People v. Roberson

NO. 4-05-0247 Filed: 8/23/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Vermilion County
ALFRED ROBERSON, ) No. 04CF617
Defendant-Appellee. )
) Honorable
) Thomas J. Fahey,
) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

A police officer stopped defendant, Alfred Roberson, for a traffic violation.

Roberson had a passenger, Anthony Evans. The officer asked Evans for his name,

Evans told him, and the officer checked for any outstanding warrants for Evans's arrest.

Upon learning of such a warrant, he arrested Evans. In a search of the car incident to

the arrest, the officer found contraband, whereupon he arrested Roberson, too. The

State charged Roberson with possession of a controlled substance (720 ILCS

570/402(c) (West 2004)) and possession of a controlled substance with intent to deliver

(720 ILCS 570/401(c)(2) (West 2004)).

Roberson moved to suppress the evidence, and the trial court granted the

motion on the authority of People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219 (2003),

vacated & remanded, Illinois v. Harris, 543 U.S. 1135, 161 L. Ed. 2d 94, 125 S. Ct. 1292

(2005), apparently unaware that the Supreme Court of the United States vacated Harris

eight days earlier. The State appeals, arguing we should reverse the trial court's
judgment for the same reason the Supreme Court of the United States overturned

Harris, namely, the judgment is inconsistent with Illinois v. Caballes, 543 U.S. 405, 160

L. Ed. 2d 842, 125 S. Ct. 834 (2005). We agree with the State's argument. Because

the warrant check on Evans violated no constitutionally protected interest in privacy, it

did not change the fundamental nature of the traffic stop. Therefore we reverse the trial

court's order granting Roberson's motion to suppress evidence and quash his arrest,

and we remand this case for further proceedings.

I. BACKGROUND

Roberson moved to suppress the evidence on the ground that he never

consented to a search of his car and the search was not incident to his own arrest. In a

hearing on the motion on March 2, 2005, defense counsel told the trial court:

"MR. CLARK: Judge, actually [the prosecutor] and I

have agreed to stipulate. This hearing was held--

THE COURT: On the other guy.

MR. BRINEGAR [(prosecutor)]: February 15[,] [2005].

MR. CLARK: --on the co-[d]efendant. The [c]ourt

heard the evidence at that time from the officer who would

have testified in this case. The testimony would be precisely

the same, and I believe that Mr. Brinegar is also conceding

that the [c]ourt would rule exactly the same way based on

the Harris case.

MR. BRINEGAR: Well, I'm conceding that there's a

high likelihood that the [c]ourt would. The facts could be

-2-
stipulated[-]to that[,] I believe[,] there was a valid traffic stop.

The sole reason for the search of the car, however, was the

officer's questioning of the passenger, Anthony Evans,

which[,] under Harris[,] is impermissible, and the [c]ourt so

found. The subsequent search after the questioning of

Evans, discovering that he was wanted on a warrant--

THE COURT: Yeah, this guy hadn't done anything,

had he?

MR. CLARK: Speeding ticket.

THE COURT: Speeding ticket.

MR. BRINEGAR: Right. He was the driver of the car.

Dennis Rogers thought he recognized Anthony Evans,

asked him his name. He confirmed he was Anthony Evans.

Rogers checked for warrants on Evans. There was

an outstanding warrant. Then[,] after placing Evans under

arrest, the car was searched. Contraband was found

between the front passenger seat and the armrest in the

center of the seat.

THE COURT: Right. Right. Okay.

MR. BRINEGAR: And the only thing that Roberson

had done is be the driver of a car that was stopped on what

everybody appears to agree was a valid traffic stop. Nothing

was found on Roberson.

-3-
 MR. CLARK: It's our contention--our contention is[,]

for a speeding ticket[,] he never should have been asked out

of the vehicle. He never should have been patted down, and

the passenger compartment of the vehicle never should

have been searched.

THE COURT: Anything else?

MR. BRINEGAR: No.

THE COURT: I agree. Well, Harris--and I don't even

know whether [Wong Sun v. United States, 371 U.S. 471, 9

L. Ed. 2d 441, 83 S. Ct. 407 (1963),] is still the one that is

cited. Fruit of the poisonous tree would also be applicable in

this particular thing. Once invalid, everything else is invalid

subsequent thereto. And I have ruled that Evans was an

illegal stop and/or arrest. That's the one where the police

officers--they've changed their whole procedure now. Is

that--

MR. BRINEGAR: That's what Dennis Rogers testified

to.

THE COURT: Right. Because of the--because of the

Harris case.

MR. BRINEGAR: The Harris case.

THE COURT: And that they realized that they were in

contravention of the [c]onstitution.

-4-
 The motion to suppress will be allowed."

The State filed a certificate of impairment.

This appeal followed.

II. ANALYSIS

A. Our Standard of Review and the Burdens
of Persuasion and Production

When ruling on a motion to suppress evidence, a trial court might have to

choose between competing versions of fact or weigh the credibility of witnesses; to that

extent, we defer to the trial court unless we find these factual determinations to be

"manifestly erroneous" in light of the record. People v. Gonzalez, 204 Ill. 2d 220, 223,

789 N.E.2d 260, 263 (2003). The term "manifest error" means error that is "clearly

evident, plain, and indisputable." People v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d

574, 582 (1997). Insomuch as the facts are undisputed, our standard of review is de

novo; we decide, without any deference to the trial court, whether the law requires

suppression of the evidence under those facts. People v. Gherna, 203 Ill. 2d 165, 175,

784 N.E.2d 799, 805 (2003).

Our standard of review assumes a certain division of labor between the

defendant and the State. On a motion to suppress evidence, the defendant has the

ultimate burden of persuasion: the defendant must convince the trial court that the

search or seizure was unlawful. 725 ILCS 5/114-12(b) (West 2004); People v. Ramsey,

362 Ill. App. 3d 610, 614, 839 N.E.2d 1093, 1097 (2005). The burden of production, or

the burden of coming forward with evidence, first falls upon the defendant and then, if

the defendant makes out a prima facie case, shifts to the State. Once the defendant

-5-
comes forward with evidence from which one could reasonably find an unlawful search

or seizure, the State must come forward with evidence justifying the search or seizure.

Ramsey, 362 Ill. App. 3d at 614, 839 N.E.2d at 1097.

B. The Extent of Forfeiture by the State

Roberson observes that "in the suppression hearing, the State literally

made no argument against the suppression of the evidence[] and advanced no alternate

basis for why the search was valid. [Citation.] As such [sic], the State has waived

argument about the nature of the search ***." We agree that the State was totally

acquiescent. The prosecutor never mentioned the vacation of Harris. Indeed, he

offered no reason at all for overruling the motion for suppression of evidence. He

merely conceded that, under Harris, "the questioning of the passenger, Anthony Evans,

[was] impermissible." Thus, in the record before us, the motion was unopposed. The

rule of forfeiture applies to the State just as it applies to the defendant. People v.

O'Neal, 104 Ill. 2d 399, 407, 472 N.E.2d 441, 444 (1984). As appellant, the State

cannot make an argument on appeal that the State never made in the suppression

hearing. See O'Neal, 104 Ill. 2d at 407, 472 N.E.2d at 444.

In the same sentence of his brief, Roberson states, however, that because

of this forfeiture, the State "is limited to the argument it has made regarding Harris['s]

having been vacated." He thereby concedes the State's right to assert, on appeal, the

Supreme Court's vacation of Harris as a ground for reversing the trial court's judgment

in the present case. We will proceed accordingly.

C. The Legal Significance of the Supreme Court's
Vacation of Harris

-6-
 1. Checking for Warrants on a Passenger During a Traffic Stop

In Harris, 207 Ill. 2d at 517, 802 N.E.2d at 221, a police officer pulled over

a driver for making an illegal turn and, in the course of the traffic stop, requested

identification from the defendant, a passenger in the vehicle. The officer radioed the

information from the defendant's identification card to the county dispatcher's office and

learned of a warrant for the defendant's arrest. Harris, 207 Ill. 2d at 518, 802 N.E.2d at

222. The officer arrested the defendant and, in a search incident to the arrest, found

cocaine in the defendant's pocket. Harris, 207 Ill. 2d at 518-19, 802 N.E.2d at 222. The

issue on appeal was "whether a police officer, having obtained an identification card

from a passenger in a vehicle during a traffic stop, [could] perform a check to determine

whether there [were] outstanding warrants for the passenger's arrest." Harris, 207 Ill.

2d at 516-17, 802 N.E.2d at 221.

Our supreme court held that by stopping the vehicle, the police officer

seized all of its occupants, including the passenger. Harris, 207 Ill. 2d at 522, 802

N.E.2d at 224. The fourth amendment required that the seizure be reasonable. Harris,

207 Ill. 2d at 522, 802 N.E.2d at 224. Because a traffic stop was analogous to an

investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.

1868 (1968)), a court was to "judge[] the reasonableness of a traffic stop by reference to

Terry's dual inquiry." Harris, 207 Ill. 2d at 522, 802 N.E.2d at 225. Under this dual

inquiry, a traffic stop was reasonable if (1) "the officer's action in initiating the stop was

justified" and (2) "the officer's action during the course of the stop was reasonably

related in scope to the circumstances which justified the [stop] in the first place." Harris,

207 Ill. 2d at 522-23, 802 N.E.2d at 225. With reference to the second part of the dual

-7-
inquiry, the fourth amendment would not allow the officer to "'"fundamentally alter[] the

nature of the stop by converting it into a general inquisition about past, present[,] and

future wrongdoing, absent an independent basis for reasonable articulable suspicion or

probable cause."'" Harris, 207 Ill. 2d at 523, 802 N.E.2d at 225, quoting Gonzalez, 204

Ill. 2d at 235, 789 N.E.2d at 269, quoting United States v. Holt, 264 F.3d 1215, 1240

(10th Cir. 2001) (Murphy, J., concurring in part and dissenting in part).

The police officer in Harris was justified in pulling the vehicle over because

he saw the driver make an illegal turn. Harris, 207 Ill. 2d at 525, 802 N.E.2d at 226.

Thus, the traffic stop was reasonable in its inception, satisfying the first part of Terry's

dual inquiry. Harris, 207 Ill. 2d at 525, 802 N.E.2d at 226.

The next question was whether the officer's actions during the course of

the traffic stop were reasonably related in scope to the circumstance that justified the

stop in the first place, i.e., the illegal turn. His request to the passenger for identification

was innocuous and did not change the fundamental nature of the stop. Harris, 207 Ill.

2d at 525, 802 N.E.2d at 226. Besides being innocuous, the request was within the

scope of the circumstance justifying the stop because the defendant, a passenger, was

a potential witness to the illegal turn and the officer could reasonably try to identify him

for that reason. Harris, 207 Ill. 2d at 525, 802 N.E.2d at 226.

But the police officer did more than ask the passenger for identification; he

then used the passenger's identification card to check for any outstanding warrants on

him. Harris, 207 Ill. 2d at 525, 802 N.E.2d at 226. As the supreme court had recently

held in Gonzalez, 204 Ill. 2d at 233, 789 N.E.2d at 269, "the scope inquiry" (the second

element of Terry's dual inquiry) was "dependent upon both the duration of the traffic

-8-
stop and the manner in which the stop [was] conducted." (Emphases added.) Harris,

207 Ill. 2d at 525, 802 N.E.2d at 226. The warrant check on the passenger had nothing

to do with the justification for the traffic stop; nor was it supported by a reasonable,

articulable suspicion that the passenger had committed, or was about to commit, a

crime. Harris, 207 Ill. 2d at 526-27, 802 N.E.2d at 227. The supreme court stated:

"The warrant check performed on [the] defendant could well

have lengthened the duration of the detention if the officer

had to wait for the results of the warrant check. Under the

circumstances at bar, however, regardless of the duration of

the detention, the warrant check was impermissible because

it changed the fundamental nature of the traffic stop. The

warrant check converted the stop from a routine traffic stop

into an investigation of past wrongdoing by [the] defendant."

Harris, 207 Ill. 2d at 528, 802 N.E.2d at 228.

Thus, depending on the evidence, the warrant check might have lengthened the

duration of the traffic stop, but, in any event, it changed the manner in which the traffic

stop was conducted, transforming the fundamental nature of the stop from a routine

investigation of a traffic offense to "'a general inquisition about [the passenger's] past ***

wrongdoing, absent an independent basis for reasonable articulable suspicion or

probable cause.'" Harris, 207 Ill. 2d at 528, 802 N.E.2d at 228, quoting Holt, 264 F.3d at

1240 (Murphy, J., concurring in part and dissenting in part). The supreme court

concluded that the warrant check failed the second part of Terry's dual inquiry and,

therefore, the seizure of the defendant was unreasonable. Harris, 207 Ill. 2d at 530,

-9-
802 N.E.2d at 229.

On February 22, 2005, the Supreme Court of the United States issued an

order vacating the judgment of the Supreme Court of Illinois in Harris and remanding

the case "for further consideration in light of [Caballes]." Harris, 543 U.S. 1135, 161 L.

Ed. 2d 94, 125 S. Ct. 1292. The Supreme Court of Illinois has not yet issued a new

opinion in Harris.

2. Having a Drug-Detecting Dog Sniff the Outside
of the Vehicle During a Traffic Stop

In Caballes, 543 U.S. at 406, 160 L. Ed. 2d at 845, 125 S. Ct. at 836, an

Illinois state trooper stopped the defendant for speeding. As the defendant was sitting

in the squad car and the trooper was writing him a warning ticket, a second trooper

showed up with a narcotics-detection dog and walked the dog around the defendant's

car. Caballes, 543 U.S. at 406, 160 L. Ed. 2d at 845-46, 125 S. Ct. at 836. The dog

smelled an odor coming from the trunk. The officers searched the trunk, found

marijuana, and arrested the defendant. Caballes, 543 U.S. at 406, 160 L. Ed. 2d at

846, 125 S. Ct. at 836. The entire incident lasted less than 10 minutes. Caballes, 543

U.S. at 406, 160 L. Ed. 2d at 846, 125 S. Ct. at 836.

The Supreme Court of Illinois held that the use of the drug-sniffing dog

"'unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.'"

Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 836-37, quoting People v.

Caballes, 207 Ill. 2d 504, 510, 802 N.E.2d 202, 205 (2003), vacated & remanded, 543

U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834. In other words, the manner of the

detention offended the scope doctrine, the second part of Terry's dual inquiry. The

- 10 -
Supreme Court of the United States granted certiorari on the following question:

whether the fourth amendment (U.S. Const., amend. IV) required a reasonable,

articulable suspicion to justify using a drug-detection dog to sniff the outside of a vehicle

during a legitimate traffic stop. Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S.

Ct. at 837.

The Supreme Court agreed that a traffic stop was a seizure and, even

though the seizure was "lawful at its inception," it could "violate the [f]ourth [a]mendment

if its manner of execution unreasonably infringe[d] interests protected by the

[c]onstitution." Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837. For

instance, if the justification of the seizure was solely to issue a warning ticket, the

seizure could "become unlawful if it [were] prolonged beyond the time reasonably

required to complete that mission" (Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125

S. Ct. at 837)--the Supreme Court cited People v. Cox, 202 Ill. 2d 462, 782 N.E.2d 275

(2002), as an example (Caballes, 543 U.S. at 407-08, 160 L. Ed. 2d at 846, 125 S. Ct.

at 837). In Caballes, however, the trial court found that the duration of the stop was

"entirely justified," a finding the Supreme Court accepted. Caballes, 543 U.S. at 408,

160 L. Ed. 2d at 846-47, 125 S. Ct. at 837.

Considering that the duration of the seizure was reasonable for a traffic

stop, the Supreme Court disagreed with our supreme court that the dog sniff, in itself,

changed the character of the traffic stop. Caballes, 543 U.S. at 408, 160 L. Ed. 2d at

847, 125 S. Ct. at 837. The Supreme Court stated:

"In our view, conducting a dog sniff would not change the

character of a traffic stop that is lawful at its inception and

- 11 -
 otherwise executed in a reasonable manner, unless the dog

sniff itself infringed [the defendant's] constitutionally

protected interest in privacy. Our cases hold that it did not."

Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct.

at 837.

The Supreme Court reasoned that to be a "search" within the meaning of the fourth

amendment, the official conduct had to "'compromise [a] legitimate interest in privacy.'"

(Emphasis added.) Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837,

quoting United States v. Jacobsen, 466 U.S. 109, 123, 80 L. Ed. 2d 85, 100, 104 S. Ct.

1652, 1661 (1984). No one had a legitimate interest in possessing contraband;

therefore, if the official conduct-- intrusive though it was--"only reveal[ed] the possession

of contraband," it was not "a search subject to the [f]ourth [a]mendment." (Emphasis in

original.) Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. No doubt,

the defendant wanted to keep the marijuana in the trunk of his car private, but "society"

did not deem his interest in privacy to be reasonable in that respect. Caballes, 543 U.S.

at 408-09, 160 L. Ed. 2d at 847, 125 S. Ct. at 837-38. The defendant conceded that

canine drug-sniffs, properly performed, were likely to reveal only the presence of

contraband and nothing else. Caballes, 543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S.

Ct. at 838.

The Supreme Court concluded:

"[T]he use of a well-trained narcotics-detection dog--one that

'does not expose noncontraband items that otherwise would remain

hidden from public view,' [citation]--during a lawful traffic stop,

- 12 -
 generally does not implicate legitimate privacy interests. In this

case, the dog[-]sniff was performed on the exterior of [the

defendant's] car while he was lawfully seized for a traffic violation.

Any intrusion on [his] privacy expectations does not rise to the level

of a constitutionally cognizable infringement." Caballes, 543 U.S. at

409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838.

In short, "[a] dog[-]sniff conducted during a concededly lawful traffic stop that reveal[ed]

no information other than the location of a substance that no individual ha[d] any right to

possess [did] not violate the [f]ourth [a]mendment." Caballes, 543 U.S. at 410, 160 L.

Ed. 2d at 848, 125 S. Ct. at 838; see also People v. Driggers, No. 97439, slip op. at 7

(July 5, 2006), ____ Ill. 2d ____, ____, ____ N.E.2d ____, ____ (so interpreting the

Supreme Court's decision in Caballes).

3. Application of Caballes to the Present Case

The Supreme Court agreed, in Caballes, 543 U.S. at 407, 160 L. Ed. 2d at

846, 125 S. Ct. at 836, that the "manner of execut[ing]" a traffic stop, lawful in its

inception, could violate the fourth amendment--but only if the police officer did

something that, in itself, "unreasonably infringe[d] interests protected by the

Constitution." Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 836. One

example would be "prolong[ing] [the traffic stop] beyond the time reasonably required to

complete the mission." Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at

836. Seizing someone for an unreasonable length of time was, ipso facto,

constitutionally forbidden. No one, however, had a legitimate expectation of privacy

possessing marijuana, so the federal constitution did not forbid using a drug-detecting

- 13 -
dog to sniff the exterior of the defendant's car. Caballes, 543 U.S. at 408-09, 160 L. Ed.

2d at 847, 125 S. Ct. at 837-38. Contrary to our own supreme court, a "shift in purpose"

was not enough to fall afoul of the fourth amendment. Caballes, 543 U.S. at 408, 160 L.

Ed. 2d at 847, 125 S. Ct. at 837. In itself, the dog-sniff did not violate the constitution;

therefore, it did not affect the manner of executing the traffic stop (Caballes, 543 U.S. at

409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838) or, to use the terminology of Gonzalez,

"change[] the fundamental nature of the stop" (Gonzalez, 204 Ill. 2d at 235, 789 N.E.2d

at 270).

By the logic of Caballes, checking for warrants on a passenger changes

the fundamental nature of the traffic stop only if (1) it causes the seizure to last longer

than the time reasonably required for such a traffic stop or (2) it infringes upon the

passenger's legitimate interest in privacy. The record contains no evidence that

checking for warrants on the passenger, Evans, caused the traffic stop to be

unreasonably long. As for Evans's privacy interests, "[t]he existence of an arrest

warrant is a matter of public record." Gist v. Macon County Sheriff's Department, 284

Ill. App. 3d 367, 377, 671 N.E.2d 1154, 1161 (1996). Even if he had an expectation that

the warrant for his arrest would be private, this obviously was not an expectation that

"'society [was] prepared to consider reasonable.'" Caballes, 543 U.S. at 409, 160 L. Ed.

2d at 847, 125 S. Ct. at 838.

In summary, the stop of Roberson's car was lawful in its inception. We

find no evidence that its duration was excessive for a traffic stop. With respect to the

warrant check on the passenger, the manner of executing the traffic stop did not

unreasonably infringe an interest protected by the constitution. Therefore we find no

- 14 -
violation of the fourth amendment. See People v. Connor, 358 Ill. App. 3d 945, 961-62,

832 N.E.2d 442, 456 (2005) ("the warrant check did not impermissibly prolong [the]

defendant's lawful detention[,] and the [police officer] did not need an additional fourth[-

]amendment justification for this warrant check").

"Because the defendant makes no distinction between the federal and

state provisions in his argument on this issue, we measure his constitutional protections

under both using the same standard." People v. Krueger, 175 Ill. 2d 60, 65, 675 N.E.2d

604, 607 (1996). Indeed, the standard is the same. On remand in People v. Caballes,

221 Ill. 2d 282, 338, ___ N.E.2d ___, ___ (2006), our supreme court reaffirmed its

adherence to the limited lockstep doctrine by holding that the dog-sniff of a vehicle,

during a traffic stop, did not implicate the privacy clause of article I, section 6, of the

Illinois Constitution (Ill. Const. 1970, art. I, '6) any more than it implicated the fourth

amendment as interpreted by the Supreme Court of the United States.

D. The Theoretical Possibility of a Delay
Between the Arrest and Search

When a police officer lawfully arrests the occupant of an automobile, the

officer may perform a contemporaneous search of the passenger compartment in order

to remove weapons and prevent the removal of evidence. New York v. Belton, 453 U.S.

454, 460-01, 69 L. Ed. 2d 768, 774-75, 101 S. Ct. 2860, 2864 (1981). The search must

"immediately follow[]" the arrest, or else it will not qualify as a search incident to arrest.

People v. Wither, 321 Ill. App. 3d 382, 385, 748 N.E.2d 336, 338 (2001). Roberson

reasons as follows:

"[T]he record does not specify how much time elapsed

- 15 -
 between Evans'[s] arrest and the search, but the State

stipulated that the search of the passenger compartment

occurred after Evans was placed under arrest. [Citation.]

Because warrantless searches are presumptively

unreasonable[] and the appellant has not provided a record

showing that the search was lawfully conducted, [t]his [c]ourt

should not presume that the search of Mr. Roberson's

vehicle was validly made incident to Evans'[s] arrest."

Roberson cites People v. Edwards, 74 Ill. 2d 1, 6, 383 N.E.2d 944, 946 (1978), for the

proposition that an appellant is responsible for the adequacy of the record on appeal

and Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984), for the

proposition that any doubts that arise from the incompleteness of the record should be

resolved against the appellant. Roberson further argues that by its acquiescence in the

suppression hearing, the State has "[forfeited] any argument about the nature of the

search."

Just because the State has forfeited any argument about the nature of the

search (other than, as defendant says, an argument founded on the vacation of Harris),

it does not follow that the record before us could reasonably support a finding (which the

trial court never made) that the police officer delayed searching Roberson's vehicle after

arresting Evans. As Roberson admits, "the record does not specify how much time

elapsed between Evans'[s] arrest and the search." In the proceedings below, if

Roberson intended to pursue a theory that the officer delayed performing the search, he

had the initial burden of coming forward with the relevant evidence. See Ramsey, 362

- 16 -
Ill. App. 3d at 614, 839 N.E.2d at 1097. The record is quite adequate to inform us that

Roberson never even asserted such a theory in the suppression hearing, let alone

came forward with evidence supporting such a theory. We cannot logically hold that the

State forfeited its opposition to a theory that Roberson never raised.

III. CONCLUSION

For the foregoing reasons, we reverse the order granting Roberson's

motion to suppress evidence and quash his arrest, and we remand this case for further

proceedings.

Reversed and remanded.

McCULLOUGH and MYERSCOUGH, JJ., concur.

- 17 -