Voluntary Statements

To determine whether a confession is voluntary, a court must consider the totality of the circumstances. The factors to consider include the defendants age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the length and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises. No single factor is dispositive. The test of voluntariness is whether the defendant "made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendants will was overcome at the time he or she confessed." In re: G.O., 191 Ill. 2d 37, 727 N.E.2d 1003, 245 Ill. Dec. 269 (2000) The taking of a juveniles confession is "a sensitive concern" and because of this, the "greatest care" must be taken to assure the confession was not coerced or suggested and that "it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." Due to this concern, courts have recognized an additional factor that is not present in adult cases i.e., the "concerned adult" factor. This factor considers whether a juvenile, either before or during the interrogation, had an opportunity to consult with an adult interested in his welfare. G.O., 191 Ill.2d at 54-55. Facets to the concerned adult factor include whether the police prevented the juvenile from conferring with a concerned adult and whether the police frustrated the parents attempt to confer with the juvenile. G.O., 191 Ill.2d at 55. It is important to note that a juveniles confession should not be suppressed simply because he was denied the opportunity to confer with a parent or other concerned adult before or during the interrogation. However, this is a factor that may be relevant in determining whether a juveniles confession is voluntary especially in situations in which the juvenile has demonstrated trouble understanding the interrogation process, he has asked to speak with his parents or another "concerned adult," or the police prevent the juveniles parents from speaking with him. G.O., 191 Ill.2d at 55. Conduct of the Police People v. Wilson, 116 Ill.2d 29, 506 N.E.2d 571 106 Ill. Dec. 771 (1987) At a hearing on a motion to suppress, the State must establish, by a preponderance of evidence, the voluntary nature of a defendants confession. When it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession. More than a mere denial by the States witnesses that the confession was coerced is required. "Where the only evidence of coercion is the defendants own testimony, and where this is contradicted by witnesses for the People, then of course the trial court may choose to believe the latter, and our recognition of the superior position of the trial court to evaluate the credibility of the witnesses before it makes us reluctant to reverse its determination. [Citations] But where it is conceded, or clearly established, that the defendant received injuries while in police custody, and the only issue is how and why they were inflicted, we have held that something more than a mere denial by the police of coercion is required. Under such circumstances the burden of establishing that the injuries were not administered in order to obtain the confession, can be met only by clear and convincing testimony as to the manner of their occurrence. [Citation]

People v. Brown, 301 Ill.App.3d 995, 705 N.E.2d 162, 235 Ill.Dec. 549 (2nd Dist. 1998) Officers act of failing to disclose to juvenile and his mother that an infant died in a fire did not constitute deception that would render juveniles statement involuntary. When the police asked mother and juvenile to come to the station, both mother and juvenile were aware that the officers were going to question him about garbage can fires and juvenile was under no compulsion to accompany the officers and further was free to leave the station prior to making incriminating statements. Criminal suspects do not have the right to be informed of the specific criminal offense or potential criminal offenses for which they may be charged when questioned by the police. In re: J.E., 285 Ill.App.3d 965, 675 N.E.2d 156, 221 Ill.Dec. 249 (1st Dist. 1996) Some physical discomfort does not render a statement involuntary. Officers acts of handcuffing two minors at the police station for about 4 hours (minors were probably not handcuffed for a continuous period of time) did not render their statements involuntary. Minors had been arrested in connection with a shooting and handcuffing them was necessary for safety purposes. People v. Shaw, 180 Ill. App.3d 1091, 536 N.E.2d 849, 129 Ill.Dec. 849 (1st Dist. 1989) Defendants statement was involuntary where officer promised defendant before defendant confessed that he could get psychiatric help as part of a sentence should he be convicted (for attempt murder). People v. Morgan, 197 Ill.2d 404, 759 N.E.2d 813, 259 Ill.Dec. 405 (2001) Violation of Juvenile Court Act, i.e., that 15 year old defendant was placed in a prisoner jail cell and not told 1) the purpose of the detention, 2) the time the detention is expected to last, and 3) that he could not be detained for more than 6 hours, did not render the statements involuntary under the totality of the circumstances. "Concerned Adult" Factor People v. Cunningham, 322 Ill. App.3d 233, 773 N.E.2d 682, 265 Ill.Dec. 918 (1st Dist. 2002) The main inquiry is whether the absence of an adult interested in defendants welfare contributed to the coercive circumstances surrounding the interrogation. The statement of the 15 year old defendant was voluntary where he was allowed to confer with his father up to 30 minutes before the interview began, the interview lasted on 30 minutes, and defendant confessed only 20 minutes after his status changed from witness to potential suspect. The absence of a youth officer did not create an atmosphere so coercive as to render defendants confession involuntary. Further, no evidence was presented of apparent learning or emotional disabilities, defendant did not ask to speak with a parent or other concerned adult and the police did not prevent defendants parents from speaking to him. People v. Griffin, 327 Ill.App.3d 538, 763 N.E.2d 880, 261 Ill. Dec. 631 (1st Dist. 2002)

Though there is no per se rule that juveniles must be allowed to consult with their parents prior to questioning, courts have repeatedly held that police conduct which frustrates parents attempts to confer with their child is particularly relevant and a significant factor in the totality of circumstances analysis. "It suggests that, at worst, the police were trying to coerce a confession and at best that they were conducting the interrogation without due regard for the suspects age." The confession of the 15 year old defendant was deemed involuntary under the totality of the circumstances where the defendant had turned 15 the week before the arrest, and the police clearly frustrated the attempts of defendants parents to see him, even though both parents spent most of the night at the police station leaving in the morning only to tend to younger children at home. When both parents returned to the station at noon they were told by the police chief that defendant had already confessed and that they could not see him. (In fact, defendant did not make or sign a statement until after 5 p.m. that evening.) Further, though one of the officers was trained as a youth officer, he was not acting in the capacity as a youth officer, and therefore was not a concerned adult, because he was actively compiling evidence against the defendant. Finally, the 18-hour detention of defendant also contributed to the coercive atmosphere of the interrogation. People v. McDaniel, 326 Ill.App.3d 771, 762 N.E.2d 1086, 261 Ill.Dec. 159 (1 st Dist. 2001) Statement of 14 year old defendant was deemed involuntary where he had very little prior experience with the criminal justice system; the police frustrated defendants mothers attempts to confer with her son prior to the police interrogation; the youth officer showed no interest in protecting defendants rights (she had seen defendants mother in a hallway prior to defendants interrogation and made no attempts to speak with her and she also never spoke with defendant); and defendant was arrested at 2 a.m. The Appellate Court also found that the trial courts findings were manifestly erroneous when the trial court accepted the police testimony that mother never asked to see her son. The Appellate Court found that it was highly unlikely that mother would have gone to Area 4 police station at 2:20a.m. and have remained there until 8 a.m. without asking to see her son. Also, an officer not involved in the interrogation corroborated mothers testimony that she repeatedly asked to see her son. In re: J.J.C., 294 Ill.App.3d 227, 689 N.E.2d 1172, 228 Ill.Dec. 751 (2nd Dist. 1998) Parents have an interest in wishing to confer with their child before questioning. When a juveniles parents are present and request to confer with their child, and they are effectively refused access to the child, the presumption arises that the juveniles will was overborne. In re: J.O., 231 Ill.App.3d 853, 596 N.E.2d 1285, 173 Ill.Dec. 406 (3rd Dist. 1992) When a parent or concerned adult indicates an interest by his or her presence, then he or she should be allowed to confer with the juvenile before any questioning begins, as well as be present when any questioning occurs. The statement of the 12-year-old minor was suppressed as involuntary where his parents were not allowed to confer with their son until after he confessed. People v. Brown, 182 Ill.App.3d 1046, 538 N.E.2d 909, 131 Ill.Dec. 534 (1st Dist. 1989) When a parent is present at the police station and shows an interest in seeing his or her child,

the police have an affirmative duty to stop questioning the child and allow the parent to confer with the child. In re: Lashun H., 284 Ill.App.3d 545, 672 N.E.2d 331, 219 Ill.Dec. 823 (1st Dist. 1996) The confession of a 14 year old was involuntary where 1) minor was arrest around midnight and transported to the police station in a car separate from his mother and uncle; 2) minor was not allowed to confer with is mother or uncle prior to questioning even though they were at the station; 3) a detective admitted he refused to allow minors mother to be present during the interrogation; 4) minors confession was never reduced to writing and signed; 5) any Miranda waiver was not reduced to writing and signed; 6) minor had a learning disability (his reading skills were at the level of a 7 year old) and minimal prior contact with the juvenile justice system; 7) detectives lied to the youth officer about whether minors parents were at the station; and 8) during the interrogation, detectives told minor of inculpatory evidence against him, but not of the exculpatory evidence. Just as the absence of a parent does not per se make a confession involuntary, the presence of a youth officer does not per se make a confession voluntary. People v. Ball, 322 Ill.App.3d 521, 750 N.E.2d 719, 255 Ill.Dec. 802 (1st Dist. 2001) The statement of the 15 year old defendant was voluntary where 1) defendant informed his mother he was going to the police station; 2) mother was called on two occasions and refused to come to the station; 3) a youth officer called mother again; 4) youth officer conferred with defendant prior to questioning and was present during the interrogation and statement. People v. Jenkins, 333 Ill.App.3d 534, 776 N.E.2d 755, 267 Ill.Dec. 383 (1st Dist. 2002) 16 year old defendants statement voluntary where he had a previous felony arrest; he was read Miranda warnings; he was sober, alert and in no physical distress when he spoke to the police; and the initial questioning was not about the shooting, but concerned where defendants mother could be located. After giving the information about his mother, defendant then volunteered information about the shooting. People v. Griffith, 334 Ill.App.3d 98, 777 N.E.2d 459, 267 Ill.Dec. 656 (1st Dist. 2002) 16 year old defendant made voluntary statements where he agreed he understood Miranda warnings; he was treated well; his detention was lawful; his mother was contacted by the police and showed no interest in being present for questioning; defendant displayed equal disinterest in having her present; defendant had been on his own for some time; and defendant had been previously arrested. In re: L.L., 295 Ill.App.3d 594, 693 N.E.2d 908, 230 Ill.Dec. 430 (2nd Dist. 1998) Statement of 13 year old suppressed as involuntary where minor had limited mental abilities and the police took him from his home in the middle of the night at a time when officers were aware that his parents were not readily available. Detectives spoke with minors father several times over the phone and father expressed a clear interest in the welfare of his son. The parents were reasonably prompt in going to the station and the police refused to let mother see her son when mother requested to do so. At one point during the interrogation, minor asked if his parents were coming, which showed that the minor was interested in seeing his parents. No youth officer demonstrated any interest in minors welfare; instead, the youth officer was adversarial and antagonistic towards minor. Another factor in favor of suppression was that minor was sleep-deprived and he was

interrogated for a lengthy time. People v. Knox, 186 Ill.App.3d 808, 542 N.E.2d 910, 134 Ill.Dec. 564 (1st Dist. 1989) 15-year-old defendants statement involuntary where defendants mother was precluded from seeing him during questioning even though she was at the police station and no youth officer was present. In re: V.L.T., 292 Ill.App.3d 728, 686 N.E.2d 49, 226 Ill.Dec. 700 (2nd Dist. 1997) Statement of 10 year old minor was involuntarily given where police kept minors grandmother from seeing her even after minor asked for grandmother; minor had little prior contact with police; police rushed minor to the station; and minor was very young. A lengthy detention also contributed to the coercive atmosphere. In re: J.E., 285 Ill.App.3d 965, 675 N.E.2d 156, 221 Ill.Dec. 249 (1st Dist. 1996) Statement of 16 year old minor was voluntary where minors mother was contacted before he made any incriminating statements; mother did not request to be present during questioning; minor did not request to have his mother present during questioning; and a youth officer was present and minor said he understood his rights. Co-respondents statements were also voluntary where attempts to reach his mother were unsuccessful; he did not ask to have a parent present; youth officer was present; and he said he understood his rights. Also, both minors were given the opportunity to consult with a youth officer before questioning. The fact that the minors were handcuffed for some period of time (less than 4 hours) did not contribute to coercive circumstances because they had been arrested for a shooting. Some physical discomfort does not render a statement involuntary. In re: Rhonda F., 289 Ill.App.3d 148, 682 N.E.2d 225, 224 Ill.Dec. 664 (1st Dist. 1997) Statement of 15 year old juvenile was voluntary where juvenile was not under arrest when she first went to the police station; she was questioned in the middle of the day; her mother was deceased (juvenile had fatally shot her mother) and she did not want police to contact her father; detectives read Miranda warnings to her; detectives attempted to contact a youth officer as soon as juvenile made a statement inconsistent with the evidence; and juvenile never asked to see her grandmother (who police feared may harm her). People v. Morgan, 197 Ill.2d 404, 758 N.E.2d 813, 259 Ill.Dec. 405 (2001) Statements of 15-year-old defendant were voluntary where defendant never asked to speak with a concerned adult and his legal guardians were fatally shot by the defendant. People v. Montanez, 273 Ill.App.3d 844, 652 N.E.2d 1271, 210 Ill.Dec. 295 (1st Dist. 1995) Statements of 15 year old were involuntary where, when mother indicated to police that she wanted to go to the station, police told her not to come to the station and that they would call her when it was time to come; the police never called her to come to the station; mother

finally went to the station by herself and was told to "get the hell out" by a detective; and mother was not able to see her daughter until after daughter confessed. People v. Quezada, ___Ill.App.3d ___, 780 N.E.2d 790, 269 Ill.Dec. 318 (2nd Dist. 2002) Failure to immediately notify 15 year old defendants father of defendants arrest did not render statement involuntary where defendant had prior arrests; he was read Miranda warnings; a youth officer was with defendant at all relevant times and had advised defendant to ask for an explanation if he did not understand anything he was told; and defendant was not under duress. Hearings People v. Reid, 136 Ill.2d 27, 32, 554 N.E.2d 174, 143 Ill.Dec. 239 (1990) "The State has the burden of proving, by a preponderance of evidence, that defendant made a knowing, intelligent, and voluntary waiver of his or her rights. [Citations] One the State has established its prima facie case, the burden shifts to the defendant to show that his waiver was not knowing, intelligent, or voluntary. [Citation] The circuit court may, in its discretion, reverse the order of proof so that defendant presents his or her evidence first." People v. Bernasco, 138 Ill.2d 349, 562 N.E.2d 958, 150 Ill. Dec. 155 (1990) A reviewing court will not disturb a trial courts determination on a motion to suppress evidence unless it is against the manifest weight of the evidence. People v. Brown, 136 Ill.2d 116, 554 N.E.2d 216, 143 Ill.Dec. 281 (1990) The State has the burden of establishing defendant knowingly and intelligently waived his privilege against self-incrimination. People v. Gilliam, 172 Ill. 2d 484, 670 N.E.2d 606, 218 Ill.Dec. 884 (1996) The credibility of the witnesses regarding the voluntariness of a statement is to be determined by the trial court and that determination will not be reversed unless it is against the manifest weight of the evidence. People v. Nielson, 187 Ill.2d 271, 286, 718 N.E.2d 131, 240 Ill.Dec. 650 (1999) "As a general rule this court will reverse a trial courts denial of a motion to suppress statements only if that ruling is manifestly erroneous. [Citation] In this case, however, de novo review is appropriate, as neither the facts nor the credibility of the witnesses is at issue." I.Q. People v. Bernasco, 138 Ill.2d 349, 562 N.E.2d 958, 150 Ill. Dec. 155 (1990) An inquiry into a Miranda waiver has two distinct dimensions: 1) whether there was a free, uncoerced choice and 2) whether there was an awareness of the right and the consequences of abandoning it i.e., a valid Miranda waiver would thus require both an uncoerced choice and the requisite level of comprehension.

A knowing and intelligent waiver requires an intentional relinquishment or abandonment of a known right or privilege; the accused must know wht he is doing so that his choice is made with eyes open; and the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Defendant did not waive his Miranda rights knowingly and intelligently where he could not understand fundamental terms contained in Miranda warnings; could not have been able to form an intent to waive those rights and did not have a normal ability to understand questions and concepts. In re: W.C., 167 Ill.2d 307, 657 N.E.2d 908, 212 Ill.Dec. 563 (1995) For a defendants confession to be admitted at trial, the State must prove by a preponderance of evidence that defendant validly waived his privilege against self-incrimination and his right to counsel. The mental state that is necessary to validly waive Miranda rights involves being cognizant at all times of the States intent to use ones statements to secure a conviction and of the fact that one can stand mute and request an attorney. 13 year old had the ability to understand and knowingly waive Miranda where 1) minor had received Miranda warnings on two previous occasions and had once delayed speaking with the police after receiving the warnings; 2) minor had received a standard verbal Miranda warning and a simplified verbal explanation; 3) neither minor nor his mother stopped the questioner, asked for an explanation, or indicated that minor did not understand; and 4) minor responded affirmatively that he understood warnings. People v. Ball, 322 Ill.App.3d 521, 750 N.E.2d 719, 255 Ill.Dec. 802 (1st Dist. 2001) The statement of the 15 year old defendant was voluntary even though his I.Q. was 69 and his reading comprehension placed him in the bottom 1% of the population where 1) he admittedly had extensive experience with the police and acknowledged he had been read Miranda warnings on prior occasions; and 2) a forensic psychiatrist testified defendant was able to comprehend verbal Miranda warnings. In re: M.W., 314 Ill.App.3d 64, 731 N.E.2d 358, 246 Ill.Dec. 830 (1st Dist. 2000) 13 year old minor, with an IQ of 52 which places him in the borderline mentally retarded range of intellectual functioning, did not knowingly and intelligently waive his rights under Miranda where the evidence showed he did not understand the meaning of the words in the warnings; he has concrete thought processes i.e., his thought process is very simplistic and tied to the obvious; and he did not know he could have a lawyer present before he talked to the police during questioning. People v. Quezada, ___Ill.App.3d ___, 780 N.E.2d 790, 269 Ill.Dec. 318 (2nd Dist. 2002) Trial courts finding that 15 year old defendant possessed mental capacity necessary to understand his rights and waive them was not against the manifest weight of the evidence notwithstanding the fact that defendant read at only a sixth grade level where there was no evidence that defendant was actually incapable of understanding Miranda warnings. People v. Braggs, 335 Ill.App.3d 52, 779 N.E.2d 475, 268 Ill.Dec. 861 (1st Dist. 2002) Trial court erred in ruling that the fact that defendant was mentally handicapped was to be considered only as to the weight to be given her statements and not as to whether those statements were inadmissible. The trial court should have considered whether defendants mental retardation deprived her of the capacity to understand the meaning and effect of the

confession. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) The execution of mentally retarded criminals is cruel and unusual punishment prohibited by the eighth amendment. Some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards. As a result of the "reduced capacity of mentally retarded offenders, mentally retarded defendants may be less able to give meaningful assistance of their counsel; they make poor witnesses and the possibility of false confessions is enhanced. NB: The Atkins case is included in these materials because I expect that its brief reference to the possibility of false confessions will result in defense attorneys citing to this case in support of their suppression motions. The Appellate Court has already cited to Atkins (in the Braggs case cited above) in support of its holding. Length and Duration of Questioning People v. Ball, 322 Ill.App.3d 521, 750 N.E.2d 719, 255 Ill.Dec. 802 (1st Dist. 2001) The statement was voluntary even though the 15-year-old defendant had been at the station for 8 hours where he had been treated as a witness for part of the time and he was questioned only intermittently. Though a period of detention may be lengthy, the fact that questioning was not incessant over the course of that period was favorable to voluntariness. People v. Smith, 333 Ill.App.3d 622, 776 N.E.2d 781, 267 Ill.Dec. 409 (1st Dist. 2002) Adult defendants statements were involuntary where his 67-hour detention was lengthy; the interview room lacked normal sleeping conditions; officers repeatedly questioned defendant over a three-day period; and defendant exercised his right to remain silent which was not scrupulously honored. In re: L.L., 295 Ill.App.3d 594, 693 N.E.2d 908, 230 Ill.Dec. 430 (2nd Dist. 1998) Lengthy interrogation of 13 year old supported suppression of statement when considered with other factors. (Minor was interrogated in the middle of the night after being taken from his home when officers were aware that his parents were not available. Also, officers prevented mother from seeing minor when she was present at the station.) In re: V.L.T., 292 Ill.App.3d 728, 686 N.E.2d 49, 226 Ill.Dec. 700 (2nd Dist. 1997) Lengthy detention, along with keeping minor from seeing her grandmother, rendered statement of 10-year-old minor involuntary. Minor was taken from her home in her pajamas and deprived of any meaningful rest; and minor had little, if any opportunity to eat prior to confession. The Appellate Court found that the questioning of minor while she was wearing her pajamas was humiliating. Miranda Warnings People v. Melock, 149 Ill.2d 423, 432, 599 N.E.2d 941, 174 Ill.Dec. 857 (1992)

"Incriminating statements which have been obtained in violation of Miranda v. Arizona, 384 U.S.436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), are inadmissible at trial. A suspects entitlement to Miranda warnings is triggered when he is subjected to custodial interrogation, "or otherwise deprived of his freedom of action in any significant way." [Citations omitted] In determining whether an interrogation is custodial, courts consider several factors, including: (1) the time and place of the confrontation; (2) the number of police officers present; (3) the presence or absence of family or friends; (4) any indicia of formal arrest procedure, such as physical restraint, the show of weapons or force, booking or fingerprinting; and (5) the manner by which the individual arrived at the place of the interrogation." [Citations omitted] People v. Reid, 136 Ill.2d 27, 32, 554 N.E.2d 174, 143 Ill.Dec. 239 (1990) To determine whether a defendant knowingly and intelligently waived his Miranda rights, a court must consider the totality of the circumstances, including the character of the defendant and the details of the interrogation, without any one circumstance or factor controlling. Schneckloth v. Bustamonte, 412 U.S.218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) "Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. * * *The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights. It is, of course, always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, * * * it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning."

Johnson v. Zerbst, 304 U.S.458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938) A waiver is an intentional relinquishment or abandonment of a known right or privilege. To determine whether there has been an intelligent waiver of the right to counsel must depend upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. People v. Ball, 322 Ill.App.3d 521, 750 N.E.2d 719, 255 Ill.Dec. 802 (1st Dist. 2001) Miranda warnings were not necessary during the period of time that the defendant was being treated as a witness and while he was at the station voluntarily. People v. Prude, 66 Ill.2d 470, 363 N.E.2d 371, 6 Ill.Dec. 689 (1977) The fact that an accused is a juvenile does not of itself require that he be advised he may be prosecuted as an adult before he may knowingly waive his right to remain silent. In re: Rhonda F., 289 Ill.App.3d 148, 682 N.E.2d 225, 224 Ill.Dec. 664 (1st Dist. 1997)

Admonishment to juvenile, who was eventually tried as an adult, by Assistant States Attorney that she "could" or "could possibly" be charged as an adult was proper where juvenile had given five different accounts of the events to the police and thus the ASA did not know what crime juvenile would be charged with committing. Juveniles argument cannot be accepted because law enforcement would then be required to predict the outcome of the investigation in the midst of questioning. People v. Booth, 265 Ill.App.3d 462, 637 N.E.2d 580, 202 Ill.Dec. 41 (1st Dist. 1994) 14 year old defendant was not in custody until he implicated himself in a crime where he was not handcuffed, search, fingerprinted, or photographed; no weapons were displayed by the police; he was left unsupervised in an unlocked room when not speaking with the police; and the police informed him of his right to have his mother or a youth officer present during questioning. In re: H.D.B., 301 Ill. App.3d 234, 703 N.E.2d 951, 234 Ill. Dec. 851 (4th Dist. 1998) Questioning of 16 year old in a trailer required Miranda warnings where minor was in custody and his statement was made in response to the officers questions. People v. Brown, 136 Ill.2d 116, 554 N.E.2d 216, 143 Ill.Dec. 281 (1990) Defendant was in custody where he had been arrested in a public place; handcuffed; forcefully brought to a police station; told he was a criminal suspect and that there was sufficient evidence against him to press charges; read his Miranda rights; told he was not free to leave if he so desired; and told that he could have an attorney, yet, when he requested one was told he was not entitled to one.

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) Once a person invokes his right to counsel during custodial interrogation, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) If a suspects request for counsel is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect. The defendants comment "Maybe I should talk to a lawyer" was not a clear invocation of the right to counsel. People v. Olivera, 164 Ill.2d 382, 647 N.E.2d 926, 207 Ill.Dec. 433 (1995) To determine if a suspect has waived his right to counsel, after having invoked it, the preliminary inquiry is whether the defendant, rather than the police, initiated the conversation in a manner evincing a "willingness and a desire for a generalized discussion about the

investigation." The court must then determine if the defendant knowingly and intelligently waived his rights. A defendants question of "What happened" after a lineup does not evince on the part of a defendant a willingness and a desire for a generalized discussion concerning the investigation. "To ascribe such significance to this limited question would render virtually any remark by a defendant, no matter how offhand or superficial, susceptible of interpretation as an invitation to discuss his case in depth. To do so would amount to a perversion of the rule fashioned in Edwards and articulated more fully in Bradshaw." See also Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) wherein the officer readvised the defendant of his rights when defendant asked "Well, what is going to happen to me now?" and the Court found that the officers actions meant that he understood the defendants inquiry as one relating to the investigation. The Court also found a valid waiver because, under the totality of the circumstances, it was reasonable to conclude that the defendants inquiry did evince a willingness and a desire for a conversation relating to the investigation. People v. Howerton, ____Ill.App.3d_____, 782 N.E.2d 942, 270 Ill.Dec. 383 (3rd Dist. 2003) Defendant clearly and unambiguously invoked his Miranda right to counsel on five occasions during the interrogation and the trial court was correct in suppressing defendants statements. Immediately after being told he was under arrest, defendant said, "Take me upstairs then if Im under arrest. Either that or I want a lawyer because-----." The officer did not respect defendants rights by asking, "Are you that stupid," and then badgering defendant to disclose what he knew about the murder and attempt murder under investigation. When defendant responded, "Get me a lawyer. Take me upstairs because theres nothing I can tell you," the officer ignored his response and continued to harangue the defendant. Defendant repeated his request several more times and the police did not cease interrogating the defendant. People v. Allen, 249 Ill.App.3d 1001, 620 N.E.2d 1105, 189 Ill.Dec. 788 (1st Dist. 1993) When a defendant invokes his right to counsel during custodial interrogation, all questioning must cease until counsel has been made available unless defendant later waives the right to counsel by reinitiating the conversation. In order to show this later waiver the State must prove, by a preponderance of evidence, that the defendant initiated further communication with police. Appellate Court found that defendant voluntarily initiated conversation with police after invoking his right to counsel when defendant knocked on the door 10 minutes after police stopped talking to him and left the room with the defendants jacket. (Police wished to test the jacket.) Police then reentered the room, read defendant his rights, and defendant made statements. See also People v. Jackson, 198 Ill.App.3d 831, 556 N.E.2d 619, 145 Ill.Dec. 1 (1st Dist. 1991) Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda regardless of the nature or severity of the offense. Miranda warnings not necessary for a routine traffic stop, as the person stopped is not "in custody" for purposes of Miranda.

In re: B.R., 133 Ill.App.3d 946, 479 N.E.2d 1084, 89 Ill.Dec. 78 (1st Dist. 1985) Miranda warnings were necessary where 15 year old was subject to custodial interrogation. Minor had been placed in a police car with three officers and questioned. All the doors to the car were closed and it was after dark. The officers actions did not constitute general on-the-scene questioning or fact-finding. Police had gone specifically to talk to minor as a result of a telephone tip; minor was the only one interrogated though other gang members were present; minor was told to enter the police car; officers told minor they knew he was at the scene of the shooting; and that he would hurt himself by lying and they wanted to get the gun before anyone else was hurt. Further, officers refused to release the minor from their custody until he confessed. People v. Patel, 313 Ill.App.3d 601, 730 N.E.2d 582, 246 Ill.Dec. 557 (2nd Dist. 2000). Minor defendant was entitled to Miranda warnings where he was in custody after a traffic stop. Defendant was a passenger in the car. Once the driver was taken into custody, the basis for the original traffic stop ceased and the officers decision to question the passenger-defendant regarding matters not germane to the initial traffic stop transformed the situation into a custodial interrogation. People v. Lapisa, 243 Ill.App.3d 777, 612 N.E.2d 994, 184 Ill.Dec. 118 (2nd Dist 1993) Miranda warnings necessary where officers had observed occupants of car snorting cocaine and therefore the arrest of the occupants of the car was imminent or had already commenced when the car was stopped. Law Review Summary Under Gault, juveniles have more procedural rights than previously granted in juvenile courts, yet these rights must be affirmatively invoked and may be waived as long as the waiver is knowing and voluntary under the Michael C. totality test. Theoretically, this test allows judges the discretion to weigh the age of a child more heavily and thereby extend greater protections to juveniles. In practice, however, judges generally do not grant these protections. Kenneth King's analysis of several hundred juvenile-waiver cases reveals only "grudging, if any, accommodations to the youth of the accused." 77 While some states have adopted rules rendering certain juvenile interrogations per se inadmissible if a parent or other interested adult is not present, 78 thirty-five states and the District [*175] of Columbia use the Michael C. totality test without modification. 79 Many state courts analyze waiver under adult Miranda jurisprudence, which takes no account of a suspect's age and therefore often leads to a finding of valid waiver. 80 The legacy of Michael C. is that juveniles now are found to have validly waived their Miranda protections more than 90 percent of the time. Hayley, Gault, and Fare The Court's mention of "the presence and competence of parents" recalls two earlier cases that had reversed convictions of juveniles because of Due Process Clause violations, Haley v Ohio 20 and Gallegos v Colorado. 21 In Haley, the Court ruled that a five-hour interrogation of a fifteen-year-old boy, without a parent or counsel present [*907] and without advising him of his right to counsel, violated due process. 22 The Court did not specifically require the presence of an interested adult to make a juvenile waiver valid, 23 but the opinion repeatedly and eloquently suggested the importance of an adult's presence: [A juvenile] needs counsel and support . . . . He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at [the accused's] side . . . . No lawyer stood guard . . . . No counsel or friend was called. 24 Gallegos, citing Haley, held that the five day detention of a fourteen-year-old boy, absent the presence of his parents, an attorney, or any adult friend, violated the Due Process Clause. 25 As in Haley, the Court did not absolutely require the presence of a friendly adult for any waiver of a juvenile's privilege against self-incrimination, but it considered the absence of an interested adult an important factor in determining his confession to be invalid. 26 The Supreme Court has never required per se the presence of an interested adult, and it made clear, in the 1979 case of Fare v Michael C., 27 that juvenile waivers of Fifth Amendment rights should be judged by the "totality of the

circumstances." 28 In Fare, the Court reversed the decision of the California Supreme Court excluding the sixteen-yearold defendant's confession, which had been obtained without the presence of an interested adult or attorney and after the defendant [*908] had requested to see his probation officer. 29 The central issue in the case was whether the juvenile's request to see his probation officer was equivalent per se to a request to see an attorney for purposes of Miranda; the Court held that it was not. 30 Rather, the Court ruled that the admissibility of statements obtained after such a request was "to be resolved on the totality of the circumstances surrounding the interrogation." 31 According to Fare, the totality approach "includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." 32 Fare does explicitly what Haley and Gallegos had done implicitly: It treats a juvenile due process challenge as primarily a factual inquiry, to be determined by the circumstances of the case rather than by application of specific rules. Totality in the Federal Court As the Eighth Circuit stated in United States v White Bear, 34 "It is apparent . . . that the Court does not hold the presence of parents or counsel necessary to obtain a valid confession or that juveniles are incapable of waiving the right to remain silent." 35 To similar effect is the Fourth Circuit opinion in United States v Miller, 36 which [*909] found, in a case where the accused was questioned without any interested adult present, that the juvenile's age alone was not a decisive factor and that a fourteen-year-old could in some cases intelligently waive his rights.

Officer's merely telling juvenile to tell the truth to show the judge he cooperated did not rise to level of coercion, for purposes of determining voluntariness of his confession. Etherly v. Davis, 619 F.3d 654 (7th Cir. 2010), as amended on denial of reh'g and reh'g en banc (Oct. 15, 2010), cert. denied, 131 S. Ct. 1577 (U.S. 2011) A school counselor who was familiar with the respondent's work testified that respondent was a seventh grade student but his reading level *555 was equivalent to that of an average student beginning fourth grade. In her opinion, respondent's academic achievement was below average and his vocabulary level was about that of a student in the fifth month of second grade. At 555 In Interest of Potts, 374 N.E.2d 891, 895 (Ill. App. 1st Dist. 1978)

We note also People v. Carpenter (1976), 38 Ill.App.3d 435, 347 N.E.2d 781, leave to appeal denied, 63 Ill.2d 559. There, defendant left school when he was in the third grade at age 17. A psychologist testified that defendant scored 76 in an I.Q. test which would classify him in the lowest 2 percent of the general population. After citing and analyzing a number of cases, this court concluded that the finding of the trial court that defendant's waiver was understanding, was not contrary to the manifest weight of the evidence. Applying these authorities to the case before us, we reach the same result. At 556 In Interest of Potts, 374 N.E.2d 891, 895 (Ill. App. 1st Dist. 1978)

Finally, respondent contends that the confession was coerced. It is correct, as defendant urges, that respondent, then some 12 years of age, was taken from his mother's home and questioned by the police. There is testimony in the record, however, that the officers did not shout or raise their voices but spoke in a conversational level. There is police evidence that respondent was not threatened but respondent's mother testified that her son told her that he had been choked. The questioning proceeded for approximately four hours after which respondent made verbal statements in which he admitted that he had burned the deceased child. Respondent urges that there is no evidence that he was fed while in police custody or used the washroom during the time of questioning. The State responds correctly that there is no evidence to the effect that respondent requested and was denied food or the use of bathroom facilities. At 556 In Interest of Potts, 374 N.E.2d 891, 895 (Ill. App. 1st Dist. 1978) While mental condition is relevant to individual's susceptibility to police coercion, mere examination of declarant's state of mind can never conclude due process inquiry into whether statements were made voluntarily; voluntariness analysis under due process clause must focus on crucial element of police overreaching. U.S.C.A. Const.Amend. 14. People v. Manning, 695 N.E.2d 423 (Ill. 1998) a result, regardless of the person's individual characteristics, a statement will not be suppressed under the Due Process Clause in the absence of police coercion. Connellv. 479 U.S. at 167.PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-

Appellant, v. Mary BRAGGS, Defendant-Appellee., 2003 WL 23935802 (Ill.), 14 the court in J.J.C. recognized that evidence of a limited mental capacity alone does not indicate that respondent was incapable of waiving his constitutional rights and making a voluntary confession. J.J.C., 689 N.E.2d at 1180.PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Jon Roe MORGAN, Defendant-Appellant., 2000 WL 34029406 (Ill.), 31 J.J.C. court noted that the juvenile's minimal prior contacts with the police weighed into its decision to find that the juvenile's statements were made involuntarily. However, this observation is only one factor to be measured in light of the totality of the circumstances.PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Jon Roe MORGAN, Defendant-Appellant., 2000 WL 34029406 (Ill.), 31