specially concurring:
I specially concur.
I concur in the result only because I agree with the State that the defendant’s attorney did not in fact request access to his client. If the attorney had actually requested access to his client, the failure to so inform the client of this fact would, in my opinion, render invalid the client’s subsequent waiver of his State constitutional privilege against self-incrimination. I deal with each of these points in turn.
I
The State argues, to my mind convincingly, that the defendant’s attorney, Anthony Rocco, did not request access to his client. Rocco testified at the suppression hearing. He failed to mention any attempt to speak with his client. While the opinion states that the defendant’s wife testified that Rocco had “related [to her] his unsuccessful efforts to see the defendant” (121 Ill. 2d at 146), it does not state what these efforts were. Officer Meese testified only that Rocco called him and asked to be notified before the defendant was placed in a lineup. He further testified that he did in fact call Rocco and attempt to notify him of the lineup, leaving a message on Rocco’s answering machine.
On cross-examination, Rocco asked Meese whether he, Rocco, had also told Meese that he wanted to see and speak with the defendant before interrogation. Meese denied this. Only during his closing argument on the motion to suppress did Rocco directly assert that he had asked to see the defendant.
It is elementary that the factual determinations of the trial court on a motion to suppress are not to be overturned unless manifestly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99.) The trial court here was entitled to conclude that Meese’s testimony as to what Rocco had said was more credible than the defendant’s wife’s hearsay account of what Rocco told her he had said to Meese. As for Rocco’s statements during closing argument, these were not evidence. (See People v. Carlson (1982), 92 Ill. 2d 440, 449.) The appellate court's contrary conclusion was based upon a misreading of the record; it is simply not true that the “defendant’s attorney *** testified at the pretrial hearing on the defendant’s motion to suppress the defendant’s statements that he asked to talk to the defendant when he spoke with Officer Meese on the telephone.” (Emphasis added.) (147 Ill. App. 8d 323, 336.) He did not testify; at best, he alleged.
I would therefore reverse the appellate court on the ground that the claimed effort to prevent the attorney from conferring with his client simply did not take place. I also agree with the majority that the defendant’s other claims of error are erroneous. There was no affirmative finding of a physical confrontation by the Schiller Park officers, and Meese’s statement about the police report had some basis in fact. Further, I agree that the defendant, who is white, has no standing to assert a Batson violation based on the exclusion of black jurors. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) However, since the majority has chosen to address the attorney access issue, I take this opportunity to express my own view on its merits.
II
From time immemorial the practice of holding suspects incommunicado has been rightfully abhorred.' 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.
The endorsement of such interrogation inevitably degrades and deforms our adversary system of criminal justice. It encourages law enforcement officials to treat the defendant’s attorney as a supernumerary figure, an inconsequential busybody whose efforts on behalf of his client can be — and undoubtedly will be — rejected with contempt. It simultaneously weakens the client’s ability to make a knowing and intelligent waiver of his rights by depriving him of a critical piece of information.
Such interrogation conflicts with an adversarial system of justice. It offends against traditional notions of justice and fair play.
I am therefore sorry to see the majority endorse this practice.
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. Whichever is the court’s actual holding, I do not agree.
To understand the nature of my disagreement it is necessary to review some of the prior case law. A review of that history demonstrates that we are not compelled by Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, to adopt an overly restrictive view of our own constitutional privilege against self-incrimination.
In Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, the United States Supreme Court held that a police refusal to honor the defendant’s request to consult with his lawyer during a custodial interrogation violated the defendant’s sixth amendment right to the assistance of counsel. In Escobedo the defendant was arrested and taken to police headquarters. A lawyer retained to represent the defendant by the defendant’s mother arrived shortly thereafter. When the lawyer attempted to see his client he was rebuffed both by the desk sergeant and by the homicide detectives who were interrogating the defendant. Several times the defendant asked the interrogating detectives whether he could see his lawyer, but each time the detectives told him that his lawyer did not want to see him. The defendant’s eventual confession was admitted, and his motion to suppress was denied.
In Escobedo, the Supreme Court, basing its decision solely on the sixth amendment right to counsel, held that the defendant’s confession should be suppressed where the suspect requests and has been denied an opportunity ■ to consult with his lawyer, and where the police have not effectively warned him of his absolute constitutional right to remain silent. (378 U.S. 478, 491, 12 L. Ed. 2d 977, 986, 84 S. Ct. 1758, 1765.) However, the fact that the police had also denied the lawyer’s requests to see his client did not pass unnoticed. The Court clearly stated that “it ‘would be highly incongruous if our system of justice permitted the district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from him by the police.’ ” 378 U.S. 478, 487, 12 L. Ed. 2d 977, 984, 84 S. Ct. 1758, 1763, quoting People v. Donovan (1963), 13 N.Y.2d 148, 152, 193 N.E.2d 628, 629.
While Escobedo was partially superseded by the Supreme Court’s decision in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Court clearly indicated that Escobedo retained independent significance. After summarizing the facts of Escobedo, the Court stated: “The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake.” (384 U.S. 436, 465 n.35, 16 L. Ed. 2d 694, 718 n.35, 86 S. Ct. 1602, 1623 n.35.) Even in decisions later than Miranda, the Supreme Court continued to view Escobedo as a distinct holding, although it now viewed it as rooted in the fifth amendment privilege against self-incrimination rather than the sixth amendment right to counsel. See, e.g., Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.
Given this background it is far from surprising that the vast majority of State courts examining this issue prior to Burbine held that a suspect’s waiver of Miranda rights would not be valid if the police neglected or refused to inform the suspect that his attorney was attempting to assist him. See, e.g., Weber v. State (Del. 1983), 457 A.2d 674; Haliburton v. Florida (Fla. 1985), 476 So. 2d 192; State v. Matthews (La. 1982), 408 So. 2d 1274; Lodowski v. Maryland (1985), 302 Md. 691, 490 A.2d 1228; Commonwealth v. McKenna (1969), 355 Mass. 313, 244 N.E.2d 560; Lewis v. State (Okla. App. 1984), 695 P.2d 528; State v. Haynes (1979), 288 Or. 59, 602 P.2d 272; Commonwealth v. Hilliard (1977), 471 Pa. 318, 370 A.2d 322 (plurality opinion); Dunn v. State (Tex. Crim. App. 1985), 696 S.W.2d 561; State v. Jones (1978), 19 Wash. App. 850, 578 P.2d 71.
The Illinois Supreme Court likewise held that “when police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him.” (People v. Smith (1982), 93 Ill. 2d 179, 189.) While the United States Supreme Court has now held that the Federal Constitution does not require the police to inform a suspect of an attorney’s efforts to reach him, the Court carefully stated that “[njothing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran v. Burbine (1986), 475 U.S. 412, 428, 89 L. Ed. 2d 410, 425, 106 S. Ct. 1135, 1145.
The majority declines to accept this invitation to read our State constitutional privilege (Ill. Const. 1970, art. I, §10) more broadly than the Federal privilege. This, of course, it is entitled to do. But I am troubled that the majority has not only declined to accept the invitation but has declined it in such peremptory fashion. Surely a question involving the interpretation of our own constitution by its ultimate arbiter deserves longer shrift.
I have already written at length on the basis for our right to give our State constitutional guarantees a more liberal interpretation than the corresponding guarantees in the Federal Constitution (People v. Tisler (1984), 103 Ill. 2d 226 (Clark, J., specially concurring)), and I see no need to repeat those arguments. But I do note that they have particular application to this case. It is one thing for us to seek guidance from the Supreme Court’s constitutional decisions when those decisions are predictable and consistent. It is another to follow blindly where the Court itself has retreated from positions previously taken.
As the foregoing demonstrates, Moran v. Burbine is not simply an application of long established principles. Instead, it is a significant shift in the direction of the Supreme Court’s thinking, and a direct repudiation of its statements in Escobedo and Miranda. It was no accident that nearly every State, not excluding Illinois, read those statements to mean that the undisclosed denial of attorney access would render a Miranda waiver invalid. Indeed, Burbine arguably overrules Escobedo, since it deprives the case of any significance other than that of precursor to Miranda. More profoundly, Burbine transforms Miranda from the defendant’s shield into the prosecutor’s sword. The presence of Miranda warnings wiE now apparently excuse police conduct which many State courts (see, e.g., People v. Donovan (1963), 13 N.Y.2d 148, 193 N.E.2d 628) found unacceptable even before Miranda was decided.
Given this history, it is incumbent upon us to undertake our own examination of whether denial of attorney access violates our State constitutional privilege against self-incrimination. For several reasons, I believe that it does.
First, while People v. Smith (1982), 93 Ill. 2d 179, did not mention the State Constitution as an alternate ground for its decision, it cited and discussed two cases which did rely on their own constitutions, State v. Haynes (1979), 288 Or. 59, 602 P.2d 272, and State v. Matthews (La. 1982), 408 So. 2d 1274. (See also Lewis v. State (Okla. 1984), 695 P.2d 528; Dunn v. State (Tex. Crim. App. 1985), 696 S.W.2d 561.) Indeed, this use of State constitutions was prominently mentioned in Smith itself. 93 Ill. 2d 179, 188.
Second, since Burbine was decided, at least one State court has declined to follow it, holding that its own privilege against self-incrimination affords defendants greater protection. People v. Houston (1986), 42 Cal. 3d 595, 724 P.2d 1166, 230 Cal. Rptr. 141.
Third, article I, section 10, of the Illinois Constitution of 1970 was adopted during a high-water mark of political liberalism, prior to Burbine. To say that Burbine must determine our interpretation of our own constitution is, therefore, to credit those who ratified it with clairvoyance. Moreover, our constitution was adopted after Escobedo and Miranda, at a time when the United States Supreme Court itself had indicated that preventing an attorney from seeking his client violated the Federal Constitution, and when all State courts held the same. Interestingly, the committee presentation on section 10 was given to the 1970 constitutional convention by Bernard Weisberg, who had argued Escobedo for the defendant. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1376-77.) He, and the other members of the committee, could not have been unaware of the decision in that case.
Finally, and most importantly, there are strong policy reasons for holding that a defendant should be informed of his attorney’s attempts to see him. In general, the State bears the burden of proving that a waiver of constitutional rights is valid. (See, e.g., Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) An attorney’s communication to the police about his client is an event which has a direct bearing upon whether a waiver is knowing or intelligent. For, “[t]o pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second.” (State v. Haynes (1979), 288 Or. 59, 72, 602 P. 2d 272, 278.) It is significant that the American Bar Association filed an amicus brief on the defendant’s behalf in Burbine, and that the ABA standards for criminal justice mandate that a lawyer be allowed to see his client. (ABA Standards for Criminal Justice §§5 — 5.1, 5 — 7.1 (2d ed. 1980).) Beyond this, acceptance of Burbine would seem to lead to the proposition that the police have an absolute right to hold suspects incommunicado.
I also cannot accept the majority’s attempt to distinguish between personal visits and telephone calls. While it is true that Smith involved an attorney who appeared at the station house, the court in Smith favorably cited two cases, State v. Matthews (La. 1982), 408 So. 2d 1274, and State v. Jones (1978), 19 Wash. App. 850, 578 P.2d 71, which did involve telephone calls. Nor should the manner of attempted communication make any difference. In an age of modern transportation and communication, an attorney who telephones is very nearly as “available” to speak with the defendant as an attorney who has actually arrived at the station house. In any case, I note that the majority’s attempt to distinguish Smith preserves for later consideration the issue of whether our State Constitution grants a broader privilege against self-incrimination in cases where the attorney is actually present.