dissenting:
I do not agree with the majority that a new hearing must be held on the defendant’s motion to suppress. The defendant’s Miranda waivers were, in my view, valid and complete when made, and thus his confessions were properly admitted against him at trial.
I believe the present appeal is controlled, as a matter of Federal constitutional law, by the Supreme Court’s decision in Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135. In that case the Court determined, among other things, that a defendant’s waiver of his Miranda rights was valid even though the interrogating officers failed to inform the suspect that an attorney retained on his behalf was trying to contact him. The Court rejected the defendant’s contention that his waiver was rendered unknowing because he was not told about counsel’s efforts to reach him.
Thus, whether or not possession of this information might make a practical difference to a suspect, it does not make a constitutional difference, and police officers are not obligated by Miranda to provide the information to suspects. The Burbine Court explained:
“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. [Citations.] Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Burbine, 475 U.S. at 422-23, 89 L. Ed. 2d at 421-22, 106 S. Ct. at 1141.
In addition, the actions of the police in this regard have no bearing on the knowing or voluntary nature of the suspect’s waiver of his right to counsel. Burbine states:
“[Wjhether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. [Citation.]” Burbine, 475 U.S. at 423, 89 L. Ed. 2d at 422, 106 S. Ct. at 1142.
As Burbine makes clear, the validity of an individual’s waiver of his Miranda rights does not depend on the efforts of others to obtain counsel for the suspect, on the attempts by retained counsel to meet with the suspect, or on the conduct of the police in failing to apprise the suspect of retained counsel’s presence at the station house. Pronouncements of Federal constitutional law by the United States Supreme Court are, of course, binding on this court, and we are not free to grant greater rights under the United States Constitution than the Supreme Court has chosen to do. (Oregon v. Hass (1975), 420 U.S. 714, 719 & n.4, 43 L. Ed. 2d 570, 575-76 & n.4, 95 S. Ct. 1215, 1219 & n.4; In re Estate of Karas (1975), 61 Ill. 2d 40, 53.) For these reasons, I believe that Burbine is dispositive of the present defendant’s Federal constitutional contention that his Miranda waivers were invalid.
Burbine notwithstanding, the majority relies on a Federal constitutional interpretation first adopted by this court in People v. Smith (1982), 93 Ill. 2d 179, a decision predating Burbine, and later preserved and narrowed by this court in People v. Holland (1987), 121 Ill. 2d 136, aff’d on other grounds (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803, a decision postdating Burbine. The majority would distinguish Burbine on the ground that the defendant in the present case, unlike the defendant in Burbine, already knew that counsel was being retained to represent him. (152 Ill. 2d at 25.) The majority also finds it significant that the attorney in the present case appeared at the station house where the defendant was being held. (152 Ill. 2d at 28.) The majority concludes that a suspect’s waiver of the right to counsel is unknowing, and hence invalid, “if police refuse or fail to inform a suspect who knows that an attorney has been 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 majority’s rule is applicable even though the suspect has not previously asked to consult with an attorney.
The grounds on which the majority seeks to distinguish Burbine cannot withstand scrutiny. The distinction drawn between suspects who are aware that attorneys have been retained to represent them and suspects who lack that awareness is simply illusory. The majority fails to explain why a suspect’s waiver in these circumstances must be deemed less knowing, less intelligent, or less voluntary merely because he already knows that counsel has been retained on his behalf. If a suspect’s knowledge in this regard is relevant at all, it argues for the contrary conclusion: it would seem that a defendant who is aware that counsel has been retained to represent him yet chooses anyway to respond to questions has made a more knowing, more intelligent, and more voluntary waiver of his Miranda rights than a suspect who lacks that knowledge.
The majority’s additional ground by which it would justify its departure from Burbine — that the attorney must actually appear at the station house where the defendant is being held — misapprehends the nature of the right at issue. I fail to see why a defendant’s assertion or waiver of his right to counsel should be at all dependent on the actions of counsel, and on whether or not the attorney happens to show up at the same place where the defendant is then being questioned.
The majority’s rule will be difficult to apply, and will serve only to “muddy[ ] Miranda’s otherwise relatively clear waters” (Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423, 106 S. Ct. at 1143). To ensure that an attorney’s efforts to reach a client do not go unheeded, police officers will now be obligated to monitor more closely the comings and goings of station house visitors. Moreover, in an addendum to the Miranda warnings, interrogating officers must now ask suspects if they know whether counsel has been retained on their behalf. Only through these means will law enforcement officers be able to comply with the majority’s mandate.
Finally, the majority’s rule will disturb the balance carefully struck in Miranda and its progeny between the legitimate use of police questioning as an effective tool of law enforcement and the potential misuse of the interrogation process to obtain coerced confessions. (See Burbine, 475 U.S. at 426-27, 89 L. Ed. 2d at 424-25, 106 S. Ct. at 1143-44.) “Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation.” (Emphasis in original.) (Burbine, 475 U.S. at 426, 89 L. Ed. 2d at 424, 106 S. Ct. at 1143.) Toward that end, a defendant’s invocation of the Miranda right to counsel is zealously protected. If a suspect requests counsel, interrogation must cease immediately, and questioning may not later be reinitiated except at the defendant’s request. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (barring police-initiated interrogation on second, unrelated offense if suspect has previously requested counsel).) Indeed, police may not reinitiate interrogation outside counsel’s presence even though the suspect has been allowed to consult with counsel in the meantime, before the subsequent round of interrogation. (Minnick v. Mississippi (1990), 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486.) In light of the substantial protections afforded a suspect who chooses to invoke his right to counsel, I do not believe that a rule different from the one adopted in Burbine should apply to a suspect who is aware that an attorney has been retained on his behalf but who does not ask to speak with counsel.
As a final matter, I do not believe that the Illinois constitutional privilege against self-incrimination (Ill. Const. 1970, art. I, §10), on which the majority does not rely, would compel a different result. Neither the defendant nor the author of the special concurrence (152 Ill. 2d at 33-35 (Clark, J., specially concurring); see also People v. Holland (1987), 121 Ill. 2d 136, 170-72 (Clark, C.J., specially concurring)) identifies any provision or statement in the text or history of the Illinois privilege that would argue for a more expansive prophylactic rule. Burbine fully protects a suspect’s interests against compelled self-incrimination, as I have stated, ¿nd these same considerations would support its adoption as a matter of State constitutional law as well.
In sum, today’s decision cannot be reconciled with Burbine. Rather than continue to perpetuate the doctrine adopted, pre-Burbine, in People v. Smith (1982), 93 Ill. 2d 179, and later preserved, post-Burbine, in People v. Holland (1987), 121 Ill. 2d 136, aff’d on other grounds (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803 — a doctrine that understandably has led our appellate court, in considering this issue, to wrongly conclude that the validity of a defendant’s Miranda waiver depends on “what type of contact the attorney made with the authorities” (People v. Johnson (1991), 212 Ill. App. 3d 9, 12) — I would instead decide the present appeal under Burbine, the controlling Federal authority.
JUSTICE HEIPLE joins in this dissent.