The opinion of the court was delivered by: Justice McMORROW
At issue in this appeal is whether the defendant, Samuel Villalobos, invoked his fifth amendment right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), by filing a form at a bond hearing that stated defendant would not participate in "any questioning, identification process or other procedures on any case or matter" without his counsel present. The appellate court concluded that he did not. No. 1-96-1139 (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal (177 Ill. 2d R. 315) and now affirm the judgment of the appellate court.
On November 13, 1994, Ronnie Johnson was shot and killed. The evidence at defendant's trial for Johnson's murder established that at 3:30 a.m. on November 13, defendant and four friends drove south on the Dan Ryan Expressway, with defendant in the front passenger seat of the car. The car encountered a white Cadillac, driven by Johnson. Although the testimony is conflicting, it appears that Johnson increased his speed, and defendant told the driver of his car to accelerate and follow Johnson. Defendant then leaned out of the car and fired nine shots at Johnson's car. One bullet entered the left side of Johnson's head and killed him. Roughly 45 minutes after this shooting, defendant and his friends were arrested for possession of cannabis and drinking on a public way-an offense unrelated to Johnson's killing.
On November 14, 1994, defendant appeared at a bond hearing on the possession of cannabis charge. At the bond hearing, defendant signed a form entitled "Appearance, Notice of Representation and Demand for Preliminary Hearing/Trial" (hereinafter, appearance form). In addition to documenting both the assistant public defender's and defendant's demand for a preliminary hearing and trial, the appearance form contained a section stating: "BE ADVISED, the under-signed defendant serves this NOTICE OF REPRESENTATION on the State, its agents and on all law enforcement officers barring the defendant's participation, without the presence of his/her counsel, in any questioning, identification process or other procedures on any case or matter whatsoever." Defendant did not post bond and proceeded to Cook County jail.
On November 16, 1994, pursuant to a writ, two Chicago police officers removed defendant from jail and brought him to police headquarters in order to question him relative to Johnson's death. After being advised of his Miranda rights and waiving them in writing, defendant provided a written statement in the presence of an assistant State's Attorney and a police officer, in which he confessed to the shooting. Defendant was subsequently arrested and charged with Johnson's murder.
Defendant moved to suppress his statement prior to the murder trial. In his motion to suppress, defendant argued that by signing and filing *fn1 the appearance form, which attempted to bar his participation in any questioning on any case or matter, he provided notice to the prosecution that he did not wish to speak to any law enforcement personnel without the assistance of counsel. The assistant public defender who represented defendant at his bond hearing on the cannabis charge testified at defendant's motion to suppress that the appearance form was a "standard form" that she prepared for every defendant whom she represented.
The circuit court denied defendant's motion to suppress, finding that the additional language on the appearance form regarding defendant's unwillingness to speak with law enforcement personnel in "any case" was "surplusage" and bound law enforcement personnel only on the cannabis offense. The inculpatory statement was subsequently introduced at defendant's bench trial for the murder of Ronnie Johnson. The circuit court found defendant guilty.
Defendant appealed his conviction on the ground that the denial of his motion to suppress constituted error. He argued that, by signing and filing the appearance form during his bond hearing on the cannabis charge, he invoked his fifth amendment right to counsel pursuant to Miranda. Police officers violated that right when they subsequently questioned him on an unrelated offense without his counsel being present. The appellate court affirmed defendant's conviction. Quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 169, 111 S. Ct. 2204, 2209 (1991), the appellate court stated that "in order to invoke the Miranda interest, there must be `at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.' " (Emphasis in original.) No. 1-96-1139 (unpublished order under Supreme Court Rule 23).
Defendant appeals the appellate court's determination that the motion to suppress was properly denied because defendant failed to invoke his fifth amendment right to counsel pursuant to Miranda.
In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court required that certain procedural safeguards be provided to a suspect before custodial interrogation. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612 ("[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody"). Although not enumerated in the Constitution, the Supreme Court found these safeguards necessary in order to protect the privilege against compulsory self-incrimination under the fifth amendment. Davis v. United States, 512 U.S. 452, 457, 129 L. Ed. 2d 362, 370, 114 S. Ct. 2350, 2354 (1994), quoting Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 193, 94 S. Ct. 2357, 2364 (1974). Specifically, the Court required that a person in custody be advised of certain rights, including the right to remain silent and the right to an attorney, prior to any interrogation by law enforcement. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612. Edwards v. Arizona further expanded Miranda and held that 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." Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885 (1981).
The single issue presented in this appeal is whether defendant invoked his Miranda right to counsel when, at a bond hearing, the defendant signed a notice of appearance form which included a statement that the defendant would not participate in any future questioning on any matter without his attorney present. There is no dispute that defendant was in custody while at his bond hearing. There is also no dispute that defendant was not subject to interrogation at that time. Nevertheless, defendant argues that he effectively invoked his Miranda right to counsel by filing the appearance form at his bond hearing. Therefore, defendant argues his Miranda right to counsel may be invoked prior to custodial interrogation.
The United States Supreme Court has not directly answered the issue before this court. However, the Court has strongly suggested that a defendant cannot anticipatorily invoke his Miranda right to counsel at a preliminary hearing. In McNeil, the defendant argued that an invocation of his sixth amendment right to counsel acted as an additional invocation of his Miranda right to counsel. McNeil, 501 U.S. at 174, 115 L. Ed. 2d at 166, 11 S. Ct. at 2207. In holding that a sixth amendment invocation does not operate as a Miranda invocation of the right to counsel, the Supreme Court stated in a footnote:
"We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation'-which a preliminary hearing will not always, or even usually, involve [citations]. If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect." McNeil, 501 U.S. at 182 n.3,115 L. Ed. 2d at 171 n.3, 111 S. Ct. at 2211 n.3. See also Edwards, 451 U.S. at 485-86, 68 L. Ed. 2d at 387, 101 S. Ct. at 1885 ("[t]he Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver"); Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689 (1980) (holding that one's Miranda interests are in place when he is subjected to "express questioning or its functional equivalent").
Subsequent to McNeil, this court indicated that a suspect's Miranda right to counsel does not exist at his arraignment. In People v. Kidd, we held that invocation of the sixth amendment right to counsel does not invoke a defendant's Miranda right to counsel. People v. Kidd, 147 Ill. 2d 510, 532 (1992). In so holding, we specifically stated that "although defendant's sixth amendment right to counsel attached when private attorney Earl Washington represented defendant at his arraignment *** on the unrelated murder and arson charges, defendant's fifth amendment right to counsel pursuant to Miranda clearly did not arise at that point." People v. Kidd, 147 Ill. 2d at 532.
In addition to our own precedent, a majority of state courts have relied on the language in McNeil to hold that one cannot anticipatorily invoke the right to counsel prior to custodial interrogation. Sauerheber v. State, 698 N.E.2d 796, 802 (Ind. 1998) ("[McNeil] strongly suggests that the rights under Miranda and Edwards do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins"); Sapp v. State, 690 So. 2d 581, 584-85 (Fla. 1997); People v. Avila, 75 Cal. App. 4th 416, ___, 89 Cal. Rptr. 2d 320, 324 (1999); State v. Warness, 77 Wash. App. 636, 641, 893 P.2d 665, 668 (1995) ("The need for Miranda protection does not exist except in a custodial interrogation situation. The right cannot be invoked before it exists"); see also State v. Stewart, 113 Wash. 2d 462, 477-78, 780 P.2d 844, 853 (1989), quoting State v. Sparklin, 296 Or. 85, 89, 672 P.2d 1182, 1185 (1983) (prior to the Supreme Court decision in McNeil, the Washington Supreme Court held that a ...