People v.Salamon

2022 IL 125722IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125722)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ANDREW SALAMON, Appellant.
Opinion filed April 21, 2022.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Theis, Overstreet, and Carter
concurred in the judgment and opinion.
Justice Michael J. Burke specially concurred, with opinion, joined by Justice
Garman.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, defendant Andrew
Salamon was convicted of first degree murder, armed robbery, and burglary and
sentenced to an aggregate prison term of 33 years. Defendant appealed, arguing that
the circuit court erred in denying his pretrial motion to suppress his inculpatory
statement because it was obtained in violation of his constitutional and statutory
rights. The appellate court rejected defendant’s arguments and affirmed his
conviction. 2019 IL App (1st) 160986-U. This court granted defendant’s petition
for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2019). For the following reasons,
we affirm the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 In the early morning hours of October 4, 2009, police officers responded to a
burglar alarm at O’Lanagan’s bar on the north side of Chicago. Robert Gonzalez,
the owner of the bar, was found lying between two parked cars in the parking lot
behind the bar. Gonzalez had suffered multiple injuries and was transported to the
hospital, where he died 15 hours later. During the police investigation of the crime,
defendant and another person named Raymond Jackson became suspects.
Defendant was ultimately arrested approximately two years later and charged with
first degree murder based on a theory of accountability, armed robbery, and
burglary. 1
¶4 Prior to trial, defendant filed a motion to suppress a statement he made to the
officers investigating Gonzalez’s death and to an assistant state’s attorney.
Defendant’s motion asserted that any and all statements made by him were elicited
in violation of his constitutional rights under the fourth, fifth, sixth, and fourteenth
amendments to the United States Constitution (U.S. Const., amends. IV, V, VI,
XIV), the Illinois Constitution (Ill. Const. 1970), and his statutory right to
communicate with an attorney or family member under section 103-3 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/103-3 (West 2012)).
¶5 A. Suppression Hearing
¶6 At the hearing on the motion to suppress, defendant testified that he was
contacted by police officers on November 15, 2010, approximately one year after
Gonzalez died. On that date, he received a telephone call from a detective who
1
The record does not reflect whether Jackson was ever charged or tried for any crimes related
to Gonzalez’s death.
-2-
indicated he had “some routine questions” about an unspecified matter. Defendant
voluntarily went to the police station with a friend, Apolonio Retama.
¶7 During that conversation with the detectives, defendant was not handcuffed or
given Miranda admonishments. See Miranda v. Arizona, 384 U.S. 436 (1966).
Detectives Timothy Thompson and John Gillespie began asking questions about
Jackson regarding what they described as a “serious matter.” When defendant
learned that they were investigating a murder, he informed them that he wanted to
speak with an attorney before talking to them any further. The detectives told him
he did not need an attorney, but when he insisted, they told him that he was free to
go. Defendant estimated that this encounter with the detectives lasted
approximately 15 minutes.
¶8 Nearly a year later, defendant was pulled over by two police cars as he was
driving home from work in the early evening of November 9, 2011. When he
stopped his vehicle, several officers surrounded him with their guns drawn and
ordered him out of his car. Defendant complied and was then handcuffed and placed
in the back of one of the police cars. The two detectives who had questioned him a
year earlier were also in the police car. The detectives did not advise him that he
was under arrest, and he asked why he had been stopped. According to defendant,
the detectives told him “ ‘the games are over with’ ” and that it was his “ ‘last
chance to cooperate’ ” and they could “ ‘do this the easy way or the hard way.’ ”
The prosecutor objected on the ground that “[t]here is nothing [in defendant’s
motion] about coercion or anything else.” Defense counsel responded that the
previous testimony was not offered “as coercion” and that he was asking defendant
“what happened when he got in the [police] car.” The trial court overruled the
objection.
¶9 Defendant further testified that, as soon as he got in the police car, he told the
detectives that he wanted to speak to a lawyer. The detective drove him to the police
station, put him in an interrogation room, and then advised him of his Miranda
rights. Defendant again repeated that he wanted to speak to a lawyer, but he was
not permitted to use a telephone to contact an attorney or any members of his family
who could arrange for counsel.
¶ 10 According to defendant, he remained handcuffed to the wall in the interrogation
room overnight except on the three or four occasions when he was escorted to use
-3-
the restroom. During that time, he was provided with food, water, and contact lens
solution. Defendant acknowledged that, when he told the detectives he did not wish
to speak to them without an attorney present, they stopped questioning him and left
the interrogation room. He stated, however, that the officers who escorted him to
and from the restroom urged him to cooperate with the investigation.
¶ 11 Defendant further testified that he repeatedly requested a telephone call so that
he could contact an attorney, but none of the officers permitted him the use of a
telephone. On November 10, 2011, after spending approximately 24 hours alone
and handcuffed to a wall in the interrogation room, while his repeated requests for
a phone call were ignored, he started crying and pounding on the walls and door.
Defendant again requested a telephone call to contact an attorney and his mother
so she could call a lawyer. When a police officer opened the door, defendant said
that he wanted to speak to Detectives Thompson and Gillespie. Shortly thereafter,
Detectives Thompson and Gillespie reentered the room, but they informed him that
he would have to “wait” for a phone call.
¶ 12 Eventually, defendant agreed to speak with the detectives. He acknowledged
that he reinitiated contact with the detectives and, after he was again admonished
of his Miranda rights, he provided a statement. Defendant subsequently provided
another statement to an assistant state’s attorney, who also advised him of his
Miranda rights.
¶ 13 The State called Detective Timothy Thompson, who substantially confirmed
defendant’s description of the interview at the police station in November 2010.
Thompson testified that he was present when defendant was arrested on November
9, 2011, in connection with Gonzalez’s murder. Following the arrest, defendant was
transported to the Area North police station and, shortly after 6 p.m., defendant was
placed in an interview room. Thompson further testified that he activated the
electronic recording system and immediately advised defendant of his Miranda
rights. After being advised of his rights, defendant stated that he wanted to speak
with an attorney. At that point, Thompson and his partner ceased interviewing
defendant and left the room.
¶ 14 According to Thompson, he did not ask defendant any questions or speak to
him about the homicide until sometime around 5:15 p.m. the following day, when
defendant reinitiated contact. Thompson confirmed that defendant was provided
-4-
with food, water, contact lens solution, and restroom breaks while he was detained
in the interview room. Thompson stated that he personally escorted defendant to
the restroom at least once, but he denied that he spoke to defendant about the case
on that occasion.
¶ 15 Thompson stated that sometime after 5 p.m. on November 10, 2011, Detective
Moriarty advised him that defendant had been kicking the door of the interview
room. When he and Gillespie entered the room, defendant stated that he was “ready
to talk.” Thompson testified that he informed defendant he would have to be given
his Miranda warnings again because he had declined to be interviewed without
counsel present. After defendant was again admonished, he gave the detectives a
statement about Gonzalez’s murder. Sometime thereafter, defendant also provided
another statement to Assistant State’s Attorney Miki Miller. 2 Thompson also
testified that it was “procedure” at the Area North police station that arrestees are
not “normally” provided telephone access until “after the completion of the booking
process.” Thompson confirmed that defendant was not booked until after he had
provided his statement to them and to Assistant State’s Attorney Miller.
¶ 16 On cross-examination, Thompson admitted that, after defendant invoked his
right to counsel, he was placed in a locked interview room. In response to defense
counsel’s question whether defendant had requested to make a telephone call while
he was detained, Thompson said that he “[did not] specifically recall” but that
defendant could have done so.
¶ 17 Thompson acknowledged that defendant did not have any access to a telephone
from the time of his arrest and during the entirety of his detention in the
interrogation room. When defense counsel further questioned Thompson about
defendant’s lack of access to a telephone, the prosecutor objected based on lack of
relevance. Defense counsel responded that defendant “was told he had a right to a
lawyer” and that counsel was “just trying to find out how he is supposed to get that
lawyer, what that right entails.” The State’s objection was overruled.
2
Thompson testified that the electronic recording equipment remained activated throughout
defendant’s 24-hour detention in the interrogation room, but no footage of that time period has been
provided to the court. The record on appeal includes only the videorecording of defendant’s
statement to Assistant State’s Attorney Miller.
-5-
¶ 18 Later, defense counsel asked whether defendant had been handcuffed to the
wall, and Thompson answered, “[o]n some occasions, yes.” At that point, the
prosecutor again objected on the ground of relevance, stating that “[t]his is not a
motion alleging coercion.” Defense counsel explained that “it [was] relevant that
24 hours after—25 hours after he asks for a lawyer, he is physically incapacitated
from getting a lawyer not only by being locked in a room but being handcuffed to
a wall.” The trial court overruled the State’s objection. Detective Thompson then
admitted that, while defendant was locked in the interrogation room, he did not
have any way to speak to a lawyer.
¶ 19 During his closing argument in support of the motion to suppress, defense
counsel argued that defendant had invoked his right to counsel but had “no means
of getting an attorney. So the officer telling him that he has a right to an attorney
*** is absolutely meaningless if he has *** no means of getting an attorney or ***
calling anyone to get him an attorney.”
¶ 20 In response, the prosecutor argued that defendant’s rights under the fifth
amendment had not been violated because all questioning stopped after he invoked
his right to counsel. She noted that defendant had acknowledged he was given food,
water, contact lens solution, and restroom breaks and that he later reinitiated contact
with the detectives. In particular, the prosecutor referenced Thompson’s testimony
that arrestees were permitted access to a telephone after the booking process, and
she maintained that the detectives “did exactly what they were supposed to do ***
exactly what the constitution calls for.” She posited that the “police have the right
to their own procedures as to who gets to go where and when because they are in
custody.” In addition, the prosecutor contended that defendant had not met his
burden to suppress his statement. And she specifically argued that “we have met
our burden to show that [the statement] was indeed voluntary.”
¶ 21 In rebuttal, defense counsel argued that “Miranda requires that *** if
[defendant] asks for a lawyer, he be given a lawyer during questioning. He asked
for a lawyer, and he [was] given no means whatsoever to obtain a lawyer.”
¶ 22 In ruling on defendant’s motion to suppress, the circuit court specifically
considered defendant’s age and the fact that he was employed at the time of his
arrest. The court also referenced the evidence presented at the hearing, including
defendant’s earlier police interview in 2010 and the circumstances surrounding his
-6-
detention following arrest. In addition, the court noted that the testimony of
Detective Thompson “mirrors in large part” that of defendant.
¶ 23 Ultimately, the circuit court denied the motion to suppress, finding that
defendant’s statement was voluntary because he had been advised of his rights
pursuant to Miranda and waived those rights when he reinitiated contact with the
detectives. The court observed that “the police were slow in providing a phone call”
but found that they had not engaged in improper conduct in obtaining defendant’s
statement.
¶ 24 B. Trial
¶ 25 At defendant’s jury trial, the State’s theory of the case was that Jackson had
been injured in a fight at O’Lanagan’s and sought revenge against the bar’s owner,
Gonzalez, as well as money to pay his resulting medical bills. Jackson enlisted
defendant in a plan to burglarize the bar, and Gonzalez was killed during the
commission of the crime.
¶ 26 Gonzalez’s friend, Sam Kelfino, who was helping remodel O’Lanagan’s
exterior, testified that he had a confrontation with Jackson in September 2009,
about a month before the murder. Kelfino was standing near the bar’s entrance
when Jackson, whom Kelfino described as the “neighborhood bully,” approached
and ordered Kelfino to move. When Kelfino ignored him, Jackson threatened to
punch Kelfino in the mouth. Kelfino, a former professional boxer, punched
Jackson, knocking him unconscious. When Jackson regained consciousness, he
attempted to enter O’Lanagan’s bar, but Gonzalez laughed at him and refused to let
him inside. Jackson eventually had to be taken away in an ambulance. About a week
later, Jackson called Kelfino and asked him to “go in cahoots with him” and falsely
claim that the fight had occurred inside the bar so that Jackson could file a lawsuit
and recover money. Kelfino declined to help Jackson.
¶ 27 Jose Santos, an acquaintance of Jackson’s for 10 years, testified that on an
evening in late September 2009, the two men went to a bar near O’Lanagan’s.
Jackson was looking for Kelfino and had concealed a pipe with tape wrapped
around the handle in his shirt sleeve.
-7-
¶ 28 Santos saw Jackson again on the evening of the murder. Jackson arrived at
Santos’s house in a car driven by one of Jackson’s friends, “Andrew,” whom Santos
identified at trial as defendant. Santos got in the backseat, and the three men
discussed a plan to burglarize O’Lanagan’s. The men agreed that Santos would
“watch out,” while Jackson took a box of money from the bar’s basement and
defendant broke into the slot machines. Defendant told Santos that he had a crowbar
to assist with the crimes. They expected to recover around $5000 from the robbery.
Although he initially agreed to participate, Santos ultimately changed his mind and
did not accompany the other two men to O’Lanagan’s.
¶ 29 When initially questioned by police in November 2009, Santos said that a white
male in his early twenties had been driving the car with Jackson on the night of the
murder. After police spoke with defendant, they questioned Santos again in
February 2010 and showed him a photo array containing pictures of six different
men, including defendant. Santos identified defendant’s photo as the man driving
the car.
¶ 30 Retama, defendant’s friend of 15 years, testified that defendant called him in
the fall of 2010 and said that he had done “something bad.” Retama invited
defendant over to discuss the matter. When defendant arrived, he was visibly upset
and said he thought he was “going down for murder.” Defendant then recounted to
Retama that he had agreed to help Jackson rob a bar. He explained that Jackson had
gotten into a fight at the bar and wanted to get even with the bar’s owner, who had
thrown him out. During the course of the burglary, the men encountered the bar’s
owner, who grabbed defendant’s shoulder. Defendant then punched the owner in
the head, and Jackson proceeded to beat the owner to death with a pipe.
¶ 31 Retama encouraged defendant to turn himself in. Retama accompanied
defendant to the police station, where he waited for several hours while defendant
spoke with police. When defendant finished speaking with police, he looked scared,
and his hands were shaking. Retama then drove defendant and himself back to
Retama’s house.
¶ 32 Other evidence established that Gonzalez was last seen alive around 3:30 a.m.
on October 4, 2009. At that time, Gonzalez was inside the bar. The bar’s burglar
alarm was activated at 4:23 a.m., indicating that Gonzalez left the bar at around that
-8-
time. But three minutes later, the rear door was breached, and the alarm was
triggered. The alarm company notified the police of the alert.
¶ 33 Officer Emmert Gouthier responded to the scene and found that the bar’s front
door was locked and secured but that the back door was unlocked and showed no
sign of forced entry. Gouthier and another officer searched the bar and found no
one inside. When they exited the rear door, they heard a noise and followed a trail
of blood to Gonzalez, who was lying in the nearby parking lot. Gonzalez was
unresponsive and bleeding from severe injuries. Gonzalez was transported to the
hospital, where he later died from his injuries.
¶ 34 A medical examiner testified that Gonzalez’s injuries included three large
lacerations on the back of his head and a recent bruise on his forehead, which “was
a discreet impact though not as hard as the ones on the back of the head.” The
lacerations had been made with a heavy but narrow object, such as a pipe. The
object fractured Gonzalez’s skull and injured his brain, resulting in his death.
¶ 35 On the day of the murder, detectives spoke with Kelfino, who identified Jackson
as someone who had been angry with Gonzalez and was looking for reimbursement
for his hospital bills. The detectives spoke with Santos shortly thereafter.
¶ 36 In January 2010, detectives obtained Jackson’s cell phone records. Cell phone
data placed Jackson’s phone in the vicinity of O’Lanagan’s around the time of the
murder. Jackson’s phone records led police to a number of potential witnesses, and
they interviewed more than 50 people over the course of their investigation.
¶ 37 One of the phone numbers in Jackson’s records belonged to defendant. After
Santos identified defendant’s photo, the detectives sought to interview him in
November 2010. At their request, defendant came to the police station and spoke
with the detectives. Retama accompanied defendant to the station but was not
interviewed at that time. About a year later, the detectives arrested defendant and
took him to the police station. He eventually gave a videorecorded statement to
Assistant State’s Attorney Miller.
¶ 38 Defendant’s videorecorded statement to Miller was played for the jury during
the State’s case-in-chief. In that video, defendant stated that he met Jackson through
friends and that they had spoken only five or six times before October 2009. On the
-9-
night of the murder, the two men went out for drinks. When defendant picked
Jackson up, he saw Jackson wrapping a metal pipe with black tape, which Jackson
said was needed “for protection.” Jackson told defendant that he was angry at
Gonzalez for laughing at him after the altercation at O’Lanagan’s. Jackson
proposed breaking into the bar after it closed that evening. Defendant stated that he
was to act as a lookout while Jackson went inside and took money from the bar’s
poker machines. Jackson estimated that they would walk away with $50,000, and
defendant agreed to participate because he needed the money.
¶ 39 According to defendant’s statement, he went to O’Lanagan’s, had a drink, and
looked around for cameras as preparation for the burglary. Jackson had suggested
that he knew someone who could help with the crime, and he directed defendant to
drive to Santos’s house. Santos got in the back seat of the car, and they explained
the burglary plan to him, but Santos ultimately decided not to participate.
¶ 40 Defendant and Jackson waited outside O’Lanagan’s, watching patrons depart.
After the bar closed, Jackson approached the rear door of the building, which was
locked, and saw Gonzalez inside. Jackson told defendant that he could “persuade”
Gonzalez to give them the keys to the bar. Defendant stated that when Gonzalez
came out Jackson approached him and began attacking him with the pipe. From the
intensity of the attack, defendant could tell that Jackson had a personal grudge
against Gonzalez. After Jackson stopped beating Gonzalez with the pipe, he
dragged him in between two cars in the parking lot and took the keys from
Gonzalez’s pocket.
¶ 41 Defendant stated that he used the keys to open the rear door of the bar, but he
immediately noticed the burglar alarm and decided not to go inside. When they left
the scene, Jackson warned defendant to keep quiet about the crime. As they were
driving away, Jackson cleaned the pipe with baby wipes and threw it in a garbage
can, and defendant tossed the keys out of his window. Defendant subsequently
cleaned his car to remove blood from the front passenger seat Jackson had
occupied. Defendant last spoke to Jackson two days later when Jackson called to
make sure that defendant was “keeping his mouth shut.”
¶ 42 Defendant further stated that, about a year later, he learned that the police
wanted to speak with him. He told Retama about the incident, and Retama
accompanied him to the police station. Defendant insisted that he never touched
- 10 -
Gonzalez, and he stated that he did not recall telling Retama that he had punched
Gonzalez. Defendant explained that, if he had said that to Retama, he must have
done it to avoid looking “like a bitch.”
¶ 43 Defendant chose not to testify and rested without presenting witnesses. During
closing argument, defense counsel acknowledged that defendant had participated
in the scheme to burglarize O’Lanagan’s bar, but he argued that defendant was not
accountable for Gonzalez’s murder because it was not committed in furtherance of
the planned burglary. Rather, counsel argued, Jackson had planned to murder
Gonzalez in revenge, but defendant did not know about Jackson’s murder plan
because he did not know Jackson very well when he agreed to take part in a
burglary.
¶ 44 The jury found defendant guilty on all counts. He subsequently filed a motion
for a new trial in which he asserted, inter alia, that the circuit court erred in denying
his motion to suppress. The circuit court denied defendant’s motion for a new trial
and imposed an aggregate sentence of 33 years for first degree murder, armed
robbery, and burglary.
¶ 45 C. Appellate Court Decision
¶ 46 On appeal, defendant challenged the denial of his motion to suppress. In his
brief before the appellate court, defendant specifically argued that the erroneous
admission of his involuntary statement was “preserved” by his counsel’s “filing
[of] a pre-trial motion to suppress his statement on both statutory and constitutional
grounds *** and by including the denial of the motion in a post-trial motion.” The
State’s brief did not counter that argument or respond to it in any way.
¶ 47 The appellate court addressed the issue on the merits and affirmed defendant’s
conviction, holding that his statement was voluntary and that, even if it had been
involuntary, any error in its admission was harmless. 2019 IL App (1st) 160986-U,
¶¶ 60-64. In reaching this conclusion, the appellate court observed that the length
of defendant’s prestatement detention and the denial of his requests for a phone call
are relevant but not determinative factors when considering the totality of the
circumstances of a defendant’s statement. Id. ¶ 60. In addition, the appellate court
noted that several factors distinguish this case from the decisions in Haynes v.
- 11 -
Washington, 373 U.S. 503 (1963), and People v. Sanchez, 2018 IL App (1st)
143899. 2019 IL App (1st) 160986-U, ¶ 60.
¶ 48 In particular, the appellate court pointed to the following facts: defendant was
informed of his Miranda rights while he was in police custody and evidenced an
understanding of his rights by first invoking his right to counsel and then by
waiving his rights after reinitiating contact with police; defendant’s use of a
telephone was never conditioned upon his cooperation with the detectives—he was
simply told he had to “wait” for a phone call; although defendant was not provided
access to a telephone during his prestatement detention, Detective Thompson
explained it was Area North’s general practice not to provide arrestees with
telephone access until after the booking process was completed; defendant was not
“booked” until after he provided statements to detectives and the assistant state’s
attorney, but he had not argued that his “booking” was purposely delayed in order
to prevent him from making a phone call. Id.¶ 49 In addition, as to the applicability of section 103-3(a), the appellate court noted
that the term “reasonable time” is not defined in the statute and would only be one
of the relevant factors in the totality of the circumstances regarding the
voluntariness of defendant’s statement. Id. ¶ 61.
¶ 50 The appellate court determined that even if the detectives violated defendant’s
rights under section 103-3(a) (725 ILCS 5/103-3(a) (West 2008)) by failing to
provide him access to a telephone during his prestatement detention, the totality of
the circumstances does not support a finding that his statement was involuntary.
2019 IL App (1st) 160986-U, ¶ 61. Moreover, the appellate court held that, even if
defendant’s statement was involuntary, any error in its admission was harmless
based on the other evidence of his guilt. Id. ¶¶ 63-64.
¶ 51 Defendant appeals to this court. We granted the Center for Wrongful
Convictions and The Innocence Project leave to submit a brief as amici curiae in
support of defendant’s position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
- 12 -
¶ 52 II. ANALYSIS
¶ 53 Defendant argues that the circuit court erred in refusing to suppress his
inculpatory statement because it was obtained in violation of his constitutional and
statutory rights. According to defendant, his statement should have been suppressed
as involuntary where it was elicited through coercive conduct by police detectives.
¶ 54 In response, the State first asserts that defendant has forfeited review of the
claim that his statement was involuntary. The State also contends that, forfeiture
aside, denial of defendant’s motion to suppress was proper because defendant’s
statement was voluntary despite the fact that he was prevented from making a phone
call for 24 hours after his arrest. Lastly, the State posits that, even if defendant’s
statement should have been suppressed, its erroneous admission was harmless.
¶ 55 A. Forfeiture
¶ 56 We initially address the State’s assertion that defendant forfeited review of the
claim that his statement was involuntary. In general, a criminal defendant must raise
an issue at trial and in a posttrial motion to properly preserve the error for review.
People v. Enoch, 122 Ill. 2d 176, 186 (1988); see also People v. McDonald, 2016
IL 118882, ¶ 45. The failure to do so results in a procedural default, and the error
will be considered forfeited. Enoch, 122 Ill. 2d at 185-86; People v. McLaurin, 235
Ill. 2d 478, 485 (2009). A claim of forfeiture presents a question of law, which we
review de novo. People v. Custer, 2019 IL 123339, ¶ 17.
¶ 57 In this case, the State contends that defendant forfeited the argument that his
statement was involuntary because the claim he asserts before this court was not
presented to the trial court. In support, the State relies on People v. Hughes, 2015
IL 117242, ¶¶ 40-45, which held that the defendant had forfeited the claim that his
statements were involuntary because the reasons supporting his argument on appeal
were factually and legally distinct from the grounds for suppression asserted in the
trial court.
¶ 58 According to the State, defendant’s motion to suppress focused on allegations
that the detectives improperly reinitiated interrogation after he had invoked his right
to counsel and that his statutory right to a telephone call was violated. In the State’s
- 13 -
view, defendant’s focus on these assertions prevented full development of the
record and precluded the circuit court from engaging in the totality-of-the-
circumstances analysis that governs involuntariness claims. The State further
contends that defendant “affirmatively disavowed” an involuntariness claim at the
suppression hearing when his counsel acquiesced in the prosecutor’s objection that
the motion to suppress did not allege coercion.
¶ 59 We disagree with the State’s contentions and find that the involuntariness claim
has been preserved for review. First, the claim was raised in defendant’s motion to
suppress, which alleged that his statement was elicited in violation of his
constitutional rights under the fourth, fifth, sixth, and fourteenth amendments to the
United States Constitution (U.S. Const., amends. IV, V, VI, XIV). The issue was
also included in defendant’s posttrial motion, which challenged the denial of the
motion to suppress, and it was raised in defendant’s briefs before the appellate court
and in his petition for leave to appeal to this court.
¶ 60 Second, the State’s reliance on Hughes is misplaced because the reasons
supporting defendant’s suppression argument are not factually or legally distinct
from the grounds asserted in the trial court. At the suppression hearing, defendant
testified in detail as to the circumstances of his arrest and his 24-hour detention at
the police station without access to an attorney or any means of obtaining counsel.
¶ 61 Defendant testified that, during his 24-hour detention, he was handcuffed to a
wall in a locked interrogation room and was denied access to a telephone even
though he invoked his right to counsel and repeatedly requested use of a telephone
so he could arrange to speak with an attorney. After being held in the locked
interrogation room for approximately 24 hours, he began to cry and pound on the
walls and door. When the detectives reentered the room, they told him that he would
have to “wait” for a phone call. Eventually, defendant agreed to make a statement.
¶ 62 Defense counsel repeatedly argued that defendant had invoked his right to
counsel under Miranda but had no means of getting an attorney or contacting
someone who could help him arrange for counsel. Defense counsel further argued
that defendant’s right to an attorney “is absolutely meaningless if he has no means
of getting one.”
- 14 -
¶ 63 Considering the evidence and arguments presented at the suppression hearing,
we conclude that the factual and legal bases supporting defendant’s argument have
not changed. The crux of defendant’s argument in the trial court and before this
court is that his statement was rendered involuntary because he was detained for
approximately 24 hours and deprived of the ability to contact an attorney even
though he repeatedly invoked his right to counsel and requested access to a
telephone in order to exercise that right.
¶ 64 The prosecutor was fully aware of the basis of defendant’s claim, and she
argued that “we have met our burden to show that [defendant’s statement] was
indeed voluntary.” And the circuit court understood defense counsel’s argument
regarding defendant’s “ability to access a phone call and attorney services” during
the 24-hour period of detention. In light of these circumstances, the record does not
support the State’s contention that defendant has forfeited his involuntariness claim
by asserting different factual and legal grounds.
¶ 65 Third, we disagree with the State’s assertions that it was deprived of the
opportunity to fully develop the record by presenting evidence that defendant’s
statement was voluntary and that the circuit court was precluded from engaging in
the totality-of-the-circumstances analysis governing involuntariness claims.
¶ 66 The record establishes that the State cross-examined defendant regarding the
circumstances of his detention and elicited defendant’s acknowledgement that he
had waived his rights under Miranda after reinitiating contact with the detectives.
The State also presented the testimony of Detective Thompson, who substantially
agreed with defendant’s description of his arrest and detention. Thompson
acknowledged that defendant was held overnight and into the following evening in
a locked interrogation room while being handcuffed to a wall for at least part of
that time. Thompson also admitted that defendant had invoked his right to counsel
at the time of his arrest and at the police station but was not allowed access to a
telephone to contact an attorney or a family member until after he had given his
statement to the assistant state’s attorney.
¶ 67 The State has not explained how it was hampered in opposing the motion to
suppress, nor has it suggested what new evidence might have been presented to
counter defendant’s involuntariness claim. Consequently, we are unpersuaded by
- 15 -
the State’s assertion that it was deprived of the opportunity to present a fully
developed record on the voluntariness of defendant’s statement.
¶ 68 Also, the record indicates that the circuit court engaged in the totality-of-the-
circumstances analysis. In ruling on defendant’s motion, the circuit court
particularly referenced defendant’s age and his employment by a catering firm. The
court also considered the evidence of defendant’s two encounters with the police
regarding Gonzalez’s murder. The court noted that in 2010, the year prior to his
arrest, defendant agreed to speak with the police and was permitted to leave the
station. In addition, the court addressed the duration of defendant’s detention, his
invocation of the right to counsel, and the fact that he had asked for a telephone call
but was denied access to a telephone prior to making his inculpatory statement.
Based on this record, we cannot say that the circuit court was precluded from
considering the totality of the circumstances in ruling on the voluntariness of
defendant’s statement.
¶ 69 Fourth, the record does not support the State’s contention that defendant had
“affirmatively disavowed” his involuntariness claim. In making this argument, the
State focuses on defense counsel’s responses to two objections by the prosecutor
asserting that defendant’s motion to suppress had not alleged “coercion.” Upon
careful review of the record, we conclude that, considered in context, defense
counsel’s comments indicate only that the motion to suppress did not allege
physical torture or abuse and cannot fairly be characterized as an affirmative
disavowal of the claim that defendant’s statement was involuntary.
¶ 70 As a final point, we note that the State concedes it did not raise defendant’s
alleged forfeiture of this issue in the appellate court. As this court has recognized,
the forfeiture rule applies to the State as well as to the defendant in a criminal case.
People v. Holman, 2017 IL 120655, ¶¶ 27-28; People v. McKown, 236 Ill. 2d 278,
308 (2010); People v. Lucas, 231 Ill. 2d 169, 174-75 (2008); People v. Williams,
193 Ill. 2d 306, 347 (2000).
¶ 71 In this case, defendant specifically argued in his brief to the appellate court that
the erroneous admission of his involuntary statement was “preserved” by his
counsel’s “filing a pre-trial motion to suppress his statement on both statutory and
constitutional grounds *** and by including the denial of the motion in a post-trial
motion.” The State did not respond to this argument or bring defendant’s alleged
- 16 -
forfeiture to the attention of the appellate court. Also, the appellate court addressed
the issue on the merits, apparently unhindered by the sufficiency of the record. In
light of these circumstances, even if defendant had failed to preserve the
involuntariness issue for review, we would not be inclined to excuse the State’s
forfeiture while enforcing it against defendant. Because we find that defendant’s
involuntariness claim has been preserved, we need not address his argument that
the issue should be considered as plain error.
¶ 72 B. Involuntariness of Defendant’s Statement
¶ 73 1. Constitutional Prohibition Against Involuntary Confessions
¶ 74 Defendant argues that his statement should have been suppressed on the ground
that it was involuntary and elicited through coercive conduct by the investigating
police detectives. The State responds by asserting that defendant’s statement was
voluntary and, therefore, his constitutional rights were not violated even though he
was held in custody and precluded from contacting an attorney for approximately
24 hours after his arrest.
¶ 75 A trial court’s decision on a motion to suppress is reviewed under a two-part
standard. In re D.L.H., 2015 IL 117341, ¶ 46. Factual findings by the trial court will
be reversed only if they are against the manifest weight of the evidence, but the
ultimate legal determination as to whether suppression is warranted is reviewed
de novo. Id.¶ 76 The rule prohibiting the admission of an involuntary confession is rooted in the
self-incrimination clause of the fifth amendment (U.S. Const., amend. V) and the
due process clause of the fourteenth amendment (U.S. Const., amend. XIV, § 1).
In re D.L.H., 2015 IL 117341, ¶ 58 (citing Missouri v. Seibert, 542 U.S. 600, 607
(2004), and People v. Richardson, 234 Ill. 2d 233, 252 (2009)); see also Miller v.
Fenton, 474 U.S. 104, 109-10, 116 (1985). To ascertain the admissibility of a
confession under either amendment, courts consider whether the defendant’s
confession was voluntary and will exclude a confession that is involuntary.
Richardson, 234 Ill. 2d at 252-53 (citing Dickerson v. United States, 530 U.S. 428,
434 (2000)); see Miller, 474 U.S. at 109-10; People v. Davis, 35 Ill. 2d 202, 205
(1966).
- 17 -
¶ 77 In Miranda, 384 U.S. at 444, the United States Supreme Court held that the
admission of statements made by a suspect during a custodial interrogation is
prohibited unless the prosecution demonstrates that the suspect has been warned of
the right to remain silent, that any statement he does make may be used as evidence
against him, and that he has the right to the presence of an attorney. Miranda
explained that these warnings serve as procedural safeguards to protect against
“incommunicado interrogation of individuals in a police-dominated atmosphere.”
Id. at 445. In addition, the Supreme Court explained that the warnings are necessary
because such a “police-dominated atmosphere” is understood to create “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.” Id. at 467.
Therefore, “to combat these pressures and to permit a full opportunity to exercise
the privilege against self-incrimination, the [suspect] must be adequately and
effectively apprised of his right and the exercise of those rights must be fully
honored.” Id. A suspect may waive these rights, provided the waiver is made
voluntarily, knowingly, and intelligently. Id. at 444.
¶ 78 In Edwards v. Arizona, the Supreme Court confirmed the principles set forth in
Miranda and held that, once a suspect invokes his right to have counsel present
during interrogation, all questioning must cease until counsel is present unless the
suspect initiates further communication or conversations with police. Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). This rule is intended to “prevent police from
badgering a defendant into waiving his previously asserted Miranda rights.”
Michigan v. Harvey, 494 U.S. 344, 350 (1990). Edwards explained that a suspect’s
waiver of the right to counsel, once invoked, may be shown where the State
establishes that the purported waiver was knowing and intelligent under the totality
of the circumstances, including the necessary fact that the suspect reopened the
dialogue with police. Edwards, 451 U.S. at 486 n.9.
¶ 79 2. Voluntariness Is the Test for Admissibility of a Confession
¶ 80 In deciding whether a confession is admissible, “ ‘[t]he ultimate test’ ” is
voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (quoting
Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). Where “ ‘the confession [is]
the product of an essentially free and unconstrained choice by its maker,’ ” “ ‘it
- 18 -
may be used against him.’ ” Id. (quoting Culombe, 367 U.S. at 602). However, if
the will of the defendant “ ‘has been overborne and his capacity for self-
determination critically impaired, the use of his confession offends due process.’ ”
Id. at 225-26 (quoting Culombe, 367 U.S. at 602). These principles have been
adopted by this court in examining whether a statement has been made freely and
without compulsion or inducement of any kind. In re D.L.H., 2015 IL 117341, ¶ 58;
Richardson, 234 Ill. 2d at 253.
¶ 81 The voluntariness of a confession depends on the totality of the circumstances
of the particular case, and no single factor is dispositive. In re D.L.H., 2015 IL
117341, ¶ 59. The relevant factors include the defendant’s age, intelligence,
background, experience, mental capacity, education, and physical condition at the
time of questioning. Id. In addition, courts consider the legality and duration of the
detention, the duration of the questioning, the provision of Miranda warnings, and
any physical or mental abuse by police, including the existence of threats or
promises. Id.; see also Schneckloth, 412 U.S. at 226; Richardson, 234 Ill. 2d at 253-
54.
¶ 82 3. Police Coercion Renders a Confession Involuntary
¶ 83 Police coercion is a prerequisite to a finding that a confession was involuntary.
Colorado v. Connelly, 479 U.S. 157, 164 (1986). The Supreme Court has long held
that police officers’ use of physical abuse to coerce confessions from a suspect is
prohibited because it is “revolting to the sense of justice” embodied in the
Constitution. Brown v. Mississippi, 297 U.S. 278, 286 (1936). However, the Court
also has proscribed more subtle forms of police coercion, including psychological
pressure. See Miranda, 384 U.S. at 448 (holding that “the modern practice of in-
custody interrogation is psychologically rather than physically oriented”); see also
Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (recognizing that “ ‘coercion can
be mental as well as physical, and *** the blood of the accused is not the only
hallmark of an unconstitutional inquisition.’ ” (quoting Blackburn v. Alabama, 361
U.S. 199, 206 (1960))); Haynes, 373 U.S. at 513-20 (holding that police officers’
refusal to let a suspect contact his wife was coercive); Lynumn v. Illinois, 372 U.S.
528, 534, (1963) (finding that threatening a suspect with the loss of custody of her
children was coercive); Ashcraft v. Tennessee, 322 U.S. 143, 153-55 (1944)
- 19 -
(holding that prolonged interrogation without rest or contact with individuals other
than law enforcement officers was coercive).
¶ 84 Where the defendant challenges the admissibility of an inculpatory statement
by filing a motion to suppress, the State bears the burden of proving, by a
preponderance of the evidence, that the statement was voluntary. 725 ILCS 5/114-
11(d) (West 2010); Richardson, 234 Ill. 2d at 254.
¶ 85 4. Lengthy Incommunicado Detention Is a Form of Police Coercion
¶ 86 In support of the claim that his statement was involuntary, defendant places
significant reliance on the Supreme Court’s decision in Haynes, 373 U.S. 503, and
on the statutory obligations imposed by section 103-3(a) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/103-3(a) (West 2010)).
¶ 87 In Haynes, the defendant argued that his confession was involuntary because
the police had held him incommunicado for a 16-hour period from the time of his
arrest to the signing of the confession. Haynes, 373 U.S. at 504. His several requests
that the police allow him to call his wife and attorney were uniformly refused, and
he was repeatedly told he would not be permitted to contact counsel or his wife
until he “cooperated” with the police and gave a written inculpatory statement. Id.During that time period, the defendant was not advised of his right to remain silent,
that his answers might be used against him, or that he had a right to consult with an
attorney. Id. at 510-11.
¶ 88 The Supreme Court held that the defendant’s confession was “obtained in an
atmosphere of substantial coercion and inducement” by the police (id. at 513),
which rendered it an involuntary admission of guilt (id. at 514). The Court noted
that the defendant “was alone in the hands of the police, with no one to advise or
aid him,” and he had no reason to question that “ ‘the police had ample power to’
*** continue, for a much longer period, if need be, the incommunicado detention.”
Id. (quoting Lynumn, 372 U.S. at 534).
¶ 89 The Supreme Court further observed that, when the defendant was
“[c]onfronted with the express threat of continued incommunicado detention and
induced by the promise of communication with and access to family, [he]
- 20 -
understandably chose to make and sign the damning written statement.” Id. The
Court concluded that, in light of the “unfair and inherently coercive context in
which made,” the defendant’s choice was not “the voluntary product of a free and
unconstrained will” that due process requires. Id. Moreover, Haynes held that,
“even apart from the express threat, *** incommunicado detention and
interrogation” are tactics “used to extort confessions from suspects.” Id.¶ 90 5. Illinois Statutory Right to Communicate With Counsel and Family
¶ 91 Shortly after Haynes was decided, the Illinois legislature enacted section 103-
3(a) of the Code. The version of section 103-3(a) that was in effect at the time of
defendant’s arrest and detention provides as follows:
“Right to communicate with attorney and family; transfers. (a) Persons who are
arrested shall have the right to communicate with an attorney of their choice
and a member of their family by making a reasonable number of telephone calls
or in any other reasonable manner. Such communication shall be permitted
within a reasonable time after arrival at the first place of custody.” 725
ILCS5/103-3(a) (West 2010).
¶ 92 The purpose of this provision is to allow a person being held in custody to
contact family members to arrange for “bail, representation by counsel and other
procedural safeguards that the defendant cannot accomplish for himself while in
custody.” People v. Prim, 53 Ill. 2d 62, 69-70 (1972).
¶ 93 6. Violation of Section 103-3(a) Is
Part of the Totality-of-the-Circumstances Test
¶ 94 Defendant argues that the detectives’ failure to comply with section 103-3(a) is
one of the factors that must be considered in addressing the totality of the
circumstances surrounding a suspect’s inculpatory statement. We agree. The
duration of a suspect’s detention is among the factors included in the established
totality-of-the-circumstances test. In re D.L.H., 2015 IL 117341, ¶ 59. And because
section 103-3(a) requires that a suspect be allowed access to a telephone “within a
- 21 -
reasonable time,” the statute itself indicates that the length of the detention and the
duration of custody prior to telephone access must be viewed together.
¶ 95 As a practical matter, a suspect cannot communicate with an attorney unless the
police provide access to a telephone. Given the inherently coercive atmosphere of
the police station, an extended delay in providing the means to speak with an
attorney reduces a suspect’s ability to avoid the psychological pressure of custodial
detention. At some point, a prolonged delay becomes constitutionally problematic
because it increases the likelihood that a subsequent statement is involuntary. See
generally People v. Willis, 215 Ill. 2d 517, 538 (2005) (recognizing that “an
extraordinarily long delay which itself raises the inference of police misconduct
could, at some point, render any confession involuntary”). Thus, violation of
section 103-3(a) must be considered in the determination of voluntariness because
it effectively prevents a suspect from exercising his or her constitutional rights prior
to and during custodial interrogation. See Sanchez, 2018 IL App (1st) 143899,
¶¶ 74-75 (citing Haynes and the violation of section 103-3(a) in holding that the
defendant’s inculpatory statement was involuntary).
¶ 96 Moreover, the burden of compliance on the State is slight. The terms of section
103-3(a) are honored by merely providing access to a telephone, which allows the
suspect to arrange for counsel and inform family members of his or her
whereabouts. The simple expedient of a telephone call serves the valuable purpose
of protecting the suspect’s rights and, absent evidence to the contrary, will not
unduly hamper law enforcement officers in the execution of their duties. Thus,
although no consequence for noncompliance is identified in section 103-3(a), the
violation of its terms must be considered in determining whether a suspect’s
confession is voluntary under the totality-of-the-circumstances test. Doing so
provides flexibility in application of the firmly established multifactor test and
allows courts to balance the respective benefits and burdens of complying with the
statutory requirements in any particular case.
¶ 97 We stress that this conclusion does not mean that we are creating an
exclusionary rule when section 103-3(a) is violated. Rather, our holding that
violation of the statute must be considered in ascertaining the voluntariness of an
inculpatory statement strikes the appropriate balance between competing
interests—the State’s legitimate goal of effective criminal investigation and a
- 22 -
suspect’s statutory right to consult with counsel after arrest and prior to or during
interrogation.
¶ 98 7. A “Reasonable Time” Is Relatively Brief
¶ 99 The phrase “within a reasonable time” is not defined in section 103-3(a).
However, the committee comments to the statute reflect that the original draft of
section 103-3(a) provided that a time period exceeding two hours would be
prima facie unreasonable. 725 ILCS Ann., 5/103-3(a), Committee Comments—
1963, at 68 (Smith-Hurd 2006) (revised in 1970). The legislature ultimately deleted
the two-hour reference to avoid confusion regarding whether it should be
interpreted as mandatory rather than prima facie. Id. But these comments indicate
that, in crafting section 103-3(a), the legislature intended that a suspect held in
custody must be permitted to communicate with an attorney and family members
within a relatively short period of time—such as a couple of hours.
¶ 100 Moreover, the statutory phrase “within a reasonable time” obviously has its
limits. We need not declare a specific time limitation to conclude that a prolonged
incommunicado detention is inconsistent with the terms of section 103-3(a).
Admittedly, there may be a need for some flexibility to accommodate special
circumstances in a police investigation, and courts should be mindful of any
practical reasons or complexities that might cause a delay in compliance with the
provision. However, given that the statutory obligation is slight—requiring only
that the suspect be provided access to a telephone—the circumstances requiring a
prolonged delay will be few and far between. If section 103-3(a) is to provide
meaningful protection and serve its legislative purpose, the phrase “within a
reasonable time” must be understood as referring to a time period that is relatively
brief.
¶ 101 8. Section 103-3(a) Was Violated in This Case
¶ 102 In light of the record presented here, we reject the State’s assertion that the
detectives complied with the terms of section 103-3(a) in this case. The length of
defendant’s detention cannot be divorced from the fact that the detectives denied
his repeated requests for telephone access. Those two factors, considered together,
- 23 -
demonstrate that defendant was held incommunicado for approximately 24 hours
with no means of contacting an attorney or a family member to arrange for counsel.
By denying defendant telephone access, the detectives resolutely prevented him
from exercising his constitutional right to counsel—a right that he consistently
invoked from the moment of his arrest until he ultimately made the inculpatory
statement 24 hours later.
¶ 103 We note that defendant’s age, mental capacity, and physical condition do not
necessarily suggest that he was particularly vulnerable to police coercion. However,
those factors do not negate the influence or coercive impact of holding defendant,
while handcuffed to the wall, in a locked interrogation room for 24 hours without
any ability to communicate with the outside world. See Haynes, 373 U.S. at 514(holding that “[n]either the petitioner’s prior contacts with the authorities nor the
fact that he previously had made incriminating oral admissions negatives the
existence and effectiveness of the coercive tactics used in securing the written
confession introduced at trial”). In addition, that impact is not mitigated by the fact
that the detectives ceased questioning defendant after he invoked his right to
counsel. The cessation of questioning does nothing to alleviate defendant’s
isolation and the inherently coercive nature of an incommunicado detention.
¶ 104 Although defendant immediately and consistently invoked his right to counsel
over a period of 24 hours, the police prevented him from exercising that right.
Therefore, he was left with two options: (1) give the detectives an inculpatory
statement or (2) languish in the locked interrogation room, handcuffed to a wall,
for an indeterminate period. When confronted with those choices, defendant’s
understanding and invocation of his Miranda rights was rendered meaningless. He
was powerless to exercise those rights because the detectives impeded his only
means to do so—a simple telephone call. In Haynes, the police expressly
conditioned telephone access on defendant’s inculpatory statement. Id. at 504.
Here, the police demonstrated to defendant that they could hold him
incommunicado for as long as it took for him to confess, and the refusal to allow
defendant’s request for telephone access in accordance with section 103-3(a) is an
essential factor in the totality-of-the-circumstances calculus. Under such
circumstances, defendant’s exercise of the right to consult with counsel was not
“fully honored.” See Miranda, 384 U.S. at 467.
- 24 -
¶ 105 9. Police Procedures Do Not Negate
Constitutional or Statutory Protections
¶ 106 It is also worth noting that, during his prolonged and incommunicado detention,
defendant was never offered any explanation for the denial of telephone access.
Rather, in response to his repeated demands for use of a telephone, defendant was
merely told that he would have to “wait” to make a phone call. At the suppression
hearing, Detective Thompson testified only that it was “procedure” that arrestees
are not “normally” allowed to make any telephone calls until after booking. No
statutory or constitutional basis for this “procedure” was presented in the circuit
court or argued in the appellate court—and none has been offered to this court.
Instead, the State posits that defendant might have been denied telephone access to
prevent him from contacting a (nonexistent) codefendant or influencing witnesses.
These suggested reasons are unpersuasive because they still would have existed
when defendant was finally booked 24 hours after his arrest and because defendant
consistently said he wanted a phone call to arrange for legal counsel. Thompson’s
explanation does not justify or excuse the delay in respecting defendant’s rights.
See Willis, 215 Ill. 2d at 538.
¶ 107 Moreover, even accepting Detective Thompson’s testimony at face value, the
fact that a “procedure” is “normal” does not mean that it is constitutionally
permissible. Indeed, a routine procedure that systematically encroaches on
constitutional rights is more insidious than an occasional infringement that occurs
in unusual or infrequent circumstances. Telling a suspect that he must “wait” an
indefinite period of time for telephone access is conceptually no different than
denying him the right to consult with an attorney—at least during that undefined
waiting period. Such a circumstance leaves open the possibility of exploitation by
law enforcement officials. Illinois courts cannot allow police to take unfair
advantage of their ability to control telephone access—which amounts to control
over a suspect’s ability to exercise the right to counsel. In that situation, police
would have no incentive to comply with the terms of section 103-3(a) and the
legislative purpose of the statute would be abrogated. The employment of a subtly
coercive tactic under the guise of a routine procedure allows police to trespass on
the rights shielded by Miranda and Edwards. We cannot condone such tactics,
which are antithetical to our system of justice.
- 25 -
¶ 108 In addition, we reject the State’s argument that defendant’s statement was
voluntary because there was no evidence that the 24-hour delay in booking him was
an intentional tactic to induce a confession. This assertion reflects a fundamental
misunderstanding of the underlying purpose of section 103-3(a)—which is to allow
a person being held in custody to contact family members to arrange for “bail,
representation by counsel and other procedural safeguards that the defendant
cannot accomplish for himself while in custody.” (Emphasis added.) Prim, 53 Ill.
2d at 69-70. As noted above, the State bears the burden of proving a defendant’s
confession was voluntary. 725 ILCS 5/114-11(d) (West 2010); Richardson, 234 Ill.
2d at 254. Delay for the sake of delay is unreasonable. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991) (listing examples of unreasonable delay in
presentment for a probable cause determination). In this case, Detective Thompson
offered no principled reason for preventing defendant from contacting an attorney
or a family member for 24 hours. The prolonged and unexplained delay in this case
violated the detective’s statutory duty to provide defendant with access to a
telephone within a “reasonable time” under section 103-3(a). The interplay of the
length of defendant’s detention and the denial of telephone access defeats the
conclusion that his statement was voluntary.
¶ 109 10. The State’s Cases Do Not
Justify Defendant’s Incommunicado Detention
¶ 110 The State attempts to counter defendant’s involuntariness claim by asserting
that his detention was “proper and not unduly long.” In support, the State relies on
Willis, 215 Ill. 2d 517, and People v. Chapman, 194 Ill. 2d 186 (2000). Yet, those
decisions do not control here. Although both cases involved lengthy postarrest
detentions, they are distinguishable in two important respects. First, they involved
the question of whether the defendants’ constitutional rights under the fourth
amendment were violated by a delay in presentment for a judicial determination of
probable cause—which implicates practical considerations that do not come into
play when only telephone access is required. Second, neither of those defendants
affirmatively invoked the right to counsel and demanded telephone access as a
means of arranging for such consultation before making an inculpatory statement.
Accordingly, Willis and Chapman are premised on a different footing and offer
little guidance here.
- 26 -
¶ 111 The ruling in In re G.O., 191 Ill. 2d 37 (2000), is similarly distinguishable. In
that case, this court held that the 13-year-old defendant’s confession was voluntary
even though he was detained overnight and did not have an opportunity to confer
with a family member or attorney. Id. at 56-57. In reaching that conclusion, the
court rejected the need for a per se rule requiring suppression of a minor’s
inculpatory statement solely because he did not have the opportunity to consult a
parent, guardian, or attorney prior to the interrogation. Id. at 55. However, the court
also specifically noted that the defendant never requested to speak with his mother
or another concerned adult, and the police never frustrated his ability to do so. Id.
at 56.
¶ 112 Here, defendant immediately and consistently invoked his right to counsel, and
he made repeated demands to use a telephone so he could contact an attorney or his
mother so she could arrange for counsel. The police “procedure” requiring
completion of the booking process before a suspect is permitted telephone access
prevented defendant from contacting counsel or a family member before he made
the inculpatory statement. As a consequence, In re G.O. does not control our
analysis here.
¶ 113 In addition, the State posits that defendant’s involuntariness claim must fail
because the detectives complied with the mandates set forth in Miranda and
Edwards, where they advised him of his rights, ceased the interrogation after
defendant invoked his right to counsel, and returned to speak with him only after
he initiated further conversation. The State points out that this court’s decisions in
People v. Ramey, 152 Ill. 2d 41, 57-59 (1992), and People v. Terrell, 132 Ill. 2d
178, 201 (1989), held that incommunicado detention for periods of six and eight
hours, respectively, did not mandate suppression of a defendant’s inculpatory
statement.
¶ 114 Again, we find that the cases cited by the State are distinguishable. Here,
defendant was held incommunicado at least three times longer than the defendants
in those cases, and the defendant in Terrell did not indicate to police that he wanted
to speak with an attorney or that he wished to remain silent.
¶ 115 The State also argues that the failure to comply with section 103-3(a) does not
require suppression of a custodial statement because the statute does not impose
any consequence or remedy for violation of its terms. But such a rule would
- 27 -
undermine the purpose of the provision and nullify the legislature’s intent to enable
a suspect in custody to exercise the right to counsel while in custody. Acceptance
of the State’s argument would create the anomalous situation where police officers
are required by Miranda to warn a suspect of the right to counsel but then could
prevent the suspect from exercising that right by denying him access to a
telephone—which is precisely what occurred in this case.
¶ 116 11. The Recent Amendment of Section 103-3
Supports the Conclusion That the Statute Was Violated Here
¶ 117 In addition, we note that, during the pendency of this appeal, the General
Assembly has amended section 103-3 as follows:
“(a-5) Persons who are in police custody have the right to communicate free of
charge with an attorney of their choice and members of their family as soon as
possible upon being taken into police custody, but no later than three hours
after arrival at the first place of custody. Persons in police custody must be
given:
(1) access to use a telephone via a land line or cellular phone to make
three phone calls; and
(2) the ability to retrieve phone numbers contained in his or her contact
list on his or her cellular phone prior to the phone being placed into
inventory.” (Emphases added.) Pub. Act 101-652, § 10-256 (eff. July 1,
2021) (amending 725 ILCS 5/103-3).
See also Pub. Act 102-28, § 55 (eff. Jan. 1, 2022) (same).
¶ 118 Although the recent amendments to section 103-3 do not control here, they offer
further guidance in ascertaining the legislative intent underlying the former
provision and reflect the legislature’s understanding that a suspect must be granted
an opportunity to contact an attorney and family members within a relatively short
time period—such as two or three hours. Despite the fact that the provision in effect
when defendant was detained and tried does not impose a specific time limitation,
we are compelled to reject the State’s assertion that holding a suspect
incommunicado for approximately 24 hours is a “reasonable time.”
- 28 -
¶ 119 Considering the totality of the circumstances surrounding defendant’s
detention, we conclude that his statement was involuntary. Therefore, its admission
was error and violated defendant’s constitutional rights under the fifth and
fourteenth amendments to the United States Constitution (U.S. Const., amends. V,
XIV).
¶ 120 C. Harmless Error
¶ 121 Having determined that defendant’s statement was involuntary, we lastly
consider the State’s assertion that the admission of that statement at trial was
harmless. To establish that any error was harmless, the State must prove beyond a
reasonable doubt that the result would have been the same absent the error. People
v. Jackson, 2020 IL 124112, ¶ 127 (citing People v. Thurow, 203 Ill. 2d 352, 363
(2003)). In ascertaining whether an error is harmless, reviewing courts may
(1) focus on the error to determine whether it might have contributed to the
conviction, (2) examine the other evidence in the case to see if overwhelming
evidence supports the conviction, and (3) determine whether the improperly
admitted evidence is merely cumulative or duplicates properly admitted evidence.
People v. Stechley, 225 Ill. 2d 246, 304-05 (2007).
¶ 122 This court has recognized that, because confessions are extremely probative,
the improper “admission of an unlawfully obtained confession rarely is harmless
error.” People v. St. Pierre, 122 Ill. 2d 95, 114 (1988). However, we have also held
that the erroneous admission of a confession may be harmless in certain
circumstances. People v. Mitchell, 152 Ill. 2d 274, 327-28 (1992).
¶ 123 Defendant argues that the State failed to satisfy its burden of proving that the
improper admission of his statement was harmless beyond a reasonable doubt. In
response, the State asserts that, in light of the properly admitted evidence of
defendant’s guilt, any error in admitting his statement was harmless. Under the
circumstances presented in this case, we agree with the State.
¶ 124 Apolonio Retama, defendant’s friend of 15 years, testified that defendant had
previously confessed to him in the fall of 2010. At that time, defendant admitted
his involvement in the burglary of the bar, during which Gonzalez sustained the
injuries that resulted in his death. According to Retama, defendant stated that he
- 29 -
was “going down” for murder. Although defendant did not identify the bar or its
location, he explained that Jackson wanted to retaliate against the owner for ejecting
him from the bar on a prior occasion. Defendant told Retama that they went to the
bar after it closed and, upon encountering the bar’s owner, Jackson repeatedly hit
him with a pipe.
¶ 125 Retama’s testimony was corroborated by Santos, who testified that defendant
and Jackson were together on the night of the murder when they solicited his help
in burglarizing O’Lanagan’s bar. Santos described the proposed plan for the
burglary and gave the police a description of “Andrew,” Jackson’s friend who was
driving the car that night. Santos later identified defendant from a police photo array
and at trial.
¶ 126 Retama’s recitation of defendant’s 2010 confession was further corroborated
by the testimony of Kelfino, who described the incident in which Gonzalez ejected
Jackson from the bar. In addition, the medical evidence corroborated Retama’s
testimony regarding defendant’s confession and established that Gonzalez’s
injuries were consistent with being struck with a heavy, narrow object such as a
pipe. And Jackson’s cell phone records reflected that he was in the vicinity of the
bar on the night of the murder and that he had been in contact with defendant around
that time. Moreover, Retama and Santos were essentially unimpeached because
defendant did not deny that he was with Jackson on the night of the murder. During
closing argument, defense counsel conceded that defendant had participated in the
burglary but argued that he was not accountable for the murder committed by
Jackson.
¶ 127 Based on the record presented here, the substance of defendant’s videorecorded
confession was cumulative and duplicated other evidence that was properly
admitted at trial. Thus, under the particular circumstances of this case, the result of
the trial would have been the same if the confession had been excluded. We
conclude, therefore, that the erroneous admission of defendant’s statement was
harmless beyond a reasonable doubt.
¶ 128 Although we find the error to be harmless in this case, we reiterate that a
prolonged incommunicado detention disguised as “normal police procedure”
- 30 -
cannot be condoned. 3 And an unwarranted delay in providing the simple expedient
of a telephone call takes on significant importance in evaluating the voluntariness
of an inculpatory statement made after an extended period of incommunicado
detention. Accordingly, law enforcement officials would be well advised to
scrupulously comply with the requirements of section 103-3(a).
¶ 129 III. CONCLUSION
¶ 130 In sum, we hold that defendant’s inculpatory statement was involuntary and
should have been suppressed. However, the admission of that statement was
harmless beyond a reasonable doubt. Therefore, we affirm the judgment of the
appellate court, which affirmed the judgment of the circuit court.
¶ 131 Affirmed.
¶ 132 JUSTICE MICHAEL J. BURKE, specially concurring:
¶ 133 I agree with the majority that defendant’s conviction should be affirmed. I
disagree, however, with the majority’s conclusion that defendant’s inculpatory
statement was involuntary and should have been suppressed. Although the majority
gives lip service to the totality of circumstances test, the majority opinion
effectively holds that a violation of section 103-3 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/103-3 (West 2012)) and the length of a detention are
dispositive in determining whether a suspect’s inculpatory statement was
involuntary.
¶ 134 The majority correctly notes that the voluntariness of a confession depends on
the totality of the circumstances of a particular case and that no single factor is
dispositive. Supra ¶ 81. The majority also correctly sets forth the relevant factors
to be considered, including the defendant’s age, intelligence, background,
3
We note that this is not a new problem in Chicago. As the amici explain in detail and citing
documentation, Chicago police officials across the city—and in particular at the Area North
station—have been engaged in this type of behavior since 1959, and the practice persists despite the
mandate set forth in section 103-3(a).
- 31 -
experience, mental capacity, education, and physical condition at the time of
questioning. Supra ¶ 81. In addition, courts consider the legality and duration of the
detention, the duration of the questioning, the provision of Miranda warnings (see
Miranda v. Arizona, 384 U.S. 436 (1966)), and any physical or mental abuse by
police, including the existence of threats or promises. Supra ¶ 81. Rather than
consider each of those factors, however, the majority focuses solely on the fact that
the police officers violated section 103-3 and did not allow defendant to make a
telephone call during the 24 hours that he was detained. While I agree that a court
can consider a violation of section 103-3 in considering the totality of
circumstances, I disagree that a violation of section 103-3 trumps all other factors.
¶ 135 As the appellate court correctly observed, the violation of section 103-3, in
depriving defendant access to a telephone, is “simply one of the factors to be
examined when examining the totality of the circumstances that preceded the
defendant’s statement.” 2019 IL App (1st) 160986-U, ¶ 61. The appellate court then
considered the violation of section 103-3 in light of the totality of circumstances
and concluded that defendant’s statement was voluntary. Id. The appellate court
specifically noted that
“defendant was [a] 25-year-old adult at the time he gave his statement.
Although he had not been in serious criminal trouble prior to his arrest in the
instant case, he did have some prior experience with the criminal justice system.
He did not exhibit diminished mental capacity or physical infirmity. Moreover,
although his pre-statement detention was lengthy, he was provided with food,
drink, bathroom breaks, and contact lens solution. In addition, defendant was
informed of his Miranda rights on several occasions and evidenced an
understanding of those rights. Importantly, the officers abided by defendant’s
initial invocation of his right to an attorney and only conversed with him about
the case when defendant, himself, reinitiated contact with police and waived his
right to an attorney after he was again advised of his Miranda rights.” Id. ¶ 62.
¶ 136 I agree with the appellate court’s analysis of the totality of circumstances and
its conclusion that defendant’s statement was voluntary. The majority disposes of
the preceding factors summarily, without analysis. The majority concedes that
“defendant’s age, mental capacity, and physical condition do not necessarily
suggest that he was particularly vulnerable to police coercion.” Supra ¶ 103.
- 32 -
Without further analysis, the majority decides that those factors “do not negate the
influence or coercive impact of holding defendant, while handcuffed to the wall, in
a locked interrogation room for 24 hours without any ability to communicate with
the outside world.” Supra ¶ 103. The majority further discounts the fact that the
detectives ceased questioning defendant after he invoked his right to counsel,
concluding that the “cessation of questioning does nothing to alleviate defendant’s
isolation and the inherently coercive nature of an incommunicado detention.” Supra
¶ 103.
¶ 137 Contrary to the majority, I find all the factors considered by the appellate court
to be significant in the totality of circumstances analysis. In a similar case from the
Eleventh Circuit Court of Appeals, the defendants contended that their statements
to the police were not voluntary and that they were unaware of their fifth
amendment rights. United States v. Ransfer, 749 F.3d 914, 935 (11th Cir. 2014).
The defendants in that case executed signed waivers of their Miranda rights, and
the police interviewers also went over the Miranda waiver form and fifth
amendment rights with each defendant. Id. The defendants claimed that the waiver
and statements were not voluntary because each was held for more than 24 hours
and was subject to coercion. Id. In rejecting the defendants’ argument, the circuit
court noted that the questioning did not last for 24 hours. Id. The interviews were
as short as 2 or 10 minutes or as long as 75 minutes. Id. Further, as the magistrate
judge found, the defendants were all offered food and restroom breaks throughout
the course of their detention and, despite their relative youth, understood their fifth
amendment rights before agreeing to waive them. Id. The circuit court found that,
considering the totality of the circumstances, the defendants had voluntarily,
knowingly, and intelligently waived their Miranda rights. Id.¶ 138 Similarly, the Second Circuit Court of Appeals in In re Terrorist Bombings of
U.S. Embassies in East Africa, 552 F.3d 177 (2d Cir. 2008), examined the totality
of circumstances and found the circumstances surrounding the defendants’
confinement did not render their statements involuntary. The defendants in that case
filed motions to suppress, arguing that the conditions of their confinement rendered
their Miranda waivers and subsequent statements involuntary, particularly the fact
that the defendants were detained for 14 days incommunicado. Id. at 180-81. The
circuit court disagreed, noting that, “[w]ithout minimizing in any way the
potentially coercive effects of incommunicado detention lasting for fourteen days,
- 33 -
we must consider this fact as only one data point—albeit a significant one—in our
totality-of-the-circumstances analysis.” Id. at 214. The circuit court weighed the
potentially coercive circumstances against the district court’s findings of fact with
regard to each defendant and concluded that the motion to suppress filed by each
defendant was properly denied. Id. With regard to defendant Al-’Owhali, the circuit
court stated:
“ ‘we cannot conclude that, because Al-’Owhali was detained incommunicado
for fourteen days, the statements he made after waiving his Miranda rights were
involuntary. The District Court’s clear finding that the conditions of Al-
’Owhali’s detention were not coercive is buttressed by strong evidence of Al-
’Owhali’s personal intelligence and resilience; the humane treatment he
received from his interrogators; and his own acknowledgement that a desire to
come to the United States to air his grievances, and not coercion, caused him to
speak with U.S. agents.’ ” Id.
¶ 139 Likewise, with regard to defendant Odeh, the circuit court agreed with the
district court’s “findings regarding Odeh’s personal characteristics, the absence of
oppressive interrogation methods, and his decision to speak with U.S. officials
immediately upon encountering them” and concluded that, in light of those
findings, Odeh’s statements could not be attributed to the coercive effects of his
incommunicado detention. Id. at 215.
¶ 140 In this case, as set forth by the appellate court, defendant testified at the hearing
on his motion to suppress that the detectives stopped asking him questions and left
the interview room whenever he said he wanted to speak to an attorney. 2019 IL
App (1st) 160986-U, ¶ 11. The officers gave defendant something to drink at least
five times and fed him chips at one point and a meal at another point. Id. ¶¶ 54, 62.
The officers took defendant to the bathroom three or four times. Id. ¶ 11. The
officers gave defendant cigarettes to smoke (id. ¶ 44) and also gave him contact
lens solution because he was having trouble with his contacts (id. ¶¶ 11, 14, 54).
There were times during his detention when defendant was not handcuffed. Id. ¶ 44.
Defendant reinitiated contact with the detectives by pounding on the wall and
crying, saying that he wanted to speak with them. Id. ¶ 11. The detectives told
defendant that they needed to give him his Miranda warnings again because he had
said he did not want to talk to them. Id. The detectives asked defendant if he was
- 34 -
reinitiating contact with them, and he said yes. I believe these factors support a
finding that defendant’s statement was voluntary and was not due to coercion
stemming from a violation of section 103-3 and the length of defendant’s
confinement.
¶ 141 Lacking any testimony or evidence supporting a finding of coercion in this case,
the majority finds the fact that section 103-3 was violated and the length of
defendant’s confinement alone established coercion, concluding that the “length of
defendant’s detention cannot be divorced from the fact that the detectives denied
his repeated requests for telephone access.” Supra ¶ 102. At the hearing on
defendant’s motion to suppress, however, defense counsel expressly denied that
defendant was alleging coercion. Most importantly, defendant never testified at the
hearing on his motion to suppress that he reinitiated contact with the detectives
because he felt coerced or because he was told that he would remain confined until
he confessed. Despite the majority’s assurance that it is not “creating an
exclusionary rule” (supra ¶ 97), its opinion does exactly that, in finding that
defendant’s statement was involuntary based solely on a violation of section 103-3
and the length of defendant’s detention.
¶ 142 The majority cites Haynes v. Washington, 373 U.S. 503 (1963), in support of
its finding that defendant’s detention was coercive, rendering his statement
involuntary. Supra ¶ 104. Haynes, however, is entirely distinguishable and
highlights the difference between the due process violation in that case and the
instant case. The defendant in Haynes asked to call an attorney and to call his wife
but was told that he might be able to make a telephone call if he confessed, which
he did after 16 hours in custody. Haynes, 373 U.S. at 504. Here, there were no
conditions placed upon defendant’s ability to make a telephone call. The detectives
testified that the phone call was denied because it was procedure that arrestees were
not allowed to make any telephone calls until after booking. 2019 IL App (1st)
160986-U, ¶ 16. Whether that procedure was proper or not, it does not rise to the
level of coercion seen in Haynes. In addition, the Haynes defendant was never given
his Miranda rights, while defendant in this case was repeatedly given his Miranda
rights and the detectives ceased questioning him when he said he wanted to speak
with a lawyer. Given these significant differences, Haynes does not compel a
finding that defendant’s statement was procured by coercion and thus was
involuntary.
- 35 -
¶ 143 Like the court in In re Terrorist Bombings of U.S. Embassies in East Africa, I
find a violation of section 103-3 and the length of defendant’s detention to be two
data points in the totality of circumstances analysis, to be weighed against the other
factors in the case. In this case, those data points do not outweigh the remaining
factors surrounding defendant’s confinement. Given defendant’s age, intelligence,
background experience, mental capacity, education, and physical condition at the
time of his questioning, as well as the legality and duration of the detention, the
duration of questioning, the provision of Miranda warnings, and any physical or
mental abuse by police, I would find that defendant’s statement was voluntary and
was not obtained in violation of his constitutional rights.
¶ 144 JUSTICE GARMAN joins in this special concurrence.
- 36 -