also concurring in part and dissenting in part:
I agree with the majority’s decision that the lineup identification of the defendant should not have been suppressed. However, the majority opinion breaks new ground in the area of evidence suppression and extends yet further procedural protections to persons accused of crime. Here, the defendant was a suspected murderer. He was under arrest and at the police station. After being given the requisite warnings, including his right to remain silent and his right to be represented by counsel, he willingly waived those rights and proceeded to talk.
Meanwhile, and unknown to the defendant, his family had retained a lawyer to represent him. The lawyer went to the police station but his efforts to speak with the defendant were rebuffed. The defendant’s statements were later suppressed on the ground that the defendant had not been informed that a lawyer was asking to speak with him. That suppression order was affirmed by the appellate court and is again affirmed by the majority opinion.
The majority rests its decision on article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, § 10), which is virtually identical to its Federal counterpart (U.S. Const., amend. V). Thus, the first order of inquiry would seem to be to look at article I, section 10, of the Illinois Constitution. What does it say? It says in its entirety, "No person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, §10.
I suggest that no reasonable person would ever take those words to mean that the defendant in the instant case has been compelled to give evidence against himself. Indeed, the majority itself does not quite do that. Rather, the majority reaches its decision by considering a body of State and Federal cases which interpret the meaning of the cited words in our State and Federal Constitutions. Having done that in this case, it is fair to say that the decisions up to now have ruled, in essence, that a person who has been denied a lawyer or who has been denied access to his retained lawyer cannot, under such circumstances, have his statements used against him. The statements are deemed involuntary. That is to say, they are deemed compelled.
What the instant case does is to take that line of authority one step further and decree that the denial of access to a lawyer who is both unknown to the defendant and unretained by the defendant has the same effect. However, the extension of that protection to this case is unwarranted. This extension is unwarranted because it is the defendant’s awareness of the lawyer and his capacity as the defendant’s lawyer that should be the dispositive factor. Here, the defendant was offered a lawyer by the police and waived that offer. He was offered the right to remain silent and waived that offer. It would seem to be a commonsense conclusion that the right against self-incrimination is a defendant’s to either claim or waive. It should not belong to any lawyer who happens to show up at the station house and claims to represent a defendant who did not hire him and who is unaware of his presence.
Accordingly, I respectfully dissent from that portion of the majority’s opinion which affirms the suppression of the defendant’s statements.