author: JUSTICE SPITZ JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. VINCENT PATTERSON, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0100
    Opinion filed December 31, 1990.

      STEIGMANN, J., dissenting.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

The State appeals from an order suppressing a conversation between defendant inmate and an internal affairs investigator. We affirm.

The undisputed facts are these. Defendant is a prison inmate at the Pontiac Correctional Center in Pontiac, Illinois, serving a natural life sentence for offenses unrelated to this matter. On June 29, 1989, during a routine “shakedown” search of prison cells, prison officials found two knife-like instruments, commonly known as shanks, in defendant’s cell. Defendant was the sole occupant of the cell at the time the shanks were found. Prison officials immediately ticketed defendant for the possession of the shanks, and took him to a housing unit called “segregation.” Prison officials house inmates in segregation as punishment for disciplinary infractions or pending disciplinary hearings. Inmates in segregation are locked in their cells 24 hours a day; not permitted to attend classes or job assignments; permitted to shower and exercise on a limited basis, but only under the direct supervision of officers; escorted in restraints everywhere they go; and are not permitted to make telephone calls. Segregation is the most restrictive placement for an inmate.

On August 1, 1989, Richard D. Irvin, an internal investigator with the Department of Corrections (DOC) at Pontiac, called defendant to his office for an “interview.” Irvin’s primary duty at Pontiac is to investigate incidents and prepare cases for prosecution. Warden Lowery had asked Irvin to “interview” defendant and sent Irvin an incident report indicating that defendant was ticketed for allegedly possessing the shanks. At the time of the interview, Irvin knew defendant was in segregation, but did not know that defendant had been placed in segregation as an administrative punishment for allegedly possessing shanks. Irvin did not learn of the reason defendant, was placed in segregation until after the interview. However, when a shank is found in a cell, at least one inmate goes to segregation.

Police officers escorted defendant in restraints, including handcuffs, from his cell in segregation to Irvin’s office, which is located outside the confines of the prison setting. Irvin’s office is positioned next to several other offices and contains several chairs, a filing cabinet, and his desk. The restraints remained on defendant during the interview. No other prison personnel were in Irvin’s office at the time of the interview.

Defendant could have refused to go to Irvin’s office, or to respond to Irvin’s questions during the interview. However, such a refusal is a violation of prison rules and would result in a penalty. A uniformed correctional officer, not Irvin, would have the discretion to issue defendant a ticket for refusing to cooperate. The penalty for being ticketed ranges from a verbal reprimand to several days in segregation.

When defendant arrived at Irvin’s office, Irvin did not introduce himself as an official from internal affairs. However, Irvin did have a sign on the door and an identification tag on his suit which indicated he was from internal affairs. In addition, a nameplate on the desk read “Chief Irvin.” Irvin was formerly the chief of police in Dwight, Illinois.

Irvin did not give defendant Miranda warnings prior to the interview. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) In fact, upon orders from the State’s Attorney of Livingston County, Irvin and the other investigators at Pontiac do not give Miranda warnings in interviews with inmates alleged to have possessed shanks. This policy evolved after an inmate, Brian Nelson, successfully mounted a necessity defense to a charge of possession of a weapon in DOC. Miranda warnings are given before questioning in other types of cases, however, such as when one inmate stabs another with a shank. The reason for not giving Miranda warnings prior to interviews with inmates alleged to have possessed shanks is the belief that the inmates would become “terrorized” and not talk about their safety concerns. Irvin had given Miranda warnings to inmates hundreds of times in the past and only a few of these inmates had responded to questioning.

There are two reasons why prison officials conduct interviews with inmates alleged to have possessed shanks: (1) for internal institutional security, and (2) to prepare for an actual, potential criminal case. Irvin wanted to know if defendant feared for his own safety and whether defendant would claim to have a necessity defense. To obtain this information from the inmates, the State’s Attorney’s office had prepared a series of questions concerning the necessity of possessing a shank. If an inmate reveals no necessity during the interview, the information is used to negate the possibility of the inmate asserting a necessity defense if charges are subsequently filed. Prison officials apparently only became concerned with the inmates’ (apprehensions concerning their) safety after inmate Nelson successfully used the affirmative defense of necessity at his trial for possessing a weapon in prison. The interviews were not conducted until after Nelson staged his successful defense.

A few inmates actually do benefit from the interview, as not all shank possession cases are prosecuted. The Department of Corrections and State’s Attorney decide which cases to prosecute. There have been some cases where inmates possessing shanks are not prosecuted because they informed internal affairs of fears for their lives.

During the interview, defendant did not specifically mention a necessity defense. However, defendant did make various statements indicating he would be inclined to possess a weapon because he saw a friend stabbed at another prison.

On October 2, 1989, the State filed an indictment against defendant alleging the unlawful possession of weapons by a person confined in a facility of the Illinois DOC in violation of section 24 — 1.1(b) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 24— 1.1(b)). The charge under section 24 — 1.1(b) is a Class 1 felony, carrying a potential prison term of 4 to 15 years, or an extended term of 15 to 30 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 24 — 1.1(d), 1005 — 8— 1(a)(4), 1005 — 8—2(a)(3).) The State later filed a second charge against defendant alleging the possession of a weapon by a convicted felon in violation of section 24 — 1.1(a) of the Code. This second charge is a Class 3 felony, carrying a potential prison term of 2 to 5 years, or an extended term of 5 to 10 years. Ill. Rev. Stat. 1989, ch. 38, pars. 24— 1.1(a), (d), 1005-8-1(a)(6), 1005-8-2(a)(5).

On December 18, 1989, defense counsel filed a motion to suppress defendant’s statements made to Irvin during the August 1, 1989, interview. A hearing was held on January 24, 1990, at which Irvin was the sole witness. Irvin’s testimony provided the basic facts. The court granted defendant’s motion to suppress, but allowed the statements to be used for impeachment purposes. In an extensive written order, the court concluded:

“10. Although defendant had not been charged with the offense of Unlawful Possession of Weapon by Person in the Custody of the Department of Corrections at the time of his ‘interview’ on August 1, 1989, there appears to be no question that it was the intention of the Illinois Department of Corrections to pursue criminal charges by attempting to obtain an indictment.
11. Although the People take the position that Miranda is not required unless a prison inmate has been formally charged with an offense, this court finds that in circumstances where a prison inmate has been identified by prison officials as a primary suspect and an investigation has focused upon that individual for an offense occurring within the prison that they are obligated to give to that inmate Miranda warnings before questioning him about the specific offense in question. The court rejects the People’s position that the choice is to never Mirandize uncharged inmates or to constantly Mirandize every inmate any prison official ever talks to for any purpose. Once a prison investigation has focused on an inmate for [a] specific offense, that inmate should receive Miranda warnings. This is in recognition of the fact that a prison inmate, unlike someone who is not incarcerated, has no real choice as to whether to be subjected to questioning even if he refused to answer. He literally is not free to go ‘home’ unless he can persuade prison officials to terminate an interview and permit him to return to his cell which many inmates describe as their ‘house.’ ”

The court also noted that although defendant was physically restrained when brought to Irvin’s office, no threats or physical coercion was used to obtain any statement from defendant, and the specific location of the questioning was a comparatively nonthreatening environment. The court found no just reason to delay enforcement or appeal of the suppression order, and the State filed a timely notice of appeal.

On appeal, the State argues that the trial court erred in suppressing statements defendant made to Irvin during the interview mfthe absence of Miranda warnings. The State believes the court erred by applying a per se rule requiring Miranda warnings anytime such a prisoner is questioned by a prison official. Defendant responds that the trial court did not err in suppressing his statements because, in view of the totality of the circumstances, Miranda warnings were required.

The United States Supreme Court in Miranda held that when an individual is subjected to police interrogation while in custody, he must be clearly advised of certain rights pertaining to his fifth amendment right against self-incrimination. An individual subjected to “custodial interrogation” must be warned “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning, if he so desires.” (Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The Miranda Court was concerned with the coerciveness inherent in situations where suspects are cut off from the outside world and surrounded by antagonistic forces in a police-dominated atmosphere. “(‘The “principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation)” ’ ***.” (Emphasis in original.) (Illinois v. Perkins (1990), 496 U.S. 292, 296, 110 L. Ed. 2d 243, 251, 110 S. Ct. 2394, 2397, quoting Miranda, 384 U.S. at 449, 16 L. Ed. 2d at 709, 86 S. Ct. at 1615, quoting Inbau & Reid, Criminal Interrogation and Confessions 1 (1962).).The Miranda Court believed that unless such warnings were given to dispel the compulsion inherent in custodial surroundings, no statement obtained from a defendant could truly be the product of his free choice. (Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.) Absent waiver, statements obtained from an individual subjected to custodial interrogation by police without first being given Miranda warnings are not admissible into evidence.

A literal reading of Miranda’s “custodial interrogation” suggests that a prisoner questioned by a prison official would always be entitled to Miranda warnings prior to the interrogation. This is because such a prisoner is literally in custody and subject to interrogation. The Court stated in Miranda:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” Miranda, 384 U.S. at 478,16 L. Ed. 2d at 726, 86 S. Ct. at 1630.

The Supreme Court later indicated that it might give effect to a literal interpretation of Miranda’s “custodial interrogation.” (Mathis v. United States (1968), 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503.) In Mathis, the defendant was in prison for a previous offense when questioned by Internal Revenue Service (IRS) officials about his tax returns. The IRS investigator did not give the defendant Miranda warnings prior to the questioning, and the defendant sought to exclude incriminating statements from evidence. The trial court admitted the evidence, and the defendant was convicted. On appeal, the defendant in Mathis argued that Miranda applied to his situation. The government argued that the case fell outside of Miranda because (1) the questions were asked as part of a routine tax investigation where no criminal proceedings might ever be brought; and (2) the defendant was in jail for a separate offense and had not been brought to jail by the officers questioning him. The Supreme Court rejected the government’s arguments, stating, “These differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody.” (Mathis, 391 U.S. at 4, 20 L. Ed. 2d at 384, 88 S. Ct. at 1504-05.) The Court noted that although routine questioning by the IRS may be initiated for the purpose of a civil action rather than criminal prosecution, it also frequently leads to criminal charges, as it did here. The Court concluded by finding nothing in Miranda to call for curtailment of the warnings to individuals under interrogation based upon the reason for custody.

This literal interpretation of Miranda’s custodial interrogation in prison settings has not been adopted by subsequent- Federal appellate decisions, which have interpreted Mathis to mean only that one need not be in custody for the matter to which the questioning relates for Miranda to apply. (See Cervantes v. Walker (9th Cir. 1978), 589 F.2d 424; United States v. Scalf (10th Cir. 1984), 725 F.2d 1272; United States v. Conley (4th Cir. 1985), 779 F.2d 970; Leviston v. Black (8th Cir. 1988), 843 F.2d 302, cert, denied (1988), 488 U.S. 865, 102 L. Ed. 2d 138, 109 S. Ct. 168; United States v. Willoughby (2d Cir. 1988), 860 F.2d 15, cert, denied (1989), 488 U.S. 1033, 102 L. Ed. 2d 978, 109 S. Ct. 846.) This literal interpretation may also have been rejected in dicta in the recent United States Supreme Court opinion in Perkins, which stated:

“(The bare fact of custody [being imprisoned] may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.)” (Perkins, 496 U.S. at 299, 110 L. Ed. 2d at 252, 110 S. Ct. at 2398.)

However, by indicating that Miranda warnings might not be required in every instance when an inmate suspect knows he is speaking to an official, the Court necessarily implied that Miranda warnings would be required in some of these situations.

The Federal appellate decisions discussing Miranda warnings in prison settings agree that while Miranda may apply to one who is in custody for an offense unrelated to the interrogation (e.g., Mathis, 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503), incarceration does not by itself render an interrogation custodial. {Cervantes, 589 E2d at 427.) Further, Miranda warnings were not meant “to hamper the traditional function of police officers in investigating crime”; there is a difference between custodial interrogation, requiring Miranda warnings, and on-the-scene questioning, not requiring such warnings. {Miranda, 384 U.S. at 477, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629.) These decisions also recognize the fact that a prison inmate is not in the same position as a person previously at liberty who is subsequently taken into custody. To afford a prisoner Miranda warnings before every type of questioning would lead “to the illogical position of providing greater protection for a prisoner than to his nonimprisoned counterpart.” {Cervantes, 589 F.2d at 427.) Therefore, instead of focusing on the restrictions an inmate necessarily incurs, Federal appellate courts have determined whether “custody” for Miranda purposes exists by focusing on any further limitations placed on the prisoner. {Cervantes, 589 F.2d at 424.) In determining whether further limitations have been placed on defendants, courts must consider the totality of the circumstances, including the individual’s “ ‘freedom to leave the scene and the purpose, place and length’ of the questioning.” {Leviston, 843 F.2d at 304, quoting United States v. Helmel (8th Cir. 1985), 769 F.2d 1306, 1320.) The relevant inquiry, using an objective standard, is whether a reasonable man in the suspect’s position would have understood himself to be in custody. (Leviston, 843 F.2d at 304, citing Berkemer v. McCarty (1984), 468 U.S. 420, 442 & n.35, 82 L. Ed. 2d 317, 336 & n.35, 104 S. Ct. 3138, 3151 & n.35.) The Miranda doctrine will be enforced strictly in those situations in which Miranda concerns are implicated. Willoughby, 860 F.2d at 23.

A brief review of the facts of several of these Federal decisions on custodial interrogation in a prison setting is helpful in this analysis. In Cervantes, a sheriff’s deputy moved defendant inmate from one jail céll to another after the defendant was involved in a fight. The deputy directed the defendant to gather his belongings and took defendant to the jail library so the shift commander could talk to the defendant before the move. The defendant left his belongings outside the library, and the deputy searched the belongings according to standard jail procedure. Upon finding a small matchbox containing a green odorless substance, the deputy went into the library and asked the defendant what it was. The defendant replied, “That’s grass, man.” {Cervantes, 589 F.2d at 427.) The deputy then arrested the defendant.

The issue' on appeal in Cervantes was whether the deputy’s questioning constituted custodial interrogation requiring Miranda warnings. The Cervantes court held that the defendant was not subjected to custodial interrogation and that Miranda did not apply. The reason for the court’s decision was that the deputy’s questioning of the defendant was on-the-scene questioning, a situation not requiring Miranda warnings, rather than a custodial interrogation. The court emphasized that the questioning took place in the prison library and appeared to have been a spontaneous reaction to the discovery.

In Scalf, the defendant was in segregation for a previous offense. On the morning of the incident in question, the defendant left his cell in segregation and attacked another inmate with two handmade knives. Immediately after the incident, an officer locked all inmates in their cells. A security officer joined the first officer in segregation and was told that the defendant stabbed another inmate. The security officer asked the defendant “ ‘what was going on, what the problem was.’ ” {Scalf 725 F.2d at 1273.) The defendant told the security officer he did not want to have any problems with the officers and that he did “ ‘not like that nigger [the stabbed inmate].’ ” {Scalf, 725 F.2d at 1273.) The defendant also told the security officer, in response to the question of where the knives were, that he had thrown two knives out a window. This was not true, however, as officers later found the two knives in the defendant’s commode.

On appeal, the issue in Scalf was whether the defendant was entitled to Miranda warnings. The appellate court held that such warnings were not required in this instance. The court emphasized the facts that the officer who questioned the defendant was a security guard, and not an investigation or interrogation officer, and that the defendant was not in custody or under arrest for this incident, but was simply in his cell. Thus, the questioning did not give rise to “interrogation” under Miranda. The court found this to be on-the-scene questioning, as in Cervantes. Prison officials did not deprive defendant of his relative freedom or question him in a coercive environment.

In Conley, an inmate was fatally stabbed at breakfast and a prison official discovered the defendant inmate wearing an Ace bandage on his wrist covering a wound. Prison officials escorted the defendant to a conference room in the prison “control room” to await transfer to the infirmary for medical treatment. The defendant discussed the assault with corrections officers in the conference room before and after the treatment. Prior to the treatment, two corrections officers asked the defendant how he was injured. The defendant told the officers that two inmates attacked the victim and he was stabbed while helping the victim. After the treatment, one of the officers asked the defendant if he was “ ‘up to [his] same old shit again.’ ” (Conley, 779 F.2d at 971.) The defendant replied that the victim and he were “ ‘cool,’ ” meaning they were friends, but that the victim had a bad attitude. (Conley, 779 F.2d at 971.) When questioned about the identity of the attackers, the defendant claimed ignorance because the attackers had worn ski masks.

On appeal, the defendant argued he was “in custody” at all times during the conversations with prison officials and his statements should be suppressed because the officials did not administer Miranda warnings prior to the conversation. Relying on Cervantes, the Conley court found Miranda inapplicable in this situation because the defendant was not in custody for Miranda purposes. The court noted that the defendant was taken to the conference room to await medical treatment, not for interrogation. And, although the defendant was handcuffed, this was normal procedure for transferring an inmate to the infirmary. The court finally noted that both officers were on very friendly terms with the defendant, and they questioned defendant as a witness to the assault, not as a suspect. The court concluded that the defendant’s freedom of movement could not be characterized as more restricted than that of other prisoners transferred to the infirmary. Conley, 779 F.2d at 974.

In Leviston, the defendant inmate contacted an officer of the Omaha police department to give him information regarding a robbery. The defendant met with the officer and gave him the information. The officer discovered the information had no basis and informed defendant of this in a second interview. The defendant then implicated himself in the robbery, and the officer gave the defendant Miranda warnings. Upon conviction, defendant appealed, arguing that the incriminating statements he gave the officer should be suppressed because they were not preceded by Miranda warnings. The appellate court disagreed and found Miranda inapplicable in this situation because the defendant initiated the police inquiry, and both interviews arose out of the defendant’s desire to speak about the robbery. Moreover, the defendant voluntarily went to the prison interview room on both occasions to speak with the officer and was free to end the conversation and leave at any time. The appellate court concluded that the defendant could not reasonably have believed he was in custody with respect to'the robbery during either interview.

In Willoughby, defendant inmate sent for his girlfriend and made incriminating statements to her while awaiting trial. The inmate’s girlfriend was an informant, and the trial court admitted the incriminating statements into evidence at the defendant’s trial. After conviction, the defendant argued on appeal that the trial court should have suppressed the incriminating statements because he was not given Miranda warnings prior to making the statements. The appellate court disagreed and found Miranda inapplicable because the statements were voluntary. The defendant could have terminated the conversation with his girlfriend at any time.

Finally, in Perkins, the State placed an undercover agent in the cell of the defendant, who was then incarcerated on charges unrelated to the subject of the agent’s investigation. The defendant made statements incriminating himself in the crime the agent was investigating. The trial court suppressed the defendant’s incriminating statements and the State appealed. On appeal, the defendant argued the statements were inadmissible because the agent did not give him Miranda warnings prior to making the statements. The United States Supreme Court disagreed and held that the essential ingredients for Miranda to apply, a police-dominated atmosphere and compulsion, are not present when an incarcerated person speaks freely to someone he believes to be a fellow inmate. Perkins, 496 U.S. at 298, 110 L. Ed. 2d at 252, 110 S. Ct. at 2398.

The State first argues that defendant was not “in custody” for Miranda purposes when he spoke to Irvin and relies on the Federal appellate cases which conclude there must be an added imposition on freedom of a prisoner’s movement for Miranda warnings to be required in a prison setting. Defendant was brought from segregation to what the State describes as “the more relaxed setting of a prison official’s office.” The State argues that (1) although defendant was in segregation, no formal charges were pending; (2) defendant was free not to go to Irvin’s office and free not to answer any questions; (3) defendant was not unaccustomed to the environment; and (4) no additional limitations of freedom were placed on defendant so as to subject him to the will of his interrogator. The State believes that to argue defendant was “in custody” for Miranda purposes would elevate the rights of the inmate above those of the average citizen and substantially curtail the ability of the State to effectively maintain and safeguard the prison setting. The State also believes it is virtually impossible to distinguish this type of conversation from any other which may take place on a casual basis between prison officials and inmates generally.

We disagree with the State and hold that defendant was “in custody” for Miranda purposes. The State ignores the fact that defendant had been administratively charged with possessing the shanks and had been in segregation as a result. Although no formal charges were pending, the trial court found DOC intended to pursue charges by attempting to obtain an indictment. In this regard, the instant case is very similar to Mathis. Next, defendant was not free to refuse to go to Irvin’s office, or refuse to answer Irvin’s questions. Prison guards could have ticketed defendant for such refusals. Further, there is no evidence that defendant was ever in Irvin’s office before the interview. It thus cannot be said that defendant was “not unaccustomed” to the environment. Finally, there were additional limitations on defendant’s freedom. Defendant was placed in segregation because of the alleged possession of the shanks and was escorted in restraints to Irvin’s office. These restraints remained on defendant throughout the interview. Although it was standard procedure for an inmate in segregation to wear restraints, defendant was in segregation because of the alleged possession of shanks.

The State next argues there was no “interrogation” for Miranda purposes. Again, we disagree. The State argues that although Irvin asked questions addressing peripheral issues in a general nature, Irvin asked no questions concerning defendant’s guilt or innocence. The State ignores the fact that an admitted purpose of the “interview” was to elicit information concerning a necessity defense for an actual potential criminal case against defendant. It cannot be said that the interview was not an interrogation for Miranda purposes.

The State concludes by arguing that the trial court apparently applied a per se rule to the effect that an inmate who is subject to questioning is automatically in custody and therefore entitled to Miranda warnings without undertaking to inquire whether any of the circumstances surrounding the custody and interrogation in cases of this kind provide reason for application of Miranda. The State believes that such a per se rule would deprive law-enforcement officers and prison administrators of their ability to conduct such informal questioning free of the constraints of Miranda procedures. The State misinterprets the trial court’s ruling, which was “that in circumstances where a prison inmate has been identified by prison officials as a primary suspect and an investigation has focused upon that individual for an offense occurring within the prison, that they are obligated to give to that inmate Miranda warnings before questioning him about the specific offense in question.” Although the approach espoused by the trial court was in error (the United States Supreme Court expressly rejected the “focus” approach in Beckwith v. United States (1976), 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612), the trial court did not use the general per se rule described by the State in its brief.

We conclude that while the trial court’s order granting defendant’s motion to suppress was based upon an erroneous approach, the result reached was nevertheless correct. Under the totality of circumstances, defendant was entitled to Miranda warnings prior to Irvin’s “interview.” Unlike the Federal decisions cited finding Miranda inapplicable in certain situations, the questioning of defendant here was not on the scene or spontaneous. Also, Irvin did not interview defendant in his prison cell, or in an open place, but in Irvin’s office. Moreover, Irvin was an investigator, not a security guard, and defendant knew he was talking to an investigator. Finally, Irvin questioned defendant as a suspect, not as a witness, and defendant was not free to end the interview at any time. This case is very similar to the Mathis case, but with the added restrictions of being placed in segregation and being interviewed in restraints. Using an objective standard, a reasonable man in defendant’s position would have believed himself to be “in custody” with respect to the allegations concerning the possession of the shanks. Defendant was also “interrogated” for Miranda purposes. Accordingly, the trial court is affirmed.

Affirmed.

McCullough, j., concurs.

JUSTICE STEIGMANN,

dissenting:

In my judgment, the majority has endorsed an erroneous trial court analysis. As a result, I respectfully dissent.

A complex body of law has developed over the 24 years since the United States Supreme Court first announced that procedural safeguards were needed to protect an individual’s fifth amendment privileges. (See Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.) As the majority in this case correctly points out, the general objective of the Court was to protect the rights of individuals who have been “cut off from the outside world and surrounded by antagonistic forces in a police-dominated atmosphere.” (207 Ill. App. 3d at 109.) While this objective is entirely legitimate in the typical case in which a person, previously at liberty, has been taken into police custody, it should not be extended to cover a person who has been “cut off from the outside world” because he is serving a sentence in a State penitentiary. To extend this objective to cover such persons trivializes and demeans its appropriate use.

In cases like this one, where the applicability of Miranda is raised, courts need to address the following issues: (1) what are the general principles of Miranda concerning custodial interrogation; and (2) how should these principles be applied in the context of the particular case before the court?

1. Miranda Principles

Miranda is a case of limited contextual application. (See Oregon v. Mathiason (1977), 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719, 97 S. Ct. 711, 714.) “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a [particular curtailment of freedom of action] exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” Berkemer v. McCarty (1984), 468 U.S. 420, 437, 82 L. Ed. 2d 317, 333, 104 S. Ct. 3138, 3148-49.

Miranda is particularly applicable to the custodial interrogation of free citizens pulled into the foreign environment of the police. Perhaps the best analysis of this point is provided by Professor Yale Kamisar, as follows:

“It is the impact on the suspect’s mind of the interplay between police interrogation and police custody — each condition reinforcing the pressures and anxieties produced by the other— that, as the Miranda Court correctly discerned, makes ‘custodial police interrogation’ so devastating. It is the suspect’s realization that the same persons who have cut him off from the outside world, and have him in their power and control, want him to confess, and are determined to get him to do so, that makes the ‘interrogation’ more menacing than it would be without the custody and the ‘custody’ more intimidating than it would be without the interrogation.
It is this combination of ‘custody’ and ‘interrogation’ that creates — and, in the absence of ‘adequate' protective devices,’ enables the police to exploit — an ‘interrogation environment’ designed to ‘subjugate the individual to the will of his examiner.’ It is this combination — more awesome, because of the interplay, than the mere sum of the ‘custody’ and ‘interrogation’ components — that produces the ‘interrogation atmosphere,’ ‘interrogation...m a police dominated atmosphere,’ that ‘carries its own badge of intimidation,’ that ‘exacts a heavy toll in individual liberty and trades on the weakness of individuals,’ and that is so ‘at odds’ with the privilege against compelled self-incrimination.” (Emphasis in original.) (Kamisar, Brewer v. Williams, Massiah, & Miranda: What is ‘Interrogation’? When Does It Matter?, 67 Geo. L.J. 1, 63-64 (1978) (quoting terminology of Miranda).)

Whether these same concerns are applicable to the context of prisons and prisoners is addressed next.

2. Applying Miranda Principles to Prisons and Prisoners

Miranda itself concerned the separate cases of four men, each placed into custody by the police and interrogated at a police station for the purpose of obtaining a confession. (Miranda, 384 U.S. at 440, 16 L. Ed. 2d at 704, 86 S. Ct. at 1610.) Since that 1966 decision, the Supreme Court has utilized Miranda in the specific context of prisons and prisoners only three times.

In Mathis v. United States (1968), 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503, the Court reviewed the admissibility of statements made to an IRS agent by a prisoner serving a State sentence. In a five to three decision, the Court rejected the government’s contentions “that tax investigations [we]re immune from the Miranda requirements for warnings to be given a person in custody,” or that the warnings were required only when questioning someone who is in custody in connection with the crime under investigation. Mathis, 391 U.S. at 4-5, 20 L. Ed. 2d at 385-86, 88 S. Ct. at 1505.

Eight years later, the Court rejected the argument that Miranda or Mathis applied to the question of whether counsel must be provided at civil prison disciplinary hearings. Baxter v. Palmigiano (1976), 425 U.S. 308, 315, 47 L. Ed. 2d 810, 819, 96 S. Ct. 1551, 1556 (stating “[t]he Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in [contexts] other than criminal cases”).

Finally, earlier this year the Court held that a Miranda warning was not required when an incarcerated suspect voluntarily spoke to an undercover law enforcement officer posing as a fellow inmate. (Perkins, 496 U.S. at 300, 110 L. Ed. 2d at 253, 110 S. Ct. at 2399.) The Court distinguished Mathis, stating that while Mathis allows a Miranda analysis to be applied to meetings between the State and a prisoner, there was “no reason to assume the possibility that the suspect might feel coerced” in Perkins because the defendant was not aware that he was talking to a government agent. (Perkins, 496 U.S. at 299, 110 L. Ed 2d at 252, 110 S. Ct. at 2398:) The Court concluded parenthetically that “[t]he bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.” Perkins, 496 U.S. at 299, 110 L. Ed. 2d at 252, 110 S. Ct. at 2398.

3. How the Law Should Be Applied in this Case

The majority concludes its opinion by stating that “a reasonable man in defendant’s position would have believed himself to be ‘in custody.’ ” (207 Ill. App. 3d at 116.) Yet, could any reasonable prison inmate not arrive at this same conclusion wherever he may be within the walls of a State prison? As opposed to other persons who are subjected to police interrogation, the prison inmate’s custodial status is not transitory; his questioners have not “cut him off from the outside world.” He undergoes no subtle pressures from the fact of his custody to satisfy his questioners in the hope that they might release him; instead, the prison inmate knows that his custody will continue as a result of a court order no matter what he tells his questioners and no matter how satisfied or dissatisfied they may be with his responses.

In a decision predating Perkins, this court declined to require that Miranda warnings be given to inmates solely because of their inmate status. (People v. Johnson (1990), 197 Ill. App. 3d 762, 765, 555 N.E.2d 412, 413.) “[Cjustody in the prison setting ‘necessarily implies a change in the surroundings of the [inmate] which results in an added imposition on his freedom of movement.’ ” (Johnson, 197 Ill. App. 3d at 765, 555 N.E.2d at 413, quoting Cervantes, 589 F.2d at 428.) While this court acknowledged the holding of Mathis, that inmates incarcerated on unrelated charges are “in custody in the literal sense” (Johnson, 197 Ill. App. 3d at 765, 555 N.E.2d at 413; cf. Perkins, 496 U.S. at 297, 110 L. Ed 2d at 251, 110 S. Ct. at 2397 (stating “[w]e reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense”)), this court declined to.uphold a suppression order absent coercive pressures at the time the incriminating statements were made. Johnson, 197 Ill. App. 3d at 765-66, 555 N.E.2d at 413-14.

Defendant in the present case had been previously arrested, tried, convicted, and sentenced to prison. Given this history, one can reasonably assume that defendant was familiar with his fifth amendment protections when he was interviewed in prison. “At this point in our history virtually every schoolboy is familiar with the concept, if not the language of the [fifth amendment] ***.” (Michigan v. Tucker (1974), 417 U.S. 433, 439, 41 L. Ed. 2d 182, 190, 94 S. Ct. 2357, 2361.) “Rewarning the defendant *** does not serve the purpose of advising the defendant of a previously unknown right to ‘exert some control over the course of the interrogation.’ ” United States v. Rogers (10th Cir. 1990), 899 F.2d 917, 922-23, quoting Moran v. Burbine (1986), 475 U.S. 412, 426, 89 L. Ed. 2d 410, 424, 106 S. Ct. 1135, 1143.

The Supreme Court has recognized that failure to give Miranda warnings “does not entitle the suspect to insist that statements made by him be excluded in every conceivable context.” (Tucker, 417 U.S. at 451, 41 L. Ed. 2d at 197, 94 S. Ct. at 2367.) “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda, 384 U.S. at 478,16 L. Ed. 2d at 726, 86 S. Ct. at 1630.

Miranda was never intended to apply to every interaction between the authorities and suspects. (See Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.) The Court, in creating Miranda’s prophylactic protections, sought to strike a balance “between society’s legitimate law enforcement interests and the protection of the defendant’s Fifth Amendment rights.” (Burbine, 475 U.S. at 424, 89 L. Ed. 2d at 423, 106 S. Ct. at 1142; see also Markman, Miranda v. Arizona: A Historical Perspective, 24 Am. Grim. L. Rev, 193, 211 (1986) (stating that a basic contention of Miranda was that its requirements would not be difficult for the police to follow or unduly harmful to law enforcement in general).) As courts extend Miranda to new contexts, they should be careful to weigh the balance of each application and to insure that Miranda’s “compromise” is not lost to one side or the other (Saltzburg, Miranda v. Arizona Revisited: Constitutional Law or Judicial Fiat, 26 Washburn L. J. 1, 23 (1986)). I believe there are legitimate law enforcement interests present in this case.

Concern for the safe and efficient operation of our penal institutions requires “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” (Wolff v. McDonnell (1974), 418 U.S. 539, 556, 41 L. Ed. 2d 935, 951, 94 S. Ct. 2963, 2975.) “[Cjentral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” (Pell v. Procunier (1974), 417 U.S. 817, 823, 41 L. Ed. 2d 495, 502, 94 S. Ct. 2800, 2804.) “[Wjhile persons in government-imposed confinement retain various rights secured by the Bill of Rights, they retain them in forms qualified by the exigencies of prison administration and the special governmental interests that result.” Conley, 779 F.2d at 973.

The meeting between Irvin and the defendant concerned institutional goals deserving of protection. Irvin asked defendant various questions relating to defendant’s safety and the need for protection within the institution. Defendant, arguing that Mathis applies, urges us to find that this meeting was a custodial interrogation. To interpret Mathis this broadly “would, in effect, create a per se rule that any investigatory questioning inside a prison requires Miranda warnings.” Cervantes, 589 F.2d at 427 (holding that incarceration does not itself render an interrogation custodial).

The Supreme Court has recognized that a citizen’s individual rights may be limited once the person has been introduced into the criminal justice system as a' detainee (the term defined in Bell v. Wolfish (1979), 441 U.S. 520, 523, 60 L. Ed. 2d 447, 458, 99 S. Ct. 1861, 1865-66, to describe persons charged with a crime, held in custody, and awaiting trial), or as a prison inmate. While convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison (see Jones v. North Carolina Prisoners’ Labor Union, Inc. (1977), 433 U.S. 119, 129, 53 L. Ed. 2d 629, 641, 97 S. Ct. 2532, 2540 (recognizing reasonable restrictions on first amendment rights); Meachum v. Fano (1976), 427 U.S. 215, 225, 49 L. Ed. 2d 451, 459, 96 S. Ct. 2532, 2538 (recognizing a due process right); McDonnell, 418 U.S. at 555-56, 41 L. Ed. 2d at 950-51, 94 S. Ct. at 2974-75 (recognizing a due process right); Procunier, 417 U.S. at 821-22, 41 L. Ed. 2d at 501, 94 S. Ct. at 2804 (recognizing prisoner’s freedom of speech and religion under the first and fourteenth amendments)), these constitutional rights are nonetheless subject to lawful restrictions and limitations. (Bell, 441 U.S. at 545, 60 L. Ed. 2d at 472, 99 S. Ct. at 1877 (deferring to prison regulations despite inmates’ first, fourth, and fifth amendment claims); Jones, 433 U.S. at 130-31, 53 L. Ed. 2d at 641-42, 97 S. Ct. at 2540-41 (restricting inmate’s first amendment speech and assembly rights); Price v. Johnston (1948), 334 U.S. 266, 285, 92 L. Ed. 1356, 1369, 68 S. Ct. 1049, 1060.) Here, defendant is not even arguing the infringement of a constitutional right, but only that Miranda warnings should have been given. “The prophylactic Miranda warnings therefore are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.’ ” New York v. Quarles (1984), 467 U.S. 649, 654, 81 L. Ed. 2d 550, 556, 104 S. Ct. 2626, 2630, quoting Tucker, 417 U.S. at 444, 41 L. Ed. 2d at 193, 94 S. Ct. at 2364.

As a last matter, I point out that holding Miranda warnings are not applicable to interrogations of prison inmates would not leave the inmates bereft of any constitutional protections. The State would still have to show that statements obtained through such interrogations were voluntarily given. In other words, incriminating statements extracted from prison inmates as a result of beatings, torture, or other coercive methods would be inadmissible at trial whether or not the prophylactic protections of Miranda were deemed applicable to interrogations of inmates.

The nature of the requirement of voluntariness was discussed by Professor Michael H. Graham as follows:

“An involuntary confession or admission is inadmissible. *** Self-incrimination and due process remain as the prime bases for exclusion ***. The test to determine whether a confession is voluntary is to discover if the accused’s will was overborne at the time he confessed. [Citation.] If so, the confession cannot be deemed the product of a rational intellect and a free will. [Citation.] The state must establish that the statement was knowingly, intelligently, and voluntarily made by a preponderance of the evidence.” M. Graham, Cleary and Graham’s Handbook of Illinois Evidence §502.11, at 227-28 (4th ed. 1984).

Because Miranda has no application to the interrogation of prison inmates, I conclude that the trial court erroneously suppressed defendant’s statements.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN T. JOHNSON, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0418
    Opinion filed December 20, 1990.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant pleaded guilty to home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11) and was sentenced to eight years’ imprisonment. His trial counsel filed a timely motion to withdraw the guilty plea which was denied. Defendant appeals, contending the hearing on the motion to withdraw the guilty plea was defective because of the failure of defendant’s attorney to comply with Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Specifically, no report of proceedings from the guilty plea was prepared or examined by trial counsel and, accordingly, defendant’s attorney was unable to file the certificate of compliance required by the rule in that regard.

The State concedes the rule was violated since the report of proceedings from the guilty plea was not prepared until several months after the hearing on the motion to withdraw the plea. Nevertheless, the State contends a new hearing is not required. Initially, the State argues that because defendant’s post-sentencing attorney was also trial counsel, the failure to review a transcript of the guilty plea hearing was de minimis. This identical argument was rejected in People v. Steinmetz (1982), 110 Ill. App. 3d 439, 442 N.E.2d 645, wherein the court concluded that to assume a knowledge of the record from the mere fact of continuous representation trammels on the policy behind this particular requirement of Rule 604(d), i.e., that each defendant be assured adequate and proper representation on a motion to withdraw his guilty plea.

For this same reason, we also reject the State’s alternative contention that the issue is waived because defense counsel stated that, although he had no recollection of the plea hearing, production of a transcript was within the court’s prerogative and dependent only upon the court’s memory of the events which transpired at the earlier hearing. This argument fails for two distinct reasons. In the first instance, the rule exists for the benefit of defendant, not the court. The court is under an affirmative duty to require production of a transcript upon the filing of a motion to withdraw the plea. Second, defense counsel is explicitly required to examine the transcript to make an adequate determination of whether any defects exist sufficient to warrant inclusion in a motion to withdraw the plea. We judge that neither trial counsel nor the court complied with the respective duties imposed independently upon them by the rule and, accordingly, the issue has not been waived by defendant.

The State finally argues that the error was harmless. In his motion, defendant raised four issues: two concerning the sufficiency of the admonitions he received prior to acceptance of the negotiated plea and two concerning the sentence the trial court subsequently imposed. The transcript from the plea hearing, which is a part of the record on appeal, reveals that none of these issues have any merit and defendant does not contend otherwise. Since the record on appeal does not reveal any error at the hearing on the plea which would have supported defendant’s motion to withdraw the plea, and because defendant does not now argue that defense counsel did not raise an issue which could have been raised, the State concludes the issue is moot.

Defendant counters that the supreme court’s decision in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, requires strict compliance with Supreme Court Rule 604; and case law which predates Wilk, which permitted only substantial compliance or found the error harmless, is no longer good law. Defendant cites People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, for the proposition that strict compliance with the rule requires a remand for a new hearing on the motion to withdraw. The State counters that Hayes is distinguishable because in that case defendant specifically requested that he be allowed to amend his motion to withdraw the plea while no similar relief is requested here. Defendant rejoins that implicit in a request for a new hearing after compliance with the rule is the possibility that an amendment to the motion may be sought.

As we acknowledged in People v. Ledbetter (1988), 174 Ill. App. 3d 234, 528 N.E.2d 375, the supreme court in Wilk pointed out “the rules adopted by the supreme court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” (Ledbetter, 174 Ill. App. 3d at 238, 528 N.E.2d at 378.) The supreme court has made clear that defendants must comply with this rule. No less can be required from the trial court and counsel. Expedience is no substitute for compliance.

For the reasons heretofore stated, the judgment of the circuit court of McLean County is vacated and the cause is remanded for further proceedings.

Vacated and remanded.

LUND, P.J., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHELLE SWISHER, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0316
    Opinion filed December 20, 1990.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Anthony E. Novak, of Anthony Novak & Associates, of Urbana, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 14, 1990, Michelle Swisher, defendant, was charged with unlawful possession of cannabis in violation of section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56V2, par. 704(b)) and with unlawful possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1402(b)). The defendant filed a motion to quash the arrest and suppress the evidence. Following a hearing on that motion on April 27, 1990, the trial court granted the defendant’s motion to suppress. The People appeal, and the issue before this court is whether the trial court erred in finding that the police had made an improper Terry-type stop when they walked up to a parked car in which they had seen suspicious movement.

The witnesses presented at the hearing on the motion to suppress were Urbana police officers Baird and Royal. Officers Baird and Royal were on routine patrol in the City of Havana in a police vehicle. While on patrol, Officer Baird, as the driver, exited an alley when Officer Royal stated he saw a person in a car parked in a parking lot “duck down.” After the officers went by, Officer Royal turned around and saw the “person come back up.” The officers pulled into the parking lot, shut the lights off and approached the vehicle on foot. Officer Royal went to the passenger side, Officer Baird to the driver’s side, and they simultaneously turned their flashlights on to check the occupant of the vehicle. Baird at the same time knocked on the driver’s side window and asked for identification and Royal opened the passenger door and ordered the defendant out. After the defendant exited, Baird saw a small mirror, a white powdery substance, and a “baggy [sic]” containing a white powdery substance with a twist tie in the vehicle. Officer Royal testified he saw the white mirror with a white powder on it “as soon as I turned the light on.” The car was parked near a tavern, “directly north of the tavern.” Other cars were parked in the lot, and the tavern, as well as the nearby corner cafe, were open for business.

The officers did not activate- any emergency lights or siren or engage in any other conduct to effectuate a stop of the defendant.

On cross-examination, when asked the purpose of an officer on each side of the car, Baird stated “[i]n the event there was more than one occupant of the car, we didn’t want them leaving until we found out what they were doing.”

The trial court found that “the leaning forward or slinking down behavior *** was the crux of the officers’ suspicion.” The trial court determined there had been a stop when “the officers approached the car and had determined to place themselves on each side of the car so that certain egress was effectively blocked and the identification was asked for at the same time. I think there was a stop, and I think based on the case law and my feeling about the nature of the conduct observed here, that there simply wasn’t a reasonable articulable suspicion that rose to the level that permitted an investigatory stop.”

Without the necessity of citation, it is clear that a trial court’s ruling on a motion to suppress will not be disturbed unless it is against the manifest weight of the evidence.

This court adopts the following statements made by the Second District Appellate Court in People v. Clark (1989), 185 Ill. App. 3d 231, 236-37, 541 N.E.2d 199, 202-03:

“The purpose of the fourth amendment is not to eliminate all contact between the police and citizens, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there is no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification. (Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1876.) A'person has been seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Royer, 460 U.S. at 501-02, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.
The fourth amendment is not implicated where the police merely approach an individual on the street or in a public place and ask him if he is willing to answer questions, or put questions to him if the person is willing to listen. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.)'The fact that a police officer identifies himself as such does not, without more, convert the encounter into a seizure. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) A person approached by the police need not listen to or answer any questions and may go on his way, and his refusal to listen to or answer questions does not, without more, furnish reasonable, objective grounds to detain him, even momentarily. (Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) Examples of circumstances which might indicate a seizure would be the threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,100 S. Ct. at 1877.) *** ***
Professor Wayne R. LaFave in his respected treatise on the fourth amendment states that ‘the mere approach and questioning of such persons does not constitute a seizure,’ and ‘[t]he result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation’ such as the officer tapping on the window. (3 W. LaFave, Search & Seizure §9.2(h), at 415-16 (2d ed. 1987).) ‘A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so.’ 3 W. LaFave, Search & Seizure §9.2(h), at 416 (2d ed. 1987).”

Per the reasoning in Clark and United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, the trial court was correct in determining there was a stop. See also People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252; People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935.

A peace officer, after having identified himself as such, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed an offense as defined in the Code of Criminal Procedure of 1963 (Code) and may demand the name and address of the person and an explanation of his actions. (Ill. Rev. Stat. 1989, ch. 38, par. 101 — 1 et seq.) The detention and temporary questioning is to be conducted in the vicinity of where the person is stopped. Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14.

In this case, the only evidence presented to the court concerning whether the defendant was committing or was about to commit or has committed an offense was the testimony by Officer Royal that he saw the defendant duck down or make a rapid movement and lean forward in the vehicle. The trial court found “the leaning forward or slinking down behavior could still be an innocent act.”

Section 107 — 14 of the Code is, in substance, similar to the Supreme Court’s reasoning in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Per Terry, a police officer under appropriate circumstances may briefly detain a person for investigatory purposes. The trial court, in determining the merits of the motion to suppress, may look at all of the facts and circumstances, and even those which might constitute innocent behavior, if viewed separately, may provide reasonable suspicion justifying a stop when considered in their entirety. No factors such as lateness of the hour, whether the location was a high-crime area, or whether the car or its location was otherwise suspicious were presented. The only evidence is the testimony that Officer Royal saw the defendant duck down in the car. The trial court’s finding that the defendant’s actions as testified to by Officer Royal did not show sufficient specific, articulable facts to authorize the officers’ intrusion is correct. Its decision was not against the manifest weight of the evidence.

The order of the Champaign County circuit court is affirmed.

Affirmed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE L. YOUNG, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0219
    Opinion filed December 31, 1990.

      Theodore A. Gottfried and Patrick J. Hughes, Jr., both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Joe L. Young, was convicted of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 2), attempt (armed robbery) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 18 — 2), and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4), and was sentenced to 11 years, 10 years, and 5 years in prison, respectively. On appeal, defendant claims, inter alia, that the trial court abused its discretion when it precluded him from replacing his court-appointed counsel with a private attorney of his own choice. We agree and, accordingly, reverse and remand for a new trial.

I. Facts

Defendant and Gary Bolden were arrested and charged with attempt (armed robbery) and armed violence on July 24, 1989, and the Vermilion County public defender was appointed as counsel for both defendants. On September 8, 1989, both defendants were arraigned and pleaded not guilty, and jury trial was set for October 23, 1989. However, on October 23, Vermilion County public defender Robert Melntire, who represented both defendants, filed a motion for separate trials or, in the alternative, separate counsel for each defendant. The court denied the motion for severance but granted the motion for substitution of counsel. The court appointed attorney Theodore Pasierb to represent Bolden. Pasierb immediately requested a continuance, and that request was granted. The court set October 30, 1989, as the trial date for both defendants.

On the morning of October 30, prior to jury selection, Melntire informed the court that defendant wished to replace him with an attorney of defendant’s own choice. Melntire explained that defendant had apparently received bail money (in excess of $1,500) four days earlier and intended to use it to hire his own lawyer. The court summarily denied the motion, stating that “because of the late time and the Jury trial is set this date, the Defendant is incarcerated, the motion for a continuance to seek another counsel is denied.”

After a luncheon recess, attorney John McFetridge appeared in open court and stated that defendant had contacted him for the purpose of representation. McFetridge explained his situation as follows:

“MR. McFETRIDGE: Your Honor, if I might, I have been contacted very recently by Mr. Young who has expressed a desire to retain me. I had spoken to him some time ago. Apparently his ability to do so is of extremely recent genesis. Miss Simpson [the assistant State’s Attorney] has advised me that she would be resisting any such appearance for the reason that the matter is set for trial right away. I’m not sure what the Court’s position [is] nor, in fact, what that of other Counsel is in this.”

Pasierb told the court that he would not object to McFetridge’s entry as long as the trial would not be delayed by a continuance. The State objected to McFetridge’s entry, claiming it was “more than likely a ruse to move the case from your Honor’s court call” because McFetridge was employed by the judge’s former law firm, and "would also prevent us from starting the trial this afternoon.” In support of Mc-Fetridge’s entry of appearance for defendant, the public defender, Melntire, argued that defendant had only recently become financially able to retain private counsel who was now “available and willing” to enter his appearance and that the only previous continuance in the case had been primarily for the benefit of the codefendant. After hearing arguments, the entire ruling and explanation of the trial court was as follows:

“THE COURT: Okay, the motion to enter substitution of Counsel is denied as being untimely. We’ll proceed to trial on this case. Bring in 30 prospective Jurors. Is there anything else we need before we start?
MR. MeINTIRE: The only other matter is I’m not quite sure of the state of the record with respect to Mr. McFetridge’s willingness to enter an appearance. I understand that Mr. Mc-Fetridge—
MR. McFETRIDGE: Judge, I’m reluctant to address the Court on any substantive issues in this matter for a lot of good reasons, simple good manners being one and prohibition of my practicing before your Honor. I believe Mr. Mclntire has adequately articulated Mr. Young’s position in this matter, and I note that everything is being transcribed by a Court Reporter.
THE COURT: Okay. The motion is still denied. I think it’s untimely. Mr. Young has had from 7/24[/89, the day of his initial appearance]. I realize that there may have been a question of monetary needs. We continued this case last week to this morning. We continued it this morning after hearing it. There are a hundred Jurors out there. There’s a co-Defendant that wishes to have a trial, and based on all those I don’t believe it would be appropriate to allow an entry of appearance or substitution of Counsel. Bring 30 people in, and we’ll start picking a Jury.”

II. Analysis

A defendant in a criminal case has a constitutional right to the assistance of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8), which “includes the right to be represented by counsel of one’s own choice.” (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116, 117; see also People v. Holmes (1990), 141 Ill. 2d 204, 217 (“This constitutional guaranty [of the right to assistance of counsel] encompasses both the right to effective representation by competent counsel [citation] and the right to select and be represented by one’s preferred attorney (Wheat v. United States (1988), 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148, 108 S. Ct. 1692, 1697 D-DO The right to choice of counsel is an absolute right, limited only when abused, such as attempts to thwart, delay, or embarrass the effective administration of justice (Green, 42 Ill. 2d at 557, 248 N.E.2d at 117; People v. Solomon (1962), 24 Ill. 2d 586, 590, 182 N.E.2d 736, 739; People v. Spurlark (1978), 67 Ill. App. 3d 186, 196, 384 N.E.2d 767, 774 (referring to the right to be represented by a particular counsel as “fundamental”)) or when a conflict of interest might arise (Holmes, 141 Ill. 2d at 226-27).

If a defendant moves to change counsel, it is within the trial court’s sound discretion to grant or deny a continuance for the substitution of counsel. (Solomon, 24 Ill. 2d at 589-90, 182 N.E.2d at 738.) “At what point a defendant’s right to select counsel unreasonably interferes with the orderly process of judicial administration, necessarily depends upon the particular facts and circumstances surrounding each case and is a matter which lies within the sound judicial discretion of the trial court.” (Emphasis in original.) (Spurlark, 67 Ill. App. 3d at 197, 384 N.E.2d at 774; see also People v. Terry (1988), 177 Ill. App. 3d 185, 190, 532 N.E.2d 568, 572.) Therefore, we must determine whether the court’s action in this case amounts to an abuse of discretion.

In People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040, this court concluded “that if new counsel, specifically identified, stands ready, willing[,] and able to make an unconditional entry of appearance instanter, a motion for continuance should be allowed. If any one of these requirements be lacking, the decisions indicate that a denial of the motion is not an abuse of discretion.” Koss, 52 Ill. App. 3d at 607-08, 367 N.E.2d at 1041.

From the record before this court, attorney McFetridge apparently stood willing and able to make an entry; the only reason we do not know if he was ready to do so unconditionally is because the court never asked. Thus, McFetridge never discussed how prepared he was for trial, if he would need a continuance, and how lengthy that might have to be. The Illinois Supreme Court in Green, speaking through Justice Schaefer, discussed the late entry of appearance of new counsel, as follows:

“[T]he right of an accused to be represented by counsel of his choice cannot be permitted to bring about an ‘indefinite thwarting of the administration of justice.’ But no such danger was threatened in this case, and we are of the opinion that the defendant’s constitutional right was violated when the court, without any inquiry into the truth of the circumstances described by the defendant, summarily denied his request for a continuance and insisted that he go to trial that day, represented by an assistant public defender who had no opportunity to investigate the case.” (Green, 42 Ill. 2d at 557, 248 N.E.2d at 117.)

We note that the public defender in the present case was fully prepared to proceed, as opposed to the circumstances in Green, but Green still provides guidance as to what inquiries the court should make. Unless the court specifically finds that defendant is utilizing his right to counsel to thwart the administration of justice, defendant’s right to counsel of his choice ought to be respected. All that is shown in this case is the potential for an inconvenience to the administration of justice; such an inconvenience cannot be deemed an unreasonable interference with the orderly process of judicial administration.

The present case differs from others in which a defendant merely expressed a desire to obtain private counsel (Terry, 177 Ill. App. 3d at 191, 532 N.E.2d at 572) or “expected” private counsel to make an entry of appearance (People v. Capers (1989), 186 Ill. App. 3d 367, 370, 542 N.E.2d 528, 530). This case also differs from those in which the defendant’s financial ability to hire an attorney is unclear (People v. Lewis (1988), 165 Ill. App. 3d 97, 103, 518 N.E.2d 741, 745 (awaiting loan approval); Koss, 52 Ill. App. 3d at 607, 367 N.E.2d at 1041 (awaiting money from home)).

Based on this record, we conclude that the court’s decision to deny defendant the counsel of his choice was an abuse of discretion. We therefore reverse and remand. To avoid double jeopardy problems on remand, we find that the evidence adduced at trial was sufficient to sustain defendant’s convictions. This ruling in no way implies a finding as to defendant’s guilt that would be binding on retrial, but merely allows the State to proceed again against defendant. See People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

Reversed and remanded.

GREEN and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD A. LAFFERTY, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0247
    Opinion filed December 20, 1990.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, and Amy Keil Schmidt, Law School Graduate, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On February 17, 1990, following a jury trial in the circuit court of Champaign County, defendant Richard A. Lafferty was convicted of two counts of aggravated criminal sexual assault. He was subsequently sentenced to terms of eight years’ imprisonment for each offense, with the terms to run consecutively. On appeal, defendant maintains (1) he was improperly sentenced to consecutive terms, because both offenses arose from the same episode or transaction; and (2) the trial court abused its discretion in sentencing him to consecutive terms, because he was a first offender and suffered from a diminished mental capacity. We affirm.

Defendant was charged with two counts of aggravated criminal sexual assault. The first charge indicated defendant had committed an act of sexual penetration in that he “placed his penis in the anus of B.J.W.” The second charge alleged defendant had committed an act of sexual penetration in that he “placed his finger in the anus of B.J.W.” The victim was alleged to be five years old. Defendant argues that since both offenses occurred on the same day, in the same place, and at the same time, the sentences should run concurrently.

Defendant notes the supreme court recently held that only concurrent sentences could be imposed where a defendant is prosecuted for more than one offense arising out of one episode. (People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802, 805.) The court there said, “in view of [People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838], the sentences [for multiple acts of sexual assault] can only run concurrently and, as such, there is no enhancement-of-penalty claim and no double jeopardy claim.” Segara, 126 Ill. 2d at 78, 533 N.E.2d at 806.

Defendant recognizes that section 5 — 8—4(a) of the Unified Code of Corrections provides for consecutive sentences where a defendant is convicted of multiple violations of sections 12 — 13 or 12 — 14 of the Criminal Code of 1961 (Code), which provided for the offenses of which defendant was convicted. He maintains, however, that the trial court incorrectly determined this statute required consecutive sentences.

Section 5 — 8—4(a) was modified, effective July 1, 1988, however, to indicate “where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 *** the court shall enter sentences to run consecutively.” (Emphasis added.) (Pub. Act 85 — 1030, §3, eff. July 1, 1988 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 8—4(a)).) Defendant’s convictions were both violations of section 12 — 14, thus, it is clear consecutive sentences were mandatory under section 5 — 8—4(a). The amendment to the statute, subsequent to Segara, constitutes a more recent expression of legislative intent and establishes a new rule. Schlenz v. Castle (1980), 80 Ill. App. 3d 1131, 1135, 400 N.E.2d 753. 756.

In sentencing defendant, the trial court noted the effect of this section on the defendant’s case. The court considered the language in the statute to mandate consecutive sentences and said if it were not for the specific language, the defendant would be entitled to concurrent sentences. The plain language of section 5 — 8—4(a) creates an exception to the general ban against consecutive sentences for violations of section 12 — 14 of the Code.

In People v. Buford (1988), 178 Ill. App. 3d 329, 533 N.E.2d 472, the defendant was convicted of a Class X felony where the victim was severely injured. The defendant there argued that despite the language of section 5 — 8—4(a), consecutive sentences were improperly imposed, because the acts underlying his convictions were undertaken for the same objective and occurred at the same place and time. The court, citing section 5 — 8—4(a), noted:

“[Cjonsecutive sentencing is proper if a defendant has been convicted of a Class X felony and if he had inflicted severe bodily injury during commission of the felony, regardless of whether defendant’s criminal objective remained unchanged throughout the incident.” Buford, 178 Ill. App. 3d at 338, 533 N.E.2d at 478.

Here, although this case involves a violation of section 12 — 14 rather than a Class X felony, the reasoning is the same. Even though defendant’s actions were the result of one criminal objective that remained unchanged throughout the incident, the trial court properly imposed consecutive sentences.

Defendant next argues the trial court abused its discretion in sentencing him to consecutive terms of imprisonment, in excess of the minimum, where the record showed he was a first offender and suffered from a diminished mental capacity. However, section 5 — 8—4(a) of the Unified Code of Corrections required the imposition of consecutive sentences. As we further explain, the imposition of a minimum sentence as to each conviction was not required.

The record shows the trial court considered the fact that defendant was a “person of limited intelligence.” The court noted, however, that his intelligence was not so limited as to provide a defense to the criminal conduct of which he was convicted. The court said it was considering his mental capacity, together with all other appropriate factors in mitigation and aggravation.

In addition, the court expressly noted defendant’s lack of prior history of criminality and delinquency. Although defendant argues the court must have ignored these factors in imposing sentences in excess of the minimum, we note the court is not required to specifically assign a weight to each factor which influenced its decision. (People v. Crews (1989), 191 Ill. App. 3d 228, 236, 547 N.E.2d 580, 586.) Neither defendant’s status as a first offender nor his age and mental capacity required the court to impose the six-year minimum term of imprisonment. (People v. Tatum (1989), 181 Ill. App. 3d 821, 826, 537 N.E.2d 875, 878.) The imposition of consecutive eight-year terms of imprisonment was within the trial court’s discretion.

Accordingly, for the reasons stated, the decision of the trial court is affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
      In re ESTATE OF LAURENCE T. BROWN, a Minor (Gene Brown et al., Petitioners-Appellees, v. Sharon M. Brown, Respondent-Appellant).
    Fourth District
    No. 4—89—0393
    Opinion filed December 31, 1990.
    —Rehearing denied January 30, 1991.

      Frederick F. Cohn and Joyce A. Matuzak, both of Chicago, for appellant.

      Joseph W. Vigneri, of Decatur, for appellees.
    Mark D. Gibson, of Decatur, guardian ad litem.

   JUSTICE KNECHT

delivered the opinion of the court:

This action involves an intrafamilial dispute over the guardianship of a minor child. (Ill. Rev. Stat. 1985, ch. llOVe, par. 11 — 7.) The petitioners, Gene and Glenda Brown, are the maternal grandfather of the minor child and his wife. The respondent, Sharon M. Brown, is the natural mother of the minor child. Petitioners were named co-guardians by the circuit court of Macon County, and respondent appeals. We affirm.

On July 30, 1986, the petitioners filed a petition for guardianship over the minor child in the circuit court of Macon County, Illinois. The petition, as later amended, alternately alleged: (1) the respondent was unfit as a parent to have custody of the minor child; (2) the petitioners were fit persons to have custody of the minor child; and (3) it would be in the best interest of that child to appoint the petitioners as his legal guardians for custody purposes. (Ill. Rev. Stat. 1985, ch. IIOV2, par. 11 — 7.) On December 5, 1988, the circuit court entered a memorandum decision awarding child custody to the petitioners and visitation rights to the respondent. On January 12, 1989, the respondent filed a motion for reconsideration of the memorandum decision. On March 7, 1989, the circuit court entered an order appointing the petitioners as co-guardians over the minor child. On March 27, 1989, the respondent filed her notice of appeal in the action.

The respondent raises three issues on appeal: (1) whether the guardianship provision of the Probate Act of 1975 (Act) is unconstitutional (Ill. Rev. Stat. 1987, ch. llO1^, par. 11 — 7); (2) whether the petitioners lack standing to initiate the proceeding for guardianship over the minor child (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)); and (3) whether the appointment of the petitioners as co-guardians over the minor child is against the manifest weight of the evidence.

We first address the merits of a procedural motion taken with this action on appeal. The petitioners contend the brief filed by the respondent is not in compliance with the procedural practice rules governing appeals. (See 107 Ill. 2d Rules 323, 326, 341, 342.) Petitioners request both the brief be stricken and the appeal be dismissed as sanctions for failure to comply with these rules.

The procedural practice rules have the force of law in Illinois. (Portock v. Freeman (1977), 53 Ill. App. 3d 1027, 1031, 369 N.E.2d 201, 204.) Litigants must comply with these rules in filing their briefs on appeal. Absent substantial compliance with the procedural practice rules, we may, in the proper exercise of discretion, sanction that litigant by striking the brief and dismissing the appeal. Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1092, 494 N.E.2d 171, 174-75.

We have examined the brief of the respondent in light of the procedural challenge. The brief of the respondent does not so flagrantly violate the cited practice rules as to preclude review of the cause on appeal. “[W]here none of the purported violations of [the procedural practice rules] are so flagrant as to hinder or preclude review, then either the striking of a brief or the dismissal of an appeal is *** unwarranted.” (In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 91, 507 N.E.2d 912, 916.) Accordingly, we deny the motion of the petitioners.

The respondent initially contends the guardianship provision of the Act is unconstitutional. (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11— 7.) We disagree.

As a historical matter, the United States Supreme Court has accorded great deference to the relationship between parent and child in its decisions. (Parham v. J.R. (1979), 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504.) A summary of that decisional course offers enlightening commentary on familial relations:

“The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska [(1923)], 262 U.S. 390, 399[, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626], ‘basic civil rights of man,’ Skinner v. Oklahoma [(1942)], 316 U.S. 535, 541[, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113], and ‘[r]ights far more precious...than property rights,’ May v. Anderson [(1953)], 345 U.S. 528, 533[, 97 L. Ed. 1221, 1226, 73 S. Ct. 840, 843]. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts [(1944)], 321 U.S. 158, 166[, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442].” Stanley v. Illinois (1972), 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558-59, 92 S. Ct. 1208, 1212-13.

Illinois law, in accordance with these decisions, defers in the first instance to the relationship between parent and child in both custody and guardianship proceedings. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417; In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231.) That law, as expressed in the Act, provides:

“If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.” Ill. Rev. Stat. 1987, ch. IIOV2, par. 11 — 7.

This section represents a codification of the long-standing superior rights doctrine. (Livingston, 42 Ill. 2d at 209-10, 247 N.E.2d at 422; see also In re Person & Estate of Newsome (1988), 173 Ill. App. 3d 376, 379, 527 N.E.2d 524, 525.) Under that doctrine, a natural parent is presumed to have a superior right to the care, control, and custody of minor children. The superior rights doctrine is not absolute. A natural parent may be required to yield custody rights if the best interests of a minor child will be served. Livingston, 42 Ill. 2d at 208-10, 247 N.E.2d at 421-22; Townsend, 86 Ill. 2d at 508-09, 427 N.E.2d at 1234-35.

The equal protection challenge is not persuasive. (See Montgomery v. Roudez (1987), 156 Ill. App. 3d 262, 269-70, 509 N.E.2d 499, 504-05.) Respondent contends the statute sets up an unreasonable and discriminatory classification so that parents who live apart are treated differently than parents who live together. We do not view the statute in this light.

Respondent claims that this discriminatory classification arises because, under section 11 — 7 of the Act, a child may be removed from parents who live together or from a surviving parent only after a finding that such parent is not a “fit person,” whereas if the parents live apart, no such finding is required. In Townsend, however, the supreme court construed that section as requiring a third party seeking to obtain custody of a child to “demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further [to] show that it is in the child’s best interests that the third party be awarded the care, custody and control of the minor.” (Townsend, 86 Ill. 2d at 510-11, 427 N.E.2d at 1235-36.) The phrase, to “demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody” is legally equivalent to requiring a demonstration that a parent is not “fit.” Thus, as so construed, all parents under section 11 — 7 of the Act must be shown to be not fit. (We note parenthetically that the parent of whom the supreme court was speaking in Townsend was the father, who was living apart from the mother, thus making clear the application of the language quoted from Townsend to parents described in the last sentence of section 11 — 7.)

In light of this statutory interpretation, the respondent cannot establish any disparity in the treatment of litigant parents in guardianship proceedings. (Helvey v. Rednour (1980), 86 Ill. App. 3d 154, 158-59, 408 N.E.2d 17, 21.) That interpretation subordinates the operation of the superior rights doctrine within the context of the best interest standard. Livingston, 42 Ill. 2d at 208-10, 247 N.E.2d at 421-22; Townsend, 86 Ill. 2d at 508-09, 427 N.E.2d at 1234-35.

The due process challenge of the respondent also fails. (See Montgomery, 156 Ill. App. 3d at 269, 509 N.E.2d at 504.) The respondent was accorded her full evidentiary rights at a fair hearing on the guardianship petition. (Ill. Rev. Stat. 1985, ch. llOVa, par. 11— 10.1.) The statute permits the court to award custody to either parent or a third party only if a good reason is demonstrated and it is in the best interests of the child. Thus, petitioners first had to meet a limited standing requirement, which we will discuss below, to go forward on the petition. Then, the petitioners were required to prove a good reason existed for the award of custody to some person other than respondent. They did so here by showing respondent had serious parental deficiencies relating to health, finances, and stability. While the trial court did not specifically find neglect on her part, it is clear from the findings she neglected her son by near abandonment, by abusing her body with drugs and alcohol while pregnant, and by not providing a stable home for him. Then, petitioners proved to the trial court’s satisfaction it was in the child’s best interests custody be awarded to them. We conclude this framework accorded due process to respondent.

After carefully weighing the evidence on the welfare of the minor child, the circuit court entered an order awarding custody to the petitioners and visitation to the respondent. Contrary to her contention, the respondent has not suffered a total deprivation of her parental rights under this order. The respondent is free to develop and foster her familial relationship with the minor child in the hopeful expectation of terminating guardianship. (See In re Estate of Becton (1985), 130 Ill. App. 3d 763, 773-74, 474 N.E.2d 1318, 1326.) While there are no specific review procedures under the Act, the respondent, who now has visitation rights, might well in the future seek expanded visitation and a return of custody to her. The guardianship order did not terminate her parental rights or permanently bar her from ever being her son’s custodian or guardian.

The respondent next contends the petitioners lack standing to initiate a proceeding for guardianship over the minor child. (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2).) We find no merit in this contention. See In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 380-81, 510 N.E.2d 555, 556-57.

A review of the record indicates the respondent failed to raise any argument on standing in the circuit court. Arguments not raised in the circuit court are deemed to have been waived on appeal. See Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 508, 524 N.E.2d 561, 582.

Were we to address the standing of the petitioners to initiate this guardianship proceeding, we would find standing exists.

As a jurisdictional matter, the petitioners had to satisfy a limited standing requirement to file their petition for guardianship over the minor child. (See Newsome, 173 Ill. App. 3d at 379, 527 N.E.2d at 525.) That requirement provides in pertinent part:

“(b) A child custody proceeding is commenced in the court:
* * *
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in physical custody of one of his parents.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2).)

The limited standing requirement thus protects both the custody rights of the natural parent and the environmental stability of the minor child. See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 396-97, 453 N.E.2d 835, 838; Ill. Rev. Stat. 1985, ch. 40, pars. 601, 602(a)(4), (a)(5).

There is no litmus test to determine standing. The determination depends on the particular facts of the individual guardianship action. (In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 1047, 544 N.E.2d 1293, 1297.) The facts of obvious importance here concern the legal incidents of custody: (1) who has immediate physical possession of the minor child; (2) how that person took over control; and (3) the nature, manner, and duration of possession. (In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 783, 527 N.E.2d 131, 136.) Accordingly, the standing requirement is satisfied when the petitioners depend on the voluntary, not fortuitous, relinquishment of child custody. See In re Custody of Peterson (1986), 112 Ill. 2d 48, 53-55, 491 N.E.2d 1150, 1152-53.

In this action, the respondent voluntarily relinquished some degree of control of the minor child to the petitioners. The respondent entered a rehabilitation program for substance abuse following the birth of the minor child in late February 1986. She arranged for the petitioners to assume care, control, and custody of the minor child in that interim time period. The respondent then moved into the residence of the petitioners upon her release from the rehabilitation program in late March 1986. She left alone from that residence without explanation, remaining incommunicado, during the time period between mid-April and early June 1986. In July 1986 she signed a notarized document designed to grant petitioners permission to care for the child and to obtain medical or other care for him. The respondent reestablished contact through visitation on a somewhat sporadic basis. Under these circumstances, the respondent has defaulted on her parental responsibilities, leaving an integrated familial relationship between the minor child and the petitioners. See Menconi, 117 Ill. App. 3d at 398-99, 453 N.E.2d at 839.

The respondent last contends the appointment of the petitioners as co-guardians over the minor child is against the manifest weight of the evidence. We disagree.

The circuit court had the superior opportunity to determine custody in accordance with the best interests of the minor child. That appointment will not be disturbed unless contrary to the manifest weight of the evidence. Becton, 130 Ill. App. 3d at 769, 474 N.E.2d at 1323.

The best interest standard considers both the present and the prospective welfare of the minor child. Such consideration is not the simplest of matters. (Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 313, 365 N.E.2d 647, 653; Ill. Rev. Stat. 1985, ch. 40, par. 602.) It requires a deep appreciation of the emotional impact that both custodial and guardianship determinations have on any familial relationship between litigants. See Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 833, 53 L. Ed. 2d 14, 28, 97 S. Ct. 2094, 2103.

On appeal, we must view the evidence in the light most favorable to the litigant prevailing below in the action. (Becton, 130 Ill. App. 3d at 770, 474 N.E.2d at 1324.) Applying this rule, we find the guardianship appointment is not contrary to the manifest weight of the evidence. An integrated familial relationship already exists between the minor child and the petitioners. They have sufficient resources to meet the reasonable needs of the minor child. It is a stable home with a wholesome environment. In contrast, the respondent has yet to establish a meaningful familial relationship with the minor child. She is barely self-supporting in.the aftermath of bankruptcy. Her personal life-style lacks any continuous pattern of stability. The record and the trial court’s findings recount a myriad of problems which we need not recount that clearly support the guardianship order. Giving consideration to respondent’s superior right as a natural parent as required by Townsend, the best interest standard still clearly requires the minor child remain in the custody of the petitioners. See Montgomery, 156 Ill. App. 3d at 267-68, 509 N.E.2d at 503-04.

The order of the Macon County circuit court as to guardianship over the minor child is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.