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. Specifically, the Supreme Court held that
“the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” Miranda,

16 L. Ed. 2d at 706

.        The Supreme Court defined “custodial interrogation” as
“questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda,

16 L. Ed. 2d at 706

. The “procedural safeguards” that must be employed are
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now commonly referred to as Miranda warnings: the person must be warned that he has a right
to remain silent, that any statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed.   Miranda,

16 L. Ed. 2d at 706-07

. The Supreme Court further held that the
defendant may waive those rights, provided that the waiver is made voluntarily, knowingly and
intelligently. Miranda,

16 L. Ed. 2d at 707

. Finally, the
Miranda Court explained that, once the warnings have been given, the following procedure must
be followed:
“If the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease. *** If the individual states that he wants
an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to
confer with the attorney and to have him present during any
subsequent questioning. If the individual cannot obtain an attorney
and he indicates that he wants one before speaking to police, they
must respect his decision to remain silent.” Miranda,

384 U.S. at 473-74

16 L. Ed. 2d at 723

86 S. Ct. at 1627-28

.
The warnings set forth in Miranda were intended to preserve the fifth amendment
privilege against self-incrimination during “incommunicado interrogation of individuals in a
police-dominated atmosphere.” Miranda,

384 U.S. at 445

16 L. Ed. 2d at 707

.
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Such an atmosphere generates “inherently compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak where he would not otherwise do so
freely.” Miranda,

384 U.S. at 467

16 L. Ed. 2d at 719

86 S. Ct. at 1624

.
In Rhode Island v. Innis,

446 U.S. 291

64 L. Ed. 2d 297

100 S. Ct. 1682

 (1980), the
United States Supreme Court defined the term “interrogation.” In Innis, the respondent was
arrested and advised of his Miranda rights. The respondent informed the police that he wished to
speak with an attorney, and the police placed the respondent in a police vehicle in order to
transport the respondent to the police station. While in route to the police station, two of the
police officers in the police vehicle with the respondent had a conversation in which one of the
police officers voiced his concern that it would be bad if one of the disabled children from a
local school found the missing weapon and was injured or killed. The respondent interrupted the
officers’ conversation and asked the police officers to turn the vehicle around so he could show
them where the weapon was located.
The issue before the Supreme Court in Innis was “whether the respondent was
‘interrogated’ by the police officers in violation of the respondent’s undisputed right under
Miranda to remain silent until he had consulted with a lawyer.” Innis,

446 U.S. at 298

64 L. Ed. 2d at 306

100 S. Ct. at 1688

. The Innis Court concluded “that the Miranda safeguards come into
play whenever a person in custody is subjected to either express questioning or its functional
equivalent.” Innis,

446 U.S. at 300-01

64 L. Ed. 2d at 307-08

100 S. Ct. at 1689

. The Innis
Court explained that the “functional equivalent” of express questioning was “any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that
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the police should know are reasonably likely to elicit an incriminating response from the
suspect.” Innis,

446 U.S. at 301

64 L. Ed. 2d at 308

100 S. Ct. at 1689-90

. Specifically, the
Court found that it could not be said that the police officers should have known that their
conversation was reasonably likely to elicit an incriminating response from the respondent.
Innis,

446 U.S. at 302

64 L. Ed. 2d at 309

100 S. Ct. at 1690

. The Innis Court held that, in the
facts before it, the respondent was not interrogated within the meaning of Miranda. Innis,

446 U.S. at 302

64 L. Ed. 2d at 308

100 S. Ct. at 1690

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

451 U.S. 477

68 L. Ed. 2d 378

101 S. Ct. 1880

. In Edwards, the petitioner was
arrested, brought to a police station, and informed of his Miranda rights. Initially, the petitioner
indicated that he was willing to speak with the police, but he later invoked his fifth amendment
right to have an attorney present during the custodial interrogation. The petitioner was returned to
the county jail. The following morning, the police went to the county jail in order to speak with
the petitioner. The police informed him of his Miranda rights and the petitioner subsequently
made a statement to the police implicating himself in the crime. The issue before the United
States Supreme Court was whether the fifth, sixth, and fourteenth amendments " 'require
suppression of a post-arrest confession, which was obtained after [the petitioner] had invoked his
right to consult counsel before further investigation.' " Edwards,

451 U.S. at 478

68 L. Ed. 2d at 382

101 S. Ct. at 1881

. The Edwards Court held:
“[W]hen an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
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be established by showing only that he responded to further police-
initiated custodial interrogation even if he has been advised of his
rights. *** [A]n accused ***, having expressed his desire to deal
with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards,

451 U.S. at 484-85

68 L. Ed. 2d at 386

101 S. Ct. at 1884-85

.
The Edwards court emphasized that “it is inconsistent with Miranda and its progeny for the
authorities, at their insistence, to reinterrogate an accused in custody if he has clearly asserted his
right to counsel.” Edwards,

451 U.S. at 485

68 L. Ed. 2d at 387

101 S. Ct. at 1885

. The
Edwards court found that the petitioner was subjected to a custodial interrogation on the second
day, and the custodial interrogation was at the insistence of the police.              Therefore, the
Edwards court held that the petitioner's statement, made without having had access to counsel,
did not amount to a valid waiver and was inadmissible. Edwards,

451 U.S. at 487

, 68 L. Ed 2d
at 388,

101 S. Ct. at 1886

.
Later, in Illinois v. Perkins,

496 U.S. 292

, 296,

110 L. Ed. 2d 243

, 251,

110 S. Ct. 2394

,
2397 (1990), the United States Supreme Court recognized that there are circumstances that do
not implicate the concerns underlying Miranda. In Perkins, an inmate informed the police that
the respondent had told him about a murder that the respondent had committed. The police
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located the respondent at a jail where the respondent was being held on an unrelated matter. An
undercover agent and an informant were placed in a cellblock with the respondent.              The
undercover agent asked the respondent if he had ever “done” anybody. The respondent said that
he had and proceeded to describe at length the events of the murder.
The issue before the Supreme Court was “whether an undercover law enforcement officer
must give Miranda warnings to an incarcerated suspect before asking him questions that may
elicit an incriminating response.” Perkins,

496 U.S. at 295-96

110 L. Ed. 2d at 250

110 S. Ct. at 2396

. The Supreme Court found that “[c]onversations between suspects and undercover
agents do not implicate the concerns underlying Miranda. The essential ingredients of a ‘police-
dominated atmosphere’ and compulsion are not present when an incarcerated person speaks
freely to someone whom he believes to be a fellow inmate.” Perkins,

496 U.S. at 296

, 110 L. Ed
2d at 251,

. The Supreme Court further found that Miranda forbids coercion,
but “[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the
level of compulsion or coercion to speak are not within Miranda’s concerns.” Perkins,

496 U.S. at 297

, 110 L. Ed 2d at 251,

. “Miranda was not meant to protect suspects
from boasting about their criminal activities in front of persons whom they believe to be their
cellmates.” Perkins,

496 U.S. at 298

110 L. Ed. 2d at 252

110 S. Ct. at 2399

. The Perkins Court
held that Miranda warnings are not required whenever a suspect is in custody in a technical
sense and converses with someone who happens to be a government agent; therefore, “an
undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings
to an incarcerated suspect before asking questions that may elicit an incriminating response.”
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Perkins,

496 U.S. at 300

110 L. Ed. 2d at 253

110 S. Ct. at 2399

.
In the instant case, Hunt testified that on July 18, 2002, detectives questioned him and he
told them he wanted to talk with a lawyer. The trial court found, “It is clear that prior to July
31st, defendant had indicated he did not wish to speak to police regarding this case.” The
evidence that defendant invoked his right to counsel on July 18, 2002, supports the trial court’s
finding of fact.
We must determine whether Hunt’s statements to Davis, after invoking his right to
counsel on July 18, 2002, and July 31, 2002, were made during custodial interrogations. The
record reveals that Hunt was in police custody when he made the statements to Davis. Maryland
v. Shatzer, No. 08-680, slip op. at 14-15 (U.S. February 24, 2010) (lawful imprisonment imposed
upon conviction does not create the coercive pressures identified in Miranda, but pretrial
detainees whose continued detention as suspects rest with those controlling their interrogation
are in interrogative or custodial Miranda custody). The record further reveals that Hunt spoke
with Davis, a police agent, who was posing as a fellow inmate and was wearing a wire to assist
the State in obtaining incriminating information from Hunt. According to Perkins, although
Hunt was in custody, Hunt’s jailhouse conversation with Davis, a police agent whom Hunt
believed to be a fellow inmate, did not constitute a custodial interrogation because the police
were not in the room. Perkins,

496 U.S. at 296

 (“When
a suspect consider himself in the company of cellmates and not officers, the coercive atmosphere
is lacking”). Accordingly, we find, following federal case law, that because Hunt made the
statements to Davis, an informant, and did not make the statements to the police, Hunt was not
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subject to a custodial interrogation and, therefore, Miranda warnings were not required prior to
the conversation between Hunt and Davis. Perkins,

496 U.S. at 296-97

.
We find this case distinguishable from Edwards. As noted above, in Edwards, the police
continued to question the petitioner after the petitioner made a request that an attorney be present
during the interrogation. Although Hunt testified that he invoked his right to counsel on July 18,
2002, the police did not question Hunt on July 31, 2002, or on August 6, 2002; rather, Davis
conversed with Hunt. The Edwards rule was designed to prevent the police from badgering a
defendant into waiving his previously asserted Miranda rights. Perkins,

496 U.S. at 296-97

; see also Oregon v. Bradshaw,

462 U.S. 1039

77 L. Ed. 2d 405

103 S. Ct. 2830

 (1983) (plurality opinion). In the instant case, the police did not badger
Hunt because they did not speak with him on July 31, 2002, or August 6, 2002, concerning the
Shakir Beckley murder.6 Here, badgering by police officers, the evil sought to be avoided in
Edwards, did not occur in the instant case because the police did not question Hunt. We find the
6
It should be noted that in Innis, Edwards, and Perkins, the police were involved in a
conversation with each defendant. Specifically, in Innis, the police talked with the respondent
while he was riding in the back of the police vehicle. In Edwards, the police went to the jail
where the petitioner was being held in order to speak with the petitioner. In Perkins, the
undercover agent placed himself in the cellblock where the respondent was being held. In the
instant case, the police removed Hunt from the county jail and took him to the Area 4 police
station where Hunt talked with an informant or undercover police agent.
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facts in Edwards distinguishable from the facts in the instant case because the statements in
Edwards were made during a conversation between the petitioner and the police while Hunt’s
statements were made to a police informant or agent. Therefore, according to Perkins, Miranda
was not violated and Hunt’s statements to Davis did not violate Hunt’s fifth amendment
privilege against self-incrimination. Perkins,

496 U.S. at 296-97

.
The United States Supreme Court recently distinguished between interrogative or
custodial Miranda custody and the noncoercive pressures of incarceration. Shatzer, slip op. at
14-15. In Shatzer, a police detective questioned the defendant, who was incarcerated in prison
pursuant to a prior conviction, about allegations that the defendant had sexually abused his son.
The defendant invoked his Miranda right to have counsel present during questioning, and the
detective ceased questioning the defendant. The defendant was returned to prison.
Approximately 2½ years later, a different police detective again questioned the defendant, who
was still incarcerated in prison, regarding the accusations that the defendant sexually abused his
son. The defendant waived his Miranda rights and made inculpatory statements. The defendant
filed a motion to dismiss the inculpatory statements. The United States Supreme Court found
that 14 days is a sufficient break in custody to end the presumption of involuntariness set forth in
Edwards. Shatzer, slip op. at 11. The Court further found that “lawful imprisonment imposed
upon conviction of a crime does not create the coercive pressures identified in Miranda.”
Shatzer, slip op. at 14. Accordingly, the Court held that because the defendant experienced a
break in interrogative or Miranda custody that lasted more than two weeks, Edwards does not
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mandate a suppression of the defendant’s inculpatory statements made during the second
interrogation. Shatzer, slip op. at 18.
We find the facts in Shatzer distinguishable from the facts in the instant case. Unlike
Shatzer, which involved police interrogation, the instant case involved a conversation between
Davis, an informant or police agent, and Hunt. Also, unlike Shatzer, involving a convicted felon
incarcerated in a penal institution, Hunt was a pretrial detainee and suspect in a murder
investigation whose detention rested with those controlling the interrogation. Shatzer, slip op. at
14-15. Therefore, we find the facts in Shatzer distinguishable from the facts in the instant case.
We note that the Illinois Supreme Court in McCauley recognized that Moran v. Burbine,

475 U.S. 412

89 L. Ed. 2d 410

106 S. Ct. 1135

 (1986), is the controlling case for determining
whether, under the federal constitution, a defendant’s statement should be suppressed.
McCauley,

163 Ill. 2d at 423

, citing Burbine,

475 U.S. 412

89 L. Ed. 2d 410

106 S. Ct. 1135

.
Specifically, the McCauley court noted that, “under Burbine, in determining the validity of a
custodial suspect’s waiver of the fifth amendment right to counsel, the relevant and narrow
inquiry is whether his ability to understand or comprehend his rights has been compromised by
the lack of information or the police conduct in withholding that information.” McCauley,

163 Ill. 2d at 423

.
We find the facts in Burbine distinguishable from the facts in this case. The critical facts
in Burbine were as follows: (1) the police administered the required warnings to the respondent
who was in custody on an unrelated case; (2) the police sought to assure that the respondent
understood his rights; (3) the police obtained written waivers from the respondent prior to
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eliciting each of the three statements; (4) the respondent’s sister called a public defender on the
respondent’s behalf; (5) the police misinformed the public defender about their plans concerning
the respondent; and (6) the police failed to inform the respondent of the public defender’s efforts
to reach him. Burbine,

475 U.S. at 415-18

89 L. Ed. 2d at 417-18

106 S. Ct. at 1138-39

. In the
instant case, the Burbine requirements were not met because (1) the police did not talk to Hunt
on July 31, 2002, and August 6, 2002, and never informed Hunt of his rights pursuant to
Miranda on July 31, 2002, or August 6, 2002; (2) the police were never assured that Hunt
understood his rights because they never Mirandized him; and (3) the police never obtained
express written waivers from Hunt prior to his discussions with Davis on July 31, 2002, and
August 6, 2002. See Burbine,

475 U.S. at 421

89 L. Ed. 2d at 421

106 S. Ct. at 1141

. While the
respondent in Burbine received Miranda warning before talking to the police, Perkins would not
require Miranda warnings because Hunt was talking to an informant. Perkins,

496 U.S. at

296-
97,

163 Ill. 2d at 427, 438-43, 447

. Accordingly, if we followed United States Supreme
Court case law interpreting the fifth amendment, no Miranda warnings are required when a
defendant is talking to an undercover agent or an informant; therefore, Hunt would not have to
be informed about his counsel being present at the police station.
McCauley
Next, we must determine whether Hunt's statements to Davis would be suppressed under
McCauley, which was decided under Illinois' constitutional guarantees.7 McCauley,

163 Ill. 2d 7

  We note that the Illinois Supreme Court, when deciding a case under a federal constitutional
provision, has followed the United States Supreme Court and treated inmate informants similar
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at 423-24; see also Ill. Const. 1970, art. I, §10 (guaranteeing defendants the right against self-
incrimination). The McCauley court noted that the United States Supreme Court has indicated
that state courts have the authority to interpret their respective constitutional provisions more
broadly than the United States Supreme Court interprets similar federal constitutional provisions.
McCauley,

163 Ill. 2d at 426

, citing Oregon v. Hass,

420 U.S. 714

, 719,

43 L. Ed. 2d 570

, 575-
76,

95 S. Ct. 1215

, 1219 (1975). The McCauley court also noted that the United States Supreme
Court permits the States to adopt " 'different requirements for the conduct of [their] employees
and officials as a matter of state law.' " (Emphasis in original.) McCauley,

163 Ill. 2d at 426

,
quoting Burbine,

475 U.S. at 428

, 89 L. Ed. at 425,

106 S. Ct. at 1144

. The McCauley court
further noted that federal authorities are not precedentially controlling but merely guide the
interpretation of state law. McCauley,

163 Ill. 2d at 436

, citing Rollins v. Ellwood,

141 Ill. 2d 244

, 275 (1990). Finally, the McCauley court held that final conclusions on the construction of
state constitutional guarantees are for the Illinois Supreme Court to decide. McCauley,

163 Ill. 2d at 436

, citing Rollins,

141 Ill. 2d at 275

.
The McCauley court established that our state’s constitutional guarantees afford
defendants a greater degree of protection than does the federal counterpart. See McCauley,

163 Ill. 2d at 423

 (“The day is long past in Illinois, however, where attorneys must shout legal advice
to their clients, held in custody, through the jailhouse door”). The McCauley court held that
“[o]ur State constitutional guarantees simply do not permit police to delude custodial suspects,
to undercover police officers for purposes of the fifth amendment. See People v. Manning,

182 Ill. 2d 193

 (1998) (applying Perkins to a jailhouse informant).
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exposed to interrogation, into falsely believing they are without immediately available legal
counsel and to also prevent that counsel from accessing and assisting their clients during the
interrogation.”   McCauley,

163 Ill. 2d at 423-24

, citing Ill. Const. 1970, art. I, §§2, 10.
Accordingly, as directed by the Illinois Supreme Court, we will apply McCauley to the facts in
this case to determine whether Hunt's statements should be suppressed under Illinois' self-
incrimination guarantee that is codified in article I, section 10 of the Illinois Constitution. Ill.
Const. 1970, art. I, §10.
Before we review this case under McCauley, we must determine under Illinois law (1)
whether Hunt was in police custody, (2) whether Davis, the informant, was a police agent, and
(3) whether this was a custodial interrogation. The State maintained that Hunt was involved in a
judicially authorized consensual overhear and the interrogation was a noncustodial interrogation
because Hunt talked to Davis and did not talk with the police on July 31, 2002, and August 6,
2002.
We note (1) that Hunt invoked his right to counsel on July 18, 2002, and on July 31,
2002, after consulting with his attorney; (2) that Cook County jail prisoners, like Hunt,
transferred pursuant to section 19.5 of the County Jail Act are “in custody” (Hunt,

234 Ill. 2d at 63

); (3) that Hunt did not consent or initiate a conversation with the police or make a request to
go to the Area 4 police station, so it was not a voluntary transfer; (4) that an overhear order
authorized the police to place a wire on Davis, who consented to wear the wire; (5) that Davis,
an inmate, was selected by the police because they believed he could persuade Hunt to make a
statement implicating himself in the Shakir Beckley murder; and (6) that Davis was a police
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agent because he was acting in concert with, and at the behest of, the police. People v. Stechly,

225 Ill. 2d 246

, 301 (2007) (holding that a police agent is a party who gathers information to
pass it along to the authorities).
Next, we must decide whether Davis’s questioning of Hunt at the Area 4 police station
constituted custodial interrogation under Illinois law. In People v. Perkins,

248 Ill. App. 3d 762

(1993), appeal denied,

153 Ill. 2d 567

 (1993), the court defined “custodial interrogation” to
include questioning by police agents and informants as well as police officers. Perkins, 248 Ill.
App. 3d at 769. The legislature effectively codified the definition promulgated in Perkins in
section 103-2.1 of the Code of Criminal Procedure of 1963. See 725 ILCS 5/103-2.1 (West
2006).8 The Hunt case holds that Hunt was in custody when he was transferred from the county
jail to the Area 4 police station where he was detained. Hunt,

234 Ill. 2d at 63

. Davis, the police
agent, was wired and asked Hunt questions so he could obtain incriminating information. There
was a custodial interrogation because the police involuntarily removed Hunt from the county jail
8
It should be noted that section 103-2.1 provides that "custodial interrogation" means an
interrogation, at a place of detention or a police station, during which "(i) a reasonable person in
the subject's position would consider himself or herself to be in custody, and (ii) during which a
question is asked that is reasonably likely to elicit an incriminating response." It should also be
noted that the definition in section 103-2.1 does not limit the use of the term "custodial
interrogations" to questions that are asked by police officers; therefore, the definition in section
103-2.1 applies if a question is asked that is likely to elicit an incriminating response even if the
question is asked by an undercover police agent, informant or officer.
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so Hunt could be interrogated by Davis, the undercover police agent, and the police agent asked
Hunt questions likely to elicit an incriminating response. See Perkins, 248 Ill. App. 3d at 769;
see also 725 ILCS 5/103-2.1 (West 2006). Therefore, because Hunt invoked his right to counsel
on July 18, 2002, and July 31, 2002, because Hunt was transferred, involuntarily, from the
county jail on July 31, 2002, and August 6, 2002, because Hunt was in police custody and Davis
was an undercover police agent, and because the police had Davis, their agent, wired so he could
initiate questioning and obtain incriminating information about the Shakir Beckley murder from
Hunt on behalf of the police, we hold that Hunt's interrogations on July 31, 2002, and on August
6, 2002, at the Area 4 police station were custodial interrogations. McCauley,

; Perkins, 248 Ill. App. 3d at 769; see also 725 ILCS 5/103-2.1 (West 2006); Ill.
Const. 1970, art. I, §§2, 10.
Now, because we have decided that Hunt participated in custodial interrogations,
McCauley directs this court to follow the rule in Smith, which held that under state law, the
police possessed no authority to prevent or delay communication between an arrested person and
his retained lawyer, and also that a custodial suspect's decision to waive counsel's assistance was
likely to be affected by the withheld information. McCauley,

163 Ill. 2d at 427

, citing People v.
Smith,

93 Ill. 2d 179

, 187-88 (1982), citing State v. Haynes,

288 Or. 59

, 72-74,

602 P.2d 272

,
278-79 (1979). The record reveals that on July 18, 2002, Hunt invoked his right to counsel and
that on July 31, 2002, Hunt telephoned his attorney, a public defender, and requested that he
come to the police station. Hunt's attorney came to the police station and requested access to
Hunt.    Hunt's attorney was denied access to Hunt from approximately 3:15 p.m. until
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approximately 4 p.m. Following the rule in Smith, the police had no authority to “prevent or
delay” communication between Hunt and his lawyer. McCauley,

163 Ill. 2d at 427

, citing Smith,

93 Ill. 2d at 187-88

, citing Hayes,

288 Or. at 72-74

602 P.2d 272

, 278-79. Hunt was also
involuntarily removed from the county jail on August 6, 2002; therefore, after invoking his right
to counsel on July 31, 2002, he had a right to consult with counsel before the custodial
interrogation on August 6, 2002. See McCauley,

163 Ill. 2d at 438-43

; Perkins, 248 Ill. App. 3d
at 769; see also 725 ILCS 5/103-2.1, 103-3, 103-4 (West 2006).
Second, the McCauley court noted that under Illinois's guarantee of a person's privilege
against self-incrimination (Ill. Const. 1970, art. I, §10), if the circuit court determines that a
defendant knew that an attorney was being retained for him, that the attorney was present and
had requested access to the defendant and that the police refused to inform the defendant of the
immediate availability of the attorney, the circuit court should allow the defendant's motion to
suppress. McCauley,

163 Ill. 2d at 438

, quoting People v. Griggs,

152 Ill. 2d 1

, 30 (1992).
Here, the circuit court correctly suppressed Hunt's statements to Davis that occurred on July 31,
2002, because there was a custodial interrogation; because Hunt's attorney appeared at the police
station, pursuant to Hunt's telephone message, and requested access to Hunt on more than one
occasion; and because the police refused, for 45 minutes, to inform Hunt that his attorney was in
the police station so that Davis, a police agent, could conclude the interrogation of Hunt. The
trial court also correctly suppressed Hunt's statements on August 6, 2002, because, after
invoking his right to counsel on July 31, 2002, there was a custodial interrogation and Hunt was
not permitted to consult with counsel prior to the interrogation.
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Third, the McCauley court noted that the 1970 Illinois Constitutional Convention debates
indicate that the delegates intended that article I, section 10, incorporate then-existing federal
constitutional principles regarding incommunicado interrogation. McCauley,

163 Ill. 2d at

439-
40, citing People v. DiGuida,

152 Ill. 2d 104

 (1992); 3 Record of Proceedings, Sixth Illinois
Constitutional Convention 1377; S. Gove & V. Ranney, Con-Con: Issues for the Illinois
Constitutional Convention, 3, 24-35, 48 (1970); G. Braden & R. Cohn, The Illinois Constitution:
An Annotated & Comparative Analysis 43-45 (1969). We find that Hunt was in police custody
and was taken to the Area 4 police station involuntarily on July 31, 2002, and August 6, 2002;
that Hunt was held incommunicado because, after invoking his right to counsel on July 18, 2002,
and July 31, 2002, a lawyer was not permitted to have access or communicate with Hunt while
Davis, a police agent, attempted to elicit incriminating information from Hunt about the Shakir
Beckley murder during the custodial interrogations on July 31, 2002, for 45 minutes, and was
denied the assistance of counsel on August 6, 2002. Therefore, we hold that the police officers'
incommunicado custodial interrogations on July 31, 2002 and August 6, 2002, violated Hunt's
article I, section 10, guarantee against self-incrimination. Ill. Const. 1970, art. I, §10.
Fourth, the McCauley court noted that under article I, section 2, the due process clause,
the State guarantees an accused the right to the assistance as well as the presence of counsel
during any custodial interrogation. McCauley,

163 Ill. 2d at 441

; Ill. Const. 1970, art. I, §2.
Hunt was denied the assistance of his counsel for 45 minutes during the custodial interrogations
on July 31, 2002, and was denied the assistance of counsel on August 6, 2002 - - Hunt was held
in a room at a police station while a police agent attempted to elicit incriminating information.
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Therefore, we hold that Hunt's article I, section 2, due process rights were violated by the police
when they denied Hunt the assistance of counsel, on July 31, 2002, and August 6, 2002, during
the custodial interrogations. Accordingly, the trial court correctly suppressed Hunt's July 31,
2002, and August 6, 2002, statements under the due process clause of Illinois's constitution.
McCauley,

163 Ill. 2d at 440-41

; Ill. Const. 1970, art. I, §2.
Fifth, the McCauley court noted that section 103-4 of the Code of Criminal Procedure of
1963 codifies a statutory right of persons in custody to consult with an attorney and a
concomitant duty on the part of public officers to admit such counsel to consult with persons in
custody. McCauley,

163 Ill. 2d at 443

, citing Ill. Rev. Stat. 1987, ch. 38, par. 103-4 (now 725
ILCS 5/103-4 (West 2002)).           Here, Hunt was in the custody of the police; custodial
interrogations were conducted by the police on July 31, 2002, and August 6, 2002; and the
police, public officers, denied Hunt the assistance of counsel for 45 minutes on July 31, 2002,
and Hunt received no assistance from an attorney on August 6, 2002. Therefore, the police
officers' refusal to permit Hunt to confer with an attorney was a clear violation of the statutory
right codified in section 103-4 of the Code of Criminal Procedure. 725 ILCS 5/103-4 (West
2002).
Finally, the McCauley court noted that the self-incrimination privilege in article I, section
10, of the Illinois Constitution only protects an accused from testimonial disclosures. McCauley,

 (“Section 10 ‘ “protects an accused only from being compelled to testify
against himself, or otherwise provide the State with evidence of a testimonial or communicative
nature *** ” ’ ”), quoting People ex rel. Bowman v. Woodward,

63 Ill. 2d 382

, 385 (1976),
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1-06-0824
quoting Schmerber v. California,

384 U.S. 757

, 761,

16 L. Ed. 2d 908

, 914,

86 S. Ct. 1826

, 1830
(1966); see also Ill. Const. 1970, art. I, §10. Section 10, the self-incrimination privilege, does
not protect against nontestimonial disclosures such as requiring a person in custody to stand or
walk in a police lineup, to speak prescribed words, to model particular clothing, or to give
samples of handwriting, fingerprints, or blood. See McCauley,

; Schmerber,

384 U.S. at 764

, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832. Here, the police placed Davis, their agent
or informant, in a room with Hunt in order to record Hunt’s statements and to obtain
incriminating information for the police. While Hunt's statements to Davis, the police agent or
informant, during the custodial interrogations on July 31, 2002, and August 6, 2002, were
testimonial disclosures that violated the self-incrimination privilege (Stechly,

225 Ill. 2d at 268

,
quoting Davis v. Washington,

547 U.S. 813

, 822,

165 L. Ed. 2d 224

, 237,

126 S. Ct. 2266

, 2273-
74 (2006) (statements are testimonial when the purpose of the interrogation is to establish or
prove past events that are relevant to a later criminal prosecution)), the police would not violate
the self-incrimination privilege if they placed Hunt in a lineup. See McCauley,

; Schmerber,

384 U.S. at 764

, 16 L. Ed. 2d at 916, 86 S. Ct. at 1832. Accordingly, the trial
court correctly suppressed Hunt's July 31, 2002, and August 6, 2002, statements to Davis, the
police agent or informant, because Hunt's statements were testimonial disclosures during
custodial interrogations that violated Hunt's self-incrimination privilege. McCauley,

; see also Stechly,

225 Ill. 2d at 268

, quoting Davis,

547 U.S. at 822

165 L. Ed. 2d at 237

126 S. Ct. at 2273-74

.
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1-06-0824
Petition for Rehearing
In a petition for rehearing, the State argues that this court made erroneous findings of
fact. First, the State disputes our statement that Hunt invoked his right to counsel on July 18,
2002. Hunt testified that, on July 18, 2002, he told detectives he wanted to talk with a lawyer.
The trial court found, “It is clear that prior to July 31st, defendant had indicated he did not wish
to speak to police regarding this case.” The trial court’s finding that Hunt invoked his right to
counsel prior to July 31, 2002, is based on Hunt's testimony, and our statement that Hunt
invoked his right to counsel on July 18, 2002, is based on the trial court's finding.
The State also disputes our finding that the State had custody of Hunt when Davis
questioned him.    Our supreme court, in Hunt, held that Hunt was in custody when police
transferred him from the jail to the Area 4 police station where Davis questioned him. Hunt,

234 Ill. 2d at 63

. The evidence supports the finding of custody.
The State contests our interpretation of Shatzer.         We adhere to our explanation of
Shatzer. The defendant in Shatzer experienced a break in interrogation of 2 ½ years. Here, a
break of less than two weeks intervened between Hunt’s invocation of his right to counsel during
questioning on July 18, 2002, and Davis’s interrogation of Hunt on July 31, 2002. A second
break of less than two weeks intervened between Hunt’s questioning on July 31, 2002, and the
questioning on August 6, 2002. Throughout each of the periods of less than two weeks, Hunt
remained in the intermittent custody of those who controlled the interrogation. The factual
differences between this case and Shatzer require a different result.
Next, the State argues that we improperly applied retroactively the definition of
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1-06-0824
“custodial interrogation” our legislature codified in section 103-2.1 of the Code of Criminal
Procedure. 725 ILCS 5/103-2.1 (West 2006). While other sections of the statute change the law
(see People v. Amigon,

388 Ill. App. 3d 26

, 30-32 (2009), appeal allowed,

233 Ill. 2d 565

(2009)), we find that the definition of "custodial interrogation" codifies earlier decisions. See
Perkins, 248 Ill. App. 3d at 769. In Perkins, a police informant questioned the defendant in his
jail cell, after the defendant had requested an attorney.          The trial court suppressed the
defendant’s statements to the informant, finding that the custodial interrogation by the informant
violated the defendant’s constitutional rights. The Perkins court defined “custodial interrogation”
to include questioning by police agents and informants as well as police officers. Perkins, 248
Ill. App. 3d at 769. The definition applied in Perkins has been codified in the statutory definition.
See 725 ILCS 5/103-2.1 (West 2006). If the legislature meant to specify that “custodial
interrogation” referred to questioning only by police officers, the legislature would have so
specified. Instead, the legislature defined custodial interrogation to include any interrogation in
which "a question is asked" that may elicit an incriminating response. By using the passive
voice in the statute, the legislature indicated an intention not to limit the potential questioners to
whom the provision applies. See Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91

, 103,

60 L. Ed. 2d 66

, 79,

99 S. Ct. 1601

, 1609 (1979) (statutory use of passive voice placed no
restriction on potential plaintiffs who could sue under the statute).
The State claims that the statutory definition of “custodial interrogation” leads to the
absurdity that the court may admit into evidence statements obtained by deception as long as the
defendant makes the statements when he is out of custody. The court in Perkins addressed this
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1-06-0824
argument and found no absurdity. The Perkins court said:
“Because defendant had invoked his right to counsel, the actions of the authorities
were improper and the statements made by defendant must be suppressed.
[Citation.] That is not to say that the authorities could not have played out the
same scam on defendant if he had not been in custody, because it seems clear that
they could have done so without violating defendant's constitutional rights.”
Perkins, 248 Ill. App. 3d at 771.
Thus, the constitution may permit police to deceive the subject of an investigation when the
subject remains free from custody, but similar deceptive practices by State agents offend the
Illinois Constitution when the State has taken the subject into custody and he has invoked his
right to counsel. McCauley,

163 Ill. 2d at 423-24

; Perkins, 248 Ill. App. 3d at 771. The Illinois
Constitution places special restrictions on State action once the State has placed the subject of an
investigation who has invoked the right to counsel in the coercive environment of State custody.
See McCauley,

163 Ill. 2d at 423-24

; Perkins, 248 Ill. App. 3d at 771. We see no absurdity in
permitting prosecutors to use against a defendant statements obtained from the defendant by
deception when the defendant was not in custody, but barring the use of similar statements made
by the defendant while in custody.
Finally, the State argues that the court should not suppress the statements here because
police used deception, not force, to obtain the statements. According to the State, Hunt never
proved the kind of compulsion necessary for suppression of statements under article I, section
10, of the Illinois Constitution of 1970.
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1-06-0824
Illinois courts have developed standards for determining when improper influence of law
enforcement agents requires suppression of statements they have obtained. See McCauley,

163 Ill. 2d at 428-39

. According to the court in Perkins:
“Miranda *** requires that the officials cease questioning a suspect
immediately upon a request for an attorney. If the questioning continues after a
suspect has requested an attorney, but without the attorney's presence, then a
heavy burden is on the government to show that the suspect knowingly and
intelligently waived his right to counsel. Further, although any statement given
freely and voluntarily without any compelling influences is admissible in
evidence, ‘any evidence that the accused was threatened, tricked, or cajoled into a
waiver will, of course, show that the defendant did not voluntarily waive his
privilege.’ Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629.”
Perkins, 248 Ill. App. 3d at 768.
When an accused invokes his right to counsel, the Illinois Constitution forbids both direct
interrogation and “less direct techniques of persuasion.” Perkins, 248 Ill. App. 3d at 771.
Here, as in Perkins, “the government's procedure was calculated to deceive defendant, so
that he would not know to whom he was making incriminating statements.” Perkins, 248 Ill.
App. 3d at 769. Like the court in Perkins, we find that the deception ensured that defendant did
not have the “opportunity to knowingly and intelligently waive his previously asserted right to
have counsel present during questioning.” Perkins, 248 Ill. App. 3d at 769. We cannot find a
valid waiver of the right to counsel where Hunt was involuntarily removed from the county jail
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1-06-0824
by the police and merely responded to police-initiated custodial interrogation. Because Hunt
invoked his right to counsel on July 18, 2002, and July 31, 2002, and was involuntarily removed
from the jail, we find the actions of authorities improper, and therefore we must suppress the
statements authorities obtained from defendant. See McCauley,