thefacts in the case at bar. In Sapp, the Supreme Court of Florida heldthat a defendant does not invoke his Miranda right to counsel bysigning a "claim of rights" form. Sapp, 690 So. 2d at 585. Whilein jail pursuant to a robbery arrest, the defendant signed and laterfiled a "claim of rights" form, which stated that the defendantasserted his right to refrain from making any statements regardingoffenses with which he was or was not charged without hisattorney present. Subsequently, police questioned the defendantabout an unrelated offense, after the defendant was informed ofand waived his Miranda rights. The defendant later argued that the"claim of rights" form effectively invoked his Miranda right tocounsel, and his statement should have been suppressed. Sapp, 690So. 2d at 583. The Supreme Court of Florida held that the "claimof rights" form did not act as an effective invocation of thedefendant's Miranda right to counsel because the defendant wasnot subject to custodial interrogation when he attempted to invokehis Miranda right. Sapp, 690 So. 2d at 585. Rather, the courtfound that "Miranda's safeguards were intended to protect theFifth Amendment right against self-incrimination by counteringthe compulsion that inheres in custodial interrogation." (Emphasisomitted.) Sapp, 690 So. 2d at 585.

Additionally, the California appellate court held that adefendant does not invoke his Miranda right to counsel when hisassistant public defender files a form attempting to assert thedefendant's fifth, sixth and fourteenth amendment rights. Avila, 75Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 325. The defendant inAvila was arrested for a shooting and, at his arraignment, defensecounsel filed a form stating that the defendant invoked his fifth,sixth and fourteenth amendment rights. Law enforcement officerslater interviewed the defendant regarding an unrelated offense,after the defendant was advised of and waived his Miranda rights.During this interview, the defendant admitted to the crime. Avila,75 Cal. App. 4th at ___, 89 Cal. Rptr. 2d at 322. The Californiaappellate court rejected defendant's argument that his confessionshould be suppressed because it was taken in violation of hisMiranda right to counsel. Avila, 75 Cal. App. 4th at ___, 89 Cal.Rptr. 2d at 323. In doing so, the court found that the defendant,though in custody, was neither facing nor fearing interrogation athis arraignment. Avila, 75 Cal. App. 4th at ___, 89 Cal. Rptr. 2dat 325. The court noted that "[a]llowing an anticipatory invocationof the Miranda right to counsel would extend an accused'sprivilege against self-incrimination far beyond the intent ofMiranda and its progeny." Avila, 75 Cal. App. 4th at ___, 89 Cal.Rptr. 2d at 325.

Relying on McNeil, an overwhelming number of federalcourts have also held that a defendant cannot invoke his Mirandarights outside the context of custodial interrogation. United Statesv. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998); United States v.LaGrone, 43 F.3d 332, 338 (7th Cir. 1994) ("there are certain'windows of opportunity' in which a defendant must assert hisMiranda right to counsel. A defendant must clearly invoke hisright to counsel from each constitutional source, at a time whenthe right is available"); United States v. Thompson, 35 F.3d 100,104 (2d Cir. 1994) ("[the defendant's] filing of the [notice ofappearance] did not occur in the context of custodialinterrogation"); Alston v. Redman, 34 F.3d 1237, 1244 (3d Cir.1994) ("[b]ecause the presence of both a custodial setting andofficial interrogation is required to trigger the Miranda right-to-counsel prophylactic, absent one or the other, Miranda is notimplicated" (emphasis omitted)); United States v. Wright, 962F.2d 953, 956 (9th Cir. 1992) ("[t]o extend Miranda-Edwardsprotection as [the defendant] urges would, on the other hand, makeit virtually impossible for any defendant charged with one crimeever to be questioned about unrelated criminal activity, if, the firsttime in court on the first offense charged, he asked for counsel tobe present at future interviews. This would not serve theprophylactic purposes of Miranda"); United States v. Cooper, 85F. Supp. 2d 1, 23 (D.D.C. 2000) ("[t]he footnote [in McNeil]strongly suggests, although not definitively, that a request forcounsel under Miranda must be made within the custodial contextand not at arraignment or other such proceedings"); United Statesv. Barnett, 814 F. Supp. 1449, 1454 (D. Alaska 1992) (finding thata request for counsel at a grand jury proceeding does not constitutean invocation of the right to counsel under Miranda-Edwardsbecause the court "assume[s] that the dicta in McNeil accuratelypredicts that the United States Supreme Court will hold that anaccused cannot invoke his Fifth Amendment right to counsel untilhe is taken into custody, and prior to interrogation, warned ofthose rights").

For example, in Grimes, the defendant was arrested andcharged with writing worthless checks. The defendant signed a"claim of rights" form which attempted to invoke both his fifthand sixth amendment right to counsel. The form was placed in thecourt file and copies were served on both the State's Attorney andpolice department. The defendant later made incriminatingstatements regarding a separate offense to an undercover agent andto a friend who was assisting law enforcement investigators. Thedefendant argued that he invoked his Miranda right to counsel bysigning the "claim of rights" form and, therefore, his incriminatingstatements should have been suppressed. Grimes, 142 F.3d at1345-48. The Eleventh Circuit disagreed, finding that "Mirandarights may be invoked only during custodial interrogation or wheninterrogation is imminent" and thus held that the "claim of rights"form did not invoke the defendant's Miranda rights. Grimes, 142F.3d at 1348.

We agree with the reasoning of these federal and state cases.It is not surprising that virtually every Supreme Court opinioninvolving Miranda has used the phrase "custodial interrogation."It is custodial interrogation with which Miranda was concerned.It is the right to an attorney during custodial interrogation thatMiranda and its progeny protects. That right does not exist outsidethe context of custodial interrogation. One cannot invoke a rightthat does not yet exist. While in court on a bond hearing, adefendant is not subject to interrogation, and the need for Mirandais not yet present. The Supreme Court stated in Innis that "[t]heconcern of the Court in Miranda was that the 'interrogationenvironment' created by the interplay of interrogation and custodywould 'subjugate the individual to the will of his examiner' andthereby undermine the privilege against compulsory self-incrimination." (Emphasis added.) Innis, 446 U.S. at 299, 64 L.Ed. 2d at 306, 100 S. Ct. at 1688 (1980), quoting Miranda, 384U.S. at 457-58, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619. See alsoIllinois v. Perkins, 496 U.S. 292, 297, 110 L. Ed. 2d 243, 251, 110S. Ct. 2394, 2397 (1990) ("[i]t is the premise of Miranda that thedanger of coercion results from the interaction of custody andofficial interrogation"). Absent the interplay of custody andinterrogation, an individual's privilege against self-incriminationis not threatened.

In support of the argument that his Miranda rights hadattached at his bond hearing, defendant cites to United States v.Kelsey, 951 F.2d 1196 (10th Cir. 1991), and North Carolina v.Torres, 330 N.C. 517, 412 S.E.2d 20 (1992). Defendant's relianceon these decisions is misplaced, as both cases are factuallyinapposite.

Unlike the matter at bar, both Kelsey and Torres involvedsituations where the defendant's interrogation was imminent whenhe or she requested counsel. In Kelsey, the defendant, after beingsearched and arrested, was essentially told by police officers thathe would be questioned. Similarly, in Torres, the defendant wastaken to the sheriff's department and placed in a conference roomto await interrogation. In addition, we note that, subsequent toKelsey, the Tenth Circuit has indicated that it will not permitanticipatory invocations of the Miranda right to counsel. SeeUnited States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998)("[w]e do not suggest that a person can invoke his Miranda rightsanticipatorily in any situation, i.e., in a context other than custodialinterrogation, as the Court cautioned in McNeil"), citing McNeil,501 U.S. at 182 n.3, 115 L. Ed. 2d at 171 n.3, 111 S. Ct. at 2211n.3.

Interrogation was not imminent in the case at bar. Defendantwas in court on an unrelated crime when he attempted to invokehis Miranda right to counsel. There was no suggestion thatdefendant would be questioned on the crime with which he wascharged or any other crime subsequent to his bond hearing. In fact,defendant's interrogation regarding the Johnson murder occurredtwo days after his bond hearing.

The defendant points out that under Edwards and Arizona v.Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093(1988), once a suspect invokes his right to counsel pursuant toMiranda, he may not be interrogated again regarding any offenseunless he initiates the conversation. McNeil, 501 U.S. at 175, 177,115 L. Ed. 2d at 166, 168, 111 S. Ct. at 2207, 2208 (stating thatthe Miranda right to counsel is not offense specific). Therefore,the defendant further notes, if an accused invokes his Mirandaright to counsel when in custody for one offense, law enforcementpersonnel cannot question him on that offense or any unrelatedoffense without counsel present. Arizona v. Roberson, 486 U.S. at677-78, 100 L. Ed. 2d at 711, 108 S. Ct. at 2096; People v.Perkins, 248 Ill. App. 3d 762, 770 (1993). However, the suspectmust invoke the right to counsel during custodial interrogation orwhen custodial interrogation was imminent.

Defendant also argues that he should be allowed to assert hisMiranda rights at a bond hearing because "[i]f a defendantremains in continuous custody *** the only verifiable assertion ofhis Fifth Amendment right to counsel is one made before a judge."According to defendant, unless the Miranda right to counsel isasserted in open court in the presence of a judge, "the onlywitnesses to a request for counsel would be the very officerswhose objective it is to obtain a statement." We disagree. If wewere to accept defendant's argument, we would have to require ajudge to be present every time a suspect receives Mirandawarnings. Although Miranda and its progeny demand certainprocedural safeguards to uphold a person's fifth amendment rightagainst compulsory incrimination, no case has required that anindependent third party be present to attest that a suspect wasadvised of or waived his Miranda rights. See, e.g., McNeil, 501U.S. at 180, 115 L. Ed. 2d at 170, 111 S. Ct. at 2210 ("[i]f asuspect does not wish to communicate with the police exceptthrough an attorney, he can simply tell them that when they givehim the Miranda warnings"). We decline to add that additionallayer to the Miranda prophylaxis today.

Stretching Miranda to allow anticipatory invocations of theright to counsel would extend Miranda far beyond its boundariesand upset the very balance that Miranda sought to protect-thebalance between effective law enforcement and protection ofindividual rights. In order to invoke the Miranda right to counsel,an individual must be both in custody and subject to interrogationor under imminent threat of interrogation. In the case at bar,defendant was not subject to interrogation at the bond hearing. Wetherefore hold that defendant could not effectively invoke hisMiranda right to counsel at the bond hearing. Defendant's motionto suppress was correctly denied.

We note that the State moved to strike portions of defendant'sreply brief. We ordered that motion taken with the case and nowdeny it.

CONCLUSION

For the foregoing reasons, we affirm the judgment of theappellate court.

Affirmed.

Today's majority opinion erroneously holds that police mayinterrogate a criminal suspect in their custody without an attorneypresent, even after that suspect has clearly and unambiguouslyrequested the assistance of an attorney in dealing with custodialinterrogation. I therefore dissent.

FACTS

On November 13, 1994, defendant was arrested for drinkingon a public way and for felony possession of cannabis. Duringdefendant's initial court appearance, defendant's attorney filed herappearance form. This form was signed by defendant, andcontained the following notice: "BE ADVISED, the undersigneddefendant serves this NOTICE OF REPRESENTATION on theState, it's [sic] agents and on all law enforcement officers barringthe defendant's participation, without the presence of his/hercounsel, in any questioning, identification process or otherprocedures on any case or matter whatsoever." Defendant did notpost bond and remained in custody.

Just three days later, and while still in continuous custody, onNovember 16, 1994, two Chicago police officers questioneddefendant regarding the shooting death of Ronnie Johnson.Defendant's counsel was not present during this interrogation.During the course of this questioning, defendant confessed to theshooting. Defendant was subsequently charged with Johnson'smurder.

Before trial, defendant moved to suppress his statement givento police. In the motion to suppress, defendant argued that policeviolated his fifth amendment right to counsel by questioning himwithout his counsel being present even after defendant hadrequested the assistance of counsel in dealing with custodialinterrogation. The trial court denied defendant's motion, however,finding that the request for counsel was merely "surplusage"attached to counsel's appearance form, and was not binding uponthe State except in relation to the original drinking and cannabischarges.

At defendant's subsequent murder trial, the statement wasadmitted into evidence against defendant. The circuit court founddefendant guilty of first degree murder and sentenced him to 60years in prison.

Defendant appealed, arguing that the trial court erred inrefusing to suppress his statement. The appellate court affirmed,but for different reasons. Whereas the trial court had found faultwith the manner in which defendant attempted to invoke his fifthamendment right to counsel, the appellate court found fault withdefendant's choice of forum. The appellate court reasoned that aproper invocation of a defendant's fifth amendment right tocounsel requires " 'at a minimum, some statement that canreasonably be construed to be an expression of a desire for theassistance of an attorney in dealing with custodial interrogation bythe police. Requesting the assistance of an attorney at a bailhearing does not bear that construction.' " (Emphasis in original.)No. 1-96-1139 (unpublished order under Supreme Court Rule23), quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed.2d 158, 169, 111 S. Ct. 2204, 2209 (1991). Accordingly, theappellate court held that defendant's fifth amendment right tocounsel had not been violated.

The majority today adopts the reasoning of the appellate court,but also goes one step further. In addition to holding that adefendant cannot invoke his fifth amendment right to counselduring his initial court appearance, the majority also holds that adefendant does not even have such a right until custodialinterrogation begins. Slip op. at 9.

DISCUSSION

Both the appellate court and the majority today base theirholdings in large part upon the United States Supreme Court'sopinion in McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158,111 S. Ct. 2204 (1991). Because the majority misreads McNeil, athorough examination of the facts of that case is required.

McNeil was arrested for an armed robbery committed in WestAllis, Wisconsin. Shortly after his arrest, police advised McNeilof his Miranda rights and sought to question him. McNeil refusedto answer questions, but did not request an attorney. The policepromptly ended the interview.

Some time later, McNeil appeared in court for a bail hearing.He was represented at that hearing by an attorney from theWisconsin public defender's office. McNeil did not post bail andremained in custody. Later that same evening, two detectivesquestioned McNeil in jail. During that and subsequent interviews,and after being informed of his Miranda rights, McNeil gavestatements admitting involvement in the Caledonia crimes.

Before trial, McNeil moved to suppress his confession.According to McNeil, his courtroom appearance with an attorneyfor the West Allis crime constituted an invocation of the Mirandaright to counsel, and any subsequent waiver of that right duringpolice-initiated questioning regarding any offense was invalid. Thetrial court denied the motion, and McNeil was convicted of seconddegree murder, attempted first degree murder, and armed robbery.

The Supreme Court held that the police questioning ofMcNeil was proper. First, the Court accepted that defendant'ssixth amendment right to counsel had attached and been invokedwith respect to the West Allis armed robbery at the time McNeilconfessed to the Caledonia crimes. The sixth amendment right tocounsel, however, is offense specific. Accordingly, becausedefendant had not yet invoked his sixth amendment right tocounsel with respect to the Caledonia crimes, that right posed nobar to the admission of McNeil's confession.

The Supreme Court recognized, however, that McNeil wasrelying upon a the right to counsel which the United StatesSupreme Court had held to be implicit in the fifth amendment'sguarantee that "[n]o person *** shall be compelled in any criminalcase to be a witness against himself." U.S. Const., amend. V. SeeMiranda v. Arizona, 384 U.S. 436, 442, 16 L. Ed. 2d 694, 705, 86S. Ct. 1602, 1611 (1966). In contrast to the sixth amendment rightto counsel, the right to counsel secured by the fifth amendment isnot offense specific. See Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378, 101 S. Ct. 1880 (1981). Accordingly, once a suspectasserts the fifth amendment right to counsel for one offense, adefendant may not be approached for questioning regarding anyoffense unless counsel is present. Arizona v. Roberson, 486 U.S.675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988).

Despite its recognition of the broader scope of the fifthamendment right to counsel, however, the McNeil Court held thatpolice had not violated this right because McNeil had neverinvoked it. The court noted that McNeil's only expression of adesire for the assistance of counsel had been his appearance withcounsel at his bail hearing. This was not enough, the SupremeCourt explained, because invocation of the fifth amendment rightto counsel, "requires, at a minimum, some statement that canreasonably be construed to be an expression of a desire for theassistance of an attorney in dealing with custodial interrogation bythe police. Requesting the assistance of an attorney at a bailhearing does not bear that construction." (Emphasis in original.)McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 169, 111 S. Ct. at 2209.

What is clear from the Supreme Court's opinion in McNeil isthat the Court's analysis focused not upon the time or place whenthe defendant made his request for assistance of counsel, but uponthe type of assistance of counsel which the defendant requested. InMcNeil, the defendant had, at best, expressed a desire for theassistance of counsel at a bail hearing. In the case at bar, however,defendant clearly and unequivocally expressed "a desire for theassistance of an attorney in dealing with custodial interrogation bythe police." McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 169, 111 S.Ct. at 2209. Accordingly, McNeil does not defeat defendant'sclaim in this case.

The majority further relies upon dicta in a footnote from theMcNeil opinion. That footnote, in its entirety stated:

"The dissent predicts that the result in this case willroutinely be circumvented when, '[i]n future preliminaryhearings, competent counsel ... make sure that they, ortheir clients, make a statement on the record' invoking theMiranda right to counsel. [Citation.] We have in factnever held that a person can invoke his Miranda rightsanticipatorily, in a context other than 'custodialinterrogation'-which a preliminary hearing will notalways, or even usually, involve [citations]. If theMiranda right to counsel can be invoked at a preliminaryhearing, it could be argued, there is no logical reason whyit could not be invoked by a letter prior to arrest, or indeedeven prior to identification as a suspect. Most rights mustbe asserted when the government seeks to take the actionthey protect against. The fact that we have allowed theMiranda right to counsel, once asserted, to be effectivewith respect to future custodial interrogation does notnecessarily mean that we will allow it to be assertedinitially outside the context of custodial interrogation,with similar future effect. Assuming, however, that anassertion at arraignment would be effective, and would beroutinely made, the mere fact that adherence to theprinciple of our decisions will not have substantialconsequences is no reason to abandon that principle. Itwould remain intolerable that a person in custody whohad expressed no objection to being questioned would beunapproachable." McNeil, 501 U.S. at 182 n.3, 115 L. Ed.2d at 171 n.3, 111 S. Ct. at 2211 n.3.

Based largely upon this footnote and upon decisions of othercourts relying on this footnote, the majority holds that the fifthamendment right to counsel cannot be invoked until custodialinterrogation has begun or is imminent.

The majority's reliance on the McNeil footnote is misplacedfor several reasons. First, as the majority candidly admits, theUnited States Supreme Court has never addressed the issue ofwhether a defendant may invoke the sixth amendment right tocounsel before interrogation begins or is "imminent" (whateverthat means). Second, the footnote is clearly dicta. The SupremeCourt's McNeil opinion was based entirely upon the fact thatdefendant had never invoked his fifth amendment right to counsel.As such, the time and place of any such invocation was never atissue. Third, the footnote does not state, even in dicta, that adefendant cannot invoke his fifth amendment right to counselunder the facts of this case. Rather, the footnote merely noted theexistence of the issue without deciding it. Finally, the footnote waswritten in response to a dissent which was joined by three Justices.Thus, while precisely zero of Justices on the McNeil Courtexplicitly argued that the fifth amendment right to counsel couldnot be invoked in the manner which the defendant in this caseclaims to have employed, three justices of that court expresslyargued that the fifth amendment right could be invoked in thisfashion. McNeil, 501 U.S. at 184, 115 L. Ed. 2d at 172, 111 S. Ct.at 2212 (Stevens, J., dissenting, joined by Marshall and Blackmun,JJ.). Accordingly, the majority's prediction of how the UnitedStates Supreme Court would rule on this issue is pure speculation.

From a purely policy perspective, the rule announced by themajority is a bad one. After today, police arresting a suspect willno longer have any reason to inform a suspect of his Mirandarights until immediately before they initiate questioning. Indeed,under the rationale of the majority, police may now freelyinterrogate a suspect who states "I refuse to answer questionswithout a lawyer" as the police are applying the handcuffs, as longas the police wait until later to ask any questions. In such ascenario, the suspect's request for counsel would have been madeat a time when interrogation was not imminent. Accordingly, themajority would hold that such a suspect had no fifth amendmentright to invoke. Such a result is clearly inconsistent with the valueswhich the Miranda decision was meant to protect.

The majority's concern, borrowed from the McNeil footnote,that a person could invoke the fifth amendment right to counseleven before arrest, is directed at a straw man.⁽²⁾ The defendant inthis case did not attempt to invoke his right to counsel by letterprior to arrest. On the contrary, defendant was in continuous policecustody from the time he requested an attorney to assist himduring interrogation until the time when the interrogation tookplace. In any event, giving effect to the defendant's clear andunambiguous request for counsel under the facts of this casewould not require this court to expand the right to the extremessupposed by the majority. Rather, this court should rule that thefifth amendment right to counsel attaches and may be invoked bya defendant at any time after he is taken into custody. This rulewould strike a proper balance between the recognition of asuspect's right to be free from compelled self-incrimination andthe interests of law enforcement in obtaining evidence. This courtshould further hold that the State was bound in this case to honordefendant's request not to be questioned without his attorneypresent, and that police questioning in spite of this request violateddefendant's constitutional rights under the fifth amendment.Accordingly, the trial court erred when it denied defendant'smotion to suppress his confession. Defendant is entitled to a newtrial.

Accordingly, I respectfully dissent.

1. ¹The appearance form, although signed by defendant and dated, wasnot file stamped by the clerk of the court. The assistant public defendertestified at defendant's motion to suppress hearing that she "filed" theappearance form by placing it "on the bench" in front of the presidingjudge during defendant's bond hearing.

2. ²The majority's additional concern, that acceptance of defendant'srule would require the presence of a judge every time a suspect receivesMiranda warnings, is specious. Defendant did not argue that Mirandarights may only be waived in front of a judge. Rather, the defendantcorrectly points out that the rule now adopted by the majority deprivesdefendants of the single most effective means of insuring that their fifthamendment rights are respected, namely, invocation of those rights inopen court.