The opinion of the court was delivered by: Justice Karmeier
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion.
¶ 1 On April 14, 2003, defendant, Tavares Hunt, was arrested and charged with murder in the shooting death of Shakir Beckley. A Cook County grand jury indicted defendant and charged him with 33 counts of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2002)), 6 counts of attempted murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2002)), 2 counts of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2002)), 1 count of aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2002)), 7 counts of attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 2002)), 1 count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2002)), and 1 count of aggravated battery with a deadly weapon (720 ILCS 5/12-4(b)(1) (West 2002)).
¶ 2 Defendant filed a motion to suppress tape recordings, statements, and conversations with an informant during court-ordered consensual overhears, arguing that they were obtained in violation of his fifth amendment right to counsel (U.S. Const., amend. V) and his rights to counsel and due process under the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 10), as articulated by this court in People v. McCauley, 163 Ill. 2d 414 (1994). He also filed a motion to exclude tape recordings of those conversations, arguing that the recordings were substantially inaudible. The trial court granted both motions, suppressing defendant's statements and the recordings.
¶ 3 On interlocutory appeal, the appellate court affirmed the suppression order. People v. Hunt, 381 Ill. App. 3d 790, 809 (2008). This court affirmed in part, reversed in part, and remanded to the appellate court for its consideration of the suppression of the statements on fifth amendment and McCauley grounds. People v. Hunt, 234 Ill. 2d 49, 65-67 (2009). On remand, the appellate court affirmed the suppression of the statements on McCauley grounds. 403 Ill. App. 3d 802, 830.
¶ 4 We allowed the State's petition for leave to appeal. The sole issue on appeal is whether the statements were properly suppressed on McCauley grounds. For the following reasons, we conclude that they were not. Accordingly, we reverse and remand to the trial court for further proceedings.
¶ 6 While defendant was being held in the Cook County jail on an unrelated charge, he became a suspect in Shakir Beckley's murder. In May 2002, Chicago police detectives took him from the county jail to a Chicago police station and questioned him about the murder. He denied any involvement in, or knowledge of, the murder. The detectives testified that they read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and he waived those rights before he was questioned. Defendant testified, however, that he told the detectives he was not speaking to them unless an attorney was present, but they continued to question him. The detectives denied that he said he did not want to talk to them or that he requested an attorney. In fact, they testified that he consented to, and took, a polygraph test, for which he signed a written waiver. After the polygraph test, the detectives questioned him again, and he continued to deny any involvement in the murder. Because the questioning finished late and they wanted to question him further, they kept him at the police station overnight. The next day, they questioned him again, and he continued to deny any involvement in the murder. The detectives fingerprinted him before returning him to the county jail later that day.
¶ 7 On June 28, 2002, an assistant public defender was assigned to represent defendant in the unrelated case. Defendant testified that he told counsel that day and on July 12, 2002, that Chicago police detectives were questioning him about an unrelated, uncharged matter and, on both days, counsel told him not to talk to the police.
¶ 8 On July 16 or 17, 2002, the detectives took defendant from the county jail to the police station so Mycal Davis, who was also in the jail on an unrelated charge, could view him in a lineup. The lineup had to be rescheduled because defendant and Davis were put in the bullpen together even though they were supposed to be brought out at different times so they would not see each other.
¶ 9 After Davis had been in the bullpen with defendant, he told the detectives that he knew defendant; that defendant was involved in Beckley's murder; that he and defendant had a conversation about Beckley's murder, in which defendant made incriminating statements; and that he thought he could get defendant to repeat the statements. The detectives then decided to set up a judicially authorized overhear, using Davis as the consenting party.
¶ 10 Defendant testified that on July 18, 2002, the detectives took him from the county jail to the police station and questioned him about Beckley's murder. Defendant testified that he told them he did not want to talk to them and that he wanted to talk to a lawyer.
¶ 11 On July 31, 2002, guards told defendant that the detectives were coming to put him in a lineup. He called counsel and left a message, asking counsel to go to the police station for the lineup.
¶ 12 The detectives then took defendant from the county jail to the police station, put him in an interview room, and left him alone for about three hours. During that time, he was not handcuffed and was given food and water. He was not questioned by any police officer that day. At about 3 p.m., Davis, who was wearing a concealed wire pursuant to a court order, was put in the interview room with him. The detectives recorded the conversation between defendant and Davis and monitored the conversation from another room. Defendant allegedly implicated himself in Beckley's murder.
¶ 13 The lieutenant in charge of the Beckley investigation testified that, at some point during the overhear, when he took a break from monitoring the conversation, he was told that an attorney was there, asking to speak with defendant. He testified that he met with the attorney at about 4:02 p.m. The attorney said he represented defendant on an unrelated charge and asked why defendant was at the police station. The lieutenant responded that defendant was there for a lineup in a case under investigation, which was unrelated to the one for which he was in jail. Counsel asked to meet with defendant and to be present during the lineups. The lieutenant asked counsel to give him "about five minutes." According to the lieutenant, the overhear ended shortly after 4 p.m., and counsel was then allowed to speak with defendant.
¶ 14 Counsel testified, from his contemporaneous notes, that, after he got defendant's message on July 31, he called the police station and confirmed that defendant was there. He asked to speak with the detectives and was told they were "out in the field." He said he was coming down to the police station. He arrived at 3:14 p.m., and the detectives were paged at 3:19 p.m. Counsel testified that he repeatedly asked to speak with defendant but was not allowed to do so until sometime between 4:02 and 4:12 p.m. At 4:12 p.m., after meeting with counsel, defendant invoked his rights to remain silent and to have counsel present during questioning. According to the detectives, this was the first time defendant had invoked his rights.
¶ 15 On August 6, 2002, the detectives again took defendant from the county jail to the police station; put him in an interview room with Davis, who was wearing a concealed wire; and monitored and recorded the conversation, during which defendant again allegedly implicated himself in Beckley's murder. He was not questioned by the police that day. The public defender's office had withdrawn its representation of defendant in the unrelated case a few days earlier, and no counsel was present during the overhear that day.
¶ 16 Relying on McCauley, the trial court suppressed those parts of defendant's statements and recordings made after counsel arrived at the police station on July 31, holding that defendant had a right to speak with counsel within a reasonable time after counsel arrived. The court denied defendant's motion to suppress the August 6 statements and recordings because counsel was not present that day. The court later vacated its suppression order sua sponte and allowed the parties to provide additional arguments about the impact of counsel's arrival on July 31.
¶ 17 Defendant subsequently filed his motion to exclude the recordings, arguing that they were substantially inaudible. After listening to the recordings and hearing further arguments of counsel, the trial court suppressed all of defendant's statements and all of the recordings. In doing so, the court relied on McCauley and found that defendant had a right to speak with counsel within a reasonable time after counsel's arrival at the police station at 3:14 p.m. on July 31 but was not allowed to do so until 4:02 p.m., ...