concurring in part and dissenting in part:
In appropriate cases, this court certainly has the right and the obligation to construe provisions of our State constitution more liberally than similar provisions in the Federal Constitution. (People v. Perry (1982), 147 Ill. 2d 430, 436.) In the past, however, this court has repeatedly held that the right to counsel under article I, section 10, of the Illinois Constitution is measured by the same standards as are used in defining the right to counsel in the fifth amendment to the United States Constitution. (People v. Perry (1982), 147 Ill. 2d 430, 436; People ex rel. Hanrahan v. Power (1973), 54 Ill. 2d 154, 160.) The majority makes an unwarranted and unsupported departure from this line of cases and holds that article I, section 10, affords defendants with more protection than the fifth amendment to the Federal Constitution (U.S. Const., amend. V). The majority cites this court’s decisions in People v. Smith (1982), 93 Ill. 2d 179, People v. Holland (1987), 121 Ill. 2d 136, and People v. Griggs (1992), 152 Ill. 2d 1, as support for its conclusion. None of those cases, however, held that article I, section 10, affords defendants with more protection than the fifth amendment of the Federal Constitution.
The court in Smith suppressed the defendant’s inculpatory statements because the police failed to inform the defendant that his attorney was present and seeking to consult with him. The court specifically stated, however, that it "rest[ed] [its] conclusion upon the defendant’s right to counsel during custodial interrogation. That right stems from the fifth amendment protection against self-incrimination.” (Emphasis added.) (Smith, 93 Ill. 2d at 185.) Smith never cited or discussed the Illinois constitutional privilege against self-incrimination. Rather, the Smith decision was based solely upon a construction of the scope of the Federal Constitution, which the United States Supreme Court later declined to adopt.
In People v. Holland (1987), 121 Ill. 2d 136, this court was asked to reconsider the Smith decision in light of the Supreme Court’s decision in Burbine. The defendant in Holland urged the court to reject the Supreme Court’s construction of the fifth amendment right to counsel in Burbine and to adopt the analysis in Smith as a matter of State constitutional law. The court declined to do so, concluding that the facts before it were identical to Burbine and distinguishable from Smith. Thus, contrary to the majority’s suggestion, Holland did not "preserve! ] the Smith rule as an appropriate interpretation of our State constitutional guarantees.” (163 Ill. 2d at 438.) Rather, Holland accepted Burbine as the appropriate construction of the defendant’s right to counsel under both the Federal and the Illinois Constitutions under the facts of that case.
People v. Griggs likewise did not hold that a defendant’s right to counsel under the State constitution is broader than the right to counsel under the fifth amendment. Although the defendant in Griggs urged the court to reject Burbine, the court declined to do so. Rather, that court decided that "Burbine is not dispositive, as it is factually distinguishable.” Griggs, 152 Ill. 2d at 25.
The majority concludes, however, that the grounds on which Griggs sought to distinguish Burbine were "conceptually meaningless as a statement of Federal law” (163 Ill. 2d at 435) and that "there is no tenable basis in Federal constitutional law for the Griggs decision” (163 Ill. 2d at 435). Even assuming arguendo that the majority is correct in concluding that Griggs improperly construed the scope of the fifth amendment or the Burbine decision, it does not necessarily follow that the Griggs decision was based upon or correctly interpreted article I, section 10, of the Illinois Constitution.
Having concluded that article I, section 10, affords defendants with the same protection as the fifth amendment to the Federal Constitution for so many years, we should not suddenly change course and go our separate way simply because this court in Griggs may have improperly construed the scope of the Burbine decision. Any decision that our privilege against self-incrimination is broader than its Federal counterpart must be based upon more substantial grounds. We must find something in the language of our constitution or in the debates and committee reports of the constitutional convention that will suggest that the framers intended our constitutional privilege against self-incrimination to be broader than the fifth amendment privilege.
There is nothing in the text of our constitution that suggests that the State privilege against self-incrimination is broader than its Federal counterpart. Article I, section 10, of the Illinois Constitution provides that "[n]o person shall be compelled in a criminal case to give evidence against himself.” (Ill. Const. 1970, art. I, § 10.) This language is almost identical to that in the fifth amendment to the Federal Constitution, which states that "[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) This court has held that "[t]he two provisions differ in semantics rather than in substance and have received the same general construction.” People ex rel. Hanrahan v. Power (1973), 54 Ill. 2d 154, 160.
There is likewise no evidence in the committee report to the constitutional convention or in the debates to suggest that the drafters of the 1970 Constitution intended article I, section 10, to afford broader protection than the fifth amendment. The majority claims that the records of the convention show that the delegates intended article I, section 10, to incorporate "then existing” principles derived from Escobedo and Miranda. (163 Ill. 2d at 439.) To support this claim, the majority cites language from a committee report and comments by Delegate Weisberg. When read in their proper context, however, neither the committee report nor Weisberg’s comments support the majority’s conclusion.
Article I, section 10, was drafted by the Committee on the Bill of Rights. When Delegate Weisberg presented the Committee’s proposal to the full convention, he explained that the Committee had decided to retain the same language in article I, section 10, as appeared in the self-incrimination clause of the 1870 Constitution. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1379; see also Ill. Ann. Stat., Ill. Const. 1970, art. I, § 10, Constitutional Commentary, at 492 (SmithHurd 1971).) Weisberg reassured the convention, however, that the "existing state of the law would remain unchanged.” This declaration did not refer to the Miranda and Escobedo decisions, as the majority suggests. Rather, Weisberg’s statements indicate that the drafters did not intend to overrule those court decisions that had determined that the privilege against self-incrimination applied to noncriminal proceedings. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1379; see also Ill. Ann. Stat., Ill. Const. 1970, art. I, § 10, Constitutional Commentary, at 492 (Smith-Hurd 1971).) Nothing in the debates or the committee report even remotely supports the majority’s implication that the drafters of article I, section 10, considered and intended to incorporate those portions of the Miranda and Escobedo decisions cited in the majority opinion.
In fulfilling our obligation to interpret the scope of article I, section 10, we must carefully balance the legitimate aims of law enforcement against the defendant’s right not to incriminate himself. (See People v. Perry (1992), 147 Ill. 2d 430, 436.) Of course, we are not bound to automatically follow United States Supreme Court decisions interpreting the scope of the fifth amendment to the Federal Constitution. We may choose to follow a particular decision, however, when we believe that it achieves a fair balance between the relevant competing objectives. (See People v. Smith (1983), 95 Ill. 2d 412, 422.) I conclude that the approach that the Supreme Court adopted in Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, will achieve the appropriate balance between the relevant public and private interests at stake.
In Burbine, the Supreme Court held that the fifth amendment to the Federal Constitution does not require the suppression of a suspect’s inculpatory statements simply because the police failed to tell the suspect of a lawyer’s unilateral efforts to contact him. The defendant claimed that the failure of the police to inform him that an attorney had called tainted his "otherwise valid” waiver of his fifth amendment right to counsel, because the police deprived him of information crucial to his ability to waive his rights knowingly and intelligently. The Court rejected this claim, concluding that events occurring outside of a suspect’s presence and entirely unknown to him have no bearing on the suspect’s capacity to comprehend and knowingly relinquish a constitutional right. The Court stated:
"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 422, 106 S. a. at 1141.
The Court in Burbine also refused to modify Miranda to incorporate a rule requiring the police to inform a suspect of an attorney’s efforts to reach him. The Court noted that the purpose of the Miranda warnings is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of a suspect’s fifth amendment rights. {Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423, 106 S. Ct. at 1143.) The Court concluded that the rule proposed by the defendant would contribute little, if anything, to Miranda’s goal of dispelling the compelling nature of custodial interrogation. Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423, 106 S. Ct. at 1143.
The Court also noted that, even if the rule added marginally to Miranda’s goal of dispelling compulsion, several practical considerations counseled against its adoption. First, the proposed rule would undermine Miranda’s central " 'virtue of informing police and prosecutors with specificity ... what they may do in conducting [a] custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible.’ ” (Burbine, 475 U.S. at 426, 89 L. Ed. 2d at 424, 106 S. Ct. at 1143, quoting Fare v. Michael C. (1979), 442 U.S. 707, 718, 61 L. Ed. 2d 197, 208, 99 S. Ct. 2560, 2568.) The Burbine Court concluded that the proposed rule would undermine the clarity of Miranda’s application and would raise a myriad of legal questions, such as:
"To what extent should the police be held accountable for knowing that the accused has counsel? Is it enough that someone in the station house knows, or must the interrogating officer himself know of counsel’s efforts to contact the suspect? Do counsel’s efforts to talk to the suspect concerning one criminal investigation trigger the obligation to inform the defendant before interrogation may proceed on a wholly separate matter?” Burbine, 475 U.S. at 425, 89 L. Ed. 2d at 423-24, 106 S. Ct. at 1143.
The Burbine Court also concluded that the proposed rule would result in an inappropriate shift in the subtle balance that Miranda struck between society’s legitimate law enforcement interests and the protection of an accused’s privilege against self-incrimination. (Burbine, 475 U.S. at 426, 89 L. Ed. 2d at 424, 106 S. Ct. at 1143.) The Court in Miranda recognized that custodial interrogation is a legitimate and necessary means of obtaining admissions of guilt. At the same time, the Court recognized that the compelling nature of custodial interrogation undermines a suspect’s ability to invoke the privilege against self-incrimination. The Miranda decision reconciled these opposing concerns by holding that the police may question a suspect only if the suspect clearly understands that he can bring the interrogation to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators. Burbine, 475 U.S. at 426-27, 89 L. Ed. 2d at 424, 106 S. Ct. at 1144.
The Court in Burbine concluded that a rule requiring the police to inform a suspect of an attorney’s efforts to contact him would upset the delicate balance struck in Miranda. Such a rule was not necessary to dispel the compulsion inherent in custodial interrogation. Any benefit achieved by the rule, in terms of dispelling compulsion, would be offset by the substantial cost imposed upon society’s legitimate interest in securing admissions of guilt. Burbine, 475 U.S. at 427, 89 L. Ed. 2d at 424-25, 106 S. Ct. at 1144.
I believe that the Supreme Court’s analysis in Burbine adequately safeguards a suspect’s privilege against self-incrimination. Accordingly, I would adopt that analysis and hold that the right to counsel under article I, section 10, of the Illinois Constitution is measured by the same standards as are used in defining the right to counsel contained in the fifth amendment of the United States Constitution. Applying that standard here, it is clear that the trial court erred in suppressing the statements the defendant made to the police. The police informed the defendant of his rights pursuant to Miranda. The defendant never asked for an attorney and did not choose to remain silent. The defendant does not contend that his statements were involuntary or coerced. Nor does he contend that he did not comprehend the nature of his right to counsel or the potential consequences of waiving that right. Under the circumstances, the defendant made a voluntary, knowing and intelligent waiver of his right to counsel within the meaning of article I, section 10, of our constitution. The fact that an attorney was present at the station and wished to speak with the defendant has no relevance to the validity of the waiver.
I do not disagree with the principle that the police have an ethical obligation to inform a suspect that an attorney is present at the station, attempting to contact him. I simply disagree with the majority’s conclusion that a suspect has a constitutional right to be so informed. Where a suspect has validly waived his right to counsel, that waiver should not become invalid simply because an attorney happens to arrive at the police station. The constitutional right to have counsel present during questioning belongs solely to the defendant and may not be invoked by his attorney.
For the reasons stated, I respectfully dissent from that portion of the majority opinion which affirms the suppression of the defendant’s statements.
JUSTICES MILLER and HEIPLE join in this partial concurrence and partial dissent.