People v. Coleman

2015 IL App (4th) 140730, 37 N.E.3d 360

Opinion

FILED 2015 IL App (4th) 140730 July 20, 2015 Carla Bender NO. 4-14-0730 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

Appeal from THE PEOPLE OF THE STATE OF ILLINOIS, ) Plaintiff-Appellant, ) Circuit Court of Sangamon County v. ) No. 13CF749 STEPHEN C. COLEMAN, ) Defendant-Appellee. ) Honorable ) Peter C. Cavanagh, ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Steigmann dissented, with opinion.

OPINION

¶1 On August 22, 2013, the State charged defendant, Stephen C. Coleman, with

manufacture/delivery of cannabis (720 ILCS 550/5(d) (West 2012)) and possession of cannabis

(720 ILCS 550/4(d) (West 2012)). On July 20, 2014, the trial court granted defendant's motion

to suppress statements he made to parole officers because he was not provided warnings pursuant

to Miranda v. Arizona, 384 U.S. 436 (1966). The State appeals, arguing the court erred in

granting defendant's motion to suppress. We affirm.

¶2 I. BACKGROUND

¶3 On February 3, 2014, defendant filed a motion to suppress statements he made to

parole officers on August 6, 2013. At issue was defendant's purported statement he had

marijuana under his mother's bed. Defendant argued his statement resulted from a custodial interrogation where the parole officers failed to advise him of his Miranda rights prior to

questioning.

¶4 On February 26, 2014, the trial court held a hearing on defendant's motion to

suppress. Defendant testified he was visiting his mother at 546 West Miller Street in Springfield

at approximately 9:30 a.m. on August 6, 2013, and was on parole at the time. When he called

the Department of Corrections for his monthly check-in, defendant was told his parole officer

was looking for him. Defendant provided his mother's address. Shortly thereafter, a parole

agent, Mark Brady, and another parole agent, Mark Schafer, arrived at defendant's mother's

residence. Defendant testified his registered address was 1338 North 8th Street and he had not

changed his parole address.

¶5 Agent Brady asked defendant to provide a urine sample. Defendant and the two

agents went into his mother's apartment. Defendant's mother and girlfriend were inside the

apartment. However, defendant was kept separated from these individuals during the encounter.

Defendant provided the sample in his mother's bathroom in Brady's presence. While defendant

was providing the sample, Agent Schafer was searching what he believed was defendant's

bedroom. Schafer found a lockbox with money inside. According to defendant, after Schafer

found the money, Brady cuffed defendant. They then questioned him about the money.

¶6 The agents took defendant back into the bathroom. Shortly thereafter, they began

questioning him about allegations he was selling drugs. He was still handcuffed at that time.

They also asked if he had drugs in the residence. The agents did not advise defendant of his

Miranda rights prior to questioning him.

¶7 Defendant testified he was not afraid of the parole officers and had been

handcuffed (behind his back) for approximately five minutes before the agents questioned him

-2- about dealing drugs. The agents did not take out any weapons during the encounter and no

police officers were present.

¶8 On redirect examination, the following exchange occurred between defense

counsel and defendant:

"[DEFENSE COUNSEL]: [Defendant], did you believe

you were—when they handcuffed you, did you believe that you

could leave?

[DEFENDANT]: Yes.

[DEFENSE COUNSEL]: So you thought that you could

leave when they had you handcuffed?

[DEFENDANT]: Yes. I hadn't done anything wrong.

[DEFENSE COUNSEL]: I'm not asking you to admit that

you did anything wrong. Did you believe you were under arrest

when they put you in handcuffs?

[DEFENDANT]: No."

Defendant also testified he was kept apart from his mother and girlfriend while he was being

questioned by the agents. He could not hear them talking, and he did not think they could hear

him talking.

¶9 After defendant testified, the State moved to dismiss defendant's motion to

suppress, arguing defendant had failed to establish a prima facie case a Miranda violation had

occurred. The trial court granted the State's motion to dismiss, stating:

"The investigation of this violation of probation was an appropriate

investigation. I do find there was a valid waiver based upon

-3- People's 1, the plain language of the parole mandatory supervised

release agreement.

Also, the court is clearly troubled by the testimony of the

Defendant, that he did not feel at the time of the questioning that

he was under arrest at that time. So with regard to Miranda, the

Court does not find there's a prior violation [sic] and that the

burden has not shifted."

¶ 10 On July 15, 2014, defendant filed a motion asking the trial court to reconsider its

dismissal of his motion to suppress. Defendant argued the court erred in failing to shift the

burden to the State to show defendant's questioning complied with Miranda or fell into one of

the rule's exceptions. The court granted defendant's motion to reconsider and held another

hearing on the suppression issue that afternoon.

¶ 11 At the hearing, the State first called parole agent Brady. Brady testified he is not

considered a general criminal investigator. When he witnesses evidence of a new crime by a

parolee, he calls the local police to work on the new crime. He never gives Miranda warnings to

parolees during compliance checks.

¶ 12 Brady testified he did a compliance check on defendant at the Miller Street

address because defendant had reported a change of address to that location. Brady testified he

suspected defendant was selling drugs because of numerous calls the parole office had received.

Defendant told Brady the apartment on Miller Street was his. Brady told defendant he was going

to conduct a compliance check and asked defendant to provide a urine sample. Defendant agreed

to do so and told Brady he would test positive for marijuana. While defendant was providing the

urine sample, parole agent Schafer began searching defendant's room in the apartment.

-4- ¶ 13 While defendant was providing the urine sample, Agent Schafer found a "locked

box" in defendant's bedroom. Brady took defendant into the bedroom and requested defendant

open the box. Defendant consented and opened the box. Brady then handcuffed defendant

behind his back. According to Brady, handcuffing a parolee during a compliance check is

standard operating procedure. The box contained a large amount of cash and some other items.

Brady asked defendant how he acquired a large amount of cash considering he was unemployed.

Defendant said he earned the money doing yard work.

¶ 14 After asking defendant about the money in the box, Brady and Schafer asked

defendant three or four more questions. Brady testified the agents told defendant they suspected

he had been selling marijuana. The agents told defendant they wanted him to be honest with

them and asked defendant whether he had anything in the home. Defendant told the agents he

had some marijuana under his mother's bed. Defendant had only been handcuffed a few minutes

when he told the agents about the marijuana. During the questioning, defendant was

cooperative.

¶ 15 Brady then asked defendant's mother if he could search her bedroom, and she

consented. Brady found boxes under her bed containing marijuana. After finding the drugs, the

parole agents called the Springfield police to the scene.

¶ 16 According to Brady, the entire encounter only took 15 to 20 minutes. Neither

parole agent drew his firearm. Brady testified they did not threaten, bribe, or trick defendant into

making any admissions. They also did not threaten him with arrest or a parole violation prior to

his statement regarding the marijuana. Further, the police had no involvement in initiating the

compliance check or in how the check was conducted. Defendant remained handcuffed while

they waited for the Springfield police to arrive.

-5- ¶ 17 On cross-examination, Brady stated he had several anonymous tips defendant was

selling marijuana prior to conducting the compliance check. Defendant was reportedly selling

marijuana from his parole address on North 8th Street. It was also reported he was going in and

out of his car during these drug sales.

¶ 18 Brady testified no drugs were found in defendant's car, on his person, or in what

they believed was defendant's bedroom. Brady acknowledged his report noted defendant was

not handcuffed until after defendant said he earned the money found in the bedroom by

performing yard work. While the agents were questioning defendant, he was not allowed to

consult with anyone and was kept separate from his mother and girlfriend. Brady testified the

questioning occurred in the bedroom of the apartment. Both Brady and Schafer were armed.

Brady was wearing his gun on the outside of his clothes, where it was visible.

¶ 19 Parole agent Schafer testified the agents had no intent to arrest defendant when

they asked him if there were any drugs in the house. While searching defendant's room, Schafer

found a lockbox. When defendant finished the drug test, Schafer told Brady he needed

defendant to open the lockbox. Brady then questioned defendant about money found in the

lockbox. Defendant was handcuffed after he opened the lockbox. Once he was handcuffed,

defendant was not going to be allowed to leave. In fact, Schafer testified defendant was never

allowed to leave of his own volition that morning. Schafer testified defendant was not given his

Miranda warnings. According to Schafer, it is standard for agents to ask whether there is

anything illegal or there are any weapons the agents should know about. Schafer testified no one

else was permitted in the room with the agents and defendant. Defendant's mother and girlfriend

were directed to stay out of the bathroom. Agent Schafer testified neither defendant, his mother,

-6- nor his girlfriend was going to be allowed to leave the apartment during the encounter. Cannabis

was later found in defendant's mother's room.

¶ 20 On July 30, 2014, the trial court granted defendant's motion to suppress. The

court stated:

"The resident check of the parolee's residence, certainly it

would be permissible for drug testing, questioning, search, even

the cuffing of the Defendant-parolee for the safety of the officers,

and I really don't see where any of that would be a violation of the

parole agreement. However, the facts and circumstances in this

case, in the Court's view, turned a resident check of a parolee to

that of a custodial interrogation which invoked the right to

Miranda warnings.

You know, if the—at the point, I should say, of the

questioning, which certainly would be permissible as regards to

compliance with parole terms, but investigation of a new crime

wherein there was a tip, and I did hear testimony of the parole

officer that stated that the Defendant was not free to leave while

handcuffed and being questioned. Those are very important

factors in this particular case.

We have security personnel acting in a coordinated effort

bringing in a partner to question the suspect after making

arrangements to be paged and go see the parolee-Defendant, search

his home, handcuffed him, with the knowledge that there was a tip,

-7- and I think that's the key, and I'm just trying to make the point that

the tip is very, very crucial in this case, which otherwise may have

been an impermissible parole check.

The tip leads the parole officer there, and when coupled

with the tip, evidence of a new crime, that being the money, for

this Court, that is enough—in the context of a handcuffed parolee

and testimony that he was not free to leave is enough to invoke his

right to Miranda."

On August 13, 2014, the State filed a certificate of impairment and declaration it intended to

appeal.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 The State argues the trial court erred in granting defendant's motion to suppress.

According to the State, Agents Brady and Schafer were under no duty to advise defendant of his

Miranda rights. Because of the conditions related to his mandatory supervised release, the State

contends defendant was required to truthfully answer his parole officer's questions. Further, the

State argues defendant was not subjected to a custodial interrogation. Because the State

concedes defendant was not Mirandized prior to making the statements at issue, the question

becomes whether defendant's statements resulted from a custodial interrogation.

¶ 24 A. Standard of Review

¶ 25 Suppression rulings present a mixed question of law and fact. People v. Pitman,

211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004). A trial court's factual findings should be upheld

unless they are against the manifest weight of the evidence. Id. However, whether the evidence

-8- should be suppressed is a question of law, which we review de novo. Id. at 512, 813 N.E.2d at

101.

¶ 26 B. Custody for Miranda Purposes

¶ 27 Our supreme court has stated courts should engage in a two-part inquiry to

determine whether a person is in custody, necessitating Miranda warnings prior to questioning

the individual. First, courts should look at the circumstances surrounding the interrogation.

Second, courts should determine whether a reasonable person, innocent of any crime, would

have felt at liberty to terminate the interrogation and leave given those circumstances. People v.

Braggs, 209 Ill. 2d 492, 505-06, 810 N.E.2d 472, 481 (2003).

¶ 28 Although defendant was on parole, the United States Supreme Court has made the

following clear: "A defendant does not lose [his fifth-amendment] protection by reason of his

conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time

he makes incriminating statements, if those statements are compelled they are inadmissible in a

subsequent trial for a crime other than that for which he has been convicted." Minnesota v.

Murphy, 465 U.S. 420, 426 (1984). The State acknowledges a parolee, like a probationer, does

not lose his privilege against self-incrimination. However, citing Murphy, the State argues the

Supreme Court has not extended the requirements of Miranda warnings to prearranged, routine

parole interviews with parole officers. Further, the State argues the parole agents were under no

duty to advise defendant of his Miranda rights because defendant was under parole supervision

and was required, as a condition of his mandatory supervised release, to truthfully answer his

parole officer's questions relating to his adjustment in the community while on parole. See 730

ILCS 5/3-3-7(a)(14) (West 2012).

-9- ¶ 29 However, based on the facts here, Murphy supports the trial court's decision to

suppress defendant's statements in this case. In Murphy, the defendant, who was on probation,

admitted to his treatment counselor he committed a rape and murder in 1974. Murphy, 465 U.S.

at 423. Upon receiving this information, the probation officer contacted the defendant to set up a

meeting to discuss a treatment plan for the remainder of his probationary period. Id. The

probation officer did not contact the police prior to the meeting but knew she would report to the

police any incriminating statements the defendant made. Id. At the meeting at her office, the

officer told the defendant she had information from his treatment counselor evidencing his

continued need for treatment. Id. at 423-24. Subsequently, defendant admitted committing the

rape and murder but attempted to persuade the probation officer he did not need further treatment

because "several extenuating circumstances explained the prior crimes." Id. at 424.

¶ 30 The probation officer told the defendant she had a duty to report to the police

what the defendant told her and encouraged him to turn himself in to the authorities. Id. The

defendant left after the interview. Id. Two days later, he informed the probation officer he was

not turning himself in on advice of counsel. Id. A grand jury later indicted the defendant for

first degree murder. Id. at 425. The defendant moved to suppress his confession, arguing it was

made in violation of the fifth and fourteenth amendments. The trial court denied his motion, but

the Minnesota Supreme Court reversed. Id.

¶ 31 The United States Supreme Court noted an individual's obligation to appear and

truthfully answer questions does not, in and of itself, convert otherwise voluntary statements into

compelled statements. Id. at 427. According to the Court, individuals on probation or parole

are:

- 10 - "in no better position than the ordinary witness at a trial or before a

grand jury who is subpoenaed, sworn to tell the truth, and

obligated to answer on the pain of contempt, unless he invokes the

privilege and shows that he faces a realistic threat of self-

incrimination. The answers of such a witness to questions put to

him are not compelled within the meaning of the Fifth Amendment

unless the witness is required to answer over his valid claim of the

privilege. This much is reasonably clear from our cases.

***

*** It has long been recognized that '[t]he Constitution

does not forbid the asking of criminative questions,' [citation], and

nothing in our prior cases suggests that the incriminating nature of

a question, by itself, excuses a timely assertion of the privilege.

[Citation.] If a witness—even one under a general compulsion to

testify—answers a question both he and the government should

reasonably expect to incriminate him, the Court need ask only

whether the particular disclosure was 'compelled' within the

meaning of the Fifth Amendment." Id. at 427-28.

¶ 32 The Supreme Court noted, when the government asks a witness questions

reasonably likely to elicit incriminating evidence, the witness must assert the privilege rather

than answer if he does not want to incriminate himself. Id. at 429.

"If he asserts the privilege, he 'may not be required to answer a

question if there is some rational basis for believing that it will

- 11 - incriminate him, at least without at that time being assured that

neither it nor its fruits may be used against him' in a subsequent

criminal proceeding [citation] (emphasis in original). But if he

chooses to answer, his choice is considered to be voluntary since

he was free to claim the privilege and would suffer no penalty as

the result of his decision to do so." Id.

¶ 33 The Supreme Court then discussed the well-known exception to this general rule

with regard to custodial interrogations. Id. To lessen the risk of an individual being compelled

by the isolation of police custody, the Court in Miranda "required the exclusion of incriminating

statements obtained during custodial interrogation unless the suspect fails to claim the Fifth

Amendment privilege after being suitably warned of his right to remain silent and of the

consequences of his failure to assert it." Id. at 430. The Court noted "this extraordinary

safeguard 'does not apply outside the context of the inherently coercive custodial interrogations

for which it was designed.' " Id. Because the defendant's statements were not made during a

custodial interrogation, the Supreme Court found Miranda did not apply. Id. at 431.

¶ 34 Noting the Minnesota Supreme Court recognized the defendant was not in

custody when he made the incriminatory statements, the Court stated:

"Since [the defendant] was not physically restrained and could

have left the office, any compulsion he might have felt from the

possibility that terminating the meeting would have led to

revocation of probation was not comparable to the pressure on a

suspect who is painfully aware that he literally cannot escape a

persistent custodial interrogator." Id. at 433.

- 12 - ¶ 35 Unlike Murphy, the parole agents handcuffed defendant in this case, and custody

is at issue. The State points out "custody" has been narrowly circumscribed for Miranda

purposes. See Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977). The Illinois Supreme Court

has stated:

"The determination of whether a defendant is 'in custody,'

and, therefore, whether the warnings set forth in Miranda are

required, involves ' "[t]wo discrete inquiries ***: first, what were

the circumstances surrounding the interrogation; and second, given

those circumstances, would a reasonable person have felt he or she

was not at liberty to terminate the interrogation and leave." '

[Citation.] When examining the circumstances of interrogation,

this court has found a number of factors to be relevant in

determining whether a statement was made in a custodial setting,

including: (1) the location, time, length, mood, and mode of the

questioning; (2) the number of police officers present during the

interrogation; (3) the presence or absence of family and friends of

the individual; (4) any indicia of a formal arrest procedure, such as

the show of weapons or force, physical restraint, booking or

fingerprinting; (5) the manner by which the individual arrived at

the place of questioning; and (6) the age, intelligence, and mental

makeup of the accused. [Citations.] After examining and

weighing these various factors, we then must make an objective

determination as to whether, under the facts presented, 'a

- 13 - reasonable person, innocent of any crime' would have believed that

he or she could terminate the encounter and was free to leave."

People v. Slater, 228 Ill. 2d 137, 150, 886 N.E.2d 986, 994-95

(2008).

¶ 36 According to the State, "Under the narrow standard appropriate in the Miranda

context, it is clear that defendant was not in custody for purposes of receiving Miranda

protection since there was no formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest." We disagree.

¶ 37 In looking at the factors we are to consider, we find the following. First,

defendant was in a location familiar to him. He was not taken to an interrogation room or jail.

Further, defendant was subjected to relatively brief, around 20 minutes, questioning. Second,

two parole officers were present, both of whom were armed. Brady's weapon was ordinarily

holstered on the outside of his clothing—so it would have been in plain view. Third, defendant

was separated from his mother and girlfriend while he was questioned in the bathroom. Fourth,

defendant was physically restrained by handcuffs. Fifth, defendant was at his mother's residence

when the parole officers arrived. Sixth, defendant was 30 years old. Defendant's intelligence

and mental condition are not discernible from the record.

¶ 38 In this case, the parole agents handcuffed defendant and then questioned him

about illegal drug activity of which they had advanced knowledge. When a law enforcement

officer places handcuffs on an individual, the officer is making a show of force and physically

restraining the individual. Handcuffing an individual by a state officer is indicative of an arrest.

When a reasonable person is placed in handcuffs by law enforcement, he will not feel free to

leave until the handcuffs are removed. Defendant's subjective belief he was free to leave was

- 14 - unreasonable and irrelevant to our determination. See Stansbury v. California, 511 U.S. 318,

323 (1994).

¶ 39 The State argues the parole officers did nothing wrong in handcuffing defendant.

Further, according to the State, "[t]he fact defendant was handcuffed does not automatically

establish that he was in custody for Fifth Amendment purposes."

¶ 40 The Supreme Court has held, for fourth-amendment purposes, a search warrant

founded on probable cause implicitly carries with it the limited authority to detain occupants of

the premises. Michigan v. Summers, 452 U.S. 692, 704-05 (1981). Further, this court has held

handcuffing a suspect does not transform a Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)) into an

arrest. People v. Waddell, 190 Ill. App. 3d 914, 928, 546 N.E.2d 1068, 1076 (1989). However,

"[h]andcuffs are generally recognized as a hallmark of a formal arrest." United States v. Newton,

369 F.3d 659, 676 (2004) (citing New York v. Quarles, 467 U.S. 649, 655 (2d Cir. 1984)).

¶ 41 In this case, the parole officers' ability to detain defendant with handcuffs is not

at issue. Defendant does not argue the parole agents violated his rights by handcuffing him.

Instead, defendant argues his statements were inadmissible because he was handcuffed—and

thus in custody—and then made the statements at issue in response to interrogation about a

criminal act for which he had not been charged.

¶ 42 The State concedes in its brief the parole agents' "home visit evolved into an

investigation of a parole violation that focused on the possession of drugs inside defendant's

residence." However, the State argues the agents' investigation:

"was not specifically designed to elicit admission of an unrelated

and independent crime. Therefore, even though the parole officer

questioned defendant regarding the anonymous tip concerning

- 15 - drug sales, the compliance check was not turned into a custodial

interrogation. Whether there were any drugs, weapons, or

anything illegal in the home that the parole officer should know

about was a standard question asked during every parole

compliance check."

However, in this case, the parole agents already suspected defendant was dealing drugs. Further,

only after the agents found the large amount of money in the safe, which furthered their

suspicions about ongoing illegal activity, did they handcuff defendant and interrogate him about

the presence of drugs, weapons, or anything illegal in the home. A reasonable person would

have assumed a routine parole visit had transformed into an arrest because defendant was only

handcuffed after the parole agents found a large amount of money and questioned how he

acquired it.

¶ 43 The State cites an opinion from the Court of Appeals of New Mexico for the

proposition the handcuffing in this case was entirely reasonable and not coercive. See State v.

Hermosillo, 336 P.3d 446 (N.M. Ct. App. 2014). The New Mexico court found the defendant

was not in custody under the specific facts of that case and, therefore, no Miranda warnings were

required. Id. at 448. The New Mexico court stated "[t]he following factors guide our inquiry

[into whether the custody requirement is met]: 'the purpose, place, and length of interrogation[,]

... the extent to which the defendant is confronted with evidence of guilt, the physical

surroundings of the interrogation, the duration of the detention, and the degree of pressure

applied to the defendant.' " Id. at 450 (quoting State v. Munoz, 1998-NMSC-048, ¶ 40, 126 N.M.

535, 972 P.2d 847). Illinois courts look at different factors to determine whether a suspect is in

custody, including "any indicia of a formal arrest procedure, such as the show of weapons or

- 16 - force, physical restraint, booking or fingerprinting." Slater, 228 Ill. 2d at 150, 886 N.E.2d at

995. As a result, we do not find Hermosillo persuasive.

¶ 44 The State also relies on United States v. Newton, 181 F. Supp. 2d 157, 173

(E.D. N.Y. 2002), for the proposition handcuffing a defendant does not transform a detention

into custody for Miranda purposes. In Newton, like the case sub judice, the defendant was on

parole. The defendant's mother had reported to a parole officer the defendant possessed a gun,

which he kept in a box by the door of her home, and threatened to kill her and her husband. Id.

at 159. The defendant occasionally stayed as an overnight guest at his mother's home. Id. The

next day, three parole officers and three police officers went to the defendant's mother's home.

Id. at 160. When the defendant answered the door, his parole officer asked him to step outside

and turn around. Id. The officer then handcuffed the defendant but advised the defendant he

was not under arrest. Id.

¶ 45 The officers then took the defendant back inside the residence and sat him on a

chair just inside the door. Id. The defendant's parole officer asked where the defendant's mother

was, and defendant said she was in the back of the residence. Id. Another parole officer then

began questioning the defendant, asking whether the defendant had any contraband in the home.

Id. The defendant responded, " 'only what is in the box.' " Id. When asked what was in the box,

the defendant said, " 'a two and two.' " Id. The parole officer opened the box and found an

unloaded .22-caliber firearm, a fully loaded magazine, and several loose rounds. Id. The officer

testified the defendant's parole was revoked automatically and he was then under arrest. Id. No

one read the defendant the Miranda warnings before or during his questioning or arrest. Id.

¶ 46 The federal district court denied the defendant's motion to suppress the statements

he made in response to the parole officers' questions. Id. at 175. The court found the defendant

- 17 - was not in custody for Miranda purposes. Id. Relying on the Second Circuit's opinion in United

States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987), the district court found the proper test to apply

to determine custody for Miranda purposes was "whether the 'questioning was conducted in

custodial settings that have inherently coercive pressures that tend to undermine the individual's

will to resist and to compel him to speak.' " Newton, 181 F. Supp. 2d at 168 (quoting Morales,

834 F.2d at 38). The court found focusing on "the presence of indications that the defendant was

not free to leave is over-inclusive." Id. at 169. According to the court:

"I believe that the Morales formulation adheres more

closely to Miranda's central concern that the police will use

coercive environments and psychological tactics to compel

subjects of questioning to confess. The language in [Tankleff v.

Senkowski, 135 F.3d 235, 243-44 (2d Cir. 1998),] that focuses on

the presence of indications that the defendant was not free to leave

is over-inclusive. There are many situations in which there are

powerful indications that the suspect was not free to leave in which

coercive pressures to confess are absent. [Citations.] Indeed, even

a fully law-abiding citizen would not feel free to leave during

nearly all interactions with the police. *** In my view, the

Morales formulation is the appropriate approach to determine

whether a person is in custody ***." Id.

The court found "the core concerns of Miranda were not implicated" in the parole officer's

questioning of the defendant. Id. at 173. According to the court:

- 18 - "While there were indications that [the defendant] was not free to

leave, a reasonable person in his position also would not have felt

placed in a coercive environment in which he has no choice but to

submit to the parole officer's will and confess. This conclusion is

supported by an analysis of the factors courts have used to

determine whether an individual was in custody." Id.

The court noted Newton was at home and the officers told him he was not under arrest. Id.

¶ 47 While the district court's reasoning might support reversing the trial court in this

case, the Second Circuit did not find so when the defendant in Newton appealed. The Second

Circuit found the defendant was in custody for Miranda purposes. The Second Circuit stated:

"We take this opportunity to clarify how the free-to-leave

test referenced in Tankleff and the coercive-pressures test

referenced in Morales both serve to identify circumstances

requiring Miranda warnings. The free-to-leave inquiry constitutes

a necessary, but not determinative, first step in establishing

Miranda custody. The 'ultimate inquiry' for determining Miranda

custody, however, is that articulated by the Supreme Court in

California v. Beheler: 'whether there is a "formal arrest or restraint

on freedom of movement of the degree associated with a formal

arrest." [Citations.] In such cases—i.e., where a person formerly

at liberty is subjected to formal arrest or arrest-like restraints—

specific coercive pressures need not be proved to establish

- 19 - Miranda custody; rather, coercive pressures are presumed from

the fact of such custody. [Citation.]

United States v. Morales is not at odds with this

conclusion; it simply presents circumstances where it made little

sense to ask whether the defendant had been questioned pursuant

to formal arrest or arrest-like restraints. Morales was a prison

inmate at the time of the challenged questioning; thus,

incarceration, not liberty, was his status quo. We have declined,

however, to equate such incarceration with custody for purposes of

Miranda. [Citations.] It is in the particular context of prison

interrogation that Morales's focus on the coercive pressures of a

custodial setting must be understood. Thus, while the Morales

formulation of custody relied on by the district court may be useful

in cases involving interrogation of individuals already incarcerated

on other crimes, for a person not so confined, the appropriate

inquiry remains simply whether his freedom of action has been

'curtailed to a "degree associated with formal arrest." ' [Citation.]

No consideration of additional coercive pressures is required."

(Emphasis added.) Newton, 369 F.3d at 670-71.

In addition, the Second Circuit stated:

"[A]lthough coercive pressure is Miranda's underlying concern,

custody remains the touchstone for application of its warning

requirement. The test for custody is an objective one: 'whether a

- 20 - reasonable person in defendant's position would have understood

himself to be subjected to the restraints comparable to those

associated with a formal arrest.' United States v. Ali, 68 F.3d 1468,

1472 (2d Cir. 1995) (internal quotation marks omitted). Focusing

on this objective standard has the advantage—certainly from the

perspective of the hundreds of thousands of law enforcement

officers who must daily apply Miranda—of establishing a regular

course of procedure. It does not require officers to administer

Miranda warnings based on a self-assessment of their actions as

'coercive'; rather, it instructs them to administer warnings

whenever they place a person under formal arrest or apply

restraints generally understood as comparable to those of a formal

arrest." Id. at 671-72.

¶ 48 Based on the facts in Newton, which have many similarities to the case sub judice,

the Second Circuit held "a reasonable person would have understood that his interrogation was

being conducted pursuant to arrest-like restraints." Id. at 677. According to the Second Circuit:

"Although a reasonable person told, as [the defendant] was, that he

was not under arrest would likely have understood that he was not

about to be removed from his home to the police station—a

significant factor in assessing the degree to which one is at 'the

mercy' of the authorities, [citation]—a reasonable person would

also have understood that as long as the handcuffs remained in

place, his freedom of movement, even within his home, would be

- 21 - restricted to a degree comparable to that of an individual placed

under formal arrest. The record does not indicate whether [the

defendant] was told that the specific reason for a safety concern in

his case was that the officers were searching for a gun. Thus, we

cannot assume that a reasonable person in his situation would have

understood that the handcuffing would likely last only until the

officers had completed their search. Neither can we assume an

understanding that removal or maintenance of the handcuffs

depended on the outcome of the search rather than on the suspect's

responding to questions posed. Because Miranda's safeguards

'become applicable as soon as a suspect's freedom of action is

curtailed to a degree associated with formal arrest,' [citation]

(internal quotation marks omitted), we must conclude that

handcuffing [the defendant], though reasonable to the officers'

investigatory purpose under the Fourth Amendment, nevertheless

placed him in custody for purposes of Miranda." Id.

We find the Second Circuit's reasoning persuasive.

¶ 49 In the case sub judice, defendant's freedom was limited to a degree associated

with a formal arrest. As stated earlier, a reasonable person in defendant's position would have

believed a parole visit had morphed into an arrest, considering defendant was cuffed only after

the parole agents found a large amount of cash and questioned him as to how he acquired the

money.

- 22 - ¶ 50 Finally, we address the State's argument the trial court erred in granting

defendant's motion to suppress because defendant testified he believed he was free to leave, even

when handcuffed. Citing several decisions from this court, the State argues the threshold issue

implicit in any defendant's motion to suppress a statement is whether the defendant subjectively

believed he was in custody during the interrogation. See People v. Gorman, 207 Ill. App. 3d

461, 469, 565 N.E.2d 1349, 1354 (1991); People v. Goyer, 265 Ill. App. 3d 160, 164-65, 638

N.E.2d 390, 393 (1994); People v. Griffin, 385 Ill. App. 3d 202, 211-12, 898 N.E.2d 704, 712

(2008); People v. Wright, 2011 IL App (4th) 100047, ¶ 36, 960 N.E.2d 56.

¶ 51 The Third District has rejected the subjective-belief line of reasoning found in this

court's opinions cited by the State. See People v. Carroll, 318 Ill. App. 3d 135, 742 N.E.2d 1247

(2001). In Carroll, after receiving information the defendant had implicated himself in the death

of his brother 36 years earlier, two police officers went to the elderly care facility where the

defendant lived to speak with him. Id. at 137, 742 N.E.2d at 1248. The defendant agreed to the

officers' request to accompany them to the local police department. Id. The police officers had

informed the defendant he was not under arrest, nor in custody, and was free to leave at any time.

Id. at 137, 742 N.E.2d at 1249.

¶ 52 The police officers transported the defendant to the police station in an unlocked

police car, and the defendant was not handcuffed. Id. After arriving at the police station, the

officers took defendant into an 8-foot by 12-foot windowless interview room. Id. Once again,

the officers told the defendant he was not under arrest and could leave at any time. Id. The

officers never read defendant his Miranda rights. Id. During the 30- to 45-minute interview, the

defendant eventually confessed. Id. Following his admission, the officers asked the defendant to

provide a taped statement, again informing the defendant he was not under arrest and was free to

- 23 - leave at any time. Id. The police officers still had not given him Miranda warnings. Id. The

defendant then provided a taped statement concerning his involvement in his brother's death. Id.

After his statement, the defendant was photographed and taken back to his residence. Id.

¶ 53 The trial court found the defendant was not in custody when he made his initial

statements to the police. Id. at 138, 742 N.E.2d at 1249. However, the court found the defendant

should have been given Miranda warnings after he admitted to murder "because, upon admitting

to the crime of murder, a reasonable person would believe that he was in custody." Id. As a

result, the court suppressed the defendant's taped confession. Id.

¶ 54 On appellate review, relying on this court's opinions in Gorman, Goyer, and

People v. Lewis, 269 Ill. App. 3d 523, 646 N.E.2d 305 (1995), the State argued the defendant

was required to present evidence he subjectively believed "he was in custody in order to trigger

the protections afforded by Miranda." Carroll, 318 Ill. App. 3d at 138, 742 N.E.2d at 1250.

Citing People v. Melock, 149 Ill. 2d 423, 440, 599 N.E.2d 941, 948 (1992), and Stansbury, 511

U.S. at 319-22, the Third District rejected "the subjective test proposed by [those] cases as it

contradicts the vast majority of legal precedent and other authority which states that the test for

custody is strictly an objective one." Carroll, 318 Ill. App. 3d at 139, 742 N.E.2d at 1250. The

Third District then stated:

"It is apparent that defendant voluntarily accompanied the two

officers to the department and that he was informed, even after his

fourth oral statement, that he was not under arrest and free to leave

at any time. Additionally, at no time was defendant physically

restrained.

- 24 - However, it is equally apparent that the investigation had

become focused exclusively upon defendant at the time his taped

confession was made. Moreover, defendant knew that the officers

suspected him of murder because he had just, moments earlier,

inculpated himself in the crime. Considering these facts, the trial

court's finding that any reasonable person in defendant's position

would have believed himself to be in custody despite the officers'

assurances to the contrary was not manifestly erroneous. Thus,

Miranda warnings should have been issued and, because they were

not, the subsequent taped confession was properly suppressed." Id.

¶ 55 The United States Supreme Court has made clear "the initial determination of

custody depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned." Stansbury, 511

U.S. at 323. Our own supreme court has held we are to look at and weigh the factors discussed

above, in paragraph 35, and "we then must make an objective determination as to whether, under

the facts presented, 'a reasonable person, innocent of any crime' would have believed that he or

she could terminate the encounter and was free to leave." Slater, 228 Ill. 2d at 150, 886 N.E.2d

at 995 (quoting Braggs, 209 Ill. 2d at 506, 810 N.E.2d at 482).

¶ 56 However, as the State notes, this court has included the subjective test in the

previously cited opinions. The language relied on by the State in Gorman and all of the cases

relying on Gorman was unnecessary to the disposition of those cases and constitutes obiter

dictum. Generally, obiter dictum is not binding as authority or precedent within the stare decisis

- 25 - rule. People v. Grever, 222 Ill. 2d 321, 336, 856 N.E.2d 378, 386 (2006). In Gorman, this court

stated:

"We begin our analysis by addressing a threshold issue that

is implicit in defendants' motions to suppress their statements: Was

there evidence before the trial court of a subjective belief on the

part of the defendants that they were in custody during their

interrogations? This threshold issue is not often acknowledged

because defendants bringing motions to suppress typically testify,

as did defendants in the present case, that they believed themselves

to be in custody. However, the case could arise where no such

testimony is offered. This issue may be clarified by asking the

following: In deciding a motion to suppress, would the trial court

have to examine the objective indicia of custody discussed in

Brown had the defendant at the hearing on the motion testified that

at all times he believed that he was not in custody and that he was

free to leave the company of the police interrogators whenever he

wished? See, e.g., People v. Urban (1990), 196 Ill. App. 3d 310,

314, 553 N.E.2d 740, 742 (finding the State's contention that

defendant was free to leave at any time unrebutted by defendant).

Each of the three defendants in the present case testified

that he believed he was in custody at the time he made the

statements that are the subject of his motion to suppress.

Accordingly, the requirement of evidence on this threshold issue

- 26 - has been met, and we proceed with the rest of our analysis,

beginning with a discussion of interrogations conducted in police

stations." (Emphases added and in original.) Gorman, 207 Ill.

App. 3d at 469, 565 N.E.2d at 1354.

As is clear from the above quote, any discussion regarding the impact of the defendant's

subjective belief as to whether he was in custody was unnecessary in deciding Gorman and is

only advisory.

¶ 57 Further, in Goyer, after devoting six paragraphs to this issue, this court noted:

"[I]n this case, the State failed to argue this threshold issue before

the trial court. Furthermore, neither party briefed this issue on

appeal. Accordingly, we decline to resolve defendant's claim on

this basis." (Emphasis added.) Goyer, 265 Ill. App. 3d at 166, 638

N.E.2d at 394.

In Griffin, this time in an "Epilogue" that was not needed to decide the case, this court wrote:

"In many cases, this issue is not argued because a defendant

typically testifies—as did defendant in this case—that she believed

she was in custody. Regardless, we reaffirm our holding in Goyer

that a defendant who seeks to suppress his statements on the

ground that he was in custody during the police interrogation must

first testify that he did in fact believe he was in custody during the

interrogation." (Emphasis added.) Griffin, 385 Ill. App. 3d at 212,

898 N.E.2d at 712.

- 27 - Finally, in Wright, this court again engaged in a discussion of this so-called "threshold" issue,

acknowledging:

"As previously noted, defendant did not testify at the

hearing on the motion to suppress that he believed he was in

custody when Renken questioned him. However, because the

State failed to argue this threshold issue before the trial court and

neither party has briefed this issue on appeal, we decline to

address the trial court's denial of defendant's motion to suppress

on this basis." (Emphasis added.) Wright, 2011 IL App (4th)

100047, ¶ 37, 960 N.E.2d 56.

¶ 58 Other than the Gorman-Goyer line of cases, our research has failed to uncover

any case finding it appropriate to look at the subjective beliefs of either the interrogator or the

interrogated to determine whether an individual was in custody for Miranda purposes. Nor have

the parties brought such a case to our attention.

¶ 59 As noted above, the United States Supreme Court has made clear the initial

determination of custody depends on "the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or the person being questioned."

Stansbury, 511 U.S. at 323. The legal theory found in the dicta of Gorman, Goyer, Griffin, and

Wright contradicts both United States and Illinois Supreme Court precedent, and we decline to

apply it.

¶ 60 We do note the reasoning found in the dicta in the Gorman-Goyer line of cases

cited above has some instinctive appeal. However, if courts applied the subjective-belief

threshold requirement discussed in the Gorman-Goyer line of cases, the individuals most in need

- 28 - of being advised of their rights—the uneducated, irrational, or those who simply lack common

sense—would not require Miranda warnings even if they clearly were in custody for Miranda

purposes. Although we mean no insult to defendant, the facts in this case clearly show why a

subjective-threshold test should not be applied. We cannot excuse a failure to admonish a

defendant pursuant to Miranda based on the mere fact the defendant incorrectly believed he was

not in custody for Miranda purposes.

¶ 61 Here, the trial court made factual determinations based in large part on undisputed

evidence. Defendant's parole officer was looking for him because of anonymous tips indicating

defendant was selling drugs. When the officers located defendant, they separated him from the

other people in the house. Both parole agents were armed with firearms and defendant was

required to cooperate with his parole officer. Once the lockbox with a large amount of cash was

found, an officer handcuffed defendant. The cash was some evidence defendant may have been

selling drugs, as the tip suggested. Handcuffing the defendant and then proceeding to question

him about an independent crime objectively would have led a reasonable person to believe he

was not free to leave or to terminate the encounter. Defendant was physically restrained and his

freedom of movement was restricted. Under the totality of the circumstances, defendant was

entitled to be informed of his rights under Miranda before he was questioned because he was in

custody for Miranda purposes.

¶ 62 III. CONCLUSION

¶ 63 For the reasons stated above, we affirm the trial court's suppression order.

¶ 64 Affirmed.

¶ 65 JUSTICE STEIGMANN, dissenting.

- 29 - ¶ 66 Twenty-four years ago, this court wrote about a hypothetical case in which a

defendant made a motion to suppress his statements because they were the product of a custodial

interrogation and he was not given the Miranda warnings, and yet "the defendant at the hearing

on the motion testified that at all times he believed that he was not in custody and that he was

free to leave the company of the police interrogators whenever he wished." (Emphasis in

original.) Gorman, 207 Ill. App. 3d at 469, 565 N.E.2d at 1354. Three years later, this court

again considered how it would resolve the same hypothetical case and wrote the following: "[I]f

a defendant testifies that he believed he was not in custody but instead free to leave any time he

wished during his questioning by the police, would the trial court need to consider what a

reasonable person in that defendant's circumstances would believe? We think not ***."

(Emphasis in original.) Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393.

¶ 67 The present case is the hypothetical case discussed in Gorman and Goyer come to

life. Defendant moved to suppress his statements because he was not given the Miranda

warnings before being questioned when—he claims—he was subjected to a custodial

interrogation. However, at the hearing on defendant's motion, he testified (when asked by

defense counsel) that he believed he could leave the interrogation, and he specifically told his

counsel that he did not believe he was under arrest even when the officers put him in handcuffs,

explaining his belief by testifying that he "hadn't done anything wrong."

¶ 68 The trial court initially denied defendant's motion, stating that the court was

"clearly troubled by the testimony of the defendant that he did not feel at the time of the

questioning that he was under arrest." Although the court ultimately granted defendant's motion

to reconsider and later changed its ruling, defendant never recanted any of his earlier testimony.

- 30 - ¶ 69 The majority opinion does not dispute the trial court's finding that the defendant

did not believe at the time of the questioning that he was under arrest—and, indeed, on this

record, I do not see how it could—but instead it addresses that matter as follows: "Defendant's

subjective belief he was free to leave was unreasonable and irrelevant to our determination. See

Stansbury v. California, 511 U.S. 318, 323 (1994)." Supra ¶ 38. Because I believe that

defendant's subjective belief that he was free to leave was not only relevant but dispositive in

favor of the State, I respectfully dissent.

¶ 70 In Goyer, this court wrote that when a defendant makes a motion to suppress his

statements on the ground that he was subjected to a custodial interrogation and not advised of his

Miranda rights, before the trial court can conclude that the defendant was in custody, the court

must first find that (1) the defendant subjectively believed he was in custody and (2) a reasonable

person in defendant's position, innocent of any crime, would also believe himself to be in

custody. Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393. This court then drew a comparison

to the standard applied to a claim of self-defense, as follows:

"We find analogous a defendant's burden in asserting self-

defense in a murder case. Self-defense has two prongs: (1) the

defendant's subjective belief that his killing was justified, and (2)

the objective reasonableness of that belief. (Ill. Rev. Stat. 1991,

ch. 38, par. 7-1.) If the defendant did not subjectively believe his

actions were justified as self-defense, his claim at trial of self-

defense must fail no matter how third parties might have viewed

the circumstances confronting defendant at the time he killed the

deceased. In other words, it is irrelevant under those

- 31 - circumstances whether the killing might have been done

objectively in self-defense. Similarly, if a defendant's motion seeks

to suppress his statements on the grounds that he was in custody

during the police interview, yet the defendant himself testifies that

he did not believe himself in custody, it is irrelevant whether a

reasonable person similarly situated would agree." (Emphases in

original.) Id. at 165, 638 N.E.2d at 394.

(I note that the above quote remains consistent with Illinois law. See People v. Jeffries, 164 Ill.

2d 104, 127-28, 646 N.E.2d 587, 598 (1995) ("In order to instruct the jury on self-defense, the

defendant must establish *** (5) he actually and subjectively believed a danger existed which

required the use of the force applied; and (6) his beliefs were objectively reasonable."); People v.

Lee, 213 Ill. 2d 218, 225, 821 N.E.2d 307, 311 (2004) (reiterates the Jeffries standards regarding

self-defense and adds that "[i]f the State negates any one of these elements, the defendant's claim

of self-defense must fail").)

¶ 71 Criminal proceedings are individualized, with their focus being on not just what a

defendant did, but often what he was thinking when he did it. Similarly, legal protections (such

as the right to assert self-defense) and procedural protections (such as the right not to be subject

to a custodial interrogation absent Miranda warnings) are also individualized. To demonstrate

the individualized nature of self-defense, consider the following scenario:

"An argument occurs between Smith and Jones in a tavern

parking lot, and Smith takes out a gun and shoots Jones three

times, killing him. Several witnesses testify to having seen this

action, and each adds that during the argument, they saw Jones

- 32 - suddenly reach into his belt and quickly withdraw some shiny

object in his hand that each witness at first thought was a gun. In

fact, that object turned out to be a chrome-colored cell phone.

Assume that Smith's defense counsel, planning all along to assert

that Smith shot Jones in self-defense, calls Smith to testify about

what happened during the shooting. However, Smith surprises his

attorney (and probably everyone else in the courtroom) by

testifying as follows: 'Yeah, I saw Jones reach into his belt as if he

were reaching for a gun, but I knew he didn't have a gun, and I

never feared that he was going to shoot me. Jones never carried a

gun, and I was never afraid of him. I didn't shoot Jones because I

feared him, but because I got sick of his big mouth and the fact that

he was now running around with my old lady.' "

¶ 72 Even if the trial court might have been inclined to instruct the jury on self-defense

absent this testimony (I know I would be), can a self-defense instruction still be given in the teeth

of the defendant's denial that he was acting in self-defense or believed that he was in danger?

Clearly not, because of the individualized nature of self-defense, as explained by the Illinois

Supreme Court in Jeffries and Lee.

¶ 73 I concede that there is no case law explaining this point regarding custodial

interrogation as there is regarding self-defense, but that is because defendants in cases like the

present one almost always testify that they, in fact, believed they were under arrest or otherwise

not free to go when they were interrogated. As far as I can tell, with the exception of the

Gorman-Goyer line of cases, courts of review have never directly commented upon the need for

- 33 - a defendant to affirmatively state that he believed he was in custody as a threshold requirement

for his claim that his statements should be suppressed because they were given absent the

Miranda warnings. (Certainly, I am aware of no case like this, in which a defendant seeking to

suppress statements he made to the police in the absence of the Miranda warnings explicitly

eschews the notion that he was in custody.) Instead, courts typically go directly to the question

of the reasonableness of such a belief by asking whether a reasonable person in the defendant's

position would have understood himself to be subjected to the restraints comparable to those

associated with a formal arrest. See supra ¶ 47. But, regarding a claim of custodial

interrogation, as in the case of the hypothetical involving Smith's shooting Jones in the tavern

parking lot, it makes no difference that an objective, reasonable observer of Jones' behavior

might have believed himself to be in danger of Jones' pulling a gun and shooting him if the

defendant standing trial did not.

¶ 74 As earlier stated, there is not much precedent from higher courts regarding the

Gorman-Goyer line of cases, but there is at least one Illinois Supreme Court decision that seems

to support that line. In People v. Garcia, 165 Ill. 2d 409, 651 N.E.2d 100 (1995), one of the

issues was whether the suspect was subjected to a custodial interrogation, requiring the giving of

Miranda warnings. The supreme court analyzed the issue before it as follows:

"Initially, it should be noted that defendant's statements

during her first visit to the Bensenville police station around 8:15

a.m. on July 23, 1991, are not subject to her Miranda claims

because, as the defendant herself stated at trial, she came to the

station voluntarily and understood that she was free to leave at any

time, which she did several hours later. Likewise, her written and

- 34 - oral statements at 6 p.m. on July 23, 1991, fingering Gonzalez for

her husband's murder were not subject to Miranda warnings

because, as defendant testified, she understood she was not under

arrest at the time of this statement and was free to leave. Thus, no

basis exists for arguing that any of the statements by defendant

during these time periods can be suppressed because defendant

was not in custody when they were made." Id. at 422, 651 N.E.2d

at 106-07.

¶ 75 What is significant about the above analysis is that the supreme court never

mentioned the need to apply an objective standard to the suspect's situation, concluding instead

that, given the defendant's testimony, she understood she was not under arrest. Apparently, that

conclusion by the supreme court was dispositive. The supreme court concluded no basis exists

for arguing that those statements could be suppressed, apparently not concerning itself with the

objective standard of how a reasonable person other than the defendant might have viewed her

situation.

- 35 -