author: JUSTICE LINN

text:
    THE PEOPLE ex rel. NORTHFIELD PARK DISTRICT, Plaintiff-Appellant and Cross-Appellee, v. GLENVIEW PARK DISTRICT, Defendant-Appellee and Cross-Appellant. — THE PEOPLE ex rel. NORTHFIELD PARK DISTRICT, Plaintiff-Appellant, v. NORTHBROOK PARK DISTRICT, Defendant-Appellee.
    First District (4th Division)
    No. 1—90—0195
    Opinion filed November 7, 1991.

      Friedman & Holtz, P.C., of Chicago (Gregory A. Friedman, Charlene L. Holtz, Evdoxia Beroukas, and Daniel D. Davis, of counsel), for appellant Northfield Park District.
    Stewart H. Diamond, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (Samuel W. Witwer, Jr., of counsel), for appellee Glenview Park District.
    Stewart H. Diamond, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, and Barry L. Moss, of Moss & Bloomberg, Ltd., of Bolingbrook (Samuel W. Witwer, Jr., and Thomas G. Hoffman, of counsel), for appellee Northbrook Park District.
    Schiff, Hardin & Waite, of Chicago (Frederic R. Klein and Heidi Dalenberg, of counsel), for amicus curiae Society of the Divine Word.

      McBride, Baker & Coles, of Chicago (George C. Hook, P.C., and Paul D. Frenz, of counsel), for amicus curiae North Valley Lo Condominium Association.
    Gardner, Carton & Douglas, of Chicago (John E. Reinert and Mary Beth Cyze, of counsel), for amicus curiae Marathon U.S. Realties, Inc.
    Edgar Vanneman, Jr., of Evanston, for amicus curiae Northwestern Illinois Planning Commission.
    Burke, Bosselman & Weaver, of Chicago (Steven M. Elrod, of counsel), for amici curiae Village of Northbrook, Northfield Township High School District No. 225, Elementary School District No. 28, and Elementary School District No. 30.
    Randall, Gayle & Patt, of Glenview (Jeffrey M. Randall, of counsel), for amici curiae Village of Glenview and Community Consolidated School District No. 34.
   JUSTICE LINN

delivered the opinion of the court:

Northfield Park- District sought to file a complaint in quo warranto challenging the right of Glenview Park District and North-brook Park District to exercise jurisdiction over approximately 900 acres of territory that, according to Northfield, was annexed to the other park districts in violation of State law. Thirteen years before the suit was filed, the land in question had been disconnected from the Northfield Park District and subsequently annexed to the park districts of Glenview and Northbrook, pursuant to an intergovernmental land use and boundary agreement. Northfield Park District was a party to the agreement and had participated in its negotiation.

The trial court reviewed the materials presented in support of and in opposition to the petition for leave to file the complaint and held that Northfield’s complaint was barred by the doctrines of estoppel, laches, and the statute of limitations.

On appeal, Northfield Park District contends as follows: (1) statutes of limitation, laches, and estoppel do not apply to a park district enforcing public rights; (2) where, as here, the disconnection of territory from one local government unit and annexation to others was not done in conformance with the relevant statute, the local governments’ acts are without jurisdiction and the intergovernmental agreement is void ab initio, (3) the trial court’s application of the doctrines of estoppel and laches was against the manifest weight of the evidence; and (4) the trial court erred in permitting the filing of amicus curiae briefs because there is no statutory authority for filing them in the trial court and they are irrelevant and prejudicial to Northfield Park District.

We affirm.

Background

On July 1, 1975, thirteen north suburban governmental units and another entity, the Northeastern Illinois Planning Commission (NIPC) entered into an intergovernmental land use and boundary agreement, relying on authority found in article VII, section 10, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §10) and in the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1975, ch. 127, par. 741 et seq.). Section 10 of article VII of the Illinois Constitution permits local governmental units, whether or not they are home-rule units, to contract among themselves to “obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance.” Ill. Const. 1970, art. VII, §10.

Since 1972, the group had worked to form a joint planning commission, which culminated in the arrangements collectively called the “Techny Agreement.” “Techny” is the name of the territory in Cook County that was the subject of the disconnection and annexations in the pending case. Techny is a parcel of land, approximately 1,200 acres, that is located at or near the intersection of Willow and Waukegan Roads in Cook County. At the time, Techny was primarily owned by religious orders.

The participants in the planning that resulted in the Techny Agreement were the home rule municipalities of Glenview and North-brook; the Village of Northfield; the park districts of Glenview, North-brook, and Northfield; four elementary school districts and two high schools, and the township of Northfield.

In this appeal, Northfield Park District challenges the Techny land use and boundary agreement to which it was a party, primarily on the grounds that the agreement violated section 3 — 6 of the Park District Code, which requires that “[a] written petition, signed by the majority of the owners of record of land and the owners of record of more than one-half of the area of land in the territory described in the petition, shall be filed with the secretary of the governing board of the park district, requesting that the specified territory be disconnected from the park district.” Ill. Rev. Stat. 1989, ch. 105, par. 3 — 6.

Pursuant to the Techny Agreement, the Northfield board passed two ordinances in March 1976. One disconnected 541 acres (subsequently annexed by Northbrook) and the other disconnected 282 acres of property (subsequently annexed by Glenview).

The pending controversy arose in 1988, when the current board of Northfield reviewed the 1976 disconnection ordinances and determined, with assistance of counsel, that the disconnection ordinances were invalid because no landowner petitions had been filed, as required by the Park District Code. Following a fruitless meeting between representatives of Northfield, Glenview, and Northbrook, Northfield requested the Attorney General of Illinois and the State’s Attorney to file a complaint in quo warranto against Glenview and Northbrook. Both offices declined, however, stating that the issues involved a purely local dispute and that the parties would be adequately represented by their own counsel. In May 1989, Northfield filed its petitions for leave to file quo warranto complaints against Glenview and Northbrook. The two cases were consolidated.

Northfield alleged that the 1976 disconnection ordinances were invalid because they did not comply with the “jurisdictional” petition requirement of the Park District Code. This, Northfield claims, invalidates the ordinances. Northfield also challenged the authority of the park districts to enter into the Techny Agreement in the first place. Northfield claimed that because it had not lawfully disconnected its territory, that territory remained within Northfield’s boundaries and could not have been lawfully annexed.

Both Glenview and Northbrook filed responses, including affidavits, to establish their reliance on the Techny Agreement and Northfield’s disconnection of the acreage in question. The Techny territory has been administered as part of the Glenview and Northbrook park districts since 1976, and this has been reflected on public documents such as maps and plans. The land has been included in their service areas and thus as part of the tax base of the communities, significant in budgeting and planning for future land use. While the Northbrook portion of the land has largely remained tax exempt to date, because the residents are priests of the Society of the Divine Word (“Techny Fathers”), the Glenview portion has included improvements constituting a tax base in excess of $6 million of assessed valuation.

Northfield challenged the affidavits filed on behalf of Northbrook and Glenview, asserting that the statements therein were conclusory and contradicted by deposition testimony of other individuals.

At the hearing, the trial court considered the parties’ legal memoranda and supporting factual material. The trial court also provisionally received all amicus briefs filed, over Northfield’s objection. The trial court rejected Northbrook’s and Glenview’s challenge to Northfield’s standing, or requisite private interest, to file a suit in quo warranto. The court held that Northfield did have standing, finding the private and public interests asserted were intertwined. The court went on to hold, however, that the action was barred by estoppel, laches, and the statute of limitations.

Opinion

Granting leave to file a complaint in quo warranto is a matter left to the sound discretion of the trial court, and the trial court may inquire into all surrounding circumstances, including but not limited to, the motives of the petitioner and the possible effects on the public interest. (People ex rel. Van Cleave v. Village of Seneca (1988), 165 Ill. App. 3d 410, 519 N.E.2d 63; see also Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 403 N.E.2d 266.) Dismissal of the application to file a complaint in quo warranto is appropriate where issuing a writ of quo warranto is not in the public interest or would not serve any good end or purpose. People ex rel. Adamowski v. Wilson (1960), 20 Ill. 2d 568, 578-79,170 N.E.2d 605.

In a case of this nature, one of the obvious questions to consider is the motive of Northfield in seeking to undo an act that it freely performed years ago pursuant to a major, regional joint planning effort that culminated in a cooperative agreement among the affected units of local government. Another concern is whether the interests of residents of the affected territory would be served or harmed by Northfield’s requested relief.

JURISDICTIONAL CONSIDERATION

We do agree, however, that local government units have limited authority and may not expect enforcement of contracts they enter into without authority. See Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979, 497 N.E.2d 319, appeal denied (1987), 113 Ill. 2d 586, 505 N.E.2d 363 (agreement between two villages limiting the ability of each to annex property beyond their agreed upon boundaries was invalid as unauthorized assumption of municipal power); accord Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 508, 548 N.E.2d 1337 (provision of boundary-line agreement prohibiting annexation was void and unenforceable)(noting that while 1987 statutory amendment now permits such acts, amendment would be given prospective effect only).

At the heart of Northfield’s case is a challenge to the jurisdiction of park districts, acting singly or in concert, to deviate from the statute that requires a majority of affected landowners to file a petition requesting disconnection of the territory from a particular unit of local government. According to Northfield, strong public policy reasons mandate strict compliance with the Park District Code’s provision that the landowners must submit and sign such a petition before park district boundaries can be altered.

Northfield notes that a park district is organized when resident voters of the involved area decide to organize it by filing a petition with the circuit court seeking to have the question submitted to the local electorate. (Ill. Rev. Stat. 1989, ch. 105, par. 2 — 2.) According to Northfield, to allow circumvention of the electoral mandate by permitting disconnection without the requisite landowner petition would be to disfranchise the original petitioners and the electorate. See Page v. City of Hickory Hills (1973), 10 Ill. App. 3d 1072, 1076, 295 N.E.2d 518 (legislature intended that the persons primarily responsible for the decision to annex or disconnect property are the citizens themselves); see also People ex rel. James v. Chicago, Burlington & Quincy R.R. Co. (1907), 231 Ill. 463, 83 N.E. 219 (landowner’s petition to disconnect was a condition precedent to the exercise of the village’s jurisdiction, and signature of owner’s tenant was not sufficient).

We agree that the argument is valid as far as it goes, but under the specific circumstances of this case we disagree with Northfield’s conclusion that the actions and ordinances of the affected government units are void ah initio, simply because the landowners who were given notice of the boundary planning did not actually file a petition requesting disconnection. Undoubtedly, the filing of such petition generally should be viewed as a condition precedent to the passage of disconnection ordinances because it is the landowners who pay the real estate taxes and receive the services of the park districts. In the pending case, however, no landowner is challenging the disconnection and annexation of the affected territory. Rather, one park district out of several local governmental units is repudiating its continued participation in the Techny land use and boundary agreement.

The ordinances now under attack were enacted to further the collective will and intent of local government units attempting to facilitate land planning that would most effectively serve the needs of the most residents. The local governmental units were acting pursuant to authority that they believed was granted to them under the then new constitution and statutory law intended to encourage intergovernmental cooperation. Moreover, defendant park districts assert that public, informational meetings were held and that the affected landowners and residents did not object to the demarcation of the park districts’ jurisdictional boundaries. The Techny Agreement itself was the product of many hours of planning to devise development standards, land use and density plans, drainage scenarios, and demographic projections. The comprehensive scheme was intended to provide future stability to the undeveloped Techny area and save it from piecemeal, poorly coordinated and inconsistent land uses that might arise if local entities engaged in land wars.

In our opinion, the dispositive question is whether Northfield Park District, a party to the Techny land use and boundary agreement, can now raise a challenge to Northfield’s 1976 disconnection ordinance. (See People v. Maxon (1891), 139 Ill. 306, 28 N.E. 1074 (village estopped from denying validity of its own disconnection ordinance seven years after it took effect, even though passage of ordinance was not in conformance with statute requiring majority of elected members to pass ordinance); People v. City of LeRoy (1920), 293 Ill. 278, 127 N.E. 695 (the State, as petitioner in quo warranto action, was barred by laches from challenging void annexation of land into the city).) Glenview and Northbrook surely relied on Northfield’s disconnection ordinance as a necessary step in effectuating their own annexation of the territory.

At the time the participating parties were extensively deliberating the terms of the Techny Agreement, Northfield never suggested that the agreement violated State law. It never attempted to withdraw from or distance itself from the actions of NIPC. In fact, as defendants point out, the chairman of NIPC at the time was also the Village of Northfield’s manager and he presented the boundary changes at a meeting for formal action of NIPC. A representative of the Northfield 'Park District also attended that meeting.

The record reveals, further, that the legality of the Techny Agreement was specifically explored by attorneys in a nonadversarial context and they concluded that the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §10) as well as provisions of the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1975, ch. 127, par. 741 et seq.) provided authority for the collective actions of the local governments in this case. It is not for this court to determine whether such legal opinion was correct, nor is this court required to determine the validity, enforceability, or wisdom of the Techny Agreement itself.

But even assuming that we were to find that Northfield Park District lacked authority to disconnect its territory in the manner in which it did, we are not persuaded that it may now benefit from its own violation of the law by a belated concern for the “public” or for property owners who have indicated no desire to be restored to Northfield Park District. To allow one participant who fully endorsed the Techny land use and boundary agreement to change its mind regarding the legal sufficiency of its own disconnection ordinance, years after the fact, could only make chaos out of the most carefully considered efforts in intergovernmental planning agreements.

We conclude that the actions of Northfield and defendants should not be viewed as ultra vires exercises of authority subject to nullification.' We do not wish to gloss over well-founded challenges that may be brought when local government units undertake actions that are found to be in contravention of State annexation laws. Northfield cites ample authority to support the general principle that territory cannot be annexed in the absence of statutory authorization (see People ex rel. La Salle National Bank v. Hoffman Estates Park District (1985), 134 Ill. App. 3d 571, 481 N.E.2d 12, appeal denied (1985), 108 Ill. 2d 567) and that petitions to disconnect or annex may be found defective on jurisdictional grounds when they fail to comply with statutory requirements (e.g., People ex rel. James v. Chicago, Burlington & Quincy R.R. Co. (1907), 231 Ill. 463, 83 N.E. 219; People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, 461, 513 N.E.2d 408, appeal denied (1988), 118 Ill. 2d 551, 520 N.E.2d 392 (erroneous inclusion of land that is not subject to annexation invalidates petition for annexation)). Nevertheless, the cases and theories Northbrook cites are of limited relevance to the actual circumstances of this case, for the reasons we have discussed. If this court strikes down as void the 1976 disconnection ordinance of Northfield and the annexation ordinances of Glenview and Northbrook, we would be upsetting a long-standing ordering of local governmental affairs that came about from good-faith negotiations of cooperating governmental units, pursuant to their belief that they were acting in accordance with the law. We do not necessarily view the failure to obtain a landowner petition in this case as technical; however, neither do we find it jurisdictional in the sense put forth by Northfield. Accordingly, we decline to nullify the challenged ordinances.

AFFIRMATIVE DEFENSES

We believe that the pending case is a good example of the situation for which time-barred defenses are designed. While we accept, for purposes of this appeal, the fact that a park district’s challenge to a disconnection of territory may involve a public interest, that does not mean that periods of limitation and equitable doctrines do not apply-

In the hopes of increasing its tax base, Northfield is seeking to reclaim territory it now contends never legally passed from its boundaries. At the time the territory was disconnected, most of the land was tax exempt because it was owned by religious organizations. The record indicates that Glenview and Northbrook were willing and able to take over responsibility for providing recreational services for territory that they hoped would support increasing numbers of (tax-paying) residents. At the same time, Northfield apparently did not wish to expand its size or services to a significant degree. Based on their mutual understanding and intent, the affected governmental units treated the land as being part of the Northbrook and Glenview Park Districts for 13 years. Now, apparently reevaluating the wisdom of that decision, Northfield would avoid the agreement and nullify its own ordinance. This in turn would effectively repeal the annexations of the other two communities. For these significant reasons, we cannot view Northfield’s legal theories in isolation from the facts.

STATUTE OF LIMITATIONS

Northfield contends that statutes of limitation and the doctrines of laches and estoppel do not apply to a park district enforcing a public interest. In support, Northfield cites City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874. In Shelby-ville, a municipality was allowed to maintain an action against a defaulting home builder who had failed to properly construct certain streets in a subdivision. The court rejected the builder’s contention that a statute of limitations barred the suit, and in so doing analyzed the limited circumstances in which a statute of limitations does not bar a governmental body from asserting its “public” rights. The court considered that the construction of streets was public in nature.

In this case, however,. defendants contend that because quo warranto requires the pleading of a private interest, Northfield cannot pursue quo warranto relief and at the same time avoid the statute of limitations. See, e.g., Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 463, 403 N.E.2d 266 (private individual seeking quo warranto relief must specifically plead a personal, private interest in the matter to have standing to maintain quo warranto).

Central to the controversy is the recognition of competing legislative policies, or, at the least, differing viewpoints as to what is in the “public” interest in this case. The State’s Attorney and Attorney General have found no statewide public interest to be vindicated. On the contrary, the public affected by this boundary dispute consists of the residents and landowners of the Techny area. It may be that the-affected landowners whose signatures were never formally obtained on a disconnection petition could challenge the actions of their park district board and the ordinances enacted to transfer the jurisdictional boundaries. (See People ex rel. La Salle National Bank v. Hoffman Estates Park District (1985), 134 Ill. App. 3d 571, 481 N.E.2d 12.) In the pending case, however, the sole objecting party is the Northfield Park District’s current board. Nothing in the briefs or record suggests that the Techny area residents are clamoring to unravel the 1976 boundary agreement and ordinances that resulted in the current park district boundaries.

On the contrary, several amicus curiae briefs have been filed on behalf of affected residents or other interested parties who support the 1976 disconnection and annexations and who do not want to be restored to the boundaries of Northfield. For example, the North Valley Lo Condominium Association’s amicus brief states that it “wants North Valley Lo to remain in the Glenview Park District where it has been for the past 14 years” and that it “does not object to the 1976 disconnect by Northfield.” The brief also asserts that the disconnection “was highly publicized,” with an informational meeting held for the interested landowners. The North Valley Lo brief contends that its members, who have enjoyed the Glenview Park District facilities and paid taxes to Glenview, would immediately petition to disconnect from Northfield in the event the territory were restored to Northfield’s boundaries.

The Society of the Divine Word (the Society) also filed an amicus brief. The Society has owned a 773-acre tract of land in the Techny area for over 100 years. The Society states its objection to Northfield’s attempt to nullify its 1976 disconnection ordinance. A large portion of the land owned by the Society is within the North-brook Park District, and the Society plans to grant long-term leaseholds to developers and to sell land for the building of single-family residences. The Society points out that there is a “compelling interest in favor of leaving the existing park district boundaries as they are. This will ensure that the citizens and electors who will reside on the Society’s property and within the boundaries of the Village of North-brook will have access to the existing and future park facilities which were planned and developed by the park district of Northbrook with the property owners’ precise interests in mind. Furthermore, the families who purchase the property the Society has designated for single-family residences will be able to use the park district facilities closest to their homes.”

Other amicus briefs were filed by various affected school districts, as well as the Villages of Northbrook and Glenview, and a developer, Marathon U.S. Realties, Inc. Each gives sound reasons in support of denying Northfield Park District’s petition for quo warranto.

We conclude that Northfield cannot avail itself of a public interest exception to the application of the statute of limitations.

According to defendants, the applicable statute of limitations in this case is section 3 — 14 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 3 — 14), which provides:

“Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a park district unless initiated within one year after the date such annexation becomes final or within one year of [the effective date of this amendatory Act of 1975] ***. This amendatory Act of 1975 shall apply to annexations made prior to the effective date of the Act as well as those made on or after the effective date.” (Emphasis added.)

Since Northfield is challenging not only its own disconnection ordinance but the annexation ordinances of Glenview and Northbrook, it appears from the above statute of limitations that this suit is time barred. In County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076, the Illinois Supreme Court held that when statutes of limitations expressly apply to the government, the limited common law exception for governing bodies is superseded. Only when statutes of limitations do not expressly apply to government units can the courts consider whether to exempt them on the basis of the public interest exception. The current board of the Northfield Park District impliedly comes within the provisions of this section, and even assuming it does not, we find that no public interest exception pertains under the facts.

Another quo warranto limitations period is found in the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 104), which bars challenges to the legality of the organization of any political subdivision including park districts after such entity “has been in de facto existence for a period of 3 years.” Under this provision, which does not apply directly to the circumstances of this case, even fundamental defects in the organization of a political subdivision cannot be brought after the time period prescribed.

In People ex rel. City of Des Plaines v. Village of Mount Prospect (1975), 29 Ill. App. 3d 807, 813-14, 331 N.E.2d 373, the court noted that after the one-year limitations period for challenges to municipal annexation, the only question that may be considered is whether the annexing ordinance was void ab initio for want of subject matter jurisdiction. By a 1981 amendment to the statute of limitations, however, even “void” municipal annexations, those effected without subject matter jurisdiction, may not be challenged in quo warranto after one year. See Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—46. But cf. People ex rel. La Salle National Bank v. Hoffman Estates Park District (1985), 134 Ill. App. 3d 571, 481 N.E.2d 12 (one-year statute of limitations would not be applied against property owner’s challenge to a park district’s annexation of his property, which was effected without notice and in violation of State law that limited amount of acreage a park district could annex without notice).

The foregoing indicates that the legislature has created fairly short limitations periods for challenges to government actions, even those that may be viewed as void for failure to conform to the law. We believe that Northfíeld’s petition for quo warranto is barred by the one-year statute of limitations set forth in section 3 — 14 of the Park District Code, because Northfield is challenging the annexation of the Techny land to the park districts of Glenview and Northbrook. We further find that no facts exist to justify a “public interest” exception to the statute of limitations. Nor does this case fit within the rationale of the Hoffman Estates case.

ESTOPPEL AND LACHES

Extended discussion of the other affirmative defenses is not necessary in light of our holding. Nevertheless, we do find appropriate the application of the equitable defenses of estoppel and laches.

To establish estoppel there must be an affirmative act by the unit of government which causes the relying party to substantially change its position. E.g., Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 677, 472 N.E.2d 1228 (noting that the affirmative act which induced the reliance must be an act of the governmental unit itself, such as a legislative act of the governing body); American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 347, 450 N.E.2d 898 (noting that estoppel is not favored with respect to government bodies acting in a governing capacity).

Support for applying estoppel in this case is found in People v. Maxon (1891), 139 Ill. 306, 28 N.E. 1074. There the Illinois Supreme Court held that units of local government can be estopped to deny the validity of a duly enacted disconnection ordinance, even where the disconnection ordinance does not comply with State law. In that case a village passed a disconnection ordinance that was approved by a majority of the members present, but not by a majority of the elected members, which was required by statute. Thereafter, the ordinance was treated as valid by village officials as well as officials of the township to which the territory passed following disconnection. During a seven-year period the township levied taxes and made roadway improvements for the territory. The village subsequently brought a mandamus action against the county clerk alleging that its own disconnection ordinance was invalid and that the village should receive the tax benefits from the territory.

The supreme court held that the village was estopped to deny the validity of its own disconnection ordinance. We find the situation in Maxon similar to that of the pending case and believe Northfield similarly should be estopped from challenging its disconnection ordinance. While Northfield asserts that the defect in Maxon was merely “procedural,” while the lack of a landowner petition in the pending case is “jurisdictional,” such a position sacrifices reality in favor of fine, academic distinctions. If the legislature had intended that all “jurisdictional” defects were preserved for collateral challenge under the common law, regardless of the passage of time, the statutes of limitation described above would not have been written. Under those enactments, even “void” annexations and de facto government units become immune from attack after the passage of a few years.

The briefs set forth the evidence relating to the estoppel defense but we find it unnecessary to include a detailed recitation here. Northfield primarily contends that Northbrook and Glenview have not shown their reasonable reliance on the disconnection ordinance to their substantial detriment. Much of this argument focuses on the question whether the two communities could establish a material detriment when it appears that they had plans to provide improved services and park facilities even if they did not annex the Techny property. In our view, however, future plans for annexed territory may be considered in the estoppel context, where, as here, the whole point of the boundary agreement was to facilitate long-range planning and maximize effective land use for the greatest number of residents, present and future. Consequently, the element of substantially changing one’s position in reliance upon the affirmative actions of others has been met in this case. See also Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415, cert, denied (1967), 386 U.S. 934,17 L. Ed. 2d 806, 87 S. Ct. 957.

The doctrine of laches is also a valid defense to this action. (E.g., People v. City of LeRoy (1920), 293 Ill. 278, 127 N.E. 695.) Like the statute of limitations, laches is a defense based on the passage of time, and in this case Northfield Park District’s attempt to return to 1975 and start over must fail. In reliance on the Techny Agreement, the affected governing bodies have entered into a complicated set of relationships, practices, and expectations. The amicus briefs also demonstrate that a substantial number of interested parties actively oppose the return of the disconnected property to Northfield.

We conclude that the record contains adequate evidence to support the application of the doctrines of estoppel and laches. Accordingly, we hold that the trial court did not abuse its discretion in declining to permit Northfield to maintain its complaint for quo warranto relief.

Because of our disposition of the case, we decline to reach the challenge directed at the trial court’s acceptance of amicus curiae briefs. The amici are interested parties, some of them landowners, and Northfield’s assertion of prejudice cannot block the application of common sense. This court has reviewed the amicus briefs filed herein to determine if any landowner or other interested party joined with Northfield in objecting to the Techny Agreement or to the disconnection and annexation ordinances in issue. None did.

For the foregoing reasons, we affirm the trial court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.

      References to Northfield, Glenview, and Northbrook in this opinion will mean the park districts of those communities, unless otherwise specified.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    ROSARIO MUNIZZA et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees. — ROBERT FERRO, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    Nos. 1—89—1419,1—89—1420 cons.
    Opinion filed June 28, 1991.
    Modified on denial of rehearing December 23, 1991.

      Alphonse A. Talarico, of Chicago, for appellants Rosario Munizza and Terry Scalise.
    Onesto, Giglio, Meltreger & Associates, of Chicago (Peter A. Regulski, of counsel), for appellant Robert Ferro.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The primary issue raised in the consolidated appeal is whether the trial court erred in dismissing plaintiffs’ complaints pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) on the ground that sections 2 — 104 and 2— 206 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2—104, 2 — 206) (hereinafter Act or Tort Immunity Act) provided defendants with immunity.

A trial court should dismiss a cause of action only if it is apparent that no set of facts can be proven that will entitle plaintiff to recover. (Curtis v. Birch (1983), 114 Ill. App. 3d 127, 129, 448 N.E.2d 591.) Motions to dismiss admit facts well pleaded (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223), together with all reasonable inferences which can be drawn from those facts (Pierce v. Board of Education (1976), 44 Ill. App. 3d 324, 358 N.E.2d 67, rev’d on other grounds (1977), 69 Ill. 2d 89, 370 N.E.2d 535), but do not admit conclusions unsupported by allegations of specific facts on which such conclusions rest (St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611), or conclusions of law. (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 390 N.E.2d 72.) A reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.

Plaintiffs Munizza and Scalise jointly filed a multicount complaint against the city of Chicago (City); Tony Oliveri (Oliveri), commissioner of public vehicle operations division; Fred Rice (Rice), superintendent of the police department; unknown employees of the police department (all of whom are hereinafter referred to as City defendants or City); and the Yellow Cab Company and Jerry L. Watkins (Watkins), who are not parties to this appeal. Plaintiff Ferro filed several multiple-count complaints against the cab company, the City and several of its employees. The last complaint before the trial court was Ferro’s third amended complaint.

In their complaints, plaintiffs alleged that they were injured on August 13, 1987, at about 1:20 a.m. when cab driver Watkins got out of a taxicab owned by the Yellow Cab Company following a verbal altercation between himself and one of the plaintiffs or one of their companions. They allege that Watkins began firing at the group with a .357 gun striking Munizza, Scalise, Ferro and a fourth companion of the men. The complaints stated that on April 9, 1987, Watkins made an application for a chauffeur’s license to the City through its Department of Consumer Services (formerly the Department of Consumer Sales, Weights, and Measures). The complaints essentially alleged that defendants improperly granted codefendant Watkins a license since the application contained material omissions by Watkins and the absence of information on the police department report which was intended to reveal any criminal information impacting upon one’s qualifications to be licensed to operate a taxicab.

The complaints further alleged that there was considerable information in Watkins’ background which would have precluded him from being licensed to operate a taxicab in the city. Plaintiffs thus charged that defendants willfully and wantonly disregarded the provisions of the chauffeurs ordinance by signing and approving Watkins’ application and in the methods used to approve Watkins’ license. The two lawsuits were consolidated in the trial court for purposes of discovery and pretrial motions.

Both defendants Yellow Cab and the City filed motions to dismiss the complaints. The City argued that sections 2 — 104 and 2 — 206 of the Tort Immunity Act absolutely shielded it and its employees from all liability arising from its licensing decisions. The trial court granted the City’s motion and dismissed all counts of the plaintiffs’ complaints that applied to the City. The order contained language pursuant to Supreme Court Rule 304(a) providing that there was no just reason to delay the enforcement or appeal of the order of dismissal. (107 Ill. 2d R. 304(a).) Plaintiffs appealed from this order, and on their motion, the two appeals have been consolidated.

On appeal, plaintiffs Munizza and Scalise first contend that the trial court erred in allowing the City to rely on the licensing immunity' provisions of sections 2 — 104 and 2 — 206 of the Act since the City completely disregarded the express legal requirements and procedures of the public chauffeurs ordinance. (Chicago Municipal Code ch. 28.1— 1 et seq. (1983).) They assert that Oliveri was guilty of willful and wanton misconduct by signing and approving Watkins’ application for a license even though such application was improperly prepared and Rice and unknown employees of the police department were also guilty of willful and wanton misconduct either in investigating Watkins or in approving the license without first properly investigating Watkins’ criminal record. They refer to Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77, for the proposition that a municipality or its employees will lose the protection of the immunity provisions if they engage in acts based upon corrupt or malicious motives or willful and wanton misconduct.

Plaintiff Ferro contends that the Tort Immunity Act affords municipalities and their employees immunity for good-faith mistakes in judgment; however, the Act does not shield a municipality from a discretionary licensing decision undertaken with wanton indifference to the public safety and welfare. He asserts that no immunity is extended to discretionary acts performed with corrupt or malicious motives (see, e.g., Thiele v. Kennedy (1974), 18 Ill. App. 3d 465, 309 N.E.2d 394), and that a second exception exists under Illinois law where the discretionary acts are performed willfully and wantonly (Barth, 141 Ill. App. 3d 266, 490 N.E.2d 77), such as here, where the officers involved abandon the licensing procedure in reckless disregard for the safety of others and substitute their own judgment.

The City asserts that the trial court correctly dismissed plaintiffs’ claims because sections 2 — 104 and 2 — 206 of the Tort Immunity Act absolutely and unconditionally immunize them from any liability for an injury caused by the issuance of any license. (E.g., Foster & Kleiser v. City of Chicago (1986), 146 Ill. App. 3d 928, 932, 497 N.E.2d 459; U-Haul Co. of Chicago Metroplex v. Town of Cicero (1980), 87 Ill. App. 3d 915, 419 N.E.2d 286; Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 394 N.E.2d 1291.) They assert that the cases upon which the plaintiffs rely to support an exception to licensing immunity are either factually distinguishable from the instant case or do not involve licensing immunity. Moreover, plaintiffs charged defendants’ conduct as willful and wanton without alleging specific and sufficient facts to support such charges. We agree with plaintiffs’ pronouncement of the law regarding governmental immunity from tort liability pursuant to the Act in general, and in particular, sections 2 — 104 and 2 — 206 of the Act; however, such sections are not applicable to the instant case. Notwithstanding this determination, however, we conclude that the trial court’s judgment was proper. Our reasons follow.

It is well settled that under the doctrine of sovereign immunity, a governmental unit is immune from tort liability. However, the Illinois Supreme Court abolished governmental immunity in 1959. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89.) In response, the General Assembly enacted the Tort Immunity Act that adopted the general principles of liability in tort for local government units, but limited such liability with an extensive list of immunities based on specific government functions.

For instance, as previously mentioned, it is well established that there exists blanket immunity for all discretionary acts of public employees not ministerial in nature (Anderberg v. Newman (1972), 5 Ill. App. 3d 736, 283 N.E.2d 904); however, it has been found that such immunity should not extend to (1) public employees’ acts based on corrupt or malicious motives or (2) public employees’ willful and wanton acts. (Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77.) The Act provides that a local public entity is not liable for adopting or failing to adopt a particular enactment or for failing to enforce any law (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 103), or for negligence connected with the inspection of property for health or safety hazards (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 105) or, as here, for negligence, if any, connected with the administration of permits, licenses, certificates and other authorizations. (Ill. Rev. Stat. 1987, ch. 85, par. 2-104.)

Moreover, in accordance with the Tort Immunity Act, the courts have held that both the municipality and its employee are immune from any liability for an injury caused by the issuance of any license (Foster & Kleiser, 146 Ill. App. 3d 928, 497 N.E.2d 459; U-Haul Co., 87 Ill. App. 3d 915, 419 N.E.2d 286; Melbourne Corp., 76 Ill. App. 3d 595, 394 N.E.2d 1291) “where the [local public] entity or [public] employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” (See Ill. Rev. Stat. 1987, ch. 85, pars. 2 — 104, 2 — 206.) Thus, the language of the licensing immunity provisions governs discretionary rather than ministerial actions. Ministerial acts are those “which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority” and without reference to the official’s discretion as to the propriety of the acts. (Larsen v. Darnell (1983), 113 Ill. App. 3d 975, 977, 448 N.E.2d 249.) Here, the defendants were required to examine the application and conduct a criminal investigation into the background of an applicant. The ordinance further provides that if the commissioner finds that the applicant includes any material omissions or misstatements of fact or that the applicant lacks any of the specified qualifications, he or she shall deny the license. Accordingly, we concluded that defendants were not afforded immunity under the Act (see Barth v. Board of Education, 141 Ill. App. 3d 266, 440 N.E.2d 77) since their “own ordinances and the allegation of violations thereof negate the immunity from suit.” (Emphasis in original.) First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 11, 373 N.E.2d 1326.

Having determined the inapplicability of tort immunity for defendants, we now revisit the allegations in the plaintiffs’ complaints. Plaintiffs here made conclusory allegations that the City’s conduct was willful and wanton, without alleging specific facts sufficient to support the label. In Midamerica Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 372, 381, 511 N.E.2d 964, this court stated:

“While plaintiff’s complaint uses the terms ‘wilful and wanton’ to describe [defendants’] alleged actions, this descriptive language is a mere conclusion, which is not admitted for purposes of a motion to dismiss. [Citation.] To sufficiently plead a cause of action for wilful and wanton conduct, a complaint ‘must allege facts demonstrating a duty of defendant and a breach of that duty which proximately caused the plaintiff’s injury.’ [Citation.] Mere conclusional allegations of wilful and wanton misconduct are not sufficient; facts must be alleged from which the law would raise a duty, and a showing that the omission of such a duty resulted in injury.”

As in Midamerica, we believe that plaintiffs here have failed to allege sufficient facts to state a cause of action for willful and wanton misconduct. To be characterized as willful and wanton, acts must have been committed with actual or deliberate intention to harm or with an utter indifference or conscious disregard for the safety of others. (Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.) The elements of a cause of action for willful and wanton negligence of public employees are a duty to the injured party and a breach of that duty which is the proximate cause of the injury. Breck, 141 Ill. App. 3d 351, 490 N.E.2d 88; see also Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 484 N.E.2d 909.

Neither were the allegations in the complaints sufficient to set forth a cause of action for simple negligence based upon ordinary care. In the instant case, plaintiffs failed to allege that the City owed them any duty that was breached. Plaintiffs assert liability on the part of defendants simply because they violated the provisions of the ordinance governing licensing of public chauffeurs. We have reviewed the ordinance, however, and find no private right of action provided for therein. The ordinance merely provides sanctions in the form of fines, suspension or revocation of licenses in the event of enumerated violations or a finding that a person is or has become unqualified to receive a license. Moreover, an ordinance or statute cannot enlarge the duties owed by the City to individuals beyond those existing at common law. (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108-09, 361 N.E.2d 282.) Nor does a statutory violation eliminate the need to establish that defendant’s conduct was the proximate cause of plaintiff’s injury. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390, 356 N.E.2d 93.

Even if the City violated its own ordinance by improperly issuing Watkins a license, plaintiffs were still required to prove that such a violation was the cause in fact of plaintiffs’ injuries. (Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 512-13, 430 N.E.2d 131.) Cause in fact can be established only where there is a reasonable certainty that plaintiff’s injury was caused by the conduct of defendant. (Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, 559-60, 490 N.E.2d 995, appeal denied (1986), 112 Ill. 2d 578.) Here, plaintiffs acknowledged that their injuries occurred as a result of Watkins’ action in displaying a firearm and firing and striking them. Any acts or omissions of the City employees here concerning licensing requirements for driving a taxicab, especially in light of the fact that the allegations involved actions by Watkins unrelated to his duties as a taxicab driver or to the purposes of the ordinance, one of which is the safety and welfare of passengers, were not material factors in the injuries inflicted upon plaintiffs.

Moreover, since the facts here are largely undisputed, proximate cause became a question of law which could be determined by the defendants’ motion to dismiss. (See Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 537 N.E.2d 1146.) Moreover, we follow the controlling rule relied upon in numerous other Illinois cases on that issue:

“If the negligence charged does nothing more than furnish a condition which made the injury possible and that condition causes an injury by the subsequent independent act of a third party, the creation of that condition is not the proximate cause of the injury.” Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 1081, 560 N.E.2d 974, citing Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665.

Accordingly, we conclude that plaintiffs’ claims must fail because they failed to allege facts showing that the defendants owed any duty to them that was breached (Rush v. City of Chicago (1987), 163 Ill. App. 3d 725, 513 N.E.2d 17) and failed to allege facts reflecting causation on the part of the City since plaintiffs’ injuries were caused by the independent, illegal act of Watkins, who shot them. The only exception to the rule of no liability for intervening criminal acts occurs where the defendant’s misconduct creates a condition conducive to a reasonably foreseeable criminal act. The exception does not apply here because plaintiffs have not alleged, nor could they allege, facts to show that the City facilitated Watkins’ shooting of plaintiffs (see Hinojosa v. City of Chicago Heights (1988), 166 Ill. App. 3d 319, 327, 519 N.E.2d 976), and the allegations of misconduct by the City and its employees are so remote from the alleged injuries to plaintiffs. See Martinez v. State of California (1980), 444 U.S. 277, 285, 62 L. Ed. 2d 481, 489, 100 S. Ct. 553, 559.

Accordingly, the decision of the trial court must stand.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE NICKELS PRESIDING JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WINSETT, Defendant-Appellant.
    Second District
    No. 2—90—0481
    Opinion filed November 27,1991.

      REINHARD, P.J., dissenting.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli, Frank W. Ralph, and Stephen Omolecki, all of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, John X. Breslin, and Rita Kennedy Mertel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

After a hearing on April 25, 1990, the circuit court of Lake County denied defendant’s post-conviction petition, which arose from his convictions of attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4(a)), solicitation of murder (Ill. Rev. Stat. 1985, ch. 38, par. 8— 1(a)), and conspiracy to commit murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2(a)). Defendant appeals and asserts that the circuit court erred in denying his post-conviction petition because the trial court improperly denied defendant’s motion to suppress the testimony of another putative defendant, Glenn Spruille, discovered as a fruit of defendant’s unconstitutionally obtained statements.

On April 10, 1985, defendant was indicted in the circuit court of Lake County. The indictment alleged that David R. Robinson paid defendant $20,000 to kill Arturo Zarinana, the husband of Robinson’s paramour. Defendant, in turn, agreed to pay Spruille $2,000 to kill Zarinana.

Defendant was arrested at his home on February 20, 1985, at approximately 5 p.m. by two plainclothes detectives from the Waukegan police department, who were driving an unmarked police car. Two Round Lake Beach officers, who were also in plainclothes and driving an unmarked car, assisted the Waukegan police in the arrest. After the detectives asked defendant to step into the living room and placed him under arrest, defendant told one of the detectives “I want a lawyer.” Defendant then immediately turned or inclined his head toward his wife, who had followed the officers into the living room, and said “Call Bajko,” who was defendant’s attorney. Defendant’s six children, sister-in-law, brother-in-law, and nephew, who were standing in the doorway between the adjoining dining room and the living room, overheard this conversation.

As the detectives escorted defendant from the house, defendant again said “Call Bajko” to his wife. In response to defendant’s wife’s questions about what would happen, the officers advised her that defendant would be allowed to phone her after he was booked and, further, that they were taking defendant to the Lake County Building, which houses the Lake County sheriff’s office. After waiting a half hour without word from her husband, defendant’s wife phoned the Lake County sheriff’s office, which had no record of defendant’s arrest. However, because it occasionally performed arrests for other departments, the Lake County sheriff’s office advised defendant’s wife to wait another half hour and call it again. During that time, defendant’s wife phoned attorney Bajko’s office, but there was no answer. She then phoned the Lake County sheriff’s office again, which suggested she call local police departments in the area to attempt to locate her husband, which she did without success. Defendant’s wife again contacted the Lake County sheriff, who offered to attempt to locate defendant.

Defendant’s wife then called the local junior college, at which attorney Bajko taught and where defendant had met him. Although attorney Bajko was not on campus that evening, the receptionist took defendant’s wife’s name and phone number and attempted to relay a message to attorney Bajko after learning the nature of the emergency that existed. The receptionist testified that after several unsuccessful attempts she eventually reached attorney Bajko, who then contacted defendant’s wife.

Defendant testified that upon arrival at the Waukegan police station he was placed in an interview room, the handcuffs were removed, and his personal property was inventoried. At that time he was read his rights, and the officer who did so completed a waiver form, including the time, and checked each item off as defendant indicated that he understood his rights. Defendant, however, refused to sign the waiver and told the officer he was unwilling to answer questions or make statements until defendant spoke with his attorney. As the officers continued to ask questions over the next 2 to 2h hours, defendant requested his attorney another three times. Defendant eventually made statements, and he was then again presented with the wavier form to sign, at which time he did so. Defendant was then allowed to call his wife, which occurred at 8:35 p.m. as indicated on their telephone bill. Defendant’s wife then contacted attorney Bajko, who later arrived and advised defendant not to sign the statements.

Each of the four officers denied that defendant had asked for an attorney at his home, either in the living room or as defendant was leaving the house, and the Waukegan officers testified that defendant’s wife was told he was being taken to the Waukegan police station. The officer who read defendant his rights testified that defendant immediately signed the waiver, and both Waukegan officers testified that defendant did not at any time request an attorney during their questioning. Defendant was allowed to make a phone call to his wife when he requested to do so, but was not advised that he could make such a call prior to his request.

At the April 18, 1985, hearing on defendant’s motion to suppress evidence of his statements, the court found defendant’s witnesses, who included not only defendant himself, but his wife, two teenage daughters, and sister-in-law, “extremely credible.” Although expressly finding that defendant’s statements were neither involuntary for purposes of possible impeachment under Harris v. New York (1971), 401 U.S. 222, 225-26, 28 L. Ed. 2d 1, 4-5, 91 S. Ct. 643, 645-46, nor the result of police trickery or coercion, the court granted defendant’s motion to suppress his statements because they were given after defendant had requested counsel. (See Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) No interlocutory appeal was taken by the State from this ruling.

On May 28, 1985, defendant filed a motion in limine to suppress evidence obtained as a result of his statements. Specifically, defendant sought to exclude “any and all testimony of GLEN [sic] SPRUILLE as it relates to Defendant, LARRY WINSETT, for the reason that said testimony and said evidence was a direct result of statements elicited from Defendant, LARRY WINSETT, and said statements have heretofore been ruled inadmissible by this Court.” At the hearing on the motion in limine, defendant argued that the evidence was the “fruit of the poisonous tree and that the police and State should not benefit from any illegal activities on their part.” The trial court found that the present state of the law was such that the motion was not well taken and denied the motion.

At trial, testimony revealed that Robinson was having an affair with Zarinana’s wife and had attempted to hire somebody to kill Zarinana. Several employees and former employees of Robinson, including Spruille, were solicited to kill Zarinana. Spruille testified that defendant gave him a $1,000 down payment and defendant was to give him “another thousand after it’s finished.” According to Spruille, defendant gave him a description of Zarinana. Spruille testified that he shot Zarinana four times, although not fatally, and Spruille collected the rest of the money from defendant.

The jury found defendant guilty. On June 27, 1985, defendant filed a post-trial motion that included as a ground for a new trial the trial court’s denial of the motion in limine to exclude evidence gained as the “fruit” of defendant’s unconstitutionally obtained statements. The motion was denied, and defendant was sentenced to concurrent terms of 40 years’ imprisonment for the convictions of attempted murder and solicitation and 14 years’ imprisonment for conspiracy.

On his direct appeal to this court, defendant’s appellate counsel did not raise as an issue the trial court’s denial of defendant’s motion in limine to exclude evidence obtained as a result of his suppressed statements, and this court affirmed defendant’s convictions. (People v. Winsett (1986), 147 Ill. App. 3d 1161, 512 N.E.2d 138 (unpublished order under Supreme Court Rule 23).) On February 1, 1990, defendant filed an amended petition for post-conviction relief (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) claiming that the testimonial evidence of Spruille obtained as a result of the suppressed statements should also have been suppressed.

At the hearing on defendant’s amended petition for post-conviction relief, Michael Fusz, the chief of felony review with the Lake County State’s Attorney in 1985, testified that based on his review of the record there was nothing in the police reports that indicated that the victim could have identified Spruille, nor were there any eyewitnesses that identified Spruille as the shooter. According to Fusz, there was no indication that the Waukegan police department was aware of Spruille relative to the Zarinana shooting prior to defendant’s February 20, 1985, arrest and statements, which directly linked Spruille to the offense. However, the investigation, including the interviews with Robinson’s employees, would have continued absent defendant’s statements.

Detective Donald Meadie of the Waukegan police department testified that he first learned who shot Zarinana on February 20, 1985, during Meadie’s interrogation of defendant. Zarinana himself was unable to identify his attacker because the attacker wore a ski mask. A witness, who saw an unfamiliar man in the area immediately following the shooting, was equally unable to provide more than a description of the man’s clothes and indicated he would not recognize the man again except for his clothes. Thus, although there were several leads prior to defendant’s arrest and statements, none identified Spruille as a suspect. Robert Thatcher, an employee of Robinson’s, provided Meadie with Spruille’s name as a former Robinson employee, but Meadie’s report of his interview with Thatcher failed to include Spruille’s name. However, Thatcher neither provided Meadie with information as to who actually shot Zarinana nor indicated that Spruille was involved in the offense. The police were in the process of interviewing all of Robinson’s past and present employees, but none had identified Spruille as involved in the shooting. Meadie admitted that there were no witnesses to the shooting, and without defendant’s statements, the police did not know that Spruille was linked to the shooting. However, the investigation would have continued if defendant had not identified Spruille as the shooter.

In denying defendant’s post-conviction petition, the trial court found that the State had met its burden of showing inevitable discovery and that there was no constitutional violation. The trial judge stated the following:

“My interpretation of what the law presently is under the constitution and the intention of the Supreme Court, I am looking at all of their cases, I am absolutely convinced that they would find that this was not the nature of a constitutional violation so as to preclude their being able to use this evidence. I feel that the State’s argument is well taken and that they wouldn’t have to prove inevitability, but that issue is moot since they did do it. Might as well have a finding for the higher court.”

On appeal, defendant contends that he was denied the effective assistance of counsel because his appellate counsel on direct appeal failed to raise the trial court’s denial of defendant’s motion to suppress the evidence obtained as a result of defendant’s suppressed statements. Defendant contends that the testimony of Spruille must be suppressed as the fruit of the poisonous tree because it was derived from defendant’s unconstitutional interrogation in violation of his fifth and sixth amendment rights to counsel. Defendant alternatively argues that the trial court also erroneously found that Spruille would have been inevitably discovered.

The State initially contends that defendant has waived this issue by not raising it on direct appeal to this court. The State, citing Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357, as direct authority to support the trial court’s order denying suppression of Spruille’s testimony, contends that appellate counsel, in view of this authority, was not ineffective for failing to raise the issue. The State also contends that the evidence was properly admitted under the inevitable discovery exception to the exclusionary rule.

As to the waiver argument, a post-conviction claim that could have been presented to the reviewing court in the direct appeal is, if not presented, thereafter barred under the doctrine of waiver. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830.) However, because defendant has raised this issue in a claim of ineffective assistance of counsel due to appellate counsel’s failure to raise the issue on direct appeal, the issue is not waived. (People v. Barnard (1984), 104 Ill. 2d 218, 229-30, 470 N.E.2d 1005.) We, therefore, address the substance of defendant’s claims in the context of his assertion of ineffective assistance of counsel on his direct appeal.

Defendant initially contends that his sixth amendment right to counsel was violated, relying on Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and that the fruits of that violation should be suppressed. This claim is without merit because Escobedo has been limited to its unique facts. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.) Although the instant facts are strikingly similar to those of Escobedo, the sixth amendment right to counsel has been held to attach only at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment (Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 417, 92 S. Ct. at 1882) when the government’s role shifts from investigation to accusation. Moran v. Burbine (1986), 475 U.S. 412, 430, 89 L. Ed. 2d 410, 427, 106 S. Ct. 1135, 1146.

In Illinois, our supreme court has, therefore, held that the sixth amendment right to counsel has not attached when a defendant was being interrogated on a complaint charging him with an offense, and he has been neither indicted nor arraigned. (People v. Thompkins (1988), 121 Ill. 2d 401, 433, 521 N.E.2d 38; People v. Wilson (1987), 116 Ill. 2d 29, 50-51, 506 N.E.2d 571.) Thus, defendant’s sixth amendment right to counsel had not yet attached because defendant, although arrested based on a warrant, had not been indicted or arraigned. However, our analysis proceeds under the fifth amendment right to counsel rather than a sixth amendment right to counsel analysis, because “[i]t is well established that the right to counsel provided by the sixth amendment exists independently of those rights under the fifth amendment.” Thompkins, 121 Ill. 2d at 432, 521 N.E.2d at 51.

Neither defendant nor the State has cited any Illinois authority on the exclusion of the fruit of a fifth amendment violation, and our independent research also has failed to disclose any relevant Illinois precedent on this precise issue. The United States Supreme Court has not squarely decided the issue (Commonwealth v. White (1978), 439 U.S. 280, 58 L. Ed. 2d 519, 99 S. Ct. 712 (suppression of fruit of fifth amendment violation summarily affirmed by divided court)), and other Federal and State court decisions have been divided on this precise question. (See e.g., United States v. Downing (1st Cir. 1981), 665 F.2d 404 (suppressed); Commonwealth v. White (1977), 374 Mass. 132, 371 N.E.2d 777 (suppressed); Wilson v. Zant (1982), 249 Ga. 373, 377-79, 290 S.E.2d 442, 446-48 (not suppressed), cert, denied (1982), 459 U.S. 1092, 74 L. Ed. 2d 940, 103 S. Ct. 580; see generally 1 W. LaFave & J. Israel, Criminal Procedure §9.5 (1984 & Supp. 1991); Note, Miranda Right-to-Counsel Violations & the Fruit of the Poisonous Tree Doctrine, 62 Ind. L.J. 1061 (1987).) Our analysis must, therefore, begin with the Supreme Court’s decision in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, which established the criteria to determine if a defendant’s ostensibly voluntarily obtained statements must nevertheless be suppressed.

In Miranda, the Supreme Court announced a series of procedural safeguards necessary to inform an accused of his right to remain silent and to assure the opportunity to exercise such right. (Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612.) The now familiar Miranda warnings adopted by the Court to safeguard an accused’s fifth amendment right against compulsory self-incrimination include both a warning of the accused’s right to remain silent and that any statements thereafter made may be used as evidence against the accused and a warning that the accused is entitled to counsel, either retained or appointed. (Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612.) Miranda’s safeguards have since been distinguished from the constitutional privilege against compulsory self-incrimination itself. (Tucker, 417 U.S. at 445-46, 41 L. Ed. 2d at 193-94, 94 S. Ct. at 2364-65.) The right to the presence of counsel, in addition to the actual giving of the Miranda warnings, has also been held a prophylactic measure designed to counteract the “inherently compelling pressures” of custodial interrogation. (McNeil v. Wisconsin (1991), 501 U.S. 171, 176, 115 L. Ed. 2d 158, 167, 111 S. Ct. 2204, 2208 (discussing distinction between the sixth amendment’s constitutional right to counsel at trial and Miranda’s fifth amendment right to counsel as a safeguard of constitutional right against self-incrimination).) However, the critical and unique nature of the right to the presence of counsel has also been recognized. Edwards, 451 U.S. at 485, 68 L. Ed. 2d at 386-87, 101 S. Ct. at 1885; Fare v. Michael C. (1979), 442 U.S. 707, 716-19, 61 L. Ed. 2d 197, 207-09, 99 S. Ct. 2560, 2567-69; see also Miranda, 384 U.S. at 469, 16 L. Ed. 2d at 720-21, 86 S. Ct. at 1625.

In Tucker and the Court’s similar decision in Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, which are relied upon by the State as controlling precedent defeating any claim of ineffective assistance of counsel, an infringement of defendant’s prophylactic Miranda right to the presence of counsel, although requiring suppression of defendant’s exculpatory statements, did not require suppression of evidence obtained as a result of such statements. However, the Tucker Court’s analysis was based on two distinctions, which were critical to its analysis and, further, which are absent here.

First, the constitutional rights of the defendant in Tucker had not been violated because he had not requested counsel. (Tucker, 417 U.S. at 444-45, 41 L. Ed. 2d at 193-94, 94 S. Ct. at 2364-65.) In Tucker the defendant was arrested prior to the Court’s decision in Miranda, although his trial commenced after that decision, and Miranda was, thus, applicable. (Tucker, 417 U.S. at 435, 41 L. Ed. 2d at 187, 94 S. Ct. at 2359; Johnson v. New Jersey (1966), 384 U.S. 719, 733, 16 L. Ed. 2d 882, 892, 86 S. Ct. 1772, 1781 (Miranda and Escobedo applicable to trials commenced after those decisions announced).) At the time of the defendant’s arrest and in accordance with Escobedo as the only then applicable law, the police asked the defendant if he understood the crime with which he had been charged and advised the defendant of his right to remain silent, that any statements that he did make could be used as evidence against him, and that he had the right to counsel during questioning. (Tucker, 417 U.S. at 436, 444-45, 41 L. Ed. 2d at 188, 193, 94 S. Ct. at 2359-60, 2364.) The defendant responded that he understood both the crime with which he was charged and his constitutional rights and that he did not wish counsel. (Tucker, 417 U.S. at 436, 41 L. Ed. 2d at 188, 94 S. Ct. at 2359-60.) Thus, the defendant did not request counsel and did not assert his fifth amendment privilege against self-incrimination. However, the officers did not advise the defendant that counsel would be appointed for him if he could not afford to retain private counsel as Miranda subsequently required. Tucker, 417 U.S. at 436, 41 L. Ed. 2d at 188, 94 S. Ct. at 2359-60.

After indicating that he did not wish counsel, the defendant was then interrogated and provided police with exculpatory statements, including the name of an alibi witness. (Tucker, 417 U.S. at 436, 41 L. Ed. 2d at 188, 94 S. Ct. at 2360.) However, the witness instead provided inculpatory information. (Tucker, 417 U.S. at 436-37, 41 L. Ed. 2d at 188, 94 S. Ct. at 2360.) Although the defendant’s statements were excluded, the witness was allowed to testify, and the defendant was convicted. (Tucker, 417 U.S. at 437, 41 L. Ed. 2d at 188-89, 94 S. Ct. at 2360.) Based on these facts, the Court concluded that defendant’s exculpatory statements were voluntary and that only the procedural rules of Miranda had been disregarded, albeit inadvertently. Tucker, 417 U.S. at 445-46, 41 L. Ed. 2d at 193-94, 94 S. Ct. at 2364-65.

However, “ ‘fruits’ of police conduct which actually infringed a defendant’s Fourth Amendment rights must be suppressed,” and the Court in Tucker recognized that such analysis applied in the context of a defendant’s fifth amendment rights as well. (Emphasis added.) (Tucker, 417 U.S. at 445, 41 L. Ed. 2d at 194, 94 S. Ct. at 2364.) Police interrogation after an accused requests counsel is an actual violation of the accused’s fifth amendment rights because “an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights.” (Fare, 442 U.S. at 719, 61 L. Ed. 2d at 209, 99 S. Ct. at 2569; see also Miranda, 384 U.S. at 469, 16 L. Ed. 2d at 720-21, 86 S. Ct. at 1625; Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.) Thus in contrast to Tucker in this instance, when defendant invoked his Miranda right to counsel, he exercised his constitutional privilege against compulsory self-incrimination, and the police interrogation in face of such exercise was a violation of defendant’s constitutional right. Therefore, Spruille’s testimony, as the “fruit” of the actual violation of defendant’s fifth amendment privilege, should have been suppressed.

However, the conclusion that the defendant’s statements had been voluntary did not end the Court’s analysis in Tucker, which is the second distinction made by the Court. Although only the defendant’s Miranda rights had been violated, the Court nevertheless examined the matter as a question of principle and focused on the purpose of the exclusionary rule and whether the sanction of exclusion of the “fruit” of the defendant’s statements would serve a valid and useful purpose under the facts of that case. Tucker, 417 U.S. at 445-46, 41 L. Ed. 2d at 193-94, 94 S. Ct. at 2364-65.

The prime purpose of the exclusionary rule is to deter future unlawful police conduct and thereby effectuate constitutional guarantees. (Tucker, 417 U.S. at 446, 41 L. Ed. 2d at 194, 94 S. Ct. at 2365; United States v. Calandra (1974), 414 U.S. 338, 347, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 619-20.) The exclusionary rule compels respect for constitutional guarantees by removing the incentive to disregard such rights. (Tucker, 417 U.S. at 446, 41 L. Ed. 2d at 194, 94 S. Ct. at 2365.) Therefore, the exclusionary rule necessarily assumes that the police have engaged in willful or negligent conduct, which has deprived an accused of his constitutional rights. (Tucker, 417 U.S. at 447, 41 L. Ed. 2d at 194, 94 S. Ct. at 2365.) However, if the police conduct was undertaken in good faith, little deterrence can be accomplished through exclusion of evidence. (Tucker, 417 U.S. at 447, 41 L. Ed. 2d at 194, 94 S. Ct. at 2365.) The Court expressly concluded that “[i]n a proper case [the deterrent] rationale would seem applicable to the Fifth Amendment context as well.” Tucker, 417 U.S. at 447, 41 L. Ed. 2d at 194, 94 S. Ct. at 2365.

The Court again relied on the unusual circumstances in which Tucker arose. (Tucker, 417 U.S. at 446, 450, 41 L. Ed. 2d at 194, 196, 94 S. Ct. at 2365, 2367.) Applying its analysis of the purpose of the exclusionary rule to the facts of Tucker, the Court expressly considered it “significant” to their decision that the police misconduct occurred prior to Miranda and, further, that the police had fully provided all then applicable safeguards to ensure that the defendant’s decision to waive his fifth amendment privilege was voluntary. (Tucker, 417 U.S. at 447, 41 L. Ed. 2d at 195, 94 S. Ct. at 2365.) The Court found that the minimal deterrent effect on future police conduct of the exclusion of the defendant’s statements would not be significantly increased by also excluding the “fruit” of such statements. Tucker, 417 U.S. at 448, 41 L. Ed. 2d at 195, 94 S. Ct. at 2365-66.

Nor did the Court find that exclusion of the “fruit” of the defendant’s suppressed statements would serve the secondary purpose of the exclusionary rule, which is to protect the court from inculpatory evidence that is untrustworthy because it was compelled and involuntary. (Tucker, 417 U.S. at 448, 41 L. Ed. 2d at 195, 94 S. Ct. at 2366.) However, in Tucker, the Court emphasized that the defendant’s statements were neither compelled nor involuntary. (Tucker, 417 U.S. at 445, 448, 41 L. Ed. 2d at 193, 195, 94 S. Ct. at 2364, 2366.) The defendant’s statements were not inculpatory and contained no self-incrimination. Rather, the defendant’s statements contained an exculpatory alibi, which was contradicted by the witness identified in the defendant’s statements. (Tucker, 417 U.S. at 445, 448, 41 L. Ed. 2d at 193, 195, 94 S. Ct. at 2364, 2366.) Here, not only was defendant’s inculpatory statement identifying Spruille, a putative defendant who eventually testified against defendant, inculpatory and subject to the inherent untrustworthiness of compulsory self-incrimination, but it was by definition involuntary and compelled because defendant’s request for counsel prior to questioning was a per se invocation of his fifth amendment privilege against compulsory self-incrimination. Fare, 442 U.S. at 719, 61 L. Ed. 2d at 208-09, 99 S. Ct. at 2568-69.

Elstad similarly concerned only the prophylactic warnings of Miranda. In Elstad, the suppressed statement of the defendant was made prior to the police giving the defendant any warnings, and the “fruit” of that statement was a complete statement obtained after Miranda warnings had been given. (Elstad, 470 U.S. at 301, 84 L. Ed. 2d at 227, 105 S. Ct. at 1288-89.) However, Elstad, like Tucker, concerned neither an actual violation of the defendant’s constitutional privilege against self-incrimination nor willful police conduct, which application of the “fruit of the poisonous tree” exclusionary rule will deter. (Elstad, 470 U.S. at 315-16, 84 L. Ed. 2d at 236-37, 105 S. Ct. at 1296-97 (second statement was “voluntary” and improper police conduct was an “oversight”).) In contrast to both Elstad and Tucker, this instance was both an “actual” violation of defendant’s constitutional rights against self-incrimination and the “proper case” in which the deterrent purpose of the exclusionary rule will be served by the imposition of the sanction to exclude testimony of putative defendant Spruille as the “fruit” of defendant’s illegally-obtained statements.

The State argued a second basis for affirmance of the trial court’s denial of defendant’s motion to suppress the testimony of a putative defendant, which was that the police would inevitably have discovered the identity of Spruille. Unconstitutionally obtained physical evidence may nevertheless be admissible at trial in the State’s case in chief if it inevitably would have been discovered. (Nix v. Williams (1984), 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511.) Three criteria must be met before a court will find that evidence would have been inevitably discovered: (1) the condition of the evidence when actually found by lawful means would have been the same as that when improperly obtained; (2) the evidence would have been discovered through an independent line of investigation untainted by the illegal conduct; and (3) such line of investigation must have already been undertaken at the time the evidence was unconstitutionally obtained. Nix, 467 U.S. at 459, 81 L. Ed. 2d at 398, 104 S. Ct. at 2517 (Brennan, J., dissenting) (State should bear burden of clear and convincing evidence of inevitability of discovery).

These criteria have clear application in the case of physical evidence. However, when the evidence sought to be suppressed is that of a witness’ testimony, the application of the criteria becomes significantly more difficult. Thus, although verbal evidence is equally subject to the “fruit of the poisonous tree” exclusionary rule (Wong Sun v. United States (1963), 371 U.S. 471, 485, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416), other factors must be considered in determining if such evidence inevitably would have been discovered. United States v. Ceccolini (1978), 435 U.S. 268, 275, 55 L. Ed. 2d 268, 276, 98 S. Ct. 1054, 1059.

In addition to examining the exclusionary rule’s deterrent purpose, the other factors that must be weighed when the challenged evidence is a witness’ testimony are the degree of the witness’ exercise of free will, the witness’ lack of relationship with the defendant, and the use of the suppressed evidence in questioning. (Ceccolini, 435 U.S. at 275, 276, 278-79, 55 L. Ed. 2d at 276, 277, 278-79, 98 S. Ct. at 1059-60, 1060, 1061-62.) Thus, in Ceccolini, the Court declined to exclude the witness’ testimony because the witness testified of her own free will, was not a putative defendant, the unconstitutionally obtained evidence played no part in her questioning, and the cost to society of excluding such testimony outweighed the incremental enhancement of constitutional values such exclusion would foster. Ceccolini, 435 U.S. at 275, 276, 279, 55 L. Ed. 2d at 276, 277, 279, 98 S. Ct. at 1059-60, 1060, 1061-62.

In this instance the State was in the process of interviewing all of Robinson’s employees, and Spruille, as a former employee, would inevitably have been interviewed. In addition, one of the officers testified that he had been provided Spruille’s name by another of Robinson’s employees, although the officer had failed to note this information in his report of the interview with such employee. Thus, the State correctly asserts that a separate line of its investigation, already undertaken at the time of defendant’s statements and identification of Spruille, would have inevitably led to Spruille.

However, it is at this juncture that the distinction between physical evidence and the testimony of a witness becomes apparent, and the Ceecolini factors must be considered. As discussed above and in contrast to Ceecolini, the exclusion of Spruille’s testimony serves the deterrent purpose of the exclusionary rule to ensure that the fifth amendment’s guarantee against compulsory self-incrimination is not willfully violated in the future for the purpose of obtaining derivative evidence that would thus be admissible. In addition, the other factors present in Ceecolini that permitted admission of the challenged testimony are absent here as well. Spruille was a putative defendant, and defendant’s suppressed statements were used both in questioning Spruille and to induce him to testify against defendant. Thus, although Spruille’s identity would inevitably have been discovered, the evidence he provided would not have been obtained without the use of defendant’s unconstitutional statements. The trial court, therefore, improperly denied defendant’s motion to suppress Spruille’s testimony.

Defendant’s convictions are reversed, his sentences are vacated, and this cause is remanded for a new trial excluding the evidence not only of defendant’s statements but also of Spruille’s testimony.

Reversed and remanded.

BOWMAN, J., concurs.

PRESIDING JUSTICE REINHARD,

Although the main question presented in this appeal has not yet been squarely decided by the United States Supreme Court nor addressed by any Illinois reviewing court, I am not persuaded that this court should create an exclusionary rule to bar testimony of a prosecution witness discovered as a fruit of defendant’s confession where the confession itself was found by the trial court to be voluntary but was suppressed because it was given after defendant had requested counsel.

Two United States Supreme Court decisions, however, are helpful in the analysis of the general issue of suppression of the fruits of a voluntary statement taken in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, although neither case involved a specific request for counsel as was found here by the trial court.

In Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357, cited by the State, the Court noted that Miranda warnings are not themselves constitutional rights but are merely prophylactic standards which protect the privilege against self-incrimination. (Tucker, 417 U.S. at 446, 41 L. Ed. 2d at 194, 94 S. Ct. at 2364-65.) Thus, in Tucker, the Court refused to extend a fourth amendment Wong Sun fruit of the poisonous tree analysis to prevent the testimony of a witness whose identity was discovered as a result of a statement taken from the defendant without the benefit of complete Miranda warnings and balanced the interests in allowing the evidence. Tucker, 417 U.S. at 450-52, 41 L. Ed. 2d at 196-97, 94 S. Ct. at 2367-68.

Similarly, in Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, the defendant made an inculpatory statement after being initially questioned without any Miranda warnings. The defendant was then subsequently given Miranda warnings and again interrogated. Although the Court found that the initial unwarned statement had to be suppressed, it declined to extend the Wong Sun analysis to the subsequent statements given after the warnings. (Elstad, 470 U.S. at 308, 84 L. Ed. 2d at 232, 105 S. Ct. at 1292-93.) The Court reiterated that Miranda warnings are merely prophylactic procedures. (Elstad, 470 U.S. at 309, 84 L. Ed. 2d at 232, 105 S. Ct. at 1293.) The court noted that, as in Tucker, the absence of any coercion or improper tactics undercut the rationale of the fifth amendment, assuring trustworthy evidence, and the general goal of deterring police misconduct, for invoking a broader rule of excluding evidence. Elstad, 470 U.S. at 308, 84 L. Ed. 2d at 231-32, 105 S. Ct. at 1292-93.

As the majority correctly points out, the United States Supreme Court has not squarely decided the issue presented and other Federal and State court decisions are divided on this precise question. Those courts which have suppressed evidence obtained (beyond the confession itself) as a result of a fifth amendment violation of a request for counsel have expressed the view that the justification for the exclusion of evidence is to deter unconstitutional police conduct and have applied a fourth amendment exclusionary rule under Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407. (United States v. Downing (1st Cir. 1981), 665 F.2d 404, 408-09; Commonwealth v. White (1977), 374 Mass. 132, 138-39, 371 N.E.2d 777, 781.) In contrast, the rationale used in not applying the fourth amendment “fruit of the poisonous tree” exclusion of resulting evidence is that the Supreme Court has never extended the exclusionary rule to a voluntary Miranda-tainted confession and that a violation of Miranda or the Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, rule of invocation of the right to counsel is not an infringement of a constitutional right which should lead to the suppression of other evidence resulting from the suppressed statement, but is a violation of only the prophylactic rules developed to protect those rights. Wilson v. Zant (1982), 249 Ga. 373, 378, 290 S.E.2d 442, 447.

In my view, the decisions of the United States Supreme Court in Tucker and Elstad which have refused to extend the fourth amendment exclusionary rule to the fruits of a noncoercive statement where the Miranda warnings were not given or incompletely given lend support for not adopting an exclusionary rule here where defendant requested counsel but later gave a voluntary statement. The violation was not of the fifth amendment constitutional right but of a prophylactic rule designed to implement that right (see McNeil v. Wisconsin (1991), 501 U.S. 171, 176, 115 L. Ed. 2d 158, 167, 111 S. Ct. 2204, 2208; see also Smith v. Illinois (1984), 469 U.S. 91, 95, 83 L. Ed. 2d 488, 493, 105 S. Ct. 490, 492 (Edwards holding referred to as “prophylactic rule”)), and I am reluctant to create an exclusionary rule for such a violation absent the unequivocal authority of the Supreme Court or the Illinois Supreme Court. Accordingly, I would not adopt an exclusionary rule to testimonial evidence of a third-party witness derived from a voluntary statement obtained after a request for counsel in violation of Edwards v. Arizona. See Wilson, 249 Ga. at 378, 290 S.E.2d at 447.

Because I would affirm the case under the foregoing analysis, I need not examine the State’s alternative argument that the witness’ testimony would have been admissible under the inevitable discovery rule except to note that I would not agree with the trial court that the evidentiary testimony obtained from Spruille would have been inevitably discovered under the rule announced in Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377,104 S. Ct. 2501.