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FIFTH DIVISION
December 22, 2000

Defendant, Richard DeSantis, was charged with two counts of obstructing justice for leaving Illinois and concealinghimself with the intention of obstructing the prosecution of Frank Caruso, Victor Jasas and Michael Kwidzinski, who wereeach charged with attempted murder, aggravated battery and hate crimes for the beating of a black child, Lenard Clark. Defendant filed a motion to suppress written and oral statements he made to police during the investigation into the Clarkbeating. Defendant claimed that he was unable to knowingly waive his fifth amendment right to counsel because he wasunaware that his attorney was at the police station attempting to communicate with him. After a hearing on defendant'smotion to suppress, the trial court found that the interrogation was not custodial and the statements were given voluntarily. The trial court denied the motion to suppress as to oral statements made by defendant before his attorney arrived, butgranted the motion as to the written statement taken and signed by defendant after his attorney arrived, relying on theholding in People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994). The State appeals from that portion of the trialcourt's ruling granting defendant's motion to suppress the written statement. For the reasons that follow, we reverse andremand.

At the suppression hearing, defendant testified that at about 1 p.m. on Saturday, March 22, 1997, his sister told him thattwo detectives had come to their house looking for him and she gave him the business card they had left. While at HeyBud's restaurant at 56^th and Pulaski, defendant called the number on the business card. Defendant testified that the officertold him to wait at the restaurant until he could come and pick him up. Defendant stated that he did not call his lawyer afterreceiving the business card from the police or after calling the police. Approximately 15 minutes later, two officers arrived. Defendant testified that the officers told him to come outside with them, read him his rights, handcuffed him, placed him inthe back of their car, and took him to Area One police headquarters.

At Area One, defendant stated that his handcuffs were removed and, over the course of several hours, he was moved toseveral different rooms within the building. Defendant stated that, throughout the evening, he was questioned by policeofficers about the Clark beating, which had occurred in Armor Park on the previous evening. Defendant testified that hedenied any knowledge of the incident and stated that he requested his attorney on several occasions. Defendant admittedthat he spoke to an assistant State's Attorney at the time that he signed the written statement, but claimed that he did notspeak to her between the time they were introduced and the time that he signed the written statement. He stated that mostof the statement was incorrect but acknowledged that the personal information and the statements regarding his friendshipwith Caruso, Jasas, and Kwidzinski were true.

Defendant stated that he was placed in a lineup and afterward was again interviewed by the police. After he had been in thelineup room approximately nine hours, he recognized the voice of John O'Malley, his attorney. Defendant heard O'Malleymention his name and ask for him, but the police would not permit O'Malley to speak with him. Defendant claimed that hesigned the statement shortly thereafter because the police told him they would let him go if he signed the statement and thathe would be charged with a crime if he did not sign the statement.

John O'Malley testified that he was an attorney and longtime friend of the DeSantis family. He stated that on March 23,1997, defendant's mother came to his home and told him she thought defendant was at the police station. O'Malley testifiedthat he arrived at the station at about 9:20 a.m. He stated that he was directed to the detective unit, where he identifiedhimself as an attorney and asked to see defendant. O'Malley repeated his request approximately 10 minutes later and wastold that a detective would be out to speak with him. O'Malley testified that Detective Stanley Turner saw him a fewminutes later and told him that he was not sure whether defendant was going to be a witness or suspect, but he would notallow O'Malley to see him. O'Malley continued waiting and asking to see his client. After waiting for some time, O'Malleytestified that he again saw Detective Turner and asked him why he could not see defendant. He stated that DetectiveTurner merely told him he was tired and left. O'Malley testified that he waited at the station for approximately two hoursbefore he was allowed to see defendant in the lineup room.

Sergeant David Jarmusz of the Chicago police testified that Detective Glen Mathews asked Jarmusz to drive him to therestaurant to pick up defendant, a witness to a crime. Only Mathews spoke to defendant in the restaurant, and Jarmusz didnot recall what Mathews said. Jarmusz stated that he did not handcuff defendant, no one told defendant he was underarrest, and defendant traveled with them in the police car to the station. During the ride, Jarmusz and Mathews did notspeak to defendant. Jarmusz testified that when they arrived at Area One defendant was placed in the lineup room and wasnever placed in a smaller room. He testified that the lock on the lineup room door is never utilized and that he did not havea key.

Detective Glen Mathews testified that he first learned of defendant early in the afternoon of March 22, from an anonymouscaller who said that Jasas, Michael Cutler, and defendant were involved in the Clark beating. However, several otherwitnesses Mathews had spoken to about the beating had not named defendant. He testified that he and Jarmusz went topick up defendant at Hey Bud's, where defendant had suggested they meet. At the restaurant, Mathews asked defendant ifhe would return to the station with them to help them. Mathews stated that defendant agreed to go with them and was nothandcuffed.

Mathews testified that defendant was taken to the lineup room, but he was not handcuffed and he was not told he was underarrest. Mathews asked defendant where he had been the previous evening and defendant responded that he had been withhis girlfriend. Mathews stated that defendant was then placed in a lineup as a filler and that the subject of the lineup wasCaruso. Mathews said that defendant remained in the lineup room after the lineup, but the door was unlocked. Mathewsleft defendant in the room alone and had a telephone conversation with defendant's girlfriend and her mother.

Mathews testified that he returned to the lineup room at 2 a.m., with Jarmusz. At that time, Mathews advised defendant ofhis rights under Miranda and told defendant that he knew defendant was lying to him because his girlfriend did notcorroborate his story. Mathews stated that defendant then admitted that he saw Caruso strike the smaller of the two blackchildren, then saw Caruso chase them. According to Mathews' testimony, defendant also said that Jasas and Kwidzinskichased Clark, but defendant did not say that he had personally laid a hand on the victim. Mathews reentered the lineuproom after 5:40 a.m. to bring defendant breakfast.

Mathews stated that defendant was never handcuffed, placed in a holding cell, or fingerprinted. He stated that he did notfill out an arrest report or obtain a central booking number for defendant. He stated that defendant was never placed underarrest and went home sometime after he gave a handwritten statement. Mathews testified that he never threatened orpromised anything to defendant, and defendant never requested to call his lawyer.

Detective Stanley Turner testified that defendant was not a suspect when he was picked up at the restaurant. He stated thatone of the victims of the beating, Clevon Nicholson, viewed the lineup in which defendant was a filler, identified Caruso asone of the individuals who beat him, and identified defendant as the person who stopped Caruso, Kwidzinski, and Jasasfrom beating him. Turner stated that another witness to the lineup identified defendant as one of the crowd present at thebeating, but he did not say defendant harmed anyone. Turner said that he spoke to defendant a couple of times in the lineuproom. He asserted that defendant was never handcuffed, told he was under arrest, or fingerprinted. Turner also stated thathe never prepared an arrest report for defendant. Turner said he did not threaten or promise defendant anything, anddefendant never requested an attorney.

Turner testified that he was present at 9:40 a.m., when Assistant State's Attorney (ASA) Kari Mason took a writtenstatement from defendant. He stated that Mason explained who she was, advised defendant of his rights, had defendantread and sign a portion of the statement, and asked defendant questions to which defendant gave answers. Mason wrotedown everything in the statement in front of defendant, and when she was done writing she asked defendant to read it. Defendant read the statement and then Mason read it back to him. Turner stated that corrections were made to thestatement and defendant, Mason and Turner initialed the corrections. Turner and defendant signed each page, anddefendant placed his signature beneath the portion of the statement advising defendant of his rights under Miranda. Turnertestified that he never told defendant to sign the statement and he did not tell defendant he could go home if he signed it. Turner testified that he did not speak to defendant again and that he did not speak to defendant's attorney at all that day.

ASA Kari Mason testified that she spoke to defendant, who was not handcuffed, in the lineup room sometime aftermidnight. Mason's description of the process of taking defendant's statement largely reflected that of Detective Turner andwill not be repeated here. Mason testified that the entire process of taking the written statement could have taken as muchas three hours to complete. Mason said that she never saw defendant handcuffed, he was always in the lineup room, and hewas not charged with any offense on March 22 or March 23. She also stated that she never met O'Malley.

Charles Burns testified that he was the supervisor of the felony review unit of the Cook County State's Attorney's office onMarch 23, 1997. Burns testified that he arrived at Area One between 12:30 and 1 p.m. that day. While there, Burns spoketo O'Malley in the lineup room. Burns testified that O'Malley informed him that he had spoken with defendant. Burnsinformed O'Malley that defendant was to appear before the grand jury the next day, and if he did not appear defendantwould be subpoenaed. Burns testified that O'Malley did not appear upset and he did not complain that he had not beenallowed to see defendant. To Burns' knowledge, defendant was not under arrest at any time, and he did not recall seeingDetective Turner at the station that day.

At the conclusion of the hearing, the trial court made several findings. The court found that the credible evidence was thatdefendant was not seized or arrested when he called the police and agreed to meet with them on March 22, 1997. The courtfound that defendant chose the place and time to meet the police, he was not handcuffed, and he agreed to go to the stationwith the detectives and cooperate with them. The court also pointed out that no arrest procedures took place and that therewas no processing or fingerprinting of defendant upon his arrival at Area One or later. The court found that, later in theevening, the police believed defendant's statement that he had no knowledge of the incident was not truthful, and defendantwas advised of his rights under Miranda at 2 a.m. The trial court found that defendant waived those rights and chose tocontinue speaking with the police at that time.

The trial court found that defendant's testimony that he continually asked for an attorney was not credible. The court foundit was credible, however, that after defendant became aware that the statements of other witnesses showed that he waspresent at the incident, he admitted his presence to the police. The court found that defendant voluntarily gave the oral andhandwritten statements to the police and ASA Mason, and defendant was not coerced or threatened.

The court found that defendant's attorney was present at Area One and seeking to speak to defendant at the time thestatement was being written and that defendant and ASA Mason were unaware the attorney was present. Consequently, thecourt found that defendant's waiver of his rights for the written statement was voluntary, but not knowing, becausedefendant was not informed that his attorney was at the station asking to see him. The court ruled that defendant's oralstatements made prior to the attorney's arrival would not be suppressed, but that the written statement made after theattorney's arrival would be suppressed, even though defendant was not seized or under arrest. At a subsequent courthearing, the trial court reiterated that defendant "was not a custodial suspect" at the time of the interviews.

We will first address the issue of standing, as the State asserts that defendant had no standing to move to suppress hisstatements. The law is clear that a defendant has no standing to raise an alleged violation of a witness' fifth amendmentrights. People v. Govea, 299 Ill. App. 3d 76, 84, 701 N.E.2d 76 (1998); People v. Adams, 283 Ill. App. 3d 520, 524, 669N.E.2d 1331 (1996). This is so because the constitutional privilege against self-incrimination is a personal privilege. Adams, 283 Ill. App. 3d at 524.

Our supreme court in People v. James, 118 Ill. 2d 214, 226, 514 N.E.2d 998 (1987), held that "[i]t is a fundamentalprinciple that a claim to suppress the product of a fourth amendment violation can be asserted 'only by those whose rightswere violated by the search or seizure itself.'" As defendant asserts that his personal rights were violated, we find that,under the circumstances of this case, defendant has standing to move to suppress his statements. See People v. Barton, 286Ill. App. 3d 954, 959, 677 N.E.2d 476 (1997).

On appeal, defendant concedes that, had he attended the trials of the individuals charged with the beating of Lenard Clark,he could not have moved to suppress his statements as the statements do not incriminate him and that he could not haveinvoked his fifth amendment rights to protect a third party from prosecution. See People v. Cassell, 283 Ill. App. 3d 112,119, 669 N.E.2d 655 (1996); People v. Gossitt, 259 Ill. App. 3d 825, 829, 630 N.E.2d 1224 (1994); People v. Cooper, 202Ill. App. 3d 336, 341, 559 N.E.2d 942 (1990) ("the fifth amendment right against self-incrimination may only be exercisedwhere the witness has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer").

On appeal, the State argues that defendant's written statement should not have been suppressed because defendant was notin custody when the statement was given and signed by him. As a result, the State asserts, defendant did not have a right tocounsel under the fifth amendment because defendant was never subjected to a custodial interrogation. Defendant countersthat the written statement was properly suppressed because he was deprived of his right to counsel by the failure of policeto inform him of the presence of his attorney at the station.

We first address the applicable standard of review. The Supreme Court has held that, when an appellate court reviewsrulings on a motion to suppress involving questions of probable cause, they are reviewed de novo. Ornelas v. UnitedStates, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). Our supreme court recently analyzed the applicability ofOrnelas to motions to suppress statements. The court held that reviewing courts are to accord great deference to the trialcourt's factual findings, reversing those findings only when they are against the manifest weight of the evidence. However,the ultimate question of whether the statement was voluntary is to be reviewed de novo. In re G.O., 191 Ill. 2d 37, 50, 727N.E.2d 1003 (2000).

In Miranda v. Arizona, 384 U.S. 436, 445, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612 (1966), the Supreme Courtaddressed "the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived ofhis freedom of action in any significant way." The Court held that "the prosecution may not use statements, whetherexculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use ofprocedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444, 16 L. Ed. 2dat 706, 86 S. Ct. at 1612. The Supreme Court defined custodial interrogation as "questioning initiated by law enforcementofficers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612. The ultimate inquiry is whether there is a formal arrest orrestraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121,1125, 77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517, 3520 (1983).

The Supreme Court clearly stated that its intention was to "dispel the compulsion inherent in custodial surroundings." Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619. Furthermore, the Supreme Court has consistently heldthat the safeguards laid out in Miranda do not apply outside the context of the inherently coercive custodial interrogationsfor which they were designed. Minnesota v. Murphy, 465 U.S. 420, 430, 79 L. Ed. 2d 409, 421, 104 S. Ct. 1136, 1143-44(1984).

In determining whether an interrogation is custodial, courts consider several factors, including: (1) the time and place of theconfrontation; (2) the number of police officers present; (3) the presence or absence of family or friends; (4) any indicia of aformal arrest procedure, such as physical restraint, the show of weapons or force, booking or fingerprinting; and (5) themanner by which the individual arrived at the place of the interrogation. People v. Melock, 149 Ill. 2d 423, 440, 599N.E.2d 941 (1992). The trial court's finding on the issue of custody is a question of fact, and we will not disturb thatfinding unless it is manifestly erroneous. People v. Wheeler, 281 Ill. App. 3d 447, 458, 667 N.E.2d 158 (1996).

Defendant argues that the police believed him to be a suspect and asserts that this court should look to defendant's and thepolice officers' subjective perspectives as well as the police officers' intentions to determine whether defendant was incustody. We disagree.

The United States Supreme Court in Stansbury v. California, 511 U.S. 318, 319-23, 128 L. Ed. 2d 293, 296-98, 114 S. Ct.1526, 1527-29 (1994), reaffirmed its holdings regarding custody and the applicability of the protections of Miranda:

"Our decisions make clear that the initial determination of custody depends on the objective circumstances of theinterrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 298, 114 S. Ct. 1526, 1529 (1994).

Thus, the determination of custody involves an objective analysis of the circumstances surrounding the interview as areasonable and innocent person in the defendant's position would perceive them. People v. Goyer, 265 Ill. App. 3d 160,167, 638 N.E.2d 390 (1994). In this case, defendant chose the time to contact the police and the location at which theywould meet. Defendant stated that he was cooperating with the police officers and the trial court found that he agreed to goto the police station with them. Defendant rode to the station in the back of the police car, but the court found that he wasnot handcuffed at any time. No arrest procedures ever took place, and defendant was not processed or fingerprinted. Thecourt also found that defendant was not coerced or threatened by the police at any time. Citing these factors, the trial courtheld that defendant was not under arrest and was not a custodial suspect. In light of the deferential standard of review aswell as the factors that support the trial court's finding, we conclude that the trial court's finding that defendant was not incustody is not manifestly erroneous.

The fifth amendment right to counsel applies only to custodial interrogations. McNeil v. Wisconsin, 501 U.S. 171, 178,115 L. Ed. 2d 158, 168, 111 S. Ct. 2204, 2209 (1991); Melock, 149 Ill. 2d at 443. If a defendant is not in custody, even aclear and unequivocal request for an attorney does not implicate any constitutionally protected right, and the police are notrequired to end an interview. Goyer, 265 Ill. App. 3d at 168. Furthermore, the sixth amendment right to counsel "attachesonly at the initiation of adversary criminal proceedings, [citation], and before proceedings are initiated a suspect in acriminal investigation has no constitutional right to the assistance of counsel." Davis v. United States, 512 U.S. 452, 456-57, 129 L. Ed. 2d 362, 369-70, 114 S. Ct. 2350, 2354 (1994).

Defendant asks us to distinguish Goyer from this case on its facts because the defendant in Goyer was not interviewed in apolice station. However, other cases have held interviews that took place in police stations did not involve custodialinterrogations and consequently the fifth amendment right to counsel did not apply. See Melock, 149 Ill. 2d at 442-43;People v. Patterson, 146 Ill. 2d 445, 455, 588 N.E.2d 1175 (1992); People v. Willoughby, 250 Ill. App. 3d 699, 718-19, 620N.E.2d 617 (1993). Because defendant was not in custody, his fifth amendment right to counsel had not attached at thetime he gave his written statement to ASA Mason at the police station.

Defendant urges us to affirm the trial court's ruling based on our supreme court's ruling in People v. McCauley, 163 Ill. 2d414, 645 N.E.2d 923 (1994). In McCauley, as here, an attorney retained by the family of the defendant arrived at the policestation where the defendant was being interrogated and was refused permission to see his client.

The same factual situation was addressed by the United States Supreme Court in Moran v. Burbine, 475 U.S. 412, 89 L. Ed.2d 410, 106 S. Ct. 1135 (1986). The Court concluded that events occurring outside the presence of a suspect and entirelyunknown to him have no bearing on the suspect's capacity to comprehend and knowingly waive a constitutional right. TheCourt declared that "[o]nce it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at alltimes knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements tosecure a conviction, the analysis is complete and the waiver is valid as a matter of law." Moran, 475 U.S. at 422-23, 89 L.Ed. 2d at 422, 106 S. Ct. at 1141.

Our supreme court in McCauley declined to follow Moran, relying on the proposition that state constitutional protectionsmay be broader than federal constitutional protections. McCauley, 163 Ill. 2d at 421. Article I, section 10, of the IllinoisConstitution (Ill. Const. 1970, art. I,