specially concurring:
The court today adopts a narrow rule of law: “We hold that a suspect’s waiver of his right to counsel is invalid if police refuse or fail to inform the suspect who knows that an attorney is being retained for him of the efforts of the attorney, present at the place of interrogation, to render assistance to the suspect.” (152 Ill. 2d at 29.) The court reaches this conclusion by reaffirming this court’s decision in People v. Smith (1982), 93 Ill. 2d 179, and distinguishing Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, and People v. Holland (1987), 121 Ill. 2d 136.
In my view the majority’s opinion is unclear whether it reaches its conclusion based upon State or Federal constitutional principles. I believe that under the present circumstances both constitutions support the majority’s decision. I write only to reassert my position, expressed in Holland, that our State’s constitutional protections prohibit the police conduct here at issue.
In Holland, I expressed my view that the Illinois Constitution provides distinct protection to a defendant against self-incrimination and that this State protection includes the right to speak with counsel who is attempting to reach his or her client. (Holland, 121 Ill. 2d at 164 (Clark, C.J., specially concurring).) I also noted that the Holland majority opinion was unclear as to the basis for its holding:
“As I understand the majority's opinion, it holds either: (1) that the constitutional guarantee against self-incrimination contained in our State Constitution does not prohibit the police from denying an attorney access to his client, or (2) that our State Constitution prohibits only the denial of access to an attorney who is actually present at the site of interrogation, but not to an attorney who merely telephones the station house.” (Holland, 121 Ill. 2d at 166 (Clark, C.J., specially concurring).)
Additionally, I noted that State due process concerns may be implicated when police fail to inform a suspect that his attorney is trying to reach him:
“Courts have viewed with suspicion efforts to prevent lawyers from meeting with their arrested clients, even where the client has not formally invoked his right to meet with the lawyer. In fact, continued interrogation of a client who has not been informed of his attorney’s contemporaneous efforts to meet with him has been nearly universally condemned.
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Such interrogation conflicts with an adversarial system of justice. It offends against traditional notions of justice and fair play.” Holland, 121 Ill. 2d at 166 (Clark, C.J., specially concurring).
Although we recently declined in People v. Perry (1992), 147 Ill. 2d 430, which I authored, to read our State constitutional protection against self-incrimination more liberally than that of its Federal counterpart, the issue posed by Perry presented very different constitutional concerns. In Perry the question before us was whether a defendant’s acceptance of the assistance of counsel at an arraignment constituted an invocation of his rights under article I, section 10, of the Illinois Constitution of 1970. As we recognized in Perry, in appropriate cases this court has the obligation to interpret our State Constitution more liberally than similar provisions of the Federal Constitution. (147 Ill. 2d at 436; accord People v. Tisler (1984), 103 Ill. 2d 226, 258 (Clark, J., specially concurring).) I believe this to be such a case.