People v. Coleman

Illinois Official Reports

Appellate Court

People v. Coleman, 2015 IL App (4th) 140730

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption STEPHEN C. COLEMAN, Defendant-Appellee.

District & No. Fourth District
Docket No. 4-14-0730

Filed July 20, 2015

Decision Under Appeal from the Circuit Court of Sangamon County, No. 13-CF-749;
Review the Hon. Peter C. Cavanagh, Judge, presiding.

Judgment Affirmed.

Counsel on John Milhiser, State’s Attorney, of Springfield (Dan Mosher,
Appeal Assistant State’s Attorney, and Patrick Delfino, David J. Robinson,
and Linda Susan McClain, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Michael J. Pelletier, Jacqueline L. Bullard, and Duane E. Schuster, all
of State Appellate Defender’s Office, of Springfield, for appellee.

Panel PRESIDING JUSTICE POPE delivered the judgment of the court,
with opinion.
Justice Harris concurred in the judgment and opinion.
Justice Steigmann dissented, with opinion.
 OPINION

¶1 On August 22, 2013, the State charged defendant, Stephen C. Coleman, with
manufacture/delivery of cannabis (720 ILCS 550/5(d) (West 2012)) and possession of
cannabis (720 ILCS 550/4(d) (West 2012)). On July 20, 2014, the trial court granted
defendant’s motion to suppress statements he made to parole officers because he was not
provided warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The State appeals,
arguing the court erred in granting defendant’s motion to suppress. We affirm.

¶2 I. BACKGROUND
¶3 On February 3, 2014, defendant filed a motion to suppress statements he made to parole
officers on August 6, 2013. At issue was defendant’s purported statement he had marijuana
under his mother’s bed. Defendant argued his statement resulted from a custodial interrogation
where the parole officers failed to advise him of his Miranda rights prior to questioning.
¶4 On February 26, 2014, the trial court held a hearing on defendant’s motion to suppress.
Defendant testified he was visiting his mother at 546 West Miller Street in Springfield at
approximately 9:30 a.m. on August 6, 2013, and was on parole at the time. When he called the
Department of Corrections for his monthly check-in, defendant was told his parole officer was
looking for him. Defendant provided his mother’s address. Shortly thereafter, a parole agent,
Mark Brady, and another parole agent, Mark Schafer, arrived at defendant’s mother’s
residence. Defendant testified his registered address was 1338 North 8th Street and he had not
changed his parole address.
¶5 Agent Brady asked defendant to provide a urine sample. Defendant and the two agents
went into his mother’s apartment. Defendant’s mother and girlfriend were inside the
apartment. However, defendant was kept separated from these individuals during the
encounter. Defendant provided the sample in his mother’s bathroom in Brady’s presence.
While defendant was providing the sample, Agent Schafer was searching what he believed was
defendant’s bedroom. Schafer found a lockbox with money inside. According to defendant,
after Schafer found the money, Brady cuffed defendant. They then questioned him about the
money.
¶6 The agents took defendant back into the bathroom. Shortly thereafter, they began
questioning him about allegations he was selling drugs. He was still handcuffed at that time.
They also asked if he had drugs in the residence. The agents did not advise defendant of his
Miranda rights prior to questioning him.
¶7 Defendant testified he was not afraid of the parole officers and had been handcuffed
(behind his back) for approximately five minutes before the agents questioned him about
dealing drugs. The agents did not take out any weapons during the encounter and no police
officers were present.
¶8 On redirect examination, the following exchange occurred between defense counsel and
defendant:
“[DEFENSE COUNSEL]: [Defendant], did you believe you were–when they
handcuffed you, did you believe that you could leave?
[DEFENDANT]: Yes.

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 [DEFENSE COUNSEL]: So you thought that you could leave when they had you
handcuffed?
[DEFENDANT]: Yes. I hadn’t done anything wrong.
[DEFENSE COUNSEL]: I’m not asking you to admit that you did anything wrong.
Did you believe you were under arrest when they put you in handcuffs?
[DEFENDANT]: No.”
Defendant also testified he was kept apart from his mother and girlfriend while he was being
questioned by the agents. He could not hear them talking, and he did not think they could hear
him talking.
¶9 After defendant testified, the State moved to dismiss defendant’s motion to suppress,
arguing defendant had failed to establish a prima facie case a Miranda violation had occurred.
The trial court granted the State’s motion to dismiss, stating:
“The investigation of this violation of probation was an appropriate investigation. I do
find there was a valid waiver based upon People’s 1, the plain language of the parole
mandatory supervised release agreement.
Also, the court is clearly troubled by the testimony of the Defendant, that he did not
feel at the time of the questioning that he was under arrest at that time. So with regard to
Miranda, the Court does not find there’s a prior violation [sic] and that the burden has
not shifted.”
¶ 10 On July 15, 2014, defendant filed a motion asking the trial court to reconsider its dismissal
of his motion to suppress. Defendant argued the court erred in failing to shift the burden to the
State to show defendant’s questioning complied with Miranda or fell into one of the rule’s
exceptions. The court granted defendant’s motion to reconsider and held another hearing on
the suppression issue that afternoon.
¶ 11 At the hearing, the State first called parole agent Brady. Brady testified he is not considered
a general criminal investigator. When he witnesses evidence of a new crime by a parolee, he
calls the local police to work on the new crime. He never gives Miranda warnings to parolees
during compliance checks.
¶ 12 Brady testified he did a compliance check on defendant at the Miller Street address because
defendant had reported a change of address to that location. Brady testified he suspected
defendant was selling drugs because of numerous calls the parole office had received.
Defendant told Brady the apartment on Miller Street was his. Brady told defendant he was
going to conduct a compliance check and asked defendant to provide a urine sample.
Defendant agreed to do so and told Brady he would test positive for marijuana. While
defendant was providing the urine sample, parole agent Schafer began searching defendant’s
room in the apartment.
¶ 13 While defendant was providing the urine sample, Agent Schafer found a “locked box” in
defendant’s bedroom. Brady took defendant into the bedroom and requested defendant open
the box. Defendant consented and opened the box. Brady then handcuffed defendant behind
his back. According to Brady, handcuffing a parolee during a compliance check is standard
operating procedure. The box contained a large amount of cash and some other items. Brady
asked defendant how he acquired a large amount of cash considering he was unemployed.
Defendant said he earned the money doing yard work.

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¶ 14 After asking defendant about the money in the box, Brady and Schafer asked defendant
three or four more questions. Brady testified the agents told defendant they suspected he had
been selling marijuana. The agents told defendant they wanted him to be honest with them and
asked defendant whether he had anything in the home. Defendant told the agents he had some
marijuana under his mother’s bed. Defendant had only been handcuffed a few minutes when he
told the agents about the marijuana. During the questioning, defendant was cooperative.
¶ 15 Brady then asked defendant’s mother if he could search her bedroom, and she consented.
Brady found boxes under her bed containing marijuana. After finding the drugs, the parole
agents called the Springfield police to the scene.
¶ 16 According to Brady, the entire encounter only took 15 to 20 minutes. Neither parole agent
drew his firearm. Brady testified they did not threaten, bribe, or trick defendant into making
any admissions. They also did not threaten him with arrest or a parole violation prior to his
statement regarding the marijuana. Further, the police had no involvement in initiating the
compliance check or in how the check was conducted. Defendant remained handcuffed while
they waited for the Springfield police to arrive.
¶ 17 On cross-examination, Brady stated he had several anonymous tips defendant was selling
marijuana prior to conducting the compliance check. Defendant was reportedly selling
marijuana from his parole address on North 8th Street. It was also reported he was going in and
out of his car during these drug sales.
¶ 18 Brady testified no drugs were found in defendant’s car, on his person, or in what they
believed was defendant’s bedroom. Brady acknowledged his report noted defendant was not
handcuffed until after defendant said he earned the money found in the bedroom by performing
yard work. While the agents were questioning defendant, he was not allowed to consult with
anyone and was kept separate from his mother and girlfriend. Brady testified the questioning
occurred in the bedroom of the apartment. Both Brady and Schafer were armed. Brady was
wearing his gun on the outside of his clothes, where it was visible.
¶ 19 Parole agent Schafer testified the agents had no intent to arrest defendant when they asked
him if there were any drugs in the house. While searching defendant’s room, Schafer found a
lockbox. When defendant finished the drug test, Schafer told Brady he needed defendant to
open the lockbox. Brady then questioned defendant about money found in the lockbox.
Defendant was handcuffed after he opened the lockbox. Once he was handcuffed, defendant
was not going to be allowed to leave. In fact, Schafer testified defendant was never allowed to
leave of his own volition that morning. Schafer testified defendant was not given his Miranda
warnings. According to Schafer, it is standard for agents to ask whether there is anything
illegal or there are any weapons the agents should know about. Schafer testified no one else
was permitted in the room with the agents and defendant. Defendant’s mother and girlfriend
were directed to stay out of the bathroom. Agent Schafer testified neither defendant, his
mother, nor his girlfriend was going to be allowed to leave the apartment during the encounter.
Cannabis was later found in defendant’s mother’s room.
¶ 20 On July 30, 2014, the trial court granted defendant’s motion to suppress. The court stated:
“The resident check of the parolee’s residence, certainly it would be permissible for
drug testing, questioning, search, even the cuffing of the Defendant-parolee for the
safety of the officers, and I really don’t see where any of that would be a violation of
the parole agreement. However, the facts and circumstances in this case, in the Court’s

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 view, turned a resident check of a parolee to that of a custodial interrogation which
invoked the right to Miranda warnings.
You know, if the–at the point, I should say, of the questioning, which certainly
would be permissible as regards to compliance with parole terms, but investigation of a
new crime wherein there was a tip, and I did hear testimony of the parole officer that
stated that the Defendant was not free to leave while handcuffed and being questioned.
Those are very important factors in this particular case.
We have security personnel acting in a coordinated effort bringing in a partner to
question the suspect after making arrangements to be paged and go see the
parolee-Defendant, search his home, handcuffed him, with the knowledge that there
was a tip, and I think that’s the key, and I’m just trying to make the point that the tip is
very, very crucial in this case, which otherwise may have been an impermissible parole
check.
The tip leads the parole officer there, and when coupled with the tip, evidence of a
new crime, that being the money, for this Court, that is enough–in the context of a
handcuffed parolee and testimony that he was not free to leave is enough to invoke his
right to Miranda.”
On August 13, 2014, the State filed a certificate of impairment and declaration it intended to
appeal.
¶ 21 This appeal followed.

¶ 22 II. ANALYSIS
¶ 23 The State argues the trial court erred in granting defendant’s motion to suppress.
According to the State, Agents Brady and Schafer were under no duty to advise defendant of
his Miranda rights. Because of the conditions related to his mandatory supervised release, the
State contends defendant was required to truthfully answer his parole officer’s questions.
Further, the State argues defendant was not subjected to a custodial interrogation. Because the
State concedes defendant was not Mirandized prior to making the statements at issue, the
question becomes whether defendant’s statements resulted from a custodial interrogation.

¶ 24 A. Standard of Review
¶ 25 Suppression rulings present a mixed question of law and fact. People v. Pitman, 211 Ill. 2d
502, 512, 813 N.E.2d 93, 100 (2004). A trial court’s factual findings should be upheld unless
they are against the manifest weight of the evidence. Id. However, whether the evidence should
be suppressed is a question of law, which we review de novo. Id. at 512, 813 N.E.2d at 101.

¶ 26 B. Custody for Miranda Purposes
¶ 27 Our supreme court has stated courts should engage in a two-part inquiry to determine
whether a person is in custody, necessitating Miranda warnings prior to questioning the
individual. First, courts should look at the circumstances surrounding the interrogation.
Second, courts should determine whether a reasonable person, innocent of any crime, would
have felt at liberty to terminate the interrogation and leave given those circumstances. People
v. Braggs, 209 Ill. 2d 492, 505-06, 810 N.E.2d 472, 481 (2003).

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¶ 28 Although defendant was on parole, the United States Supreme Court has made the
following clear: “A defendant does not lose [his fifth-amendment] protection by reason of his
conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the
time he makes incriminating statements, if those statements are compelled they are
inadmissible in a subsequent trial for a crime other than that for which he has been convicted.”
Minnesota v. Murphy, 465 U.S. 420, 426 (1984). The State acknowledges a parolee, like a
probationer, does not lose his privilege against self-incrimination. However, citing Murphy,
the State argues the Supreme Court has not extended the requirements of Miranda warnings to
prearranged, routine parole interviews with parole officers. Further, the State argues the parole
agents were under no duty to advise defendant of his Miranda rights because defendant was
under parole supervision and was required, as a condition of his mandatory supervised release,
to truthfully answer his parole officer’s questions relating to his adjustment in the community
while on parole. See 730 ILCS 5/3-3-7(a)(14) (West 2012).
¶ 29 However, based on the facts here, Murphy supports the trial court’s decision to suppress
defendant’s statements in this case. In Murphy, the defendant, who was on probation, admitted
to his treatment counselor he committed a rape and murder in 1974. Murphy, 465 U.S. at 423.
Upon receiving this information, the probation officer contacted the defendant to set up a
meeting to discuss a treatment plan for the remainder of his probationary period. Id. The
probation officer did not contact the police prior to the meeting but knew she would report to
the police any incriminating statements the defendant made. Id. At the meeting at her office,
the officer told the defendant she had information from his treatment counselor evidencing his
continued need for treatment. Id. at 423-24. Subsequently, defendant admitted committing the
rape and murder but attempted to persuade the probation officer he did not need further
treatment because “several extenuating circumstances explained the prior crimes.” Id. at 424.
¶ 30 The probation officer told the defendant she had a duty to report to the police what the
defendant told her and encouraged him to turn himself in to the authorities. Id. The defendant
left after the interview. Id. Two days later, he informed the probation officer he was not turning
himself in on advice of counsel. Id. A grand jury later indicted the defendant for first degree
murder. Id. at 425. The defendant moved to suppress his confession, arguing it was made in
violation of the fifth and fourteenth amendments. The trial court denied his motion, but the
Minnesota Supreme Court reversed. Id.
¶ 31 The United States Supreme Court noted an individual’s obligation to appear and truthfully
answer questions does not, in and of itself, convert otherwise voluntary statements into
compelled statements. Id. at 427. According to the Court, individuals on probation or parole
are:
“in no better position than the ordinary witness at a trial or before a grand jury who is
subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt,
unless he invokes the privilege and shows that he faces a realistic threat of
self-incrimination. The answers of such a witness to questions put to him are not
compelled within the meaning of the Fifth Amendment unless the witness is required to
answer over his valid claim of the privilege. This much is reasonably clear from our
cases.
***
*** It has long been recognized that ‘[t]he Constitution does not forbid the asking
of criminative questions,’ [citation], and nothing in our prior cases suggests that the

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 incriminating nature of a question, by itself, excuses a timely assertion of the privilege.
[Citation.] If a witness–even one under a general compulsion to testify–answers a
question both he and the government should reasonably expect to incriminate him, the
Court need ask only whether the particular disclosure was ‘compelled’ within the
meaning of the Fifth Amendment.” Id. at 427-28.
¶ 32 The Supreme Court noted, when the government asks a witness questions reasonably likely
to elicit incriminating evidence, the witness must assert the privilege rather than answer if he
does not want to incriminate himself. Id. at 429.
“If he asserts the privilege, he ‘may not be required to answer a question if there is
some rational basis for believing that it will incriminate him, at least without at that
time being assured that neither it nor its fruits may be used against him’ in a subsequent
criminal proceeding [citation] (emphasis in original). But if he chooses to answer, his
choice is considered to be voluntary since he was free to claim the privilege and would
suffer no penalty as the result of his decision to do so.” Id.
¶ 33 The Supreme Court then discussed the well-known exception to this general rule with
regard to custodial interrogations. Id. To lessen the risk of an individual being compelled by
the isolation of police custody, the Court in Miranda “required the exclusion of incriminating
statements obtained during custodial interrogation unless the suspect fails to claim the Fifth
Amendment privilege after being suitably warned of his right to remain silent and of the
consequences of his failure to assert it.” Id. at 430. The Court noted “this extraordinary
safeguard ‘does not apply outside the context of the inherently coercive custodial
interrogations for which it was designed.’ ” Id. Because the defendant’s statements were not
made during a custodial interrogation, the Supreme Court found Miranda did not apply.
Id. at 431.
¶ 34 Noting the Minnesota Supreme Court recognized the defendant was not in custody when
he made the incriminatory statements, the Court stated:
“Since [the defendant] was not physically restrained and could have left the office, any
compulsion he might have felt from the possibility that terminating the meeting would
have led to revocation of probation was not comparable to the pressure on a suspect
who is painfully aware that he literally cannot escape a persistent custodial
interrogator.” Id. at 433.
¶ 35 Unlike Murphy, the parole agents handcuffed defendant in this case, and custody is at
issue. The State points out “custody” has been narrowly circumscribed for Miranda purposes.
See Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977). The Illinois Supreme Court has stated:
“The determination of whether a defendant is ‘in custody,’ and, therefore, whether
the warnings set forth in Miranda are required, involves ‘ “[t]wo discrete inquiries ***:
first, what were the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” ’ [Citation.] When examining the circumstances
of interrogation, this court has found a number of factors to be relevant in determining
whether a statement was made in a custodial setting, including: (1) the location, time,
length, mood, and mode of the 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
force, physical restraint, booking or fingerprinting; (5) the manner by which the

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 individual arrived at the place of questioning; and (6) the age, intelligence, and mental
makeup of the accused. [Citations.] After examining and weighing these various
factors, we then must make an objective determination as to whether, under the facts
presented, ‘a reasonable person, innocent of any crime’ would have believed that he or
she could terminate the encounter and was free to leave.” People v. Slater, 228 Ill. 2d
137, 150, 886 N.E.2d 986, 994-95 (2008).
¶ 36 According to the State, “Under the narrow standard appropriate in the Miranda context, it
is clear that defendant was not in custody for purposes of receiving Miranda protection since
there was no formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” We disagree.
¶ 37 In looking at the factors we are to consider, we find the following. First, defendant was in a
location familiar to him. He was not taken to an interrogation room or jail. Further, defendant
was subjected to relatively brief, around 20 minutes, questioning. Second, two parole officers
were present, both of whom were armed. Brady’s weapon was ordinarily holstered on the
outside of his clothing–so it would have been in plain view. Third, defendant was separated
from his mother and girlfriend while he was questioned in the bathroom. Fourth, defendant
was physically restrained by handcuffs. Fifth, defendant was at his mother’s residence when
the parole officers arrived. Sixth, defendant was 30 years old. Defendant’s intelligence and
mental condition are not discernible from the record.
¶ 38 In this case, the parole agents handcuffed defendant and then questioned him about illegal
drug activity of which they had advanced knowledge. When a law enforcement officer places
handcuffs on an individual, the officer is making a show of force and physically restraining the
individual. Handcuffing an individual by a state officer is indicative of an arrest. When a
reasonable person is placed in handcuffs by law enforcement, he will not feel free to leave until
the handcuffs are removed. Defendant’s subjective belief he was free to leave was
unreasonable and irrelevant to our determination. See Stansbury v. California, 511 U.S. 318,
323 (1994).
¶ 39 The State argues the parole officers did nothing wrong in handcuffing defendant. Further,
according to the State, “[t]he fact defendant was handcuffed does not automatically establish
that he was in custody for Fifth Amendment purposes.”
¶ 40 The Supreme Court has held, for fourth amendment purposes, a search warrant founded on
probable cause implicitly carries with it the limited authority to detain occupants of the
premises. Michigan v. Summers, 452 U.S. 692, 704-05 (1981). Further, this court has held
handcuffing a suspect does not transform a Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)) into
an arrest. People v. Waddell, 190 Ill. App. 3d 914, 928, 546 N.E.2d 1068, 1076 (1989).
However, “[h]andcuffs are generally recognized as a hallmark of a formal arrest.” United
States v. Newton, 369 F.3d 659, 676 (2d Cir. 2004) (citing New York v. Quarles, 467 U.S. 649,
655 (2d Cir. 1984)).
¶ 41 In this case, the parole officers’ ability to detain defendant with handcuffs is not at issue.
Defendant does not argue the parole agents violated his rights by handcuffing him. Instead,
defendant argues his statements were inadmissible because he was handcuffed–and thus in
custody–and then made the statements at issue in response to interrogation about a criminal act
for which he had not been charged.

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¶ 42 The State concedes in its brief the parole agents’ “home visit evolved into an investigation
of a parole violation that focused on the possession of drugs inside defendant’s residence.”
However, the State argues the agents’ investigation:
“was not specifically designed to elicit admission of an unrelated and independent
crime. Therefore, even though the parole officer questioned defendant regarding the
anonymous tip concerning drug sales, the compliance check was not turned into a
custodial interrogation. Whether there were any drugs, weapons, or anything illegal in
the home that the parole officer should know about was a standard question asked
during every parole compliance check.”
However, in this case, the parole agents already suspected defendant was dealing drugs.
Further, only after the agents found the large amount of money in the safe, which furthered
their suspicions about ongoing illegal activity, did they handcuff defendant and interrogate him
about the presence of drugs, weapons, or anything illegal in the home. A reasonable person
would have assumed a routine parole visit had transformed into an arrest because defendant
was only handcuffed after the parole agents found a large amount of money and questioned
how he acquired it.
¶ 43 The State cites an opinion from the Court of Appeals of New Mexico for the proposition the
handcuffing in this case was entirely reasonable and not coercive. See State v. Hermosillo, 336
P.3d 446 (N.M. Ct. App. 2014). The New Mexico court found the defendant was not in custody
under the specific facts of that case and, therefore, no Miranda warnings were required. Id. at
448. The New Mexico court stated “[t]he following factors guide our inquiry [into whether the
custody requirement is met]: ‘the purpose, place, and length of interrogation[,] ... the extent to
which the defendant is confronted with evidence of guilt, the physical surroundings of the
interrogation, the duration of the detention, and the degree of pressure applied to the
defendant.’ ” Id. at 450 (quoting State v. Munoz, 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972
P.2d 847). Illinois courts look at different factors to determine whether a suspect is in custody,
including “any indicia of a formal arrest procedure, such as the show of weapons or force,
physical restraint, booking or fingerprinting.” Slater, 228 Ill. 2d at 150, 886 N.E.2d at 995. As
a result, we do not find Hermosillo persuasive.
¶ 44 The State also relies on United States v. Newton, 181 F. Supp. 2d 157, 173 (E.D.N.Y.
2002), for the proposition handcuffing a defendant does not transform a detention into custody
for Miranda purposes. In Newton, like the case sub judice, the defendant was on parole. The
defendant’s mother had reported to a parole officer the defendant possessed a gun, which he
kept in a box by the door of her home, and threatened to kill her and her husband. Id. at 159.
The defendant occasionally stayed as an overnight guest at his mother’s home. Id. The next
day, three parole officers and three police officers went to the defendant’s mother’s home. Id.
at 160. When the defendant answered the door, his parole officer asked him to step outside and
turn around. Id. The officer then handcuffed the defendant but advised the defendant he was
not under arrest. Id.
¶ 45 The officers then took the defendant back inside the residence and sat him on a chair just
inside the door. Id. The defendant’s parole officer asked where the defendant’s mother was,
and defendant said she was in the back of the residence. Id. Another parole officer then began
questioning the defendant, asking whether the defendant had any contraband in the home. Id.
The defendant responded, “ ‘only what is in the box.’ ” Id. When asked what was in the box,
the defendant said, “ ‘a two and two.’ ” Id. The parole officer opened the box and found an

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 unloaded .22-caliber firearm, a fully loaded magazine, and several loose rounds. Id. The
officer testified the defendant’s parole was revoked automatically and he was then under
arrest. Id. No one read the defendant the Miranda warnings before or during his questioning or
arrest. Id.
¶ 46 The federal district court denied the defendant’s motion to suppress the statements he made
in response to the parole officers’ questions. Id. at 175. The court found the defendant was not
in custody for Miranda purposes. Id. Relying on the Second Circuit’s opinion in United States
v. Morales, 834 F.2d 35, 38 (2d Cir. 1987), the district court found the proper test to apply to
determine custody for Miranda purposes was “whether the ‘questioning was conducted in
custodial settings that have inherently coercive pressures that tend to undermine the
individual’s will to resist and to compel him to speak.’ ” Newton, 181 F. Supp. 2d at 168
(quoting Morales, 834 F.2d at 38). The court found focusing on “the presence of indications
that the defendant was not free to leave is over-inclusive.” Id. at 169. According to the court:
“I believe that the Morales formulation adheres more closely to Miranda’s central
concern that the police will use coercive environments and psychological tactics to
compel subjects of questioning to confess. The language in [Tankleff v. Senkowski, 135
F.3d 235, 243-44 (2d Cir. 1998),] that focuses on the presence of indications that the
defendant was not free to leave is over-inclusive. There are many situations in which
there are powerful indications that the suspect was not free to leave in which coercive
pressures to confess are absent. [Citations.] Indeed, even a fully law-abiding citizen
would not feel free to leave during nearly all interactions with the police. *** In my
view, the Morales formulation is the appropriate approach to determine whether a
person is in custody ***.” Id.
The court found “the core concerns of Miranda were not implicated” in the parole officer’s
questioning of the defendant. Id. at 173. According to the court:
“While there were indications that [the defendant] was not free to leave, a reasonable
person in his position also would not have felt placed in a coercive environment in
which he has no choice but to submit to the parole officer’s will and confess. This
conclusion is supported by an analysis of the factors courts have used to determine
whether an individual was in custody.” Id.
The court noted Newton was at home and the officers told him he was not under arrest. Id.
¶ 47 While the district court’s reasoning might support reversing the trial court in this case, the
Second Circuit did not find so when the defendant in Newton appealed. The Second Circuit
found the defendant was in custody for Miranda purposes. The Second Circuit stated:
“We take this opportunity to clarify how the free-to-leave test referenced in
Tankleff and the coercive-pressures test referenced in Morales both serve to identify
circumstances requiring Miranda warnings. The free-to-leave inquiry constitutes a
necessary, but not determinative, first step in establishing Miranda custody. The
‘ultimate inquiry’ for determining Miranda custody, however, is that articulated by the
Supreme Court in California v. Beheler: ‘whether there is a “formal arrest or restraint
on freedom of movement of the degree associated with a formal arrest.” [Citations.] In
such cases–i.e., where a person formerly at liberty is subjected to formal arrest or
arrest-like restraints–specific coercive pressures need not be proved to establish
Miranda custody; rather, coercive pressures are presumed from the fact of such
custody. [Citation.]

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 United States v. Morales is not at odds with this conclusion; it simply presents
circumstances where it made little sense to ask whether the defendant had been
questioned pursuant to formal arrest or arrest-like restraints. Morales was a prison
inmate at the time of the challenged questioning; thus, incarceration, not liberty, was
his status quo. We have declined, however, to equate such incarceration with custody
for purposes of Miranda. [Citations.] It is in the particular context of prison
interrogation that Morales’s focus on the coercive pressures of a custodial setting must
be understood. Thus, while the Morales formulation of custody relied on by the district
court may be useful in cases involving interrogation of individuals already incarcerated
on other crimes, for a person not so confined, the appropriate inquiry remains simply
whether his freedom of action has been ‘curtailed to a “degree associated with formal
arrest.” ’ [Citation.] No consideration of additional coercive pressures is required.”
(Emphasis added.) Newton, 369 F.3d at 670-71.
In addition, the Second Circuit stated:
“[A]lthough coercive pressure is Miranda’s underlying concern, custody remains the
touchstone for application of its warning requirement. The test for custody is an
objective one: ‘whether a reasonable person in defendant’s position would have
understood himself to be subjected to the restraints comparable to those associated with
a formal arrest.’ United States v. Ali, 68 F.3d 1468, 1472 (2d Cir. 1995) (internal
quotation marks omitted). Focusing on this objective standard has the
advantage–certainly from the perspective of the hundreds of thousands of law
enforcement officers who must daily apply Miranda–of establishing a regular course of
procedure. It does not require officers to administer Miranda warnings based on a
self-assessment of their actions as ‘coercive’; rather, it instructs them to administer
warnings whenever they place a person under formal arrest or apply restraints
generally understood as comparable to those of a formal arrest.” Id. at 671-72.
¶ 48 Based on the facts in Newton, which have many similarities to the case sub judice, the
Second Circuit held “a reasonable person would have understood that his interrogation was
being conducted pursuant to arrest-like restraints.” Id. at 677. According to the Second Circuit:
“Although a reasonable person told, as [the defendant] was, that he was not under arrest
would likely have understood that he was not about to be removed from his home to the
police station–a significant factor in assessing the degree to which one is at ‘the mercy’
of the authorities, [citation]–a reasonable person would also have understood that as
long as the handcuffs remained in place, his freedom of movement, even within his
home, would be restricted to a degree comparable to that of an individual placed under
formal arrest. The record does not indicate whether [the defendant] was told that the
specific reason for a safety concern in his case was that the officers were searching for
a gun. Thus, we cannot assume that a reasonable person in his situation would have
understood that the handcuffing would likely last only until the officers had completed
their search. Neither can we assume an understanding that removal or maintenance of
the handcuffs depended on the outcome of the search rather than on the suspect’s
responding to questions posed. Because Miranda’s safeguards ‘become applicable as
soon as a suspect’s freedom of action is curtailed to a degree associated with formal
arrest,’ [citation] (internal quotation marks omitted), we must conclude that
handcuffing [the defendant], though reasonable to the officers’ investigatory purpose

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 under the Fourth Amendment, nevertheless placed him in custody for purposes of
Miranda.” Id.
We find the Second Circuit’s reasoning persuasive.
¶ 49 In the case sub judice, defendant’s freedom was limited to a degree associated with a
formal arrest. As stated earlier, a reasonable person in defendant’s position would have
believed a parole visit had morphed into an arrest, considering defendant was cuffed only after
the parole agents found a large amount of cash and questioned him as to how he acquired the
money.
¶ 50 Finally, we address the State’s argument the trial court erred in granting defendant’s
motion to suppress because defendant testified he believed he was free to leave, even when
handcuffed. Citing several decisions from this court, the State argues the threshold issue
implicit in any defendant’s motion to suppress a statement is whether the defendant
subjectively believed he was in custody during the interrogation. See People v. Gorman, 207
Ill. App. 3d 461, 469, 565 N.E.2d 1349, 1354 (1991); People v. Goyer, 265 Ill. App. 3d 160,
164-65, 638 N.E.2d 390, 393 (1994); People v. Griffin, 385 Ill. App. 3d 202, 211-12, 898
N.E.2d 704, 712 (2008); People v. Wright, 2011 IL App (4th) 100047, ¶ 36, 960 N.E.2d 56.
¶ 51 The Third District has rejected the subjective-belief line of reasoning found in this court’s
opinions cited by the State. See People v. Carroll, 318 Ill. App. 3d 135, 742 N.E.2d 1247
(2001). In Carroll, after receiving information the defendant had implicated himself in the
death of his brother 36 years earlier, two police officers went to the elderly care facility where
the defendant lived to speak with him. Id. at 137, 742 N.E.2d at 1248. The defendant agreed to
the officers’ request to accompany them to the local police department. Id. The police officers
had informed the defendant he was not under arrest, nor in custody, and was free to leave at any
time. Id. at 137, 742 N.E.2d at 1249.
¶ 52 The police officers transported the defendant to the police station in an unlocked police car,
and the defendant was not handcuffed. Id. After arriving at the police station, the officers took
defendant into an 8-foot by 12-foot windowless interview room. Id. Once again, the officers
told the defendant he was not under arrest and could leave at any time. Id. The officers never
read defendant his Miranda rights. Id. During the 30- to 45-minute interview, the defendant
eventually confessed. Id. Following his admission, the officers asked the defendant to provide
a taped statement, again informing the defendant he was not under arrest and was free to leave
at any time. Id. The police officers still had not given him Miranda warnings. Id. The
defendant then provided a taped statement concerning his involvement in his brother’s death.
Id. After his statement, the defendant was photographed and taken back to his residence. Id.
¶ 53 The trial court found the defendant was not in custody when he made his initial statements
to the police. Id. at 138, 742 N.E.2d at 1249. However, the court found the defendant should
have been given Miranda warnings after he admitted to murder “because, upon admitting to
the crime of murder, a reasonable person would believe that he was in custody.” Id. As a result,
the court suppressed the defendant’s taped confession. Id.
¶ 54 On appellate review, relying on this court’s opinions in Gorman, Goyer, and People v.
Lewis, 269 Ill. App. 3d 523, 646 N.E.2d 305 (1995), the State argued the defendant was
required to present evidence he subjectively believed “he was in custody in order to trigger the
protections afforded by Miranda.” Carroll, 318 Ill. App. 3d at 138, 742 N.E.2d at 1250. Citing
People v. Melock, 149 Ill. 2d 423, 440, 599 N.E.2d 941, 948 (1992), and Stansbury, 511 U.S. at
319-22, the Third District rejected “the subjective test proposed by [those] cases as it

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 contradicts the vast majority of legal precedent and other authority which states that the test for
custody is strictly an objective one.” Carroll, 318 Ill. App. 3d at 139, 742 N.E.2d at 1250. The
Third District then stated:
“It is apparent that defendant voluntarily accompanied the two officers to the
department and that he was informed, even after his fourth oral statement, that he was
not under arrest and free to leave at any time. Additionally, at no time was defendant
physically restrained.
However, it is equally apparent that the investigation had become focused
exclusively upon defendant at the time his taped confession was made. Moreover,
defendant knew that the officers suspected him of murder because he had just,
moments earlier, inculpated himself in the crime. Considering these facts, the trial
court’s finding that any reasonable person in defendant’s position would have believed
himself to be in custody despite the officers’ assurances to the contrary was not
manifestly erroneous. Thus, Miranda warnings should have been issued and, because
they were not, the subsequent taped confession was properly suppressed.” Id.
¶ 55 The United States Supreme Court has made clear “the initial determination of custody
depends on the objective circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person being questioned.” Stansbury, 511
U.S. at 323. Our own supreme court has held we are to look at and weigh the factors discussed
above, in paragraph 35, and “we then must make an objective determination as to whether,
under the facts presented, ‘a reasonable person, innocent of any crime’ would have believed
that he or she could terminate the encounter and was free to leave.” Slater, 228 Ill. 2d at 150,
886 N.E.2d at 995 (quoting Braggs, 209 Ill. 2d at 506, 810 N.E.2d at 482).
¶ 56 However, as the State notes, this court has included the subjective test in the previously
cited opinions. The language relied on by the State in Gorman and all of the cases relying on
Gorman was unnecessary to the disposition of those cases and constitutes obiter dictum.
Generally, obiter dictum is not binding as authority or precedent within the stare decisis rule.
People v. Grever, 222 Ill. 2d 321, 336, 856 N.E.2d 378, 386 (2006). In Gorman, this court
stated:
“We begin our analysis by addressing a threshold issue that is implicit in
defendants’ motions to suppress their statements: Was there evidence before the trial
court of a subjective belief on the part of the defendants that they were in custody
during their interrogations? This threshold issue is not often acknowledged because
defendants bringing motions to suppress typically testify, as did defendants in the
present case, that they believed themselves to be in custody. However, the case could
arise where no such testimony is offered. This issue may be clarified by asking the
following: In deciding a motion to suppress, would the trial court have to examine the
objective indicia of custody discussed in Brown had the defendant at the hearing on the
motion testified that at all times he believed that he was not in custody and that he was
free to leave the company of the police interrogators whenever he wished? See, e.g.,
People v. Urban (1990), 196 Ill. App. 3d 310, 314, 553 N.E.2d 740, 742 (finding the
State’s contention that defendant was free to leave at any time unrebutted by
defendant).
Each of the three defendants in the present case testified that he believed he was in
custody at the time he made the statements that are the subject of his motion to

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 suppress. Accordingly, the requirement of evidence on this threshold issue has been
met, and we proceed with the rest of our analysis, beginning with a discussion of
interrogations conducted in police stations.” (Emphases added and in original.)
Gorman, 207 Ill. App. 3d at 469, 565 N.E.2d at 1354.
As is clear from the above quote, any discussion regarding the impact of the defendant’s
subjective belief as to whether he was in custody was unnecessary in deciding Gorman and is
only advisory.
¶ 57 Further, in Goyer, after devoting six paragraphs to this issue, this court noted:
“[I]n this case, the State failed to argue this threshold issue before the trial court.
Furthermore, neither party briefed this issue on appeal. Accordingly, we decline to
resolve defendant’s claim on this basis.” (Emphasis added.) Goyer, 265 Ill. App. 3d at
166, 638 N.E.2d at 394.
In Griffin, this time in an “Epilogue” that was not needed to decide the case, this court wrote:
“In many cases, this issue is not argued because a defendant typically testifies–as
did defendant in this case–that she believed she was in custody. Regardless, we
reaffirm our holding in Goyer that a defendant who seeks to suppress his statements on
the ground that he was in custody during the police interrogation must first testify that
he did in fact believe he was in custody during the interrogation.” (Emphasis added.)
Griffin, 385 Ill. App. 3d at 212, 898 N.E.2d at 712.
Finally, in Wright, this court again engaged in a discussion of this so-called “threshold” issue,
acknowledging:
“As previously noted, defendant did not testify at the hearing on the motion to
suppress that he believed he was in custody when Renken questioned him. However,
because the State failed to argue this threshold issue before the trial court and neither
party has briefed this issue on appeal, we decline to address the trial court’s denial of
defendant’s motion to suppress on this basis.” (Emphasis added.) Wright, 2011 IL App
(4th) 100047, ¶ 37, 960 N.E.2d 56.
¶ 58 Other than the Gorman-Goyer line of cases, our research has failed to uncover any case
finding it appropriate to look at the subjective beliefs of either the interrogator or the
interrogated to determine whether an individual was in custody for Miranda purposes. Nor
have the parties brought such a case to our attention.
¶ 59 As noted above, the United States Supreme Court has made clear the initial determination
of custody depends on “the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.” Stansbury,
511 U.S. at 323. The legal theory found in the dicta of Gorman, Goyer, Griffin, and Wright
contradicts both United States and Illinois Supreme Court precedent, and we decline to apply
it.
¶ 60 We do note the reasoning found in the dicta in the Gorman-Goyer line of cases cited above
has some instinctive appeal. However, if courts applied the subjective-belief threshold
requirement discussed in the Gorman-Goyer line of cases, the individuals most in need of
being advised of their rights–the uneducated, irrational, or those who simply lack common
sense–would not require Miranda warnings even if they clearly were in custody for Miranda
purposes. Although we mean no insult to defendant, the facts in this case clearly show why a
subjective-threshold test should not be applied. We cannot excuse a failure to admonish a

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 defendant pursuant to Miranda based on the mere fact the defendant incorrectly believed he
was not in custody for Miranda purposes.
¶ 61 Here, the trial court made factual determinations based in large part on undisputed
evidence. Defendant’s parole officer was looking for him because of anonymous tips
indicating defendant was selling drugs. When the officers located defendant, they separated
him from the other people in the house. Both parole agents were armed with firearms and
defendant was required to cooperate with his parole officer. Once the lockbox with a large
amount of cash was found, an officer handcuffed defendant. The cash was some evidence
defendant may have been selling drugs, as the tip suggested. Handcuffing the defendant and
then proceeding to question him about an independent crime objectively would have led a
reasonable person to believe he was not free to leave or to terminate the encounter. Defendant
was physically restrained and his freedom of movement was restricted. Under the totality of
the circumstances, defendant was entitled to be informed of his rights under Miranda before he
was questioned because he was in custody for Miranda purposes.

¶ 62 III. CONCLUSION
¶ 63 For the reasons stated above, we affirm the trial court’s suppression order.

¶ 64 Affirmed.

¶ 65 JUSTICE STEIGMANN, dissenting.
¶ 66 Twenty-four years ago, this court wrote about a hypothetical case in which a defendant
made a motion to suppress his statements because they were the product of a custodial
interrogation and he was not given the Miranda warnings, and yet “the defendant at the hearing
on the motion testified that at all times he believed that he was not in custody and that he was
free to leave the company of the police interrogators whenever he wished.” (Emphasis in
original.) Gorman, 207 Ill. App. 3d at 469, 565 N.E.2d at 1354. Three years later, this court
again considered how it would resolve the same hypothetical case and wrote the following:
“[I]f a defendant testifies that he believed he was not in custody but instead free to leave any
time he wished during his questioning by the police, would the trial court need to consider
what a reasonable person in that defendant’s circumstances would believe? We think not ***.”
(Emphasis in original.) Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393.
¶ 67 The present case is the hypothetical case discussed in Gorman and Goyer come to life.
Defendant moved to suppress his statements because he was not given the Miranda warnings
before being questioned when–he claims–he was subjected to a custodial interrogation.
However, at the hearing on defendant’s motion, he testified (when asked by defense counsel)
that he believed he could leave the interrogation, and he specifically told his counsel that he did
not believe he was under arrest even when the officers put him in handcuffs, explaining his
belief by testifying that he “hadn’t done anything wrong.”
¶ 68 The trial court initially denied defendant’s motion, stating that the court was “clearly
troubled by the testimony of the defendant that he did not feel at the time of the questioning
that he was under arrest.” Although the court ultimately granted defendant’s motion to
reconsider and later changed its ruling, defendant never recanted any of his earlier testimony.

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¶ 69 The majority opinion does not dispute the trial court’s finding that the defendant did not
believe at the time of the questioning that he was under arrest–and, indeed, on this record, I do
not see how it could–but instead it addresses that matter as follows: “Defendant’s subjective
belief he was free to leave was unreasonable and irrelevant to our determination. See Stansbury
v. California, 511 U.S. 318, 323 (1994).” Supra ¶ 38. Because I believe that defendant’s
subjective belief that he was free to leave was not only relevant but dispositive in favor of the
State, I respectfully dissent.
¶ 70 In Goyer, this court wrote that when a defendant makes a motion to suppress his statements
on the ground that he was subjected to a custodial interrogation and not advised of his Miranda
rights, before the trial court can conclude that the defendant was in custody, the court must first
find that (1) the defendant subjectively believed he was in custody and (2) a reasonable person
in defendant’s position, innocent of any crime, would also believe himself to be in custody.
Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393. This court then drew a comparison to the
standard applied to a claim of self-defense, as follows:
“We find analogous a defendant’s burden in asserting self-defense in a murder
case. Self-defense has two prongs: (1) the defendant’s subjective belief that his killing
was justified, and (2) the objective reasonableness of that belief. (Ill. Rev. Stat. 1991,
ch. 38, par. 7-1.) If the defendant did not subjectively believe his actions were justified
as self-defense, his claim at trial of self-defense must fail no matter how third parties
might have viewed the circumstances confronting defendant at the time he killed the
deceased. In other words, it is irrelevant under those circumstances whether the killing
might have been done objectively in self-defense. Similarly, if a defendant’s motion
seeks to suppress his statements on the grounds that he was in custody during the police
interview, yet the defendant himself testifies that he did not believe himself in custody,
it is irrelevant whether a reasonable person similarly situated would agree.” (Emphases
in original.) Id. at 165, 638 N.E.2d at 394.
(I note that the above quote remains consistent with Illinois law. See People v. Jeffries, 164 Ill.
2d 104, 127-28, 646 N.E.2d 587, 598 (1995) (“In order to instruct the jury on self-defense, the
defendant must establish *** (5) he actually and subjectively believed a danger existed which
required the use of the force applied; and (6) his beliefs were objectively reasonable.”); People
v. Lee, 213 Ill. 2d 218, 225, 821 N.E.2d 307, 311 (2004) (reiterates the Jeffries standards
regarding self-defense and adds that “[i]f the State negates any one of these elements, the
defendant’s claim of self-defense must fail”).)
¶ 71 Criminal proceedings are individualized, with their focus being on not just what a
defendant did, but often what he was thinking when he did it. Similarly, legal protections (such
as the right to assert self-defense) and procedural protections (such as the right not to be subject
to a custodial interrogation absent Miranda warnings) are also individualized. To demonstrate
the individualized nature of self-defense, consider the following scenario:
“An argument occurs between Smith and Jones in a tavern parking lot, and Smith
takes out a gun and shoots Jones three times, killing him. Several witnesses testify to
having seen this action, and each adds that during the argument, they saw Jones
suddenly reach into his belt and quickly withdraw some shiny object in his hand that
each witness at first thought was a gun. In fact, that object turned out to be a
chrome-colored cell phone. Assume that Smith’s defense counsel, planning all along to
assert that Smith shot Jones in self-defense, calls Smith to testify about what happened

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 during the shooting. However, Smith surprises his attorney (and probably everyone
else in the courtroom) by testifying as follows: ‘Yeah, I saw Jones reach into his belt as
if he were reaching for a gun, but I knew he didn’t have a gun, and I never feared that he
was going to shoot me. Jones never carried a gun, and I was never afraid of him. I
didn’t shoot Jones because I feared him, but because I got sick of his big mouth and the
fact that he was now running around with my old lady.’ ”
¶ 72 Even if the trial court might have been inclined to instruct the jury on self-defense absent
this testimony (I know I would be), can a self-defense instruction still be given in the teeth of
the defendant’s denial that he was acting in self-defense or believed that he was in danger?
Clearly not, because of the individualized nature of self-defense, as explained by the Illinois
Supreme Court in Jeffries and Lee.
¶ 73 I concede that there is no case law explaining this point regarding custodial interrogation as
there is regarding self-defense, but that is because defendants in cases like the present one
almost always testify that they, in fact, believed they were under arrest or otherwise not free to
go when they were interrogated. As far as I can tell, with the exception of the Gorman-Goyer
line of cases, courts of review have never directly commented upon the need for a defendant to
affirmatively state that he believed he was in custody as a threshold requirement for his claim
that his statements should be suppressed because they were given absent the Miranda
warnings. (Certainly, I am aware of no case like this, in which a defendant seeking to suppress
statements he made to the police in the absence of the Miranda warnings explicitly eschews the
notion that he was in custody.) Instead, courts typically go directly to the question of the
reasonableness of such a belief by asking whether a reasonable person in the defendant’s
position would have understood himself to be subjected to the restraints comparable to those
associated with a formal arrest. See supra ¶ 47. But, regarding a claim of custodial
interrogation, as in the case of the hypothetical involving Smith’s shooting Jones in the tavern
parking lot, it makes no difference that an objective, reasonable observer of Jones’ behavior
might have believed himself to be in danger of Jones’ pulling a gun and shooting him if the
defendant standing trial did not.
¶ 74 As earlier stated, there is not much precedent from higher courts regarding the
Gorman-Goyer line of cases, but there is at least one Illinois Supreme Court decision that
seems to support that line. In People v. Garcia, 165 Ill. 2d 409, 651 N.E.2d 100 (1995), one of
the issues was whether the suspect was subjected to a custodial interrogation, requiring the
giving of Miranda warnings. The supreme court analyzed the issue before it as follows:
“Initially, it should be noted that defendant’s statements during her first visit to the
Bensenville police station around 8:15 a.m. on July 23, 1991, are not subject to her
Miranda claims because, as the defendant herself stated at trial, she came to the station
voluntarily and understood that she was free to leave at any time, which she did several
hours later. Likewise, her written and oral statements at 6 p.m. on July 23, 1991,
fingering Gonzalez for her husband’s murder were not subject to Miranda warnings
because, as defendant testified, she understood she was not under arrest at the time of
this statement and was free to leave. Thus, no basis exists for arguing that any of the
statements by defendant during these time periods can be suppressed because
defendant was not in custody when they were made.” Id. at 422, 651 N.E.2d at 106-07.
¶ 75 What is significant about the above analysis is that the supreme court never mentioned the
need to apply an objective standard to the suspect’s situation, concluding instead that, given the

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defendant’s testimony, she understood she was not under arrest. Apparently, that conclusion by
the supreme court was dispositive. The supreme court concluded no basis exists for arguing
that those statements could be suppressed, apparently not concerning itself with the objective
standard of how a reasonable person other than the defendant might have viewed her situation.

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