also concurring in part and
dissenting in part:
I agree with the majority that the lineup identification evidence was improperly suppressed, and I concur in the majority’s resolution of that issue. I do not agree, however, that the defendant’s own statements were taken from him in violation of either his Federal or his State constitutional rights, and accordingly I dissent from that portion of the majority opinion.
I dissented in People v. Griggs (1992), 152 Ill. 2d 1, and I continue to believe that Moran v. Burbine (1986),
475 U.S. 412, 89 L. Ed. 2d 410, 106 S. a. 1135, controls the resolution of the Federal constitutional issue involved in Griggs and in this case and should control the corresponding State constitutional claim as well. Moreover, for the reasons stated by Chief Justice Bilandic in his separate opinion, which I join, I do not believe that our State constitutional privilege against self-incrimination grants broader protections than its Federal analogue.
The reasons offered by the majority in support of today’s holding are not persuasive. First, the majority labors mightily in an attempt to establish that earlier decisions of this court addressing the same question were based on State and not Federal constitutional guarantees. 163 Ill. 2d at 426-39 (discussing Griggs, 152 Ill. 2d 1, 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, and People v. Smith (1982), 93 Ill. 2d 179).
The problem with the majority’s analysis, however, is that it fails to recognize that the principal opinions in those cases did not purport to rely on or apply the Illinois Constitution. Only in concurring opinions filed by Justice Clark in two of those cases is there found the contention that the Illinois Constitution requires that law enforcement officers inform custodial suspects of their attorneys’ efforts to reach them. (See Griggs, 152 Ill. 2d at 33-35 (Clark, J., specially concurring); Holland, 121 Ill. 2d at 166-72 (Clark, C.J., specially concurring).) In the end, the majority’s discussion demonstrates not that Griggs, Holland, and Smith are explicable as a matter of State constitutional law, but simply that they would now be sustainable only on those terms.
The majority next turns briefly to a consideration of the drafting of the self-incrimination privilege of the Illinois Constitution. (163 Ill. 2d at 439-40.) The majority argues that the framers of the 1970 Constitution intended to incorporate in article I, section 10, then-existing Federal constitutional interpretations of the fifth amendment. The majority’s analysis of this question is fundamentally flawed, however. None of the sources cited by the majority opinion demonstrate that the drafters of the State constitution intended to adopt the specific rule of law announced here. Rather, the cited materials show only that the framers were familiar with the general scope of the fifth amendment guarantee and did not want to draft a provision at variance with the broad outlines of existing Federal law. Thus, I do not believe that it is accurate to say that the constitutional drafters believed that article I, section 10, was incorporating the rule expressed in this case, or even that the drafters intended to freeze the meaning of that provision to whatever then stood as the prevailing interpretation of the fifth amendment.
Offering a third ground in support of today’s holding, the majority opinion refers to the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), and, as an explication of that clause, to a series of Illinois statutes, since repealed, that have previously required police officers to allow suspects to consult with counsel. (163 Ill. 2d at 440-45.) The majority’s discussion of due process, however, is at bottom nothing but a Miranda analysis viewed through a due process lens. In addition, the statutes cited by the majority fail to provide any support for the majority’s claim that our State constitution’s due process clause grants greater protections than are recognized under the fifth amendment or Miranda and its progeny. These are statutes, and repealed ones at that, not provisions of a constitution, and are of little, if any, assistance to the resolution of the constitutional question posed here.
The majority’s analysis of article I, section 10, of the Illinois Constitution and of this court’s prior decisions in Griggs, Holland, and Smith is unpersuasive. I do not agree with the court’s conclusion that the privilege against self-incrimination found in our State constitution provides, or was intended to provide, protections in these circumstances different from the ones afforded by the fifth amendment to the United States Constitution, or with the notion that this court’s prior decisions have already made that determination. In this context, I would apply to article I, section 10, of the Illinois Constitution the same principles announced by the Supreme Court in Burbine.
JUSTICE HEIPLE joins in this partial concurrence and partial dissent.