Petition for Writ of Certiorari — Coles v. Illinois

Rupreme Court, U8

(\) FILED

Q@L-191L8 = ji APR17 i992

No. DFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

CARY D. COLES, Petitioner,

<—

Vv.

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT

PETITION FOR WRIT OF CERTIORARI

Robert D. Goldstine

7660 W. 62nd Place

Summit, IL 60501

(708) 458-1253

Counsel of Record

Frank M. Valenti

6433 W. North Ave. #205

Oak Park, IL 60302

(708) 383-2216

Counsel for Petitioner

David V. Najarian

825 Green Bay Road #210

Wilmette, IL 60091

(708) 251-7272

Counsel for Petitioner

April 17, 1992

59

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

CARY D. COLES, Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT

PETITION FOR WRIT OF CERTIORARI

Robert D. Goldstine

7660 W. 62nd Place

Summit, IL 60501

(708) 458-1253

Counsel of Record

Frank M. Valenti

6433 W. North Ave. #205

Oak Park, IL 60302

(708) 383-2216

Counsel for Petitioner

David V. Najarian

825 Green Bay Road #210

Wilmette, IL 60091

(708) 251-7272

Counsel for Petitioner

April 17, 1992

I.

QUESTIONS PRESENTED

DOES THE ACCUSED WAIVE HIS PREVIOUSLY

INVOKED FIFTH AMENDMENT RIGHTS TO SILENCE

AND COUNSEL BY MERELY INITIATING FURTHER

DIALOGUE WITH POLICE DURING THE BOOKING

PROCESS IN THE SAME POST ARREST CUSTODIAL

SETTING WHICH RESULT IN INCRIMINATING

STATEMENTS, A CONFESSION AND CONSENT TO

SEARCH, WITHOUT FIRST RECEIVING NEW

MIRANDA WARNINGS?

The parties to the proceedings below were the

Petitioner, Cary D. Coles, and the Respondent,

the People of the State of Illinois.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............ eecccccne i

mae GE PEO cee cccssctvess eececcccecse ii

ee nee ceccccces 1

PURER OEAO £66650 6encrseicrs wee eee ees 2

SEE OE SUURNED 9.66 000s 6b deeded scccecces 4 ~

STATEMENT OF THE CASE ....... Cees esesenes 5

REASON FOR GRANTING WRIT ....... ceocccscese 13

I. THE ILLINOIS APPELLATE COURT'S MIS-

APPLICATION OF EDWARDS V. ARIZONA'S

EXCEPTION, FINDING THAT AN ACCUSED

INITIATED DIALOGUE WITH POLICE

SATISFIES EDWARDS AS A WAIVER OF THE

PREVIOUSLY ASSERTED FIFTH AMENDMENT

RIGHTS WITHOUT A RE-ADMONISHMENT

UNDER MIRANDA CONFLICTS WITH

DECISIONS OF THIS COURT AND RAISES

AN IMPORTANT ISSUE TO BE RESOLVED.

COOMA 26 ocUescesssieve ccccce ccccsves 23

APPENDIX (Opinion, Order Denying

Rehearing, and Order Denying Petition

or Leave to Appeal, Advice of Rights

yes Ge WO) 6644 406446 4na Ss cowwes 24

OF AU IES

Cases: Page

Miranda v. Arizona,

“es ee ae. le 13

Edwards v. Arizona,

451i UB. 477 (CISEL) waocccccvccsce eee we 13

Mic nv. s ’

423 U.S. 96 (1975) cwcccccccccccvccee 13

Oregon v. Bradshaw,

SUG Galle See BOO? 666 hake odacelnt a 14

Patterson v Illinois,

i 2S Ff) .0UlUl Sere 17

Pennsylv Ve nhiz,

110 S.Ct. 2638 (1990) ccc cccccccccce 20

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

CARY D. COLES, Petitioner,

Ve

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT

PETITION FOR WRIT OF CERTIORARI

The petitioner, Cary D. Coles,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the Appellate Court of Illinois, First

District, entered in the above’ entitled

proceeding on July 19, 1991.

OPINIONS BELOW

The opinion of the Appellate Court of

Illinois, First District is reported at 217

Ill. App. 3rd 1079, and is reprinted in the

appendix hereto, p.la, infra.

Page 1

JURISDICTION

The petitioner appealed from a final

judgment of conviction and sentence of six (6)

years and two (2) years concurrently and

respectively following a stipulated bench

trial.

On appeal, the First District of the

Illinois Appellate Court entered a judgment

and opinion on July 19, 1991, affirming the

trial court's finding of guilt and denial of

the defendant's motion to quash search and

suppress evidence and motion to _ suppress

statement.

A petition for rehearing was denied on

September 6, 1991. [See p.16a, infra. ]

The Supreme Court of Illinois denied

petitioner's petition for leave to appeal on

December 4, 1991. [See p.17a, infra. ]

On March 3, 1992, Justice Stevens, order

that the time for filing this writ of

certiorari be extended to and including April

17, 1992.

Page 2

The jurisdiction of this Court to review

the judgment of the Appellate Court of

Illinois, First District, is invoked under 28

U.S.C. Section 1257(3).

Page 3

STATUTE INVOLVED

Fifth Amendment, United States Constitution

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or

naval forces, or in the Militia,

when in actual service in time of

War or public danger; nor shall any

person be subject for the same

offence to be twice put in jeopardy

of life or limb; nor _ shall be

compelled in any criminal case to be

a witness against himself, nor be

Geprived of life, liberty, oor

property, without due process of

law; nor shall private property be

taken for public use, without just

compensation."

Page 4

|

STATEMENT OF THE CASE

On July 17, 1987, at approximately 1:55

to 2:00 p.m., the Defendant, Cary Coles, was

arrested at the home of ae confidential

informant who was working with the arresting

officers of the Wilmette Police Department and

the Northeastern Metropolitan Enforcement

Group ("MEG").

The Defendant was charged with offenses

of delivery of controlled substance and

possession of cannabis with intent to deliver.

The Defendant filed a Motion to Suppress

Statement and a Motion to Quash Search and

Suppress Evidence.

At the hearing on the motions, Officer

Provost of the Wilmette Police Department

testified that MEG Agent Martinez read ¢he

Defendant his Miranda rights from a preprinted

card at the scene of the arrest.

The Defendant was transported to the

Wilmette Police Department booking room

Page 5

thereafter, a 10' x 10' room with fingerprint

equipment and forms.

Provost then testified he read the

Defendant his Miranda rights from a poster on

the wall.

Thereafter Provost began asking some

preliminary information of the Defendant

concerning his name and address.

Provost testified that during this

questioning, which took approximately 8 to 9

minutes, the Defendant stopped him and asked

him by which department he was employed.

Provost told him he was with Wilmette and

testified the Defendant said, "That's fine.

I'll talk to you but I'm not going to talk to

the MEG guys.", and he said something like "I

know they will try to fuck me over and you

won't."™.

Provost further testified that the

Defendant and he continued their conversation

and the Defendant volunteered to cooperate and

do anything to assist Provost in what he was

Page 6

doing at the time, but advised Provost that he

was not going to talk to MEG people.

No incriminating statements were made to

this point.

At that time, approximately 2:10 p.n.,

Special MEG Agent Selecki came in the room

where Provost and the Defendant were alone.

Selecki told the Defendant he needed to get

some information and fill out a personal

history forn.

The Defendant asked Selecki who he was

with, and Selecki said MEG, in which Provost

testified the Defendant responded, "I don't

want to talk to you.".

Selecki read Miranda type warnings to the

Defendant from a pre-printed "Advice Of

Rights" form with waiver. [See p.18a, infra]

After his Miranda rights had been read to

the Defendant, and in answer to the form

waiver question, "Having these rights in mind,

do you wish to talk to me/us?", the Defendant

wrote "NO" in his own handwriting on the forn.

Page 7

Officer Provost and Special MEG Agent Selecki

both signed as witnesses at 2:11 p.m. on

July 17, 1987, along with the Defendant.

Provost further testified that Selecki

told the Defendant that it was fine if he

didn't want to talk to him but he still needed

to fill out some informaticn as a part of his

processing. He asked the Defendant questions

concerning his. name, address, telephone

number, acquaintances, etc., and Selecki

filled out the booking procedure report and

Provost completed a lengthy arrest report,

fingerprinting and photographs. The booking

process took at least 1/2 hour.

Provost testified that Selecki left the

room between 2:30 and 3:00 p.m., leaving the

Defendant and Provost alone again.

As soon as Selecki left the room, Provost

testified that the Defendant again says to

Provost, "I'll talk to you. I don't want to

talk to those guys. I know they are going to

fuck me over."

Page 8

In response, Provost said that was fine

and the Defendant wasn't required to talk to

him or MEG, but if he didn't want to talk

while they were around, then Provost would ask

them to leave the room if they came in.

Provost testified that the Wilmette

Police did not have pre-printed Miranda waiver

forms at that time.

There is no other evidence that another

Miranda warning was given the Defendant at

this time.

Provost then testifies that the Defendant

related a lct of information about how he

could be helpful to the police to mediate his

charges. During this time, the Defendant made

incriminating statements and confessed.

During the reinterrogation it was brought

up about his apartment in Chicago, and Provost

told the Defendant that he had other

information about him and his’' narcotic

ventures and that he had information about his

apartment and what might be contained in the

Page 9

apartment and that he would be seeking a

search warrant and that this information came

from a confidential informant who provided the

information which led to the arrest. Provost

testified that the Defendant was concerned

about the police busting down his door,

ripping up his home and that his employee who

worked at his home would be arrested. Provost

asked the Defendant to sign a consent to

search.

Provost further testified that he told

the Defendant in response to how soon he could

get out of the station, that nothing could be

done until the investigation was finished and

he would not be able to leave the station if

he was in the process of getting a search

warrant and it could be several hours.

The Defendant was further told of the

process of obtaining a bond and since it would

be past 3:00 p.m. they would have to get a

hold of a bond judge which may not be until

the following Monday, 3 days hence. As a

Page 10

result of that conversation, the Defendant

signed a permission to search his apartment at

3:00 p.m.

The Defendant was approximately 19 years

old at the time of arrest and had no prior

criminal record.

The Defendant testified that he

repeatedly asked for an attorney dozens of

times and to make a phone call.

The Defendant further testified that it

was not until he was denied an attorney and a

phone call that he didn't have much choice but

to talk to the Provost at that point, because

he was told he was going to have a high bond

and was going to Cook County Jail.

The Defendant also testified that when he

was put in the car at the scene of the crime,

Officer Martinez from the MEG unit came over

and smacked the Defendant while he was in the

police car and said, "You have met MEG."

The Trial Court denied the motion to

suppress and motion to quash, stating that it

Page 11

believed the officer's testimony that the

Defendant initiated the conversation with

Officer Provost after the MEG officer left the

room which led to the further conversations,

the confession and the permission to search.

The Court found that the State had shown that

this was a "totally voluntary type of

cooperation on the part of the Defendant".

The case was tried by a stipulated bench

trial and the Defendant was convicted of the

charges and sentenced to six (6) years and two

(2) years concurrently.

On appeal, the Appellate Court affirmed

the Trial Court's finding holding that the

resumption of dialogue between the Defendant

and the Police was initiated by the Defendant

and that was the necessary fact which, under

the circumstances, proved a valid waiver of

the right to counsel and the right to silence

had occurred.

Page 12

REASONS FOR GRANTING WRIT

I. THE ILLINOIS APPELLATE COURT'S MIS-

APPLICATION OF EDWARDS V. ARIZONA'S

EXCEPTION, FINDING TO THE RULE THAT

AN ACCUSED INITIATED DIALOGUE WITH

POLICE SATISFIES EDWARDS AS A WAIVER

OF THE PREVIOUSLY ASSERTED FIFTH

AMENDMENT RIGHTS WITHOUT A_ RE-

ADMONISHMENT UNDER MIRANDA CONFLICTS

WITH DECISIONS OF THIS COURT AND

RAISES AN IMPORTANT ISSUE TO BE

RESOLVED.

The fundamental principals set out in

Miranda v. Arizona 384 U.S. 436 (1966), should

be clear and easily applied by both the police

and the Courts.

Where questions of application have

arisen, Edwards v. Arizona, 451 U.S. 477

(1981), and Michigan v. Mosley, 423 U.S. 96

(1975), have set out clear and unambiguous

standards and tests by which a determination

can be made as to when a waiver of Fifth

Amendment rights once invoked is veiia.

The Illinois Appellate Court has

radically departed from these standards and

tests by applying a voluntariness analysis to

Page 13

find that the only "necessary fact" that State

need prove to find a waiver of the previously

invoked Fifth Amendment rights, was that the

Defendant “reopen the dialogue with the

authorities". The decision is clearly at odds

with Edwards, as this Court has previously

held in Oregon v. Bradshaw, 462 U.S. 1039

(1983).

In Bradshaw, the Court made it clear that

they did not hold in Edwards, the initiation

of a conversation by the Defendant by itself

would amount to a waiver of a previously

invoked right to counsel, but that once the

right to counsel had been asserted, further

interrogation of the accused should not take

place "unless the accused himself initiates

further communication, exchanges, or

conversation with the police". [Bradshaw 462

U.S. at 1043 citing Edwards at 451 U.S., at

485-485.] In Bradshaw, this Court enunciated

a prophylactic rule in Edwards designed to

protect badgering by the police. {Bradshaw,

Page 14

a eens | ee eT ee a

462 U.S. at 1044]

It is important that the Supreme Court

rendered its authoritative voice in the area

of what must be shown to find that the suspect

himself initiates dialogue with the

authorities that waives his Fifth Amendment

right in re-interrogation cases. For the test

enunciated in Edwards is being misapplied by

the Illinois Appellate Court.

The Edwards test should be the two step

analysis found in Bradshaw. First, who

initiated further dialogue? If it was the

police, there is no valid waiver, per se. If

it was the accused, then the second test step

must be met. The second prong of the Bradshaw

analysis is what is unclear to both police and

Courts, and it is this second test step that

has been misapplied in this case.

AS Bradshaw highlights, it is not the

"totally voluntary type of cooperation on the

part of the Defendant" standard approved by

the Illinois Appellate Court, but, in

Page 15

5

restating Edwards second step inquiry, found

“whether a valid waiver of the right to

counsel and the right to silence had occurred,

that is, whether the purported waiver was

knowing and intelligent and found to be so

under the totality of the circumstances,

including the necessary fact that the accused,

not the police, reopen the dialogue with the

authorities", is the test. [Bradshaw 462 U.S.

at 1047 citing Edwards 451 U.S. at 486 n.9.]

The Illinois Appellate Court, like the

Oregon Court of Appeals, thought the

initiation of the conversation or discussion

by the accused not only satisfied Edwards but

"ex proprio vigore" sufficed to show the

waiver of the previously asserted right to

counsel. [Bradshaw, 462 U.S. at 1047] They

were both wrong.

The Bradshaw Court said the inquiries are

separate and clarity of application is not

gained by melding them together. (Bradshaw,

462 U.S. at 1047]

Page 16

The Bradshaw Court found, and that this

Court must now authoritatively emphasis, that

Miranda type warnings are essential to

effectuate the second prong of the Edwards

analysis. Those are the circumstances under

which the accused-initiated dialogue after

invocation of rights forms a valid waiver.

What the Illinois Court ignores is that

in the instant case, the accused initiated the

redialogue, not the meeting. The accused, a

19 year old first offender, was clearly in a

police initiated, custodial interrogation

setting after arrest.

The importance of declaring the re-

admonishment after invocation of Fifth

Amendment rights is essential in these cases

where the police are controlling the setting.

Further, by way of analogy, is. this

Court's decision in Patterson v. Illinois, 487

0.8. 285 (1988), a Sixth Amendment rights

case, which the Court found a right to counsel

not substantially different than the right in

Page 17

custodial interrogation pre-indictment cases.

The necessary fact here is not only that the

accused reopened the dialogue with’ the

authorities but that the accused was re-read a

form waiving his rights under Miranda on both

interrogation occasions. In Patterson the

Court held that by proving the admonishment of

the accused with the re-Miranda warnings, the

State met its burden and the accused's waiver

of his right to counsel was valid.

Likewise, in Mosley v. Michigan, 423 U.S.

96 (1975), this Court held that the Miranda

requirement that police interrogation must

tease when the person is in custody indicating

he wished to remain silent, neither created a

per se proscription of indefinite duration

upon any further questioning by the police nor

imposed a blanket prohibition against the

taking or the admission of evidence of

voluntary statements, nor permitted a

resumption of interrogation after momentary

cessation.

Page 18

The Mosley Court, however, did made it

clear that where the police must scrupulously

honor the Defendant's invocation of silence

and immediately cease the interrogation and

only resumed questioning after a passage of a

significant period of time with "the provision

of a fresh set of warnings" at the vary outset

of each interrogation to not violate the

principals of Miranda on reinterrogation.

(Mosley, 423 U.S. at 106]

The lower Courts need guidance from this

Court as to the applicability of the Edwards

rule in the accused initiated dialogue

exception cases to clarify the essential

requirement of re-admonishing the Defendant of

his Miranda rights once he has invoked his

right to counsel and right to silence and,

thereafter, initiates further dialogue.

Under Edwards and Mosley once the

Defendant has invoked his Fifth Amendment

rights, all further interrogation must cease.

The only exception for further police

Page 19

initiated dialogue is the so called "routine

booking" procedure exception in which the

police merely continue to ask non-testimonial

questions to complete the booking = and

recording keeping process.

As is stated in Pennsylvania v. Muniz,

110 S.Ct. 2638 (1990), however, although

certain questions fall within this "routine

booking question" exception, as the Amicus

Curiae United States explains in note 14, 110

S.Ct. at 2650:

"(rjJecognizing a 'booking exception’

to Miranda does not mean, of course,

that any question asked during the

booking processing falls within that

exception. Without obtaining a

waiver of the suspect's Miranda

rights, the police may not ask

questions, even during booking, that

are designed to elicit incriminating

admissions. Brief for United States

as Amicus Curiae 13. See United

States v. Avery, 717 F.2d 1020,

1024-1025 (CA6 1983); United States

v. Mata-Abundiz, 717 F.2d 1277, 1280

(CA9 1983); United States v. Glen-

Archila, 677 F.2d 809, 816 n. 18

(CA1l1 1982);"

As police procedures - become more

sophisticated so to must the application of

Page 20

_

Miranda, Edwards, Mosley and their progeny.

Police cannot, under the guise of routine

booking continue a dialogue with a Defendant

who has invoked his Fifth Amendment rights and

then, upon the Defendant's initiation of

further dialogue, fail to re-admonish him of

his Miranda rights. This essential second

prong test of knowing and intelligent waiver

of those rights includes the essential element

of re-admonish-ment with either an execution

of a waiver form, which in this instance the

Wilmette Police claim not have, oor, a

continued in accused initiated dialogue after

the re-admonitions.

To not re-admonish the Defendant places

him in the circumstances that Miranda sought

to protect. A custodial interrogation where

"inherently compelling pressures which work to

undermine the individuals will to resist and

to compel him to speak where he would not

otherwise do so freely." Miranda, 384 U.S. at

467.

Page 21

The consent to search form request by the

police and the Defendant's consent, having be

elicited in the same violative custodial re-

interrogation by the police is likewise

invalid as a fruit of the poisonous tree.

Page 22

CONCLUSION

For these reasons, this Petition for

Certiorari should be_ granted. If the

Petitioner is correct in urging that the

Illinois Appellate Court misapplied the

standard in Edwards, this matter should be

reversed and remanded to the Illinois Trial

Court for the appropriate disposition.

Respectfully submitted,

Robert D. Goldstine

7660 W. 62nd Place

Summit, Illinois 60501

(708) 458-1253

Counsel of Record

Frank M. Valenti

6433 W. North Ave. #205

Oak Park, Illinois 60302

(708) 383-2216

Counsel for Petitioner

David V. Najarian

825 Green Bay Road #210

Wilmette, Illinois 60091

(708) 251-7272

Counsel for Petitioner

April 17, 1992

Page 23

[A]

(B)

(C]

[D)

APPENDIX

Copy Of the GpiRiee cisccecdcicass

Copy of the Order Denying

the RONGOLIMG 66s o0 06h ebsreseeksce

Copy of the Order Denying the

Petition for CeriOrOrd csccccicecs

Advise of Rights and Waiver Form .

Page 24

—e— ne

SIXTH DIVISION

JULY 19, 1991

No. 1-89-1122

THE PEOPLE OF THE

STATE OF ILLINOIS,

Appeal from the

Circuit Court of

of Cook County

Plaintiff-Appellee,

The Honorable

Gerald T. Rohrer

Judge Presiding.

)

)

)

)

)

Vv. )

)

CARY D. COLES, )

)

)

Defendant-Appellant.

JUSTICE EGAN delivered the opinion of the

court:

After a stipulated bench trial, the

defendant, Gary Coles, was convicted of

delivery of a_ controlled substance and

possession of cannabis with intent to deliver;

he was sentenced to six years on the delivery

charge and two years on the possession charge,

the sentences to be served concurrently.

The defendant first maintains that

reversible error occurred when the judge

la

denied the defendant's motion to suppress his

statement and his motion to suppress evidence

seized from his residence.

At the hearing on his motions to

Suppress, the defendant testified that on

Friday, July 17, 1987, at approximately 3:00

p-m. he was arrested by Wilmette police

officer John Provost and taken to the Wilmette

police department. He was advised of his

rights and asked Provost for an attorney and

to make a phone call. Provost responded, "You

haven't been booked yet, and you cannot make a

call until you have been booked and we can

keep you here for hours." The defendant

signed a waiver of Miranda rights, but put

"No" next to the question, "Having these

rights in mind, do you wish to talk to me/us?"

Provost continued to talk to the defendant.

He said the defendant was going to be

incarcerated for a long time and if the

defendant did not talk to him and submit to an

apartment search, he would be put in jail that

2a

evening and would not be allowed to leave

custody. The defendant was also told he would

not get a bond hearing until the following

Monday because the courts were Closed over the

weekend and that the bond set would be very

high. Provost continued talking for

approximately one hour and forty-five minutes.

The defendant testified that "at that

point, after being told that I would be going

to Cook County Jail for the weekend, I told

Officer Provost anything he wanted to hear to

get out of there. Officer Provost agreed to

get me * very inexpensive bail to get me out

of there." Provost told the defendant that if

he did not sign a consent to search form, a

search warrant would be obtained anyway, and

the authorities would go to his apartment,

“which was located at 600 South Dearborn in

Chicago, arrest anyone there and tear the

apartment apart. Provost asked the defendant

if he had ever seen what happens to an

apartment or what a home could look like after

3a

ee

it has been searched by the police. The

defendant again asked Provost if he could

speak with his attorney, and Provost said he

could not until he signed the consent to

search his apartment. Provost also said that

once the search was conducted, the defendant

could make a phone call. The defendant then

Signed the consent-to-search form.

On cross~-examination, the defendant said

he knew he was under arrest for delivery of

almost 29 grams of cocaine. After he had been

arrested, an agent of the Metropolitan

Enforcement Group (MEG) named Martinez came up

to the police car, "smacked" the defendant and

said, "You have met MEG." While he was ina

room at the Wilmette police station, officers

were coming in and out of the roon. He

admitted that he told Provost that he would

speak with Provost because he was from the

Wilmette police and he knew Provost would not

treat him like the officers from the MEG unit.

The defendant said he did not feel comfortable

4a

talking with Provost, but he did not have much

of a choice at that point after having been

denied a phone call or an attorney. He told

another police officer where he lived and

whether he was a registered voter. He further

testified that he was not Surprised when told

that he could be held over the weekend in Cook

County Jail and that bond could be rather

high.

Officer Provost’ testified that he

arrested the defendant at 525 Pinecrest in

Wilmette at approximately 2:00 p.m. Present

at the scene were other officers from the

Wilmette police department and officers from

MEG. MEG Agent Martinez read the defendant

his Miranda rights from a preprinted card.

The defendant was transported to the Wilmette

police department in handcuffs. Provost next

Saw the defendant at approximately 2:00 p.m.

in the Wilmette police station booking room.

Provost entered the room and uncuffed the

deferdant. Provost, who was alone in the room

5a

ne ne a a |

with the defendant, read the defendant his

Miranda rights from a poster on the wall. The

defendant asked Provost what agency he

belonged to, and Provost answered that he was

with the Wilmette police department. The

defendant then stated, "That's fine. r*ll

talk to you but I'm not going to talk to the

MEG guys. I know they will try to fuck me

over, and you won't." The defendant

volunteered to cooperate and do anything to

assist Provost, but repeated that he would not

speak with the MEG people.

MEG Agent Selecki entered the room and

told the defendant that he need to get some

information from him to fill out a personal

history form. The defendant asked Selecki who

he was, and Selecki answered that he was a MEG

agent. The Defendant said that he did not

want to speak to any MEG agents. Selecki read

the defendant his Miranda rights from a

preprinted form. At approximately 2:10 p.n.,

the defendant signed a waiver of Miranda

6a

rights from but put "No" after the question

that asked whether he wished to talk to then.

Selecki told the defendant that he needed to

fill out the form even if the defendant was

unwilling to speak with hin. Among other

things, Selecki asked the defendant his name,

address, phone number and acquaintances. The

defendant also told Selecki the name of his

attorney, but never requested permission to

call hin.

Provost then booked the defendant for the

Wilmette police department and for MEG by

taking fingerprints and photographs. The

booking procedure took approximately one half

hour. Selecki left the room between 2:30-3:00

p.m. The defendant again stated that he

wanted to talk to the Wilmette police

department, but not MEG. Provost told the

defendant that he was not required to talk to

Provost or MEG. The defendant’ related

information to Provost about how he could be

helpful to the Wilmette police department in

7a

return for reduction of his charges.

Provost informed the defendant that he

had other information regarding the defendant,

his narcotics ventures, and his apartment. He

also told the defendant that it was possible

that the authorities would be seeking to go to

his apartment. He told the defendant that the

information was derived from a confidential

informant, who told the authorities that he

had been in the defendant's apartment and had

seen quantities of cocaine and cannabis there.

The informant, according to Provost, also

informed authorities that in phone

conversations on July 17 the defendant

indicated that he had large quantities of

drugs and offered to bring more than what he

had actually brought. Provost told the

defendant that the authorities were going to

contact the State's Attorney's Office, make an

application to search his apartment, and that

he and fellow officers would go down to his

apartment. The defendant told Provost that he

8a

wished that he would not do that because there

was an employee working in his apartment and

he did not want the police to break down the

door and rip the place up. The defendant also

stated his concern for his furniture and that

he did not want his employee to get arrested.

At approximately 3:00 p.m., Provost asked

the defendant to sign a permission-to-search

form. The defendant asked Provost when he

could leave the station, and Provost responded

that nothing could occur until the

investigation was complete and that he could

not leave if they were in the process of

getting a search warrant for his apartment;

that might take several hours. Provost also

told the defendant that, since it was past

3:00 p.m., they would have to get a bond judge

when they were finished with the

investigation. At that point, the defendant

Signed the permission-to-search form. He

later accompanied the police to the apartment

and was present during the search.

9a

rT

On cross-examination Provost testified

that, before the defendant signed the consent

to search form, Provost told the defendant

that the investigation could take hours.

Provost testified that the form the defendant

signed was a "MEG" form because the form

usually used by the Wilmette police was being

redrafted at that time; no Wilmette police

forms were available.

In his ruling denying the motions to

suppress the judge said that it was "a

question of credibility" that the court had

had an opportunity "both to hear the evidence

and to observe the demeanor" of both the

defendant and the police officers. He

concluded that the State had "by clear and

convincing evidence" shown that it was a

"totally voluntary type of cooperation on the

part of the defendant and that any problem

that he had in discussing the matter with MEG

did not exist in discussing the matter with

the Wilmette police department."

10a

Contrary to the defendant's argument, we

agree with the judge's determination that this

case depends on the credibility of the

witnesses. That beine so, the question is

reduced to this: Accepting the testimony of

Officer Provost as true, was the defendant's

subsequent statement to Provost inadmissible,

as a matter of law, as the defendant contends?

The defendant's entire argument is based

on the supposition that once he indicated on

the waiver-of-rights form that he did not wish

to answer any questions, all questions by all

law enforcement officials, was barred, as a

matter of law. We do not accept the

supposition. In Edwards v. Arizona (1981),

451 U.S.477, 486, N.9, 58 L.Ed 2d 378, 101

S.Ct. 1880, the Supreme Court held as follows:

"If, as frequently would occur

in the course of a meeting initiated

by the accused, the conversation is

not wholly one-sided, it is likely

that the officers will say or do

lla

something that clearly would be

‘interrogation.' In that event, the

question would be whether a valid

waiver of the right to counsel and

the right to silence had occurred,

that is, whether the purported

waiver was knowing and intelligent

and found to be so under the

totality of the circumstances,

including the necessary fact that

e se ice

e Lalo wi

authorities." (Emphasis added.)

Officer Provost's testimony established the

"necessary fact" that the defendant "reopened

the dialogue with the authorities." By his

own admission, both before and after the

defendant refused to talk to the MEG agent, he

told Provost he would talk to him. In fact,

he even volunteered to cooperate with Provost.

After the MEG agent left the room, the

defendant again stated that he wished to speak

12a

‘

:

$

4

2

i

;

;

‘

with the Wilmette police department and not

MEG. Subsequently, he, to use his own words,

"told Officer Provost anything he wanted to

hear." Under the circumstances, we find no

error in the judge's denial of the motion to

suppress the defendant's oral statement.

The defendant has cited the additional

authority of Minnick v. Mississippi (1990),

112 L.Ed. 2d 489, 111 S.Ct. 486, which we find

to be inapposite. In Minnick, the defendant

was arrested by California police for murders

committed in Mississippi. The next day he

_answered some questions asked by two FBI

BSW Ar OtndS taed lo Dees new

Agents. He refused to answer all their

questions but told them to return two days

later after he had talked to his attorney. He

said he would have a more complete statement

then with his lawyer present. After the

defendant conferred with his appointed lawyer,

who told him to answer no questions and to

Sign nothing, he was questioned by a deputy

sheriff from Mississippi, who advised him of

13a

his rights. The defendant refused to sign a

rights wavier form but told the deputy about

the facts of the murders. The Mississippi

Supreme Court upheld admission of the deputy's

testimony reasoning that the requirements of

Edwards had been satisfied because’ the

subsequent questions initiated by the

authorities occurred after the defendant had

consulted with an attorney. The United States

Supreme Court disagreed, stating, "We decline

to remove protection from police-initiated

questioning based on isolated consultation

with counsel who was absent when the

interrogation resumed." (Emphasis added.)

(111 S.Ct. at 491.) However, the court added

this decisive observation:

"Edwards does not foreclose

finding a waiver of Fifth Amendment

protections after counsel has been

requested, provided the accused has |

initiated the conversations or ,

discussions with the authority; but

14a

£8 ieitinne !

wT Ede Gee

that is not the case before us.

There can be no doubt that the

interrogation in question was

initiated by the police; it was a

formal interview which petitioner

was compelled to attend. Since

petitioner made a specific request

for counsel before the interview,

the police-initiated interrogation

was impermissible." (Emphasis

added.) 111 S.Ct. at 498.

The overriding difference between the

case before us and Minnick (and Edwards) is

that the resumption of the dialogue between

| the defendant and the police was initiated by

= .

the defendant, not the police. Both Edwards

and Minnick centered on the right to counsel,

but their reasoning is applicable to the right

to remain silent.

Turning now to the question of his

Signing of the consent-to-search form, it is

appropriate to identify the precise issue as

15a

posited by the defendant. In both this court

and the trial court his argument is and was

that he gave his consent only because of

deception of the part of Provost. In the

motion to suppress the evidence seized from

his residence, he expressly maintained the

following: |

"2. Said officers thereafter

deliberately lied to and deceived

defendant by telling him they would

be able to obtain a search warrant

for his apartment in Chicago and

would break in said apartment,

search and destroy items, and arrest

anyone there. At said time said

officers well knew they had no

probable cause for a search warrant.

3. Based upon said deceit,

defendant signed a consent to

search. Defendant's action on

signing said consent was involuntary

and based upon the police officer's

16a

deception."

We could sustain the judge's ruling on

the ground that the defendant has failed to

establish any "deception," even if we accepted

the defendant's testimony. He testified that

Provost said he would get a search warrant;

that is not a misrepresentation of an existing

fact; nor is the alleged statement of Provost

that the police would tear up his apartment.

Further, the evidence does not establish that

the police could not have obtained a search

warrant and there is no showing that the

police knew that "they had no probable cause

for a search warrant." Lest there be any

doubt in the matter, however, we find that the

evidence establishes that the Signing of the

consent form was but evidence of the overall

conduct of the defendant indicating a desire

to cooperate with the police in the hope of

receiving a low bond, an earlier release and

mitigation of the charges against hin.

Consequently, we find no error in the judge's

17a

determination that the defendant voluntarily

consented to the search of his apartment.

The defendant's other contention is that

the State's evidence violated the due process

Clause for reasons we will discuss after a

recitation of the evidence.

Before July 17, Provost met with a

confidential informant, Park Chambers, who

told Provost he could arrange a delivery of an

ounce of cocaine for $1,400. He and MEG

agents interviewed Chambers and made

arrangements for the delivery of cocaine on

July 17.

Pursuant to those arrangements, on

July 17, Provost and MEG Agents Martinez and

Livas were present at 525 Pinecrest in

Wilmette. It was a single family residence

owned by Chambers. At approximately 1:30

P-m., Martinez entered the residence with

Chambers and, after searching the residence to

make sure no one else was present, "secured

it." Martinez had fourteen $100 bills on his

18a

j

person. The defendant arrived on a motorcycle

| between = 1:52-1:55 p.m. and entered the

| residence. The defendant asked Martinez and

Chambers, who were standing together in the

living room, whether they had the money.

| Martinez said yes and pulled the $1,400 from

eae eee a ee

his pocket and tried to hand it to the

defendant. The defendant pointed to Chambers,

and Martinez handed the money to Chambers, who

in turn haded the money to the defendant. At

that point, the defendant removed a white

envelope from his pocket which contained a

Ziplock baggy holding approximately 27.34

grams of cocaine. The defendant put the

cocaine in the hands of Chambers, who in turn

put it in the hands of Martinez. Chambers and

the defendant went into the kitchen while

Martinez inspected the envelope.

At approximately 1:56 p-m., Martinez

Signaled to the police outside by means of

electronic device. At that point, Provost and

Livas entered the dwelling and went into the

19a

kitchen area where Livas patted down the

defendant. Martinez recovered the $1,400 from

a bulge in defendant's pocket and read the

defendant Miranda warnings. The defendant was

transported to the Wilmette police station.

Martinez gave the bag of cocaine to Provost,

who performed a field test and determined that

it was cocaine.

At the station the defendant was

questioned as to what was in his apartment,

and he responded that there was marijuana, a

small amount of cocaine and a pistol. He said

that he was not a user but sold cocaine to

make money. He also said that he entered

Chambers' house, placed the cocaine on the

table and was handed the money by Chambers.

He discussed his many drug contacts, and

offered to leac police to drug dealers with

great quantities; he would be able to set up a

deal for a "kilo" of cocaine; he had many

other sources most of which were in the city

of Chicago. Provost told the defendant that

20a

nihil Aiameacabaii its

if he wanted to help the police in furthering

drug investigations, they would seek the

approval of the State's Attorney's Office.

The defendant accompanied the police to

his apartment at 600 South Dearborn Street in

Chicago. During the trip he volunteered

statements to the police in which he said he

knew a lot of people in the Wilmette area who

were dealing drugs; he offered to take the

officers to bars in the Rush street area

because many of his contracts were located

there.

During the search of the defendant's

apartment, the police found a bag containing

27.84 grams of cocaine, two ziplock bags

containing cocaine residue and a bag

containing 325.2 grams of cannabis.

The defendant testified by stipulation

that he was 21 years of age; that he is in the

printing business; that on July 17, he went to

the residence of Chambers, and encountered

Chambers and another man whom he did not know

21a

at the time; that he asked Chambers for some

money; the other man produced the money and

gave it to Chambers; then he and Chambers went

into the kitchen where he received the money

from Chambers. The defendant had never been

convicted of a crime.

The defendant also established that in

1987 Chambers had been convicted of possession

of a controlled substance which was reduced

from delivery of a controlled substance and of

theft.

The defendant contends that his due

process rights were violated because: 1) a

search of the prenices where a "controlled

buy" is to take place must be made to

ascertain the presence or absence of a

controlled substance; 2) a search must be made

of the informant to ascertain whether or not

the informant is in possession of a

"controlled substance"; and 3) the State must

produce an affidavit or testimony by the

officer that he did not have in his

22a

possession, any controlled substance before

the "controlled buy." He argues that none of

those requirements is present in this case.

Many cases have discussed the question of

sufficiency of evidence where the sale of a

controlled substance was made to an addict-

informer; and reviewing courts have not

hesitated to reverse convictions where the

testimony of the addict-informer was deemed

inadequate. (See e.g., People v. Bazemore

(1962), 25 Ill. 2d 74, 182 N.E.2d 649; People

v. Dade (1968), 109 Ill. App. 2d 337, 248

N.E.2d 844; People v. Jackson (1968), 103 Ill.

App. 2d 123, 243 N.E.2d 414.) All cases,

whether affirmances or reversals, have been

decided on the basis of whether the proof was

sufficient to establish guilt beyond a

reasonable doubt. No case purports’ to

enunciate bright-line rules as to what

procedures must be followed to pass

constitutional muster. Consequently, we

reject the defendant's arqument that the

23a

procedures followed violated the defendant's

right to constitutional due process.

Moreover, the evidence did not establish

a "controlled buy" as that term is ordinarily

understood in the context of transactions

involving narcotics. In a “controlled buy"

the party making the purchase is an addict-

informer. (See People v. Frank (1964), 51

Ill. App. 2d 251, 256, 201 N.E. 2d 197.) The

police do not actively participate in the

purchase. However, a reading of all the cases

analyzing evidence of controlled buys teaches

that courts are concerned with the credibility

of the informer-purchaser. That concern is

not relevant here because Chambers'

credibility is not involved.

The case before us is subject to the same

test applicable in all criminal cases: Does

the record establish guilt beyond a reasonable

doubt? The State's case was overwhelming. In

addition to Martinez' testimony of the

transaction itself and the recovery of the

24a

marked money, there are the defendant's

confession and corroborating physical evidence

of other cocaine found in his apartment.

For all these reasons, the judgment of

the circuit court is affirmed.

Judgment affirmed.

MCNAMARA, J., and LaPORTA, J., concur.

25a

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE

)

STATE OF ILLINOIS, )

)

Plaintiff-Appellee, )

)

Vv. ) No. 89-1122

)

CARY D. COLES, )

)

)

Defendant-Appellant.

ORDER

IT IS HEREBY ORDERED THAT the appellant's

petition for rehearing is DENIED.

Zs/ Daniel J. McNamara

DANIEL J. MCNAMARA, Justice

ORDER ENTERED /s/ Edward J. Egan

EDWARD J. EGAN, Justice

SEP 0 6 91

ROSEMARY D. LaPORTA, Justice

DATED: September 6, 1991

26a

72665

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

December 4, 1991

Mr. Carl M. Walsh

Attorney at Law

39 So. LaSalle St., S#820

Chicago, IL 60603

No. 72665 - People State of Illinois,

respondent, v. Cary D. Coles,

petitioner. Leave to appeal,

Appellate Court, First

District.

The Supreme Court today DENIED the

petition for leave to appeal in the above

entitled cause.

The mandate of this Court will issue to

the Appellate Court on December 26, 1991.

27a

NORTHEASTERN METROPOLITAN NARCOTICS

AND DANGEROUS DRUGS ENFORCEMENT GROUP

ADVISE OF RIGHTS/

AVISO DE SUS DERECHOS (SPANISH)

Location: Wilmette P.D.

Date: 17 July 87

Time: :10 p.m.

Advise of Rights

cc 1. You have right to remain silent.

cc 2 Anything you say can and will be

used against you in a court of law.

cc a You have the right to talk to a

lawyer and have him/her present with

you while you are being questioned.

ce 4. If you cannot afford to hire a

lawyer, one will be appointed to

represent you before any

questioning, if you wish.

cc 5. You can decide at any time to

exercise these rights and not answer

any questions or make any

statements.

Waiver

i. Do you understand each of these

rights I have explained to you? Yes

2. Having these rights in mind, do you

wish to talk to me/us? No

Aviso de sus Derechos (Spanish)

is Usted tiene el derecho de permanecer

callado.

2 Caulquier cosa que usted tenga que decir

se podra usar en contra suya en la sala

28a

——

de justicia.

Usted tiene el derecho de hablar con un

abogado inmediataments, y tenerio

presente con usted durante la

interragacion.

Si usted no tiene fondos con que obtener

el servicio de un abodgado, la corte le

asignara uno para que lo represente antes

de que se le hagan preguntas algunas.

Usted puede decidir en cualquier momento

en aplicar estos derechos y no contestar

ninguna pregunta re) hacer ninguna

declaracion.

Renuncia (de derechos)

Entiende usted todo los derechos que le

he explicado?

Ahor, teniendo en consideracion estos

derechos, desea usted hablar con (migo)

(nosotros) ?

Witness: /s/ John Provost #551

Witness: /s/ Kenneth Selecki

Signed: /s/ Cary Coles

Name: /s/ Cary Coles

(Printed or Typed)

Time: 2:11 p.m. Date: 17 July 87