In re Jose A.

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Appellate Court Date: 2019.06.12
11:57:38 -05'00'
In re Jose A., 2018 IL App (2d) 180170Appellate Court In re JOSE A., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellant, v. Jose A., Respondent-Appellee).
District & No. Second District
Docket No. 2-18-0170
Filed October 18, 2018
Decision Under Appeal from the Circuit Court of Lake County, No. 17-JD-281; the
Review Hon. Christopher B. Morozin, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Cause remanded.
Counsel on Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
Appeal David J. Robinson, and Ivan O. Taylor Jr., of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
James E. Chadd, Thomas A. Lilien, and Sherry R. Silvern, of State
Appellate Defender’s Office, of Elgin, for appellee.
Panel PRESIDING JUSTICE HUDSON delivered the judgment of the
court, with opinion.
Justices Schostok and Spence concurred in the judgment and opinion.
OPINION
¶1 In a petition for adjudication of wardship, respondent, Jose A., was charged with delivery
of a controlled substance (720 ILCS 570/407(b)(5) (West 2016)) and unlawful possession of a
controlled substance (720 ILCS 570/402(c) (West 2016)). Respondent filed a motion to
suppress statements, alleging that at two separate interviews—one at his high school and one at
a police station—he was subjected to custodial interrogations in violation of section 5-401.5 of
the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-401.5 (West 2016)). After a hearing, the
circuit court of Lake County agreed with respondent and granted his motion to suppress
statements. The State filed a certificate of impairment and appealed. For the reasons set forth
below, we hold that the trial court properly suppressed the statement respondent made at the
police station but erred in suppressing the statement respondent made at the high school. As a
result, we affirm in part, reverse in part, and remand this matter for further proceedings.1
¶2 I. BACKGROUND
¶3 On April 6, 2017, a teacher at Lake Zurich High School suspected that a student was under
the influence of “something.” The teacher contacted Tiffany Reagan and Matthew Aiello,
deans at the high school, to investigate the situation. Believing that the student was under the
influence of alcohol, Deans Reagan and Aiello called Mark Frey, an officer with the Lake
Zurich Police Department and the resource officer assigned to the school, to bring a
Breathalyzer machine to the school. Officer Frey was unable to assist at that time, so he
instructed the deans to call the police department and request another officer for assistance.
Ultimately, Deans Reagan and Aiello learned that the student had taken Xanax. The student
informed the deans that respondent provided the substance to her in the school library. During
the investigation, drugs were seized from other students, some of whom stated that they had
obtained the substances from respondent.
¶4 When the investigation began, respondent was off the high school’s premises to attend
classes at the College of Lake County. Deans Reagan and Aiello waited outside the main
entrance of the high school for respondent to return. When respondent’s bus arrived, Deans
Reagan and Aiello “retrieved” respondent and brought him to Aiello’s office, where they and
Assistant Principal Pikul began questioning him. Respondent was told that he was under
investigation for possessing or delivering Xanax. Respondent initially denied the allegations,
and a search of respondent’s backpack yielded only an empty tin for mints. After the search of
respondent’s backpack, Dean Reagan and Assistant Principal Pikul continued questioning
respondent. Respondent eventually admitted that he had possessed pills and given some to a
student. Respondent was not allowed to return to class that day and was suspended for two
weeks. At the time of these events, respondent was six days shy of his seventeenth birthday.
¶5 After respondent’s statement, school personnel waited for Officer Frey so that he could
conduct a pat-down search of respondent’s person. Officer Frey estimated that he arrived
between 45 and 60 minutes after respondent was escorted off the bus. Upon Officer Frey’s
arrival, Deans Reagan and Aiello informed him of their investigation. Respondent was waiting
1
Given that we ordered supplemental briefing in this case and held oral argument, we have good
cause for issuing our decision beyond the 150-day deadline under Illinois Supreme Court Rule 660A(f)
(eff. July 1, 2018).
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in the student-support center, which Officer Frey described as an “in-school detention room.”
Officer Frey testified that there is no hallway access to or from the student-support center. To
exit the area, an individual must walk through a suite of rooms, including the deans’ offices.
Respondent’s parents and his adult brother were advised of and present for the pat-down.
According to Officer Frey, Dean Reagan escorted respondent from the student-support center
to her office for the pat-down. According to respondent’s mother, Officer Frey escorted
respondent. Prior to the pat-down, Officer Frey told respondent that he was going to search
him, but he did not ask for his permission. Officer Frey did not find anything on respondent’s
person, and he did not have a conversation with respondent at that time.
¶6 Deans Reagan and Aiello informed Officer Frey that the delivery of the drugs had occurred
in the library. Therefore, immediately following the pat-down, Officer Frey went to his office
in the school, located in the same suite of rooms as the deans’ offices, to search the school’s
video security system. Officer Frey located a video of the library, showing four individuals
sitting at a table “looking around anxiously.” Officer Frey testified that the video shows
respondent from the back. Respondent is seen “playing with something,” looking down, and
then handing something across the table to the student involved in the morning incident.
Officer Frey admitted that the video was grainy and that he could not see what was being
passed, but he claimed that the video corroborated information received from students. Officer
Frey estimated that it took him 15 minutes to locate the video.
¶7 Officer Frey gave the video to Deans Reagan and Aiello. Officer Frey returned to his office
while the deans viewed the video with respondent’s parents. Without viewing the video, but
having been told that there was a video, respondent corroborated the events depicted in the
video. After being advised that the school’s investigation was complete, Officer Frey returned
to Dean Reagan’s office. Officer Frey then informed respondent and his family that respondent
would have to come to the police station for booking. Officer Frey told respondent that he
would be in contact to arrange a date for those procedures. Officer Frey testified that he wanted
to book respondent
“[b]ecause [respondent] was in possession of a controlled substance and distributed it
to—that I had the evidence and probable cause to have to charge him with those crimes.
And instead of taking him into custody right then, I allowed him the ability if he wanted
to contact a lawyer or anybody else that he would be able to and set up a meeting at a
later time.”
Officer Frey acknowledged that at no point during his involvement at the high school did he
tell respondent or his parents that respondent was free to leave.
¶8 Respondent’s mother was subsequently contacted by Officer Frey, who requested that she
bring respondent to the Lake Zurich Police Department to answer some questions and be
fingerprinted. On April 13, 2017, respondent and his mother went to the police station. Officer
Frey met respondent and his mother in the lobby of the police station and, at the request of
respondent’s mother, called for a translator. It took approximately 25 minutes for a police
officer from the Kildeer Police Department to arrive to translate. Once the translating officer
arrived, Officer Frey escorted respondent, respondent’s mother, and the translating officer to
an interview room adjacent to the lobby.
¶9 Officer Frey described the interview room as follows:
“It was [sic] an unlocked door. It is accessible to the public. It is not in the secured
area by any means. The door was unlocked. I had to unlock it to get in, but then it was
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left unlocked while we were in there. There is fingerprint equipment out for other
purposes in the police department, and there is a table with four chairs. So it is sort of as
[sic] an area where we can talk with somebody that’s kind of secluded from obviously
the public lobby area.”
Officer Frey added that the room is typically used when someone comes to the police station to
make a report or for “private conversation” between a police officer and a member of the
public. Officer Frey said that he also uses the room to interview suspects before taking them
into custody.
¶ 10 Officer Frey explained that respondent was at the police station so that he could be “booked
and processed for the charges of possession of a controlled substance and the distribution of [a]
controlled substance.” During the interview, Officer Frey was dressed in plainclothes, the
same way he dresses while on duty at the high school. In addition, Officer Frey was armed with
his duty pistol and carrying handcuffs. In the interview room, Officer Frey read respondent the
juvenile Miranda form (see Miranda v. Arizona, 384 U.S. 436 (1966)) and then questioned
him for 15 minutes regarding the incident at the school.2 Officer Frey testified that he was
aware of a new statutory recording requirement, effective in 2017 (see 705 ILCS
405/5-401.5(b) (West 2016)), but that he did not record the interview because he did not
consider respondent to be in custody. Officer Frey admitted nevertheless that he was seeking
incriminating information from respondent. After the interview concluded, Officer Frey took
respondent to the station’s secure area to be booked and fingerprinted. Respondent was
permitted to leave the station with his mother after further juvenile court procedures were
explained to him. Officer Frey estimated that respondent was at the station for a total of 50 to
55 minutes.
¶ 11 After hearing the evidence, the trial court noted that it had considered People’s exhibit No.
1 (the juvenile Miranda form) and respondent’s exhibit No. 1 (the library security video) as
well as the witness testimony. The court first addressed the statement made at the high school.
The court noted that section 5-401.5(a-5) of the Act (705 ILCS 405/5-401.5(a-5) (West 2016))
concerns statements obtained from a minor when subject to a custodial interrogation by “a law
enforcement officer, State’s Attorney, juvenile officer, or other public official or employee.”
The statute provides that the minor’s statement is presumed to be inadmissible absent
compliance with certain procedural safeguards prior to the commencement of a custodial
interrogation by any of the specified individuals. 705 ILCS 405/5-401.5(a-5) (West 2016). The
court found that the dean of a high school is a “public employee” so that, if the questioning
constituted custodial interrogation, then section 5-401.5(a-5) of the Act applied. The court
noted that, for purposes of section 5-401.5 of the Act, “custodial interrogation” means “any
interrogation during which a reasonable person in the subject’s position would consider
himself or herself to be in custody and during which a question is asked that is reasonably
likely to elicit [an incriminating] response.” See 705 ILCS 405/5-401.5(a) (West 2016). Based
on this definition, the court found that the questions asked of respondent by school personnel
were clearly designed to elicit an incriminating response.
2
People’s exhibit No. 1, the Miranda form Officer Frey read to respondent at the police station, and
respondent’s exhibit No. 1, the security video of the library, were both admitted during the hearing but
were withdrawn at the close of the hearing. The State has not made either exhibit part of the record on
appeal.
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¶ 12 Further, the court reasoned that a person in respondent’s position would reasonably
consider himself to be in custody, particularly in view of the facts that the deans waited for
respondent at the bus stop, they took him to Dean Aiello’s office, they held him for a period of
time in the room used for student detentions, they escorted him from one room to another,
Officer Frey patted down respondent without respondent’s consent, and school personnel
detained respondent while Officer Frey spent an additional 15 minutes obtaining and viewing
the security video. The court found that, because respondent’s rights were not read to him as
required by section 5-401.5(a-5) of the Act, his statement was presumptively inadmissible.
¶ 13 The court noted that subsection (f) of section 5-401.5 provides that “[t]he presumption of
inadmissibility of a statement made by a suspect at a custodial interrogation at a police station
or other place of detention may be overcome by a preponderance of the evidence that the
statement was voluntarily given and is reliable, based on the totality of the circumstances.” 705
ILCS 405/5-401.5(f) (West 2016). The Act defines “place of detention” as
“a building or a police station that is a place of operation for a municipal police
department or county sheriff department or other law enforcement agency at which
persons are or may be held in detention in connection with criminal charges against
those persons or other allegations that those persons are delinquent minors.” 705 ILCS
405/5-401.5(a) (West 2016).
Based on this definition, the court concluded that, because a school is not a “place of
detention,” there was no way to overcome the presumption of inadmissibility. The court added
that, even if the school did constitute a “place of detention,” the State had offered little to no
evidence concerning the voluntariness of the statement and so the presumption, under the
totality of the circumstances, was not overcome.
¶ 14 As for the interview at the police station, the court began by stating that to argue that it was
“not [a] custodial interrogation is really beyond this Court’s belief.” The court noted that
respondent was there for booking and fingerprinting and the processing of juvenile charges.
Respondent had been brought into an interrogation room, he was read Miranda warnings, and
he was questioned. There was no recording made, although one was required by statute (705
ILCS 405/5-401.5(b) (West 2016)). There was no other evidence presented as to the tone or
manner of questioning. Thus, the State did not overcome the presumption of inadmissibility.
As a result, both of respondent’s statements were suppressed.
¶ 15 On February 16, 2018, the State filed a motion to reconsider the court’s ruling. At the
hearing on that motion, the State argued that the definition of “custodial interrogation” had not
changed with the amendment to section 5-401.5(a-5) and that the court had misinterpreted that
definition. The State argued that “custodial interrogation” refers only to police conduct, under
People v. Travis, 2013 IL App (3d) 110170. Additionally, under People v. Pankhurst, 365 Ill.
App. 3d 248 (2006), there was no police custodial interrogation and the issue was whether the
school personnel were acting as agents of the police when they questioned respondent. The
court denied the State’s motion, remarking:
“I disagree with the State’s interpretation of the new statute. The new statute
expounded [sic] protections for minors and *** extended those typical Miranda
protections to include not only police officers or police agents but also now public
officials or employees ***. Even the statute acknowledges that custodial interrogation
could include by a public official or employee [sic], and that’s what I found here.”
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The court reiterated that, as to both statements, a reasonable person in respondent’s position
would consider himself to be in custody and the questions asked were designed to elicit
incriminating statements. On February 28, 2018, the State filed a certificate of impairment and
a notice of appeal.
¶ 16 II. ANALYSIS
¶ 17 On appeal, the State argues that, for various reasons, the trial court improperly granted
respondent’s motion to suppress the statements he made at both the high school and the police
station. In reviewing a trial court’s ruling on a motion to suppress, we apply a two-part
standard of review. In re D.L.H., 2015 IL 117341, ¶ 46. Under this standard, the trial court’s
factual findings and credibility determinations are accorded great deference and will be
overturned only if they are against the manifest weight of the evidence. People v. Richardson,
234 Ill. 2d 233, 251 (2009); Pankhurst, 365 Ill. App. 3d at 252. A finding is against the
manifest weight of the evidence only if the opposite conclusion is clearly apparent or if the
finding is unreasonable, arbitrary, or not based on the evidence presented. In re Marriage of
Kavchak, 2018 IL App (2d) 170853, ¶ 65. However, we review de novo the ultimate issue of
whether the evidence should be suppressed. D.L.H., 2015 IL 117341, ¶ 46; Pankhurst, 365 Ill.
App. 3d at 252.
¶ 18 Resolution of the issues presented also requires us to construe statutory language. Statutory
construction is a question of law, subject to de novo review. People v. Manning, 2018 IL
122081, ¶ 16. The cardinal rule of statutory construction is to ascertain and give effect to the
intent of the legislature. Village of Lake in the Hills v. Niklaus, 2014 IL App (2d) 130654, ¶ 15.
The most reliable indicator of legislative intent is the language of the statute itself, which
should be given its plain and ordinary meaning. Village of Lake in the Hills, 2014 IL App (2d)
130654, ¶ 15. Only where the language of the statute is ambiguous, or where a literal
interpretation of the statute would either lead to absurd results or thwart the goals of the
statutory scheme, may a court look beyond the express language of the statute and consider
extrinsic aids of construction. Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164,
¶ 30; NDC LLC v. Topinka, 374 Ill. App. 3d 341, 359 (2007). With these principles in mind, we
turn to the State’s first argument.
¶ 19 A. Statement at the High School
¶ 20 The State first argues that the trial court improperly granted respondent’s motion to
suppress the statement respondent made at the high school. The State’s argument in this regard
is twofold. Relying principally on Pankhurst, 365 Ill. App. 3d 248, and the cases cited therein,
the State initially contends that, because the school personnel were not acting as agents of the
police, respondent was not subject to a custodial interrogation at the high school. The State also
contends that the trial court erred in concluding that the school personnel were “other public
official[s] or employee[s]” and therefore required to comply with the procedural safeguards set
forth in section 5-401.5(a-5) of the Act. Because we find the State’s second argument
dispositive, we confine our discussion to that matter.
¶ 21 Subsection (a-5) of section 5-401.5 was added to the Act by an amendment effective
January 1, 2017. Pub. Act 99-882, § 10 (eff. Jan. 1, 2017) (amending 705 ILCS 405/5-401.5).
Section 5-401.5(a-5) of the Act provides as follows:
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“(a-5) An oral, written, or sign language statement of a minor, who at the time of
the commission of the offense was under 18 years of age, is presumed to be
inadmissible when the statement is obtained from the minor while the minor is subject
to custodial interrogation by a law enforcement officer, State’s Attorney, juvenile
officer, or other public official or employee prior to the officer, State’s Attorney, public
official, or employee:
(1) continuously reads to the minor, in its entirety and without stopping for
purposes of a response from the minor or verifying comprehension, the following
statement: ‘You have the right to remain silent. That means you do not have to say
anything. Anything you do say can be used against you in court. You have the right
to get help from a lawyer. If you cannot pay for a lawyer, the court will get you one
for free. You can ask for a lawyer at any time. You have the right to stop this
interview at any time.’; and
(2) after reading the statement required by paragraph (1) of this subsection
(a-5), the public official or employee shall ask the minor the following questions
and wait for the minor’s response to each question:
(A) ‘Do you want to have a lawyer?’
(B) ‘Do you want to talk to me?’ ” 705 ILCS 405/5-401.5(a-5) (West 2016).
Thus, in this case, if the school personnel who questioned respondent at the high school were
“other public official[s] or employee[s]” and respondent was subject to a “custodial
interrogation,” respondent’s statement is presumed to be inadmissible unless he was read the
statement and the questions set forth in subsections (a-5)(1) and (a-5)(2) of section 5-401.5.
While section 5-401.5 of the Act defines “custodial interrogation” (see 705 ILCS
405/5-401.5(a) (West 2016)), it does not define the phrase “other public official or employee.”
¶ 22 The trial court summarily concluded that school officials are “public employee[s]” for
purposes of section 5-401.5(a-5) of the Act. The State argues that the trial court’s
determination was incorrect. The State acknowledges that the phrase “other public official or
employee” as used in section 5-401.5(a-5) “seems *** unambiguous when given its plain and
ordinary meaning.” The State asserts, however, that because the plain and ordinary meaning of
the phrase “other public official or employee” cannot be applied without leading to absurd and
unjust results, the phrase is ambiguous. To resolve this ambiguity, the State invokes the
doctrine of ejusdem generis and asserts that the word “other” in the phrase “other public
official or employee” should be interpreted to mean “other such like.” See People v. Davis, 199
Ill. 2d 130, 138 (2002) (discussing doctrine of ejusdem generis). The State argues that a school
employee is not like a law enforcement officer, state’s attorney, or juvenile officer in that the
latter are “directly involved in the criminal justice and/or juvenile delinquency systems,
whereas the primary role of school officials is the care of the students enrolled at their school.”
The State concludes that, since the school personnel at issue are not “other public official[s] or
employee[s]” for purposes of section 5-401.5(a-5) of the Act, the trial court improperly
suppressed the statement respondent made at the high school.
¶ 23 Respondent argues that the trial court properly found the school personnel in this case to be
“other public official[s] or employee[s]” for purposes of section 5-401.5(a-5). According to
respondent, the disputed phrase is not ambiguous, so there is no need to resort to extrinsic aids
of construction. Respondent contends that the terms “public official” and “public employee”
mean precisely what the plain language of those terms implies—either an elected or appointed
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government official or an individual who is employed by a government agency. In support of
his position, respondent discusses one case—In re J.A., 85 Ill. App. 3d 567, 572-73 (1980)
(observing that school officials are employees of the State)—and directs us to section 1-206 of
the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS
10/1-206 (West 2016)), which defines a “local public entity” to include a school district.
Respondent also points out that public school districts are funded by public monies and that
persons holding positions within a school district receive paychecks provided by public funds.
¶ 24 As noted above, section 5-401.5(a-5) does not define the phrase “other public official or
employee.” In the absence of a statutory definition, a court may consult a dictionary to
ascertain the plain and ordinary meaning of a term. People v. Perry, 224 Ill. 2d 312, 330
(2007). A “public official” is defined as “[s]omeone who holds or is invested with a public
office; a person elected or appointed to carry out some portion of a government’s sovereign
powers.” Black’s Law Dictionary (10th ed. 2014) (defining “official” but noting that the word
is also termed “public official”). The term “public employee” is defined as “[s]omeone
employed in a department responsible for conducting the affairs of a national or local
government.” Black’s Law Dictionary (10th ed. 2014) (defining “civil servant” but noting that
the phrase is also termed “public employee”). These dictionary definitions are consistent with
the meanings the legislature has ascribed to these terms in other statutes. See, e.g., 30 ILCS
245/1(a) (West 2016) (the Payment for Governmental Services Act, defining “public official”
as “any person who occupies any office, position or employment in the government of the
State of Illinois or any county, municipality or political subdivision thereof, or any school
district, or special district, or any authority, commission, board, or any branch or agency of
public service” and noting that the term “includes persons either elected or appointed”); 720
ILCS 5/2-17 (West 2016) (the Criminal Code of 2012, defining “public employee” as “a
person, other than a public officer, who is authorized to perform any official function on behalf
of, and is paid by, the State or any of its political subdivisions”); 745 ILCS 10/1-206, 1-207
(West 2016) (the Local Governmental and Governmental Employees Tort Immunity Act,
defining “public employee” as “an employee of a local public entity,” including a school
district); 775 ILCS 5/5-101(C) (West 2016) (the Illinois Human Rights Act, defining “public
official” as “any officer or employee of the state or any agency thereof, including state political
subdivisions, municipal corporations, park districts, forest preserve districts, educational
institutions, and schools”).
¶ 25 A statute is ambiguous if it is capable of more than one reasonable interpretation. Nowak v.
City of Country Club Hills, 2011 IL 111838, ¶ 11. Given the plain and ordinary meanings of
the terms “public official” and “public employee,” as well as the legislature’s consistent use of
similar definitions for the same terms in other statutes, we conclude that the phrase “other
public official or employee” is not, on its face, susceptible to more than one reasonable
interpretation. Quite simply, as used in section 5-401.5(a-5) of the Act, an “other public
official or employee” is an individual, other than those specifically listed, who is elected or
appointed to hold a government office or who is employed by a government agency.
¶ 26 That the language of section 5-401.5(a-5) is unambiguous on its face does not end our
inquiry. Our supreme court has stated that, “ ‘where a literal enforcement of a statute would
result in great injustice or absurd consequences, courts are bound to presume that such
consequences were not intended and to adopt a construction which, it is reasonable to assume,
was contemplated by the legislature.’ ” Penkava v. Kasbohm, 117 Ill. 2d 149, 154 (1987)
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(quoting People ex rel. Community High School District No. 231 v. Hupe, 2 Ill. 2d 434, 448
(1954)). According to the State, requiring every public official and employee to comply with
section 5-401.5(a-5) prior to taking a statement from a minor “would result in absurdity and
injustice.” We agree. Take the school setting involved in this case. School districts employ
hundreds of individuals in a wide variety of positions, including superintendent, principal,
dean, teacher, librarian, administrative assistant, classroom aide, nurse, janitor, bus driver,
lunchroom personnel, crossing guard, and recess monitor. Under a literal interpretation of the
phrase, each of these individuals would be required to comply with the procedural safeguards
set forth in section 5-401.5(a-5). Consider, for example, a bus driver transporting middle-
school children home at the end of the school day. While exiting the bus, student A informs the
bus driver that student B possesses an illegal substance. The bus driver prevents student B from
leaving the bus until he or she answers questions about the allegation. During their
conversation, Student B admits to possessing the substance. A literal interpretation of the
statute would require the bus driver to read the statement and questions set forth in subsections
(a-5)(1) and (a-5)(2) prior to questioning student B. Likewise, a literal interpretation of the
statute would require compliance by a janitor who questions a student after observing the
student falsely pull a fire alarm or a lunchroom employee who questions a student after
observing the student steal food from the cafeteria. Such an interpretation of the statute would
create a seismic shift in public policy by placing on individuals outside the realm of law
enforcement the responsibility of learning and employing procedural safeguards heretofore
required only of law enforcement officers. We find it implausible that the legislature intended
the phrase “other public official or employee” as used in section 5-401.5(a-5) to have such a
broad scope in the absence of an express definition of the phrase. In fact, during oral argument,
respondent’s attorney conceded that a literal interpretation of the statute “could extend to the
absurd,” even citing a bus driver as an example. Because a literal interpretation of the statute
would lead to absurd consequences, we must consider extrinsic aids of construction to
ascertain the legislature’s intent. See In re B.C., 176 Ill. 2d 536, 542-43 (1997) (“[W]here the
meaning of a statute is unclear from the statutory language itself, a court may look beyond the
language employed and consider the purpose of the law, the evils the law was designed to
remedy [citation], as well as the legislative history to discern legislative intent [citation].”).
¶ 27 As noted previously, effective January 1, 2017, the General Assembly amended section
5-401.5 of the Act to add subsection (a-5). Pub. Act 99-882, § 10 (eff. Jan. 1, 2017) (amending
705 ILCS 405/5-401.5). Public Act 99-882 began as Senate Bill 2370 (99th Ill. Gen. Assem.,
Senate Bill 2370, 2016 Sess.). Introduced on January 28, 2016, by Senator Van Pelt, Senate
Bill 2370, as originally drafted, did not include subsection (a-5). 99th Ill. Gen. Assem., Senate
Proceedings, January 28, 2016, at 6. During debate on the bill prior to the adoption of the
amendment adding subsection (a-5), Senator Van Pelt expressed concern about false
confessions by children at the hands of law enforcement personnel. 99th Ill. Gen. Assem.,
Senate Proceedings, April 14, 2016, at 53-56 (statements of Senator Van Pelt). She
commented:
“Also to note that currently our police officers are even—are allowed to use deception
in interrogating children. The courts have upheld waivers of lawyers by children. Even
when the police misrepresent the evidence and deceive the child, the Supreme Court
has held that the deception is not per se unlawful and the use of deception or subterfuge
does not alone invalidate a confession. Now, any of us know that if we have a fourteen-
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year-old that is up against a veteran police officer with twenty years of experience and
he comes and begins to use psychological interrogation tactics, that our children are
more likely than not [sic] going to be able to—stand under that type of pressure, and
being afraid and many of them being intimidated will confess to crimes.” 99th Ill. Gen.
Assem., Senate Proceedings, April 14, 2016, at 54 (statements of Senator Van Pelt).
Senator Van Pelt explained that the purpose of the legislation was to “ensure[ ] that all children
subject to custodial interrogation in a homicide case will have a lawyer.” 99 Ill. Gen. Assem.,
Senate Proceedings, April 14, 2016, at 53 (statements of Senator Van Pelt). Following further
discussion, Senator Van Pelt agreed to take the bill “out of the record” to discuss possible
alternative language. 99th Ill. Gen. Assem., Senate Proceedings, April 14, 2016, at 56-63
(statements of Senators Van Pelt, Righter, and Radogno).
¶ 28 On May 4, 2016, Senator Van Pelt filed senate amendment No. 3 to the bill. Among other
things, that amendment added subsection (a-5). During debate in the senate the following day,
Senator Van Pelt reiterated that the General Assembly has a responsibility to protect juveniles
from being coerced into false confessions. 99th Ill. Gen. Assem., Senate Proceedings, May 5,
2016, at 53 (statements of Senator Van Pelt). Senator Van Pelt noted that, as originally
proposed, Senate Bill 2370 would have required a lawyer to be present for a minor between the
ages of 13 and 17 subject to a custodial interrogation for homicide. 99th Ill. Gen. Assem.,
Senate Proceedings, May 5, 2016, at 53 (statements of Senator Van Pelt). As amended, the bill
required any minor 14 years old or younger who is charged with homicide or a sex offense to
be represented by a lawyer during a custodial interrogation. 99th Ill. Gen. Assem., Senate
Proceedings, May 5, 2016, at 53 (statements of Senator Van Pelt). Senator Van Pelt further
noted that the amended bill also provided that “a simplified version of the Miranda warning be
given to minors under the age of eighteen” and required the videotaping of a custodial
interrogation of a minor charged with either a misdemeanor sex offense or any felony offense.
99th Ill. Gen. Assem., Senate Proceedings, May 5, 2016, at 54 (statements of Senator Van
Pelt). Senator Radogno commented that the amended bill would be the first in the country to
include the juvenile Miranda language. 99th Ill. Gen. Assem., Senate Proceedings, May 5,
2016, at 55 (statements of Senator Radogno). Senator Van Pelt later remarked that, although
the simplified Miranda language was included in the final bill, it had “little power” because the
individual reading the warning would be the same individual prosecuting the juvenile or trying
to get the juvenile to confess. 99th Ill. Gen. Assem., Senate Proceedings, May 5, 2016, at 57
(statements of Senator Van Pelt). As amended, Senate Bill 2370 passed the senate 56-0. 99th
Ill. Gen. Assem., Senate Proceedings, May 5, 2016, at 57-58.
¶ 29 The first reading of Senate Bill 2370 in the Illinois House of Representatives occurred on
May 10, 2016. 99th Ill. Gen. Assem., House Proceedings, May 10, 2016, at 17. The only
reference to subsection (a-5) was from Representative Currie, during the third reading of the
bill. Representative Currie noted that the bill “simplifies the Miranda warning for people up to
the age of 18 since a lot of research shows that young people don’t understand the right to
waive their opportunity to have a lawyer or waive their opportunity to speak. They often think
that if they do anything like that the judge will hold it against them.” 99th Ill. Gen. Assem.,
House Proceedings, May 26, 2016, at 87 (statements of Representative Currie). The bill passed
the Illinois House of Representatives 112-0. 99th Ill. Gen. Assem., House Proceedings, May
26, 2016, at 88.
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¶ 30 As is evident from the discussion in the three preceding paragraphs, the legislative history
of Senate Bill 2370 reveals that the legislature was concerned about juveniles understanding
their rights and not being subject to undue influence. And while Senator Van Pelt’s comments
suggest that the statute was aimed at law enforcement officials, the remarks from the
legislative debates do not expressly address the intended scope of the phrase “other public
official or employee” as used in section 5-401.5(a-5) of the Act.
¶ 31 Because the legislative history is of little assistance, we turn to other tools of statutory
construction. Respondent posits that the evil to be remedied here is the violation of children’s
constitutional rights and the possibility that they would be manipulated into making
incriminatory statements because of their youth and immaturity. Respondent then concludes
that “[w]here there is the possibility that initial questioning of students accused of committing
offenses on school grounds falls onto the shoulders of public school officials or employees,
then it becomes clear that those individuals should be guided by the efforts of the legislature in
protecting the children from making incriminatory or falsely incriminatory statements.”
However, we find no express or implied indication in the legislative debates that the phrase
“other public official or employee” as used in section 5-401.5(a-5) was intended to apply to
public school officials or employees.
¶ 32 The State suggests that we invoke the doctrine of ejusdem generis to resolve this
ambiguity. “The doctrine of ejusdem generis provides that when a statutory clause specifically
describes several classes of persons or things and then includes ‘other persons or things,’ the
‘other’ is interpreted as meaning ‘other such like.’ ” Davis, 199 Ill. 2d at 138 (quoting Farley v.
Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975)). We agree that the use of this doctrine
brings clarity to the language at issue.
¶ 33 In listing who is required to provide a Miranda warning to juveniles subject to custodial
interrogation, the legislature specifically named three classes of individuals—“law
enforcement officer,” “State’s Attorney,” and “juvenile officer”—followed by an additional
class labeled as “other public official or employee.” 705 ILCS 405/5-401.5(a-5) (West 2016).
Under the doctrine of ejusdem generis, the phrase “other public official or employee” would
refer to individuals “such like” those specifically enumerated in the statute. A law enforcement
officer, state’s attorney, and juvenile officer all have as their primary duties the protection of
the public interest and the enforcement of the law. See, e.g., 50 ILCS 727/1-5 (West 2016)
(defining “law enforcement officer” as “any person employed by a State, county, or
municipality as a policeman, peace officer, or in some like position involving the enforcement
of the law and protection of public interest at the risk of the person’s life”); Black’s Law
Dictionary (10th ed. 2014) (defining “law-enforcement officer” as “[a] person whose duty is to
enforce the laws and preserve the peace”); 55 ILCS 5/3-9005(a)(1) (West 2016) (listing,
among the duties of the state’s attorney, “[t]o commence and prosecute all actions, suits,
indictments and prosecutions, civil and criminal, in the circuit court for his county, in which
the people of the State or county may be concerned”); 705 ILCS 405/1-3(17) (West 2016)
(defining “juvenile police officer” as “a sworn police officer who has completed a Basic
Recruit Training Course, has been assigned to the position of juvenile police officer by his or
her chief law enforcement officer and has completed the necessary juvenile officers training as
prescribed by the Illinois Law Enforcement Training Standards Board, or in the case of a State
police officer, juvenile officer training approved by the Director of the Department of State
Police”); see also In re Navajo County Juvenile Action No. JV91000058, 901 P.2d 1247, 1249
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(Ariz. Ct. App. 1995) (holding that law enforcement agents include government employees
whose primary purpose is to enforce the law); In re Victor F., 169 Cal. Rptr. 455, 458 (Ct. App.
1980) (holding that a school principal and teacher were not officials whose interrogation of a
criminal suspect must be preceded by an admonition of Miranda rights in that such individuals
are not employed by a governmental entity whose primary mission is to enforce the law). Thus,
applying the doctrine of ejusdem generis in this case, we hold that the phrase “other public
official or employee” as used in section 5-401.5(a-5) is intended to refer to an elected or
appointed government official or an employee who works for a government agency and who
has as his or her primary duties the protection of the public interest and the enforcement of the
law. While Deans Reagan and Aiello and Assistant Principal Pikul are undoubtedly
responsible for administration and discipline within Lake Zurich High School (see 105 ILCS
5/24-24 (West 2016) (granting educators in loco parentis status, which extends to both
disciplinary and nondisciplinary matters); In re E.M., 262 Ill. App. 3d 302, 307 (1994)), they
do not have as their primary mission the same duties as the individuals specifically listed in
section 5-401.5(a-5). See People v. Dilworth, 169 Ill. 2d 195, 221-22 (1996) (Nickels, J.,
dissenting) (recognizing that school districts and law enforcement authorities have different
missions); Pankhurst, 365 Ill. App. 3d at 255 (emphasizing that, although school officials are
charged with maintaining order and discipline in their schools, the fact that these duties
occasionally entail the investigation of criminal conduct does not alone make the school
officials agents of the police); see also 2 Wayne R. LaFave et al., Criminal Procedure § 6.10(c)
(4th ed. 2017) (noting that courts have generally held that government agents not primarily
charged with enforcement of the criminal law are under no obligation to comply with
Miranda); Commonwealth v. Ira I., 791 N.E.2d 894, 900-01 (Mass. 2003) (holding that school
officials acting within the scope of their employment rather than as agents of law enforcement
are not required to give Miranda warnings prior to questioning a student in conjunction with a
school investigation); Navajo County, 901 P.2d at 1249 (concluding that school principals are
not law enforcement agents); Victor F., 169 Cal. Rptr. at 458 (finding that school personnel
have no more powers to enforce the law than private persons). Under this interpretation, the
scope of the phrase “other public official or employee” goes from extremely broad to
reasonably focused. Thus, applying this definition, we hold that the school personnel in this
case were not “other public official[s] or employee[s]” and therefore not required to precede
their questioning of respondent with the statement and questions set forth in section
5-401(a-5).
¶ 34 Respondent contends that the application of the doctrine of ejusdem generis renders the
phrase “other public official or employee” superfluous. According to respondent, the statute
already lists the relevant law enforcement personnel who would be involved in a criminal
investigation of a juvenile—the police, the state’s attorney, and juvenile officers. As
respondent correctly notes, one tool of statutory construction instructs that a statute must be
interpreted so that each word, clause, and sentence is given reasonable meaning and not
rendered superfluous. Oswald v. Hamer, 2018 IL 122203, ¶ 10. Nevertheless, we disagree with
respondent’s argument that the application of the doctrine of ejusdem generis renders the
phrase “other public official or employee” superfluous. There are other public officials or
employees who are not expressly enumerated in the statute, whose primary duties involve law
enforcement, and who could be involved in a criminal investigation of a juvenile, such as a
state’s attorney investigator or an arson investigator with the Office of the State Fire Marshal
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(see 20 ILCS 2910/1(b) (West 2016)). Accordingly, we reject respondent’s argument that our
interpretation of the phrase “other public official or employee” renders the phrase superfluous.
¶ 35 In short, we find that, although the phrase “other public official or employee” as used in
section 5-401.5(a-5) is not ambiguous on its face, a literal reading of the phrase renders the
absurd result of applying the statute to every individual who is elected or appointed to hold a
government office or who is employed by a government agency. Employing the doctrine of
ejusdem generis, however, we hold that the phrase “other public official or employee” as used
in section 5-401.5(a-5) was intended to apply to an elected or appointed government official or
an employee who works for a government agency and who has as his or her primary duties the
protection of the public interest and the enforcement of the law. Because the school personnel
in this case did not have as their primary duties the protection of the public interest and the
enforcement of the law, they were not “other public official[s] or employee[s]” for the
purposes of section 5-401.5(a-5) and they were not required to comply with the procedural
safeguards set forth in the statute. Accordingly, we reverse that portion of the trial court’s
judgment suppressing the statement respondent made to the school personnel at the high
school.
¶ 36 B. Statement at the Police Station
¶ 37 The State also argues that the trial court improperly granted respondent’s motion to
suppress the statement he made at the police station, on the basis that respondent was not “in
custody” when he spoke to Officer Frey.
¶ 38 The recording requirement set forth in section 5-401.5(b) of the Act (705 ILCS
405/5-401.5(b) (West 2016)) applies only to a custodial interrogation conducted at a police
station or “other place of detention.” Specifically, the statute provides:
“(b) An oral, written, or sign language statement of a minor who, at the time of the
commission of the offense was under the age of 18 years, made as a result of a custodial
interrogation conducted at a police station or other place of detention on or after the
effective date of this amendatory Act of the 99th General Assembly shall be presumed
to be inadmissible as evidence against the minor in any criminal proceeding or juvenile
court proceeding, for any act that if committed by an adult would be a misdemeanor
offense under Article 11 of the Criminal Code of 2012 or any felony offense unless:
(1) an electronic recording is made of the custodial interrogation; and
(2) the recording is substantially accurate and not intentionally altered.” 705
ILCS 405/5-401.5(b) (West 2016).
Subsection (f) of section 5-401.5 allows for the presumption of inadmissibility to be overcome
“by a preponderance of the evidence that the statement was voluntarily given and is reliable,
based on the totality of the circumstances.” 705 ILCS 405/5-401.5(f) (West 2016).
¶ 39 In this case, it is undisputed that respondent was under the age of 18 years when the alleged
offenses were committed and that the statement at issue was made at a police station. It is also
undisputed that the petition for adjudication of wardship charged respondent with acts that, if
committed by an adult, would be felony offenses. See 720 ILCS 570/402(c) (West 2016)
(categorizing unlawful possession of a controlled substance as a Class 4 felony); 720 ILCS
570/407(b)(5) (West 2016) (categorizing delivery of a controlled substance as a Class 2
felony). Thus, if respondent’s statement at the police station was made as a result of a
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“custodial interrogation,” the statement is presumptively inadmissible against him in any
criminal or juvenile court proceeding unless an electronic recording was made of the custodial
interrogation. 705 ILCS 405/5-401.5(b) (West 2016).
¶ 40 The State maintains that the statutory recording requirement did not apply in this case
because respondent was not “in custody” when Officer Frey and respondent spoke at the police
station. In support of its argument, the State observes that the interview was “set in advance,”
respondent’s mother was present during the entire interview, the questioning lasted for less
than an hour, and Officer Frey was dressed in plain clothing. The State further asserts that the
only fact that lends itself to a finding that respondent was in custody was that respondent was
booked. The State’s position lacks merit.
¶ 41 Whether someone is “in custody” is a question of fact. People v. Calhoun, 382 Ill. App. 3d
1140, 1146 (2008); People v. Wheeler, 281 Ill. App. 3d 447, 458 (1996). As such, we must
defer to the trial court’s finding unless it is against the manifest weight of the evidence.
Richardson, 234 Ill. 2d at 251. As noted above, a finding is against the manifest weight of the
evidence only if the opposite conclusion is clearly apparent or if it is unreasonable, arbitrary, or
not based on the evidence presented. Kavchak, 2018 IL App (2d) 170853, ¶ 65. In this case, the
trial court found that Officer Frey’s interview constituted a custodial interrogation. Given the
applicable standard of review, we cannot say that the trial court’s finding is against the
manifest weight of the evidence. Subsection (a) of section 5-401.5 defines “custodial
interrogation” as “any interrogation (i) during which 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.” 705 ILCS 405/5-401.5(a)
(West 2016). The factors relevant to determining whether an individual is in custody include
(1) the location, time, length, mood, and mode of questioning; (2) the number of police officers
present during the interrogation; (3) the presence or absence of family and friends of the
individual; (4) any indicia of a formal arrest procedure, such as the show of weapons or use of
force, physical restraint, booking, or fingerprinting; (5) the manner by which the individual
arrived at the place of questioning; and (6) the age, intelligence, and mental makeup of the
individual. People v. Slater, 228 Ill. 2d 137, 150 (2008).
¶ 42 Turning to the evidence before us, the record establishes that, on April 6, 2017, respondent
was a 16-year-old high-school student. Following questioning at the high school, Officer Frey
informed respondent and his family that Officer Frey would be in contact to arrange a date for
respondent to come to the police station for booking. Respondent’s mother testified that
Officer Frey later contacted her to request that she bring respondent to the police station to
answer some questions and to be fingerprinted. In accordance with this request, respondent and
his mother reported to the police station on April 13, 2017. At that time, respondent had just
turned 17. Once the translating officer arrived, Officer Frey escorted respondent, his mother,
and the translating officer to an interview room adjacent to the lobby of the police station.
Officer Frey then read respondent the juvenile Miranda form and questioned him for 15
minutes regarding the incident at the school. Although Officer Frey testified that the interview
room was unlocked and accessible to the public, he acknowledged that he uses this particular
room to interview suspects before taking them into custody. Two officers were present during
the questioning (Officer Frey and the translating officer), and there was fingerprinting
equipment in the room. Moreover, although Officer Frey was dressed in plainclothes, he was
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armed with his duty pistol and carrying handcuffs. At the conclusion of the interview, Officer
Frey took respondent to a secure area for booking and fingerprinting.
¶ 43 Under the totality of these circumstances, a reasonable person would have considered
himself to be in custody and not free to leave. In particular, we observe that Officer Frey
directed respondent’s mother to bring respondent to the police station to answer some
questions and be fingerprinted. Although respondent’s mother was present during the
questioning, so were two police officers. At least one of the officers was armed with his duty
pistol and had handcuffs. Officer Frey read respondent the juvenile Miranda form prior to the
questioning. At the conclusion of the interview, respondent was booked and fingerprinted. We
also observe that Officer Frey admitted that he was seeking incriminating information from
respondent and that respondent was at the police station so that he could be booked and
processed on two drug-related felony charges. Given the foregoing, we find ample evidence to
support the trial court’s finding that respondent was subject to a custodial interrogation at the
police station. Since this finding is not against the manifest weight of the evidence and since
the custodial interrogation was not electronically recorded as required by section 5-401.5(b) of
the Act, the statement respondent made at the police station is presumptively inadmissible.
¶ 44 The State alternatively asserts that, even if respondent was “in custody” when he spoke to
Officer Frey at the police station, the statement he provided was voluntary. As noted,
subsection (f) of section 5-401.5 allows for the presumption of inadmissibility to be overcome
“by a preponderance of the evidence that the statement was voluntarily given and is reliable,
based on the totality of the circumstances.” (Emphasis added.) 705 ILCS 405/5-401.5(f) (West
2016). In this case, although the State argues that the statement respondent provided at the
police station was voluntary, it makes no claim that the statement was reliable. See People v.
Whitfield, 2017 IL App (2d) 140878, ¶ 97 (noting that the issue of reliability must be
considered separately from voluntariness); People v. Harris, 2012 IL App (1st) 100678, ¶ 66
(emphasizing that whether the defendant’s statement was reliable is a separate inquiry from
whether it was voluntary). The failure to provide argument as to both prongs of subsection (f)
results in forfeiture of the State’s claim that it had overcome the presumption of
inadmissibility. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (providing that an appellant’s brief
must include “[a]rgument, which shall contain the contentions of the appellant and the reasons
therefor, with citation of the authorities and the pages of the record relied on”); In re Marriage
of Woodrum, 2018 IL App (3d) 170369, ¶ 63 (noting that failure to develop an argument and
provide any authority in support of a contention results in forfeiture of the issue on appeal).
¶ 45 III. CONCLUSION
¶ 46 For the reasons set forth above, we affirm that portion of the judgment of the circuit court
of Lake County granting respondent’s motion to suppress the statement respondent made at the
police station but reverse that portion of the judgment granting respondent’s motion to
suppress the statement respondent made at the high school. This cause is remanded for further
proceedings consistent with this opinion.
¶ 47 Affirmed in part and reversed in part.
¶ 48 Cause remanded.
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