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THIRD DIVISION
May 2, 2001

On May 12, 1995, Haberto Mendez sat through a hearing on hismotions to suppress 998.9 grams of cocaine and an oral statementabout the cocaine. The next day he watched as his jury wasselected and the first day of trial testimony was completed. Then he left for parts unknown. The trial went on without him. The jury convicted Mendez of possession of a controlled substancewith intent to deliver and the trial judge sentenced him inabsentia to 20 years in prison. Four years later, in October of1999, the defendant was arrested and brought before the trialjudge. Another sentencing hearing was held. The sentence wasreduced to 18 years.

On appeal, defendant contends: (1) the trial court erred indenying his motion to suppress the physical evidence; (2) thetrial court erred in denying the motion to suppress his oralstatement; and (3) the trial court abused its discretion byproceeding when defendant did not appear on the second day oftrial.

We affirm.

FACTS

On April 1, 1995, defendant was driving a car in Chicagowhen he was stopped by two police officers for failing to use aturn signal before turning at an intersection. According to thearresting officers, defendant could not produce a valid driver'slicense. When the officers searched the car, they found whatthey suspected to be a brick of cocaine. Defendant and hispassenger were arrested. During a subsequent search of the car,the officers found two pagers and a cell phone.

While he was at the police station, defendant gave a shortoral statement to an assistant State's Attorney. Defendant'sattorney filed a pre-trial motion to suppress both the physicalevidence obtained from the search of the car and defendant's oralstatement.

At the hearing on the motions to suppress, Chicago policeSergeant Ricardo Pavon testified on April 1, 1995, at around10:00 p.m., he was in an unmarked car with police officer KennethStoppa. Officer Stoppa was driving. The officers' vehicle wasdirectly behind defendant's, without any cars between them.Sergeant Pavon testified the officers stopped defendant after hefailed to use a turn signal when he made a right turn at anintersection.

Sergeant Pavon identified defendant as the driver of thevehicle they pulled over. He approached the passenger's side ofthe car while Officer Stoppa approached the driver's side. Whenhe approached the passenger's side, he shined his flashlight intothe car. When he did, he saw a large white object that "lookedlike a white brick" on the floor of the car, close to thepassenger's seat. The officer testified his experience as apolice officer led him to believe the object might be cocaine.

Sergeant Pavon testified he asked the passenger to step tothe rear of the car. Defendant had already been asked to exitthe car by Officer Stoppa. Sergeant Pavon went back to thepassenger side of the car, and retrieved the object he saw on thefloor. Both men were placed under arrest and were advised oftheir rights.

Sergeant Pavon was not asked whether defendant affirmativelyinvoked his right to silence or if he attempted to questiondefendant after reading him his rights. The officer simplytestified defendant said nothing after he read him his rights:

"Q: Did he say anything else to you?

A: After I read him his rights, no."

The men were taken to the police station where they wereinterviewed by an assistant State's Attorney. Sergeant Pavonremembered being present for one of the interviews because he hadto act as an interpreter for the man in custody, who spoke onlySpanish. The officer could not remember whether the interviewwas with defendant or the passenger of the car.

Officer Stoppa testified he was driving an unmarked squadcar at around 10:00 p.m. on April 1, 1995. His partner that daywas Sergeant Pavon. Officer Stoppa said he had been drivingbehind a car for less than a minute when the driver of thevehicle made a right turn without signaling.

Officer Stoppa turned on his lights and signal and stoppedthe car. The officer testified defendant was the driver of thecar. As Officer Stoppa approached the car, he saw defendant handa "white brick" to the passenger of the car.

Officer Stoppa asked defendant for his driver's license. Defendant said he did not have a license. At that point, OfficerStoppa asked defendant to get out of the car. Officer Stoppasaid he searched defendant after he got out, then asked him tostep to the rear of the car. Sergeant Pavon asked the passengerto step to the rear of the car, too, and then went back to thepassenger's side and retrieved an object. Sergeant Pavon placedboth men under arrest and advised them of their rights. OfficerStoppa said he issued two tickets to defendant, for failure touse a turn signal and no driver's license. Officer Stoppatestified defendant appeared to speak and understand Englishwithout difficulty. Again, Officer Stoppa was not asked whetherdefendant affirmatively invoked his right to silence:

"Q: And, officer, after he read them the Miranda rightsfrom a pre-printed card, did Mr. Mendez make anystatement?

A: He had nothing to say.

Q: Did he say anything that you can recollect?

A: No."

Assistant State's Attorney Maureen McGee testified she spoketo defendant at the police station at around midnight on April 2,1995. Chicago police officer Pritt was present. McGee said shebegan her conversation with defendant by asking him if he spokeEnglish. When defendant said he did, McGee told him she was anattorney, but was not his attorney. He said he understood. McGee then advised him of his rights. Defendant indicated heunderstood each of his rights, but still wanted to speak withMcGee.

McGee also remembered having interviewed the passenger indefendant's car. She said Sergeant Pavon translated during thatinterview because the man did not speak English.

Defendant testified on April 1, 1995, he was driving hissister's car when the police pulled him over after he made aright turn. Defendant said he signaled before turning. He saidhe never was asked for his driver's license. Defendant saidSergeant Pavon walked up to his side of the car and told him toget out of the car and place his hands on the trunk.

The trial court denied defendant's motion to suppress thephysical evidence and his motion to suppress his oral statement.

Officer Stoppa testified again at defendant's jury trial. His trial testimony concerning the manner in which defendant wasarrested and the car searched was substantially the same as histestimony at the hearing on the motions to suppress.

Francis Kent Manieson, a forensic scientist for the Chicagocrime lab, testified he performed several tests on the whitesubstance in the clear plastic package found in defendant's car. Manieson testified these tests revealed the bag contained 998.9grams of cocaine.

Assistant State's Attorney McGee also testified at thetrial. McGee again said defendant agreed to speak with her aftershe advised him of his rights. During that interview, defendanttold McGee "some guy told him to drop the [package] off." Defendant told McGee he didn't know whose car he was in and saidthe passenger was his friend. At that point, defendant toldMcGee he didn't want to speak to her any more and McGee left theroom. McGee testified defendant did not appear to have anytrouble understanding her during their conversation.

McGee was the last witness to testify on the first day oftrial. After she finished, the trial judge asked the jurors tobe back at 9:15 the following morning. Before he left the bench,the judge told the parties he would "[s]ee everybody around 9:00,9:15 tomorrow morning."

The case was called at 10:00 the next morning. Defendanthad not appeared:

"THE COURT: What we will indicate is that when webroke, it might have been a little bit after 5 o'clock,[defendant] was here in open court. The case wascontinued to today's date and we had indicated to theladies and gentlemen of the jury to be here at 9:15. It is now approximately 7 minutes after 10. Mr. Mendezis not present, his attorney Mr. Levin is here in opencourt. He's not heard from his client, is thatcorrect?

[DEFENSE COUNSEL]: Yes, Judge. I don't know where[defendant] is. I called the only telephone numberthat I had for him, there was no answer. I called myoffice [at] approximately *** 9:30 and my secretary hadnot heard from him. I don't know the reason for hisfailure to appear. I would be asking the Court to putthe matter over to allow me to determine where he isand to allow me to ask for the valid reason for hisfailure to appear."

The trial court asked defense counsel for defendant'saddress, then noted the defendant lived less than three milesfrom the courthouse. The trial court said:

"It is the Court's view that at this time [defendant]has willfully failed to appear. This trial is inprogress. The jurors have been here since 9:15. Wewill proceed and if [defendant] appears, fine. If[defendant] does not appear, that's fine too."

After defense counsel objected, the trial court said:

"The Court is of the opinion and [feels] theevidence is clear *** that when somebody is present at5:15 in the evening and they are present when the caseis continued to 9:15 the following morning, they liveless than 3 miles from this location, there is noindication that that individual has suffered anyillness or foul play *** [r]espectfully [the court]feels he's willfully failing to appear and we willproceed."

The trial proceeded with Sergeant Pavon as the next witness. Sergeant Pavon's testimony concerning defendant's arrest and thesearch of the car was substantially the same as the testimony hegave at the hearing on the motions to suppress. The onlydifference in his trial testimony concerned defendant'sinvocation of his right to remain silent. During cross-examination, Sergeant Pavon testified he asked defendant "[D]oyou wish to answer any questions at this time," after he readdefendant his rights. Defendant answered "no."

After Sergeant Pavon testified, the prosecutor said:

"Judge, at this time we renew our motion to callthe investigator that's been doing the custody andhospital check with respect to the defendant."

The trial court said it would not be necessary to have theinvestigator testify.

The jury returned a verdict of guilty on the charge ofpossession of a controlled substance with intent to deliver. Defendant failed to appear at the sentencing hearing. The trialcourt denied defendant's motion for a new trial, and sentenceddefendant to 20 years in prison.

Defendant was apprehended in 1999 and filed a second motionfor a new trial, arguing the trial court erred in proceedingwithout defendant present. At the hearing on the motion,defendant's wife testified he was sick on the second day of thetrial. She said she tried to call his attorney several times. Defendant's trial attorney testified he never received anymessage that defendant tried to contact him that day.

The trial court found defendant's explanation for hisfailure to appear "lacking in credibility" and denied the motion,but agreed to allow defendant to participate in anothersentencing hearing. After reviewing all the evidence inaggravation and mitigation, the trial court reduced defendant'ssentence to 18 years in prison.

DECISION

Motion to Suppress Physical Evidence

Defendant contends the trial court erred in denying hismotion to suppress physical evidence. Defendant claims theofficers did not have sufficient probable cause to search the carafter stopping it.

The defendant does not challenge the trial court's findingsof fact. When neither the trial court's findings of fact nor itsdetermination of witness credibility is questioned, a ruling on amotion to suppress is reviewed de novo. Village of Plainfield v.Anderson, 304 Ill. App. 3d 338, 341, 709 N.E.2d 976 (1999).

Section 6-112 of the Illinois Vehicle Code (Code) requiresdrivers to exhibit their licenses to police officers on demand:

"Every licensee or permittee shall have hisdrivers license or permit in his immediate possessionat all times when operating a motor vehicle and, forthe purpose of indicating compliance with thisrequirement, shall display such license or permit if itis in his possession upon demand made ***.

For the purposes of this section, 'display' meansthe manual surrender of his license into the hands ofthe demanding officer for his inspection thereof." 625ILCS 5/6-112 (West 1998).

A police officer may arrest a driver who fails to complywith this section of the Code. People v. Ramirez, 248 Ill. App.3d 938, 943, 618 N.E.2d 638 (1993). Where an officer hasprobable cause to arrest, a search incident to the arrestrequires no additional justification. People v. Rossi, 102 Ill.App. 3d 1069, 430 N.E.2d 233 (1981); see also People v. Perry,204 Ill. App. 3d 782, 787, 562 N.E.2d 618 (1990)(search ofdriver's purse after she was arrested for failing to produce avalid driver's license following a traffic stop foundappropriate). The officers' search of defendant's car wasproper. See Rossi, 102 Ill. App. 3d at 1073 (search may be madeimmediately prior to actual arrest).

Though defendant concedes police officers may arrest adriver who cannot produce a valid driver's license, he notes theycould have simply written him a ticket. Defendant does not citeany authority to support this argument, and we do not find itconvincing. It makes no sense to say that a police officer wasnot justified in carrying out a search incident to a lawfularrest simply because he had the option of writing the defendanta ticket rather than arresting him.

We also find Sergeant Pavon's testimony, accepted ascredible by the trial judge, shows the cocaine was in plain viewwhen he approached the passenger's side of the car. According tothe plain view doctrine, a seizure is authorized where: (1) thepolice view the object from a place where they are legallyentitled to be; and (2) it is immediately apparent to the policethat the items may be evidence of a crime, contraband, orotherwise subject to seizure. People v. Watkins, 293 Ill. App.3d 496, 502, 688 N.E.2d 798 (1997).

Sergeant Pavon was legally entitled to approach thepassenger's side of the car as part of the routine traffic stop. At trial and at the hearing on the motion to suppress, SergeantPavon testified, based on his experience as a police officer, hebelieved the large white "brick" he saw on the floor of the carwas cocaine.

Defendant claims the package of cocaine "lacked anydistinguishing characteristics" to reasonably lead Sergeant Pavonto believe it contained contraband. The two cases defendantrelies on, People v. Penny, 188 Ill. App. 3d 499, 544 N.E.2d 1015(1989), and People v. Evans, 259 Ill. App. 3d 650, 631 N.E.2d 872(1994), are factually different from this one.

In Penny, the defendant was stopped when police officersnoticed his car had an expired license plate sticker. While oneof the police officers talked to the defendant, the other officerwalked to the car and looked inside. He saw "a package,approximately 7 inches in diameter and 4 inches thick, wrapped ina brown, opaque plastic material on the floor." Penny, 188 Ill.App. 3d at 500. The officer asked the defendant what was in thepackage. The defendant told him he did not know what the packagecontained and said he borrowed the car. The officer opened thecar, took out the package, and poked a hole in it. He found itcontained white powder. The powder later proved to be cocaine. The trial court granted defendant's motion to suppress, findingthe suspicions of the officer were not enough to constituteprobable cause. We affirmed the trial court's decision, andsaid:

"[T]he package observed by the officer in the presentcase was an innocuous rectangular package, wrapped inbrown plastic. As stated by the trial court, there wasnothing about the package which made it immediatelyapparent that it contained narcotics. The packagecould have contained numerous legitimate items." Penny, 188 Ill. App. 3d at 504.

In Penny, the contraband was wrapped in an opaque plastic,so that the officer could not see the contents of the package. Here, the cocaine was wrapped in clear plastic. Sergeant Pavondescribed it as a "large white brick." The packaging here didnot obscure the contents as it did in Penny. It was more readilyidentifiable than the "innocuous rectangular package, wrapped inbrown plastic" described in Penny. Penny, 188 Ill. App. 3d at504.

In Evans, the defendant was stopped for speeding. When theofficer approached the driver's side window to hand the defendanta ticket, he noticed a wooden box inside the defendant's shirtpocket. The officer asked the defendant to hand him the box. When he opened it, the officer found marijuana. We found thetrial court erred in denying defendant's motion to suppress, andsaid:

"The container was not one of those rare 'single-purpose' containers which by their very nature cannotsupport a reasonable expectation of privacy becausetheir contents can be inferred from their outwardappearance and the containers can reasonably have nolegitimate purpose other than the concealment ofcontraband." Evans, 259 Ill. App. 3d 650, 655 (1994).

In Evans, as in Penny, the contraband was concealed by itspackaging. In this case, the cocaine was not "concealed" insidea box or opaque plastic wrapping. It was in a clear, plastic bagthat allowed Sergeant Pavon to see the "white brick" of cocaineinside.

We find the search was carried out pursuant to a lawfularrest. We also find the seizure of the cocaine was proper underthe plain view doctrine. We affirm the trial court's denial ofdefendant's motion to suppress the physical evidence.

Motion to Suppress Oral Statement

Defendant contends the trial court erred in failing tosuppress the oral statement he made to ASA McGee at the policestation. Defendant claims he invoked his right to remain silentat the scene of the arrest. Defendant contends McGee violatedhis right to remain silent when she initiated a second interviewat the police station. The State contends defendant waived hisright to remain silent and voluntarily spoke with McGee after sheadvised him of his rights a second time.

Because neither the facts nor the credibility of witnessesis at issue, we review the motion to suppress de novo. People v.Nielsen, 187 Ill. 2d 271, 286, 718 N.E.2d 131 (1999).

At the hearing on the motion to suppress, neither OfficerStoppa nor Sergeant Pavon testified defendant affirmativelyinvoked his right to remain silent. At that hearing, bothofficers simply said defendant "had nothing to say" afterSergeant Pavon read him his rights. They were not asked if theyattempted to question defendant. From this testimony, it wouldappear defendant was questioned for the first time by ASA McGeeat the police station.

Defendant primarily relies on Sergeant Pavon's trialtestimony in arguing his statement to ASA McGee should have beensuppressed. During cross-examination, Sergeant Pavon testified:

"Q: Officer, did you say anything else to Mr. Mendez atthat time?

A: Yes. I said do you wish to answer any questions atthis time.

Q: What did Mr. Mendez say?

A: He said no."

Counsel renewed his motion to suppress at trial, usingSergeant Pavon's trial testimony as the basis for the renewedobjection to the admission of defendant's statement to ASA McGee. When counsel renews the motion to suppress at trial, a reviewingcourt may consider the testimony and evidence presented at thepretrial suppression hearing and the testimony and evidencepresented at trial. People v. Strong, 316 Ill. App. 3d 807, 813,737 N.E.2d 687 (2000); People v. Brooks, 187 Ill. 2d 91, 128, 718N.E.2d 88 (1999).

But that is not the end of the inquiry.

Statements obtained after the defendant invokes his right toremain silent may be admissible if the defendant's right to endquestioning was "scrupulously honored."⁽¹⁾ Nielsen, 187 Ill. 2d at287. In determining whether a defendant's right was"scrupulously honored," we consider whether:

"(1) the police immediately halted the initialinterrogation after the defendant invoked his right toremain silent; (2) a significant amount of time elapsedbetween the interrogations; (3) a fresh set of Mirandawarnings were given prior to the second interrogation;and (4) the second interrogation addressed a crime thatwas not the subject of the first interrogation." Nielsen, 187 Ill. 2d at 287.

Here, Sergeant Pavon testified at trial defendant told himhe did not wish to answer any questions - an exercise of hisright to remain silent. Sergeant Pavon did not continue tointerrogate him. Two hours later, ASA McGee introduced herselfto defendant, told him she was an attorney but was not hisattorney, and again advised him of his rights. McGee testifieddefendant said he still wanted to talk to her, though heunderstood he had a right to remain silent. McGee asked him aseries of questions related to his arrest and the cocaine foundin his car.

Defendant contends the two hours that elapsed was not a"significant amount of time." Defendant also contends hisstatement should have been suppressed because McGee's questionsaddressed the same crime that was the subject of the firstinterrogation.

In Nielsen, the defendant was arrested for theft andfirearms offenses. The defendant initially agreed to speak withtwo police officers at around 1 p.m. the day he was arrested. When the officers began to question him about the murder of hisex-wife and daughter, the defendant became uncooperative and cutthe interview short. After confessing to another police officer,defendant asked to speak to one of the officers he spoke toduring the first interview. The second interview began at 3:25p.m., a little over two hours after the first. Defendant wasadvised of his rights again. He signed a waiver form and agreedto speak with the police officer. He then gave the statementthat was admitted into evidence at trial.

On appeal before the Illinois Supreme Court, defendantargued the trial court erred in denying his motion to suppressbecause the police officers violated his right to remain silentby interviewing him so soon after the first, truncated interview. The Supreme Court found that the two-hour-and-twenty-five minutelapse between the two statements constituted a "significantamount of time." It went on to find that though the secondinterrogation addressed the same crime as the firstinterrogation, "this alone does not preclude a finding that thedefendant's right to remain silent was scrupulously honored." Nielsen, 187 Ill. 2d at 290; see also People v. Foster, 119 Ill.2d 69, 86-87, 518 N.E.2d 82 (1987)(requestioning the defendantabout the same crime "does not of itself mean that his rightsunder Miranda were violated").

The facts surrounding the two interviews in this caseclosely resemble the facts in Nielsen. In Nielsen, as in thiscase, the only issues were whether the time lapse was sufficientand whether the fact that both interviews concerned the samecrime required suppression of the statement. We would be hard-pressed to find the Supreme Court would have ruled differently inthis case simply because the second interview took place 20minutes sooner than it did in Nielsen.

Though defendant attempts to distinguish this case fromNielsen by noting the defendant in Nielsen volunteered aconfession to a Deputy while in the jail's exercise yard, thatconfession was not the statement entered into evidence at trial. The statement at issue was the one taken during the secondinterview of defendant at 3:25 p.m. Pursuant to Nielsen, we finddefendant's right to remain silent was "scrupulously honored" andaffirm the trial court's denial of defendant's motion to suppresshis oral statement.

Trial Court's Decision to Proceed in Defendant's Absence

Defendant contends the trial court erred in ordering theparties to proceed with the trial in his absence. Defendantclaims the State was required to prove through "substantialevidence" that defendant's failure to appear at trial waswillful.

While a defendant has a constitutional right to be presentat all stages of trial, a defendant waives the right to bepresent when he voluntarily absents himself from trial. Peoplev. Smith, 188 Ill. 2d 335, 341, 721 N.E.2d 553 (1999). "A trialcourt's decision to proceed with a trial in absentia will not bereversed unless the trial court abused its discretion." Smith,188 Ill. 2d at 341.

Section 115-4.1(a) of the Code of Criminal Procedure says:

"(a) When a defendant after arrest and an initialcourt appearance for a non-capital felony or amisdemeanor, fails to appear for trial, at the requestof the State and after the State has affirmativelyproven through substantial evidence that the defendantis willfully avoiding trial, the court may commencetrial in the absence of the defendant. *** If trial hadpreviously commenced in the presence of the defendantand the defendant willfully absents himself for twosuccessive court days, the court shall proceed totrial." 725 ILCS 5/115-4.1(a)(West 1998).

In People v. Flores, 104 Ill. 2d 40, 50, 470 N.E.2d 307(1984), the Illinois Supreme Court found the two-day waitingrequirement permissive, rather than mandatory:

"If the defendant chooses to walk out once his trialhas commenced, his act can cause complete disruption ofthe court's docket. A judge would not know from caseto case whether the defendant would appear or walk outduring trial. A defendant should not benefit from hisown defiance of the criminal justice system. Webelieve that if the statute is mandatory it undulyinfringes upon the inherent powers of the judiciary. We therefore hold that the statute is permissive innature rather than mandatory and therefore is notunconstitutional. Since the statute is permissive, thetrial judge, in his discretion, could decide whether toproceed."

Despite Flores, defendant argues the statute requires theState to prove through "substantial evidence" defendant willfullyavoided trial before the trial may proceed. Defendant refers tothe following portion of the statute:

"[A]t the request of the State and after the State hasaffirmatively proven through substantial evidence thedefendant is willfully avoiding trial the court maycommence trial in the absence of the defendant." 725ILCS 5/115-4.1(a) (West 1998).

According to defendant, the State failed to satisfy its burden ofproving he willfully avoided trial.

We first note that the provision of the statute cited bydefendant refers to the commencement of a trial, not thecontinuation of a trial. 725 ILCS 5/115-4.1(a) (West 1998). Inthis case, defendant was present at the commencement of trial,but failed to appear on the second day of trial. The citedportion of the statute does not apply.

Flores clearly indicates that where a defendant fails toappear after his trial has commenced, the trial court has thediscretion to choose to proceed. Flores, 104 Ill. 2d at 50. TheSupreme Court did not find in Flores that the State was requiredto show defendant was willfully absent before the trial courtcould exercise its discretion to proceed. Flores, 104 Ill. 2d at50.

Where the defendant is not present at the commencement oftrial the State is required only to make a prima facie showingthat defendant's absence is willful. Smith, 188 Ill. 2d at 343. A prima facie showing is made where: (1) the defendant wasadvised of the trial date; (2) the defendant was advised thatfailure to appear could result in trial in absentia; and (3) thedefendant did not appear for trial when the case was called. Smith, 188 Ill. 2d at 343.

In this case, the record shows defendant was present on thefirst day of trial, was advised of the time the trial was torecommence, and was not present on the second day of trial or atthe sentencing hearing. The record also shows that on May 12,1995, the trial court gave the defendant the followingadmonition:

"Mr. Mendez, you understand if at some future date youfail to appear here we can go ahead without you, youwould be giving up your right to confront the witnessesagainst you."

Defendant told the trial court he understood.

When defendant failed to appear on the second day of trial,the trial court noted the defendant lived less than three milesfrom the courthouse and said there was no evidence to suggest hesuffered any illness or "foul play" that would keep him fromappearing.

The only evidence to negate the prima facie elementsoutlined in Smith was the testimony of defendant's wife, given atthe hearing on defendant's second motion for a new trial fouryears after he was convicted. The trial judge did not find thattestimony believable. We see no reason to reject the trialjudge's findings.

The facts of this case are almost identical to the facts inFlores, where the Supreme Court noted, "In the instant case, thedefendant did not reappear for four years. Certainly, notwaiting one more day and calling the case did not in any wayprejudice the defendant." Flores, 104 Ill. 2d at 51. Thedefendant contends the trial judge acted with unseemly haste. While it may be better practice to take more of a breather when adefendant on trial does not appear, there is no indication inthis case that waiting any longer would have accomplishedanything. Based on the reasoning used in Flores, we find thetrial court did not abuse its discretion by proceeding.

CONCLUSION

The trial court did not err in denying defendant's motion tosuppress the physical evidence or in denying defendant's motionto suppress his oral statement. We also find the trial court didnot abuse its discretion in proceeding with the trial indefendant's absence. The defendant's conviction and sentence areaffirmed.

Affirmed.

CERDA, and BURKE, JJ., concur.

1. The United States Supreme Court has distinguished theright to remain silent from the right to counsel. Edwards v.Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).Once an individual invokes his right to counsel under the FifthAmendment, the police may not reinterrogate an accused untilcounsel has been made available. Edwards, 451 U.S. at 484-85. This distinction is based on language in Miranda, which theSupreme Court says provides "additional safeguards" when theaccused asks for counsel. Edwards, 451 U.S. at 485. Thedistinction is followed in Illinois. See People v. Lira, 318Ill. App. 3d 118, 123, 742 N.E.2d 885 (2001)(once an accusedinvokes his right to counsel, current interrogation must ceaseand the police may not reinitiate interrogation without counselpresent). In this case, defendant did not invoke his right tocounsel.