2017 IL 119484
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119484)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
CARA M. RINGLAND et al., Appellees.
Opinion filed June 29, 2017.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Burke, and Theis concurred in the
judgment and opinion.
Justice Garman dissented, with opinion, joined by Justice Kilbride.
OPINION
¶1 Defendants, Cara Ringland, Steven Pirro, James Saxen, Steven Harris, and
Matthew Flynn, were separately charged with felony drug offenses in the circuit
court of La Salle County. In each case, a controlled substance was discovered
during a traffic stop. These traffic stops were conducted by a special investigator
appointed by Brian Towne, then State’s Attorney of La Salle County, pursuant to
section 3-9005(b) of the Counties Code (55 ILCS 5/3-9005(b) (West 2012)).
¶2 The circuit court granted each defendant’s motion to quash arrest and suppress
evidence. The appellate court affirmed, holding that the conduct of the special
investigator exceeded the scope of section 3-9005(b). 2015 IL App (3d) 130523.
This court allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff.
Jan. 1, 2015)), and we now affirm the judgment of the appellate court.
¶3 I. BACKGROUND
¶4 Jeffrey Gaither, a special investigator for the La Salle County State’s Attorney,
conducted a traffic stop against each defendant, beginning with Ringland on
January 31, 2012, and continuing through Flynn on March 12, 2013. Each traffic
stop occurred on Interstate 80 in La Salle County and resulted in the discovery of a
controlled substance. Defendants Ringland, Pirro, and Flynn were each charged
with felony possession with intent to deliver cannabis, and defendants Harris and
Saxen were respectively charged with felony possession with intent to deliver
cocaine and methamphetamine.
¶5 Each defendant filed a motion to quash arrest and suppress evidence
contending, inter alia, that Gaither lacked the authority to conduct a traffic stop.
Defendants Ringland, Harris, and Saxen specifically argued that Gaither lacked
such authority because Towne failed to comply with section 3-9005(b)’s
mandatory procedures in hiring Gaither and, alternatively, that section 3-9005(b)
did not authorize Gaither to conduct traffic stops.
¶6 The circuit court held a hearing on each motion to suppress. Ringland called
Towne and Gaither as witnesses. The other defendants and the State stipulated to
the following testimony. Towne testified that in late 2011, he formed a team of
special investigators, which he named the State’s Attorney’s Felony Enforcement
(SAFE) unit. According to Towne: “Basically I was looking to have a drug
interdiction team primarily on Interstate 80 with officers who had previous
extensive experience in drug interdiction on Interstate 80 ***.” Towne authorized
the SAFE unit to operate on the Interstate “[t]hrough the statute for the duties and
powers of the State’s Attorney.” On January 21, 2012, Towne swore in Gaither as a
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SAFE investigator and “then authorize[d] him to go out and enforce the law.”
Gaither testified that SAFE investigators “were hired to work on *** I-80 and look
for narcotics traffickers and criminals” and “[t]o arrest people who were smuggling
narcotics or proceeds from narcotics up and down the interstates in Illinois in
La Salle County.” Gaither received his paychecks from La Salle County, and he
viewed himself “as an employee of the State’s Attorney of La Salle County.” He
never took an oath as a deputy sheriff of La Salle County, and he never took an oath
from the county sheriff in any regard. Gaither was provided a Ford Explorer
equipped with emergency lights and a video camera. When asked what the purpose
of that vehicle was, Gaither answered: “To make traffic stops.”
¶7 At the suppression hearings for defendants Ringland and Pirro, Gaither further
testified that, by prearranged plan, when a SAFE investigator would broadcast the
initiation of a traffic stop, a drug-detection canine unit would automatically proceed
to that location. Gaither also testified as to the factual circumstances surrounding
the traffic stops for defendants Ringland, Pirro, and Saxen at their respective
suppression hearings. 1
¶8 The circuit court granted each defendant’s motion to suppress. The court ruled
that section 3-9005(b) required strict compliance with its background verification
procedures prior to Gaither’s appointment. According to the court, the statute
unequivocally required that Gaither’s fingerprints be taken and transmitted to the
Illinois State Police, which would examine its records and relate any conviction
information to the State’s Attorney. The court found that these requirements were
not met. For this reason, the court concluded that Gaither lacked the authority to
conduct these traffic stops.
1
Also, Towne and Gaither each testified that the state police already had Gaither’s
fingerprints on file because Gaither had been employed by the Illinois State Police from
1987 to his retirement in July 2011. Further, the parties in the cases against Pirro, Saxen,
Harris, and Flynn stipulated that Gaither’s fingerprints had been on file with the Illinois
State Police prior to Gaither’s appointment and that a background check of Gaither
revealed no felony convictions or crimes of moral turpitude. See 55 ILCS 5/3-9005(b)
(West 2012).
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¶9 The State filed a notice of appeal from each suppression order (Ill. S. Ct. R.
604(a)(1) (eff. July 1, 2006)), and the appellate court consolidated the cases for
review. 2015 IL App (3d) 130523, ¶ 6. The appellate court likewise concluded that
Gaither lacked the authority to conduct the instant traffic stops. However, the
appellate court based its conclusion on a different reason. “Leaving aside the issue
of whether the State’s Attorney either strictly or substantially complied with the
fingerprint requirement of the statute, *** the conduct of both the SAFE unit and
Gaither exceeded the scope of section 3-9005(b), rendering the traffic stops and
arrests unlawful.” Id. ¶ 34. For that reason, the appellate court affirmed each
suppression order.
¶ 10 On August 16, 2015, the Illinois Attorney General, the State’s Attorneys
Appellate Prosecutor, and Towne filed a petition for leave to appeal on behalf of the
State, which we allowed on November 25, 2015. 2 During briefing in this court,
Karen Donnelly defeated Towne in the November 2016 general election. On
December 1, 2016, Donnelly took office as La Salle County State’s Attorney.
Additional pertinent background will be discussed in the context of our analysis of
the issues.
¶ 11 II. ANALYSIS
¶ 12 Before this court, the State assigns error to the appellate court’s affirmance of
the circuit court’s suppression orders. The State contends, inter alia, that section
3-9005(b) authorized Towne to create his SAFE unit and empower his special
investigators to conduct traffic stops. We apply the two-part standard of review
adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S.
690, 699 (1996). Under this standard, the circuit court’s factual findings are upheld
unless they are against the manifest weight of the evidence. “The reviewing court
then assesses the established facts in relation to the issues presented and may reach
its own conclusions as to what relief, if any, should be allowed. Accordingly, the
ultimate legal question of whether suppression is warranted is reviewed de novo.”
2
We granted Freddy Sizemore, an individual charged under similar circumstances,
leave to submit an amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff. Sept.
20, 2010).
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People v. Hunt, 2012 IL 111089, ¶ 22; People v. Harris, 228 Ill. 2d 222, 230
(2008). Resolution of this issue requires us to construe the relevant statutory
language. Our review is de novo also because the construction of a statute is a
question of law. People v. Gutman, 2011 IL 110338, ¶ 12.
¶ 13 The primary objective in construing a statute is to ascertain and give effect to
the intent of the legislature. The most reliable indicator of legislative intent is the
language of the statute, given its plain and ordinary meaning. A court must view the
statute as a whole, construing words and phrases in light of other relevant statutory
provisions and not in isolation. Each word, clause, and sentence of a statute must be
given a reasonable meaning, if possible, and should not be rendered superfluous.
The court may consider the reason for the law, the problems sought to be remedied,
the purposes to be achieved, and the consequences of construing the statute one
way or another. Also, a court presumes that the General Assembly did not intend to
create absurd, inconvenient, or unjust results. People v. Perez, 2014 IL 115927, ¶ 9;
People v. Hunter, 2013 IL 114100, ¶ 13.
¶ 14 Section 3-9005(b) of the Counties Code provides in relevant part: “The State’s
Attorney of each county shall have authority to appoint one or more special
investigators to [(1)] serve subpoenas, [(2)] make return of process and
[(3)] conduct investigations which assist the State’s Attorney in the performance of
his duties.” 55 ILCS 5/3-9005(b) (West 2012). Section 3-9005(b) expressly limits
its investigation authorization to those investigations that assist a State’s Attorney
in the performance of his or her duties. Id. Further, based on its plain language, the
appellate court correctly observed that this is an exclusive list (2015 IL App (3d)
130523, ¶ 37), and the State does not argue otherwise before this court.
¶ 15 Towne and Gaither each testified that SAFE investigators did not serve
subpoenas, make return of process, or investigate pending cases. Towne further
testified that his office had not opened any investigation concerning Ringland and
that she did not come to Towne’s attention until after she was arrested. 3 Thus, to be
valid, the instant traffic stops, by themselves, must constitute investigations that
assist a State’s Attorney in the performance of his or her duties.
3
Gaither further testified that Ringland’s arrest had nothing to do with serving
subpoenas, making return of process, or investigating pending cases.
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¶ 16 The appellate court could not understand “how patrolling Interstate 80, issuing
warning tickets, and confiscating contraband can be realistically viewed as
‘conducting investigations that assist the State’s Attorney with his duties.’ The
prosecution of drug dealers and traffickers is indisputably a duty of the State’s
Attorney; outfitting his own drug interdiction unit is not.” Id. ¶ 42.
¶ 17 Before this court, the State contends that section 3-9005(b) authorizes the
SAFE unit to conduct traffic stops because “State’s Attorneys have a duty to
investigate suspected illegal activity.” In response, defendant Harris contends that
the SAFE unit exceeded the scope of its section 3-9005(b) authorization to
investigate because the duties of a State’s Attorney “involve working in the court
system to prosecute offenders, and do not involve acting as a police agency.”
Resolution of this issue requires discussion of the powers and duties of a State’s
Attorney.
¶ 18 The office of State’s Attorney is constitutionally established. Ill. Const. 1970,
art. VI, § 19; see Ill. Const. 1870, art. VI, §§ 22, 32. 4 A State’s Attorney is a state,
rather than a county, official. County of Cook ex rel. Rifkin v. Bear Stearns &
Company., Inc., 215 Ill. 2d 466, 475 (2005); Ingemunson v. Hedges, 133 Ill. 2d 364,
369-70 (1990). Although the State’s Attorney provision is located in the judicial
article of the 1970 Illinois Constitution, the office of State’s Attorney is considered
part of the executive branch of government, and State’s Attorneys exercise
executive powers. Nelson v. Kendall County, 2014 IL 116303, ¶¶ 27, 31.
¶ 19 The State’s Attorney provision contains no reference to the powers and duties
of the office. Ill. Const. 1970, art. VI, § 19; Rifkin, 215 Ill. 2d at 477. Similarly, the
1870 Constitution did not prescribe the specific duties of the State’s Attorney.
Ashton v. County of Cook, 384 Ill. 287, 296-97 (1943). This court has consistently
4
The office of State’s Attorney was first established in the 1848 Illinois Constitution
(Ill. Const. 1848, art. V, §§ 21, 22, 28). However, the 1848 Constitution indicated “an
uncertainty as to the nature and scope of the office by providing for an election in each
judicial circuit with authorization in the legislature to substitute for that office the office of
county attorney in each county, an authority which was never exercised.” George D.
Braden & Rubin G. Cohn, The Illinois Constitution: An Annotated and Comparative
Analysis 379 (1969). “The 1870 Constitution established the present pattern of the election
of a state’s attorney in each county with a four-year term.” Id.
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held that the 1870 Constitution conferred upon the State’s Attorney common-law
powers and duties analogous to those of the Attorney General, which the legislature
may add thereto but may not subtract therefrom. See People ex rel. Kunstman v.
Nagano, 389 Ill. 231, 247-49 (1945); People ex rel. Courtney v. Ashton, 358 Ill.
146, 150-51 (1934); Fergus v. Russel, 270 Ill. 304, 335-42 (1915) (attorney
general). The 1970 Constitution “does not change the common law or statutory
duties of State’s Attorneys.” ILCS Ann., 1970 Const., art. VI, § 19, Constitutional
Commentary, at 234 (Smith-Hurd 2006); see Rifkin, 215 Ill. 2d at 478 (“The State’s
Attorney’s powers are analogous to and largely coincident with those of the
Attorney General and it follows, therefore, that the legislature may not usurp those
constitutionally derived powers.”). Thus, although the powers of State’s Attorneys
are constitutionally established, legislation and case law prescribe certain duties.
People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 30; see Fergus, 270 Ill. at
336 (attorney general).
¶ 20 Section 3-9005(a) prescribes certain powers and duties of the State’s Attorney.
“The duty of each State’s attorney shall be” (55 ILCS 5/3-9005(a) (West 2012)): to
commence and prosecute all actions, suits, indictments, and prosecutions, civil and
criminal, in the circuit court for his or her county, in which the people of the State
or county may be concerned; all actions and proceedings brought by any county
officer in his or her official capacity (55 ILCS 5/3-9005(a)(1), (a)(3) (West 2012));
to prosecute charges of felony or misdemeanor, for which the offender is required
to be recognized to appear before the circuit court (55 ILCS 5/3-9005(a)(6) (West
2012)); to prosecute all forfeited bonds and recognizances and all actions and
proceedings for the recovery of debts, revenues, moneys, fines, penalties, and
forfeitures accruing to the State or his or her county or to any school district or road
district in the county; to prosecute all suits in the county against railroad or
transportation companies, which may be prosecuted in the name of the People of
the State of Illinois (55 ILCS 5/3-9005(a)(2) (West 2012)); to defend all actions and
proceedings brought against his or her county, or against any county or State
officer, in an official capacity, within the county (55 ILCS 5/3-9005(a)(4) (West
2012)); to attend the examination of all persons brought before any judge on habeas
corpus, when the prosecution is in his or her county (55 ILCS 5/3-9005(a)(5) (West
2012)); to give his or her opinion, without fee or reward, to any county officer in the
county, upon any question or law relating to any criminal or other matter, in which
the people or the county may be concerned (55 ILCS 5/3-9005(a)(7) (West 2012));
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to assist the Attorney General whenever necessary (55 ILCS 5/3-9005(a)(8) (West
2012)); to pay, without delay, all moneys received in trust to the officer who by law
is entitled to the custody thereof (55 ILCS 5/3-9005(a)(9) (West 2012)); to notify,
by first class mail, complaining witnesses of the ultimate disposition of cases
arising from an indictment or an information and to notify various school officials
upon the felony conviction of a teacher or educator (55 ILCS 5/3-9005(a)(10),
(a)(13) (West 2012)); to appear in all proceedings by tax collectors against
delinquent taxpayers for judgments to sell real estate and see that all the necessary
preliminary steps have been legally taken to make the judgment legal and binding
(55 ILCS 5/3-9005(a)(12) (West 2012)); and “[t]o perform such other and further
duties as may, from time to time, be enjoined on him by law” (55 ILCS
5/3-9005(a)(11) (West 2012)). We have recognized that “the enumeration of a
State’s Attorney’s duties in section 3-9005 is not meant to be all-inclusive or
restrictive, as evinced by subsection (a)(11)’s broad, catchall language.” Gaughan,
2016 IL 120110, ¶ 30.
¶ 21 In the case at bar, defendants Harris and Saxen correctly observe that nowhere
does section 3-9005(a) prescribe that a State’s Attorney patrol the highways,
engage in law enforcement, and conduct drug interdiction. However, the State
argues that a State’s Attorney’s duty to investigate is found in common law. We
now look to common law for this duty and any attendant conditions or limitations.
¶ 22 Illinois case law prescribes duties of a State’s Attorney in addition to those
enumerated in section 3-9005(a). Ware v. Carey, 75 Ill. App. 3d 906, 913-14 (1979)
(and cases cited therein). These duties are in recognition that the State’s Attorney is
vested with wide discretion in enforcing the criminal laws and has the
responsibility of evaluating evidence and other pertinent factors and determining
what, if any, offense may be charged. People v. Williams, 147 Ill. 2d 173, 256
(1991) (and cases cited therein). Courts recognize that the role of a public
prosecutor in our legal system has two distinct aspects. On the one hand, a
prosecutor functions as an advocate for the State by evaluating evidence and
interviewing witnesses in preparing for the initiation of a prosecution or for judicial
proceedings. On the other hand, a prosecutor may also perform “the investigative
functions normally performed by a detective or police officer” by searching for the
clues and corroboration that might furnish probable cause to recommend that a
suspect be arrested. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see Bianchi
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v. McQueen, 2016 IL App (2d) 150646, ¶ 52; White v. City of Chicago, 369 Ill.
App. 3d 765, 769-71 (2006). Generally, Illinois case law recognizes that a State’s
Attorney has an affirmative duty to investigate the facts and determine whether an
offense has been committed. See, e.g., McCall v. Devine, 334 Ill. App. 3d 192, 204
(2002); People v. Nohren, 283 Ill. App. 3d 753, 758 (1996); Ware, 75 Ill. App. 3d at
913-14; People v. Pohl, 47 Ill. App. 2d 232, 242 (1964).
¶ 23 At Ringland’s suppression hearing, Towne testified that the conduct of the
SAFE unit helped him in the performance of his duties, pursuant to section
3-9005(b), because one of his duties was “the eradication of narcotic trafficking
here in La Salle County.” Before this court, the State argues that the execution of
traffic stops by the SAFE unit assists the State’s Attorney in his or her common-law
duty to investigate suspected illegal activity. According to the State: “Where
State’s Attorneys have resources that can contribute to law enforcement efforts to
fight crime, neither Section 3-9005(b) nor the common law bars them from
contributing those resources in service of the law enforcement community’s shared
duty to maintain the rule of law.”
¶ 24 Close analysis of the State’s Attorney’s common-law duty to investigate
suspected illegal activity reveals a significant limitation on its exercise. The State’s
Attorney’s duty to investigate suspected illegal activity acknowledges that a
prosecutor ordinarily relies on police and other agencies for investigation of
criminal acts. See Williams, 147 Ill. 2d at 256 (quoting ABA Standards for
Criminal Justice, Standard 3-3.1(a) (2d ed. 1980)); People v. Mitts, 327 Ill. App. 3d
1, 16 (2001); Nohren, 283 Ill. App. 3d at 758 (quoting ABA Standards for Criminal
Justice, Standard 3-3.1(a) (3d ed. 1993)); Ware, 75 Ill. App. 3d at 914 (quoting
ABA Standards for Criminal Justice, The Prosecution Function, Standard 3.1(a)
(1971)). Our appellate court has explained as follows:
“[A State’s Attorney’s] duty to investigate is not exclusive and necessarily
involves him with other investigative agencies. Justice is not served when the
State’s Attorney’s duty to investigate collides with the duty of the police to
investigate. The State’s Attorney does not possess the technical facilities nor
the manpower that the police have. Consequently, it is the recognized practice
that the State’s Attorney sensibly defers to the investigative duties of the police.
It is also the general practice that the State’s Attorney stands ready to provide
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assistance to the police.” (Emphases added.) People v. Wilson, 254 Ill. App. 3d
1020, 1039 (1993).
For example, a former Cook County State’s Attorney observed: “Although it may
seem axiomatic, it cannot be left unsaid that the state’s attorney should not involve
himself in ‘policing.’ ” Bernard T. Carey, Rights, Powers and Duties of the State’s
Attorney, in Prosecution of a Criminal Case § 27.33, at 27-19 (Ill. Inst. for Cont.
Legal Educ. 1979). A former Will County State’s Attorney similarly observed:
“The prosecutor must always remember that his primary role is not that of
investigator.” Edward F. Petka, Rights, Powers and Duties of the State’s Attorney,
in Prosecution of a Criminal Case § 1.24 (Ill. Inst. for Cont. Legal Educ. 1983
Supp.). Indeed, Professor LaFave reminds us that substantive differences do exist
between the prosecutor and the police:
“Although the police and prosecutor share a common goal in the effective
enforcement of the criminal law, they come at that goal with differences that
create a real potential for conflict. They approach the task of enforcement from
the outlooks of different professional backgrounds, while performing different
roles and viewing the offense, the offender and the victim from different
vantage points.” 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(c), at 157
(4th ed. 2015).
Clearly, the State’s Attorney’s common-law duty to investigate suspected illegal
activity is premised on a deference to law enforcement agencies.
¶ 25 Based on this premise, we have recognized that a State’s Attorney has an
affirmative duty to investigate suspected illegal activity “when it is not adequately
dealt with by other agencies.” (Emphasis added and internal quotation marks
omitted.) Williams, 147 Ill. 2d at 256; see Nohren, 283 Ill. App. 3d at 758; Ware, 75
Ill. App. 3d at 914. The relevant commentary to the American Bar Association
standards, cited by Illinois courts, similarly explains as follows:
“The bulk of a prosecutor’s work consists of cases in which a complaint has
been made by a citizen or by a public agency or cases that develop subsequent
to an arrest made by the police. But there are instances in which a citizen is
reluctant to prosecute, from ignorance, fear, inertia, or other motive, or in which
the police have not taken the initiative. This may be because the area of illegal
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activity in question is not one that attracts law enforcement interest *** or
where law enforcement officials are themselves involved.
It is important, therefore, that in some circumstances the prosecutor take the
initiative to investigate suspected criminal acts independent of citizen
complaints or police activity.” (Emphases added.) ABA Standards for Criminal
Justice, Standard 3-3.1(a), Commentary (3d ed. 1993).
Accord id. Standard 3-2.4, Commentary (“However, the prosecutor may need to
conduct investigations that the police are unable or unwilling to undertake” and
“may also need to carry out lengthy or unusually technical investigations.”). We
conclude that the State’s Attorney’s common-law duty to investigate suspected
illegal activity is limited to circumstances where other law enforcement agencies
inadequately deal with such investigation (see Williams, 147 Ill. 2d at 256) or
where a law enforcement agency asks the State’s Attorney for assistance (see
Wilson, 254 Ill. App. 3d at 1039).
¶ 26 Our dissenting colleagues contend that the State’s Attorney’s duty to
investigate suspected illegal activity is boundless and unrestricted. We disagree.
The dissent accepts the State’s argument that the State’s Attorney’s deference to
the investigative duties of law enforcement agencies “is a product of pragmatism
rather than principle.” However, “the common law is at bottom the philosophy of
pragmatism.” Benjamin N. Cardozo, The Nature of the Judicial Process 102
(1921). The earlier-quoted ABA Standard does not declare the prosecutor’s duty to
investigate suspected illegal activity in absolute or abstract terms. Rather, the
Standard explains that the duty arises in specific, real-world “instances” and
“circumstances.” ABA Standards for Criminal Justice, Standard 3-3.1(a),
Commentary (3d ed. 1993). Our case law reflects this settled understanding.
¶ 27 The dissent raises two additional points. First, the dissent contends that
“imposing” this limitation on the State’s Attorney’s duty to investigate suspected
illegal activity is “unworkable.” We disagree. Our dissenting colleagues overlook
that the limitation we are applying, which is grounded in specific real-world
circumstances, is part and parcel of the duty on which they rely. Further, we
observe that defendants raised this issue in their motions to suppress evidence
pursuant to section 114-12(a)(1) of the Code of Criminal Procedure of 1963 (725
ILCS 5/114-12(a)(1) (West 2010)). Any motion to suppress evidence obtained
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without a warrant alleges that the search and seizure was conducted without
authority. Courts regularly decide such issues, including the appellate court in the
case at bar. The “incremental pragmatism and seasoned skepticism of the common
law process [is] uniquely suited to these unparalleled cases.” (Internal quotation
marks omitted.) Judith S. Kaye, Forward: The Common Law and State
Constitutional Law as Full Partners in the Protection of Individual Rights, 23
Rutgers L.J. 727, 747 (1992).
¶ 28 Second, the dissent questions the impact of our decision on the investigatory
powers of the grand jury. This concern is unfounded. Our case law discusses the
State’s Attorney’s common-law duty to investigate suspected illegal activity in the
context of the State’s Attorney’s relationship with law enforcement agencies—not
the State’s Attorney’s relationship with the grand jury. 5
¶ 29 Before this court, the State argues that Towne created the SAFE unit to act “in
cooperation” with local police departments. 6 Further, the State characterizes the
traffic stops conducted by the SAFE unit as “joint investigations.”
¶ 30 The record belies this argument. At Ringland’s suppression hearing, Towne did
not refer to any inadequacy on the part of any law enforcement agency to
investigate suspected illegal activity. Further, Towne did not refer to any request
for assistance from any law enforcement agency. Also, the circuit court made the
following undisputed findings of fact:
“They [SAFE investigators] must make their stop before the dog can walk
or they can make a [detection]. In other words, this is not aiding some other
investigation that normally you would have where the State’s Attorney in this
county got somebody, came in, made a complaint, conducted and sent out an
investigator to follow-up. They are actually going out and seeking complaints
by making petty traffic stops and petty offenses.”
5
Further, this concern overlooks the obvious qualitative difference between a State’s
Attorney requesting a grand jury subpoena and a State’s Attorney forming his or her own
drug interdiction team to perform the law enforcement function of conducting traffic stops
to search for illegal drugs.
6
The dissent agrees with this argument.
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The court found that Gaither was “not getting his information from some other
agency or aiding some other agency. *** He’s initiating these traffic stops and the
investigation.” Clearly, SAFE investigators independently initiated the instant
traffic stops without cooperation with or input from other law enforcement
agencies. The conduct of the SAFE unit stands in stark contrast to cases such as
People v. Alcala, 248 Ill. App. 3d 411 (1993), and People v. Sequoia Books, Inc.,
150 Ill. App. 3d 211 (1986), where in each case a State’s Attorney special
investigator truly acted in concert with local law enforcement officials after it was
learned that a specific crime had been, or was about to be, committed.
¶ 31 Also, the State’s proffered construction of section 3-9005(b) would potentially
allow the formation of 102 additional police forces statewide, each directed by a
State’s Attorney, rendering superfluous the three statutory functions of State’s
Attorney special investigators. For example, in defendant Ringland’s case, Gaither
additionally testified that he was provided with a booklet of written traffic warnings
to issue to the motorists that he detained. The warning tickets bore the legend
“La Salle County SAFE Unit.” Towne acknowledged that his office provided
Gaither and other SAFE unit members with booklets of written traffic warnings.
When asked whether he relied on any statutory authority for obtaining these ticket
books and directing SAFE unit members to use them, Towne answered: “Not that I
recall.” Based on Towne’s exhortation to “go out and enforce the law,” the SAFE
unit essentially operated as a county police force at the direction of Towne,
generating its own cases. The legislature could not have intended such a
far-reaching result. 7
¶ 32 Additionally, we consider the consequences of the State’s position. During
Towne’s direct examination at Ringland’s suppression hearing, Towne testified
that after Ringland was arrested, his office filed a criminal information against her.
7
The dissent views this concern as “baseless,” reasoning that the authority of the SAFE
unit is limited to the scope of Towne’s assignment to search for illegal drug traffickers on
Interstate 80. This is obviously no meaningful limitation. A State’s Attorney could declare
a common-law duty to investigate any suspected illegal activity anywhere in the county
and authorize section 3-9005(b) special investigators to conduct investigations that assist
in the performance of that duty. Such an authorization would create the functional
equivalent of a county police force.
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Defense counsel asked Towne: “So your office in substance and sum performed
both functions of arresting, processing and then prosecuting?” Towne answered:
“Yes.” Further, during cross-examination, the following colloquy occurred:
“[Prosecutor]: You swore Jeff Gaither in as a police officer pursuant to the
State’s Attorney’s Act on January 21st of 2012; is that correct?
[Defense Counsel]: Objection. His title is not police officer. It’s investigator
of the State’s Attorney’s Office.
THE COURT: Rephrase your question.”
This is exactly the point. To construe section 3-9005(b) as the State urges would
promote confusion between the distinct functions of general law enforcement and
assisting a State’s Attorney in the performance of his or her duties.
¶ 33 We hold that the State’s Attorney’s common-law duty to investigate suspected
illegal activity did not apply to Towne because he made no showing that law
enforcement agencies inadequately dealt with such investigation or that any law
enforcement agency asked him for assistance. Absent this duty, the conduct of the
SAFE unit fell outside of the scope of section 3-9005(b).
¶ 34 We observe that the parties disagree whether the instant traffic stops constituted
an appropriate form of assistance for Towne to provide. According to the State, the
assistance that the State’s Attorney can provide to law enforcement agencies “can
take a variety of forms.” In response, defendant Saxen argues that “the
common-law duty of state’s attorneys to investigate does not encompass the patrol
of highways to look for the occurrence of crime for purposes of drug interdiction.”
¶ 35 We need not and do not address this issue. We have held that Towne’s
common-law duty to investigate suspected illegal activity did not cover the
situation before us and, absent this duty, the conduct of the SAFE unit fell outside
of the scope of section 3-9005(b). Thus, any discussion of whether a traffic stop is
an appropriate means of exercising this duty can in no way affect the outcome of
this case. Generally, a court of review will not consider an issue where it is not
essential to the disposition of the case or where the result will not be affected
regardless of how the issue is decided; nor will a reviewing court decide abstract
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questions or render advisory opinions. People v. Campa, 217 Ill. 2d 243, 269-70
(2005) (and cases cited therein).
¶ 36 The State additionally contends that “even if Gaither’s appointment was invalid
due to procedural errors, defendants cannot exclude the evidence obtained incident
to their arrests on that basis.” The State offers three reasons: (1) the exclusionary
rule is not available based solely on the alleged invalidity of Gaither’s appointment,
(2) the traffic stops were valid citizen’s arrests, and (3) the de facto officer doctrine
precluded defendants from challenging the validity of Gaither’s appointment at
their suppression hearings.
¶ 37 We will not address this contention for two reasons. First, the State failed to
raise it in both the circuit and appellate courts, and it is thereby forfeited. 8 See, e.g.,
People v. Washington, 2012 IL 110283, ¶ 62 (stating “[w]here the appellant in the
appellate court fails to raise an issue in that court, this court will not address it”);
People v. James, 163 Ill. 2d 302, 321-22 (1994) (declining to consider issue that
State never presented to trial or appellate court); People v. Adams, 131 Ill. 2d 387,
395-96 (1989) (same). Second, our disposition of this appeal is based on the
absence of the State’s Attorney’s common-law duty to investigate suspected illegal
activity, not on the validity of Gaither’s appointment. Accordingly, this contention
is not essential to the disposition of this appeal, and we will not render an advisory
opinion.
¶ 38 Defendants alternatively invite us to declare these traffic stops invalid pursuant
to the search and seizure provision in the Illinois Constitution (Ill. Const. 1970, art.
I, § 6). “This court will not consider a constitutional question if the case can be
decided on other grounds.” People v. Lee, 214 Ill. 2d 476, 482 (2005). Since we
have decided this case based on section 3-9005(b), we need not consider
defendants’ constitutional challenge. See id. at 489.
8
Defendants filed several motions to strike this portion of the State’s appellant and
reply briefs. We took these motions with the case. They are hereby denied as moot.
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¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, the judgment of the appellate court is affirmed.
¶ 41 Affirmed.
¶ 42 JUSTICE GARMAN, dissenting:
¶ 43 The majority opinion restricts the State’s Attorney’s duty to investigate
suspected illegal activity to situations in which “other law enforcement agencies
inadequately deal with such investigation [citation] or where a law enforcement
agency asks the State’s Attorney for assistance.” Supra ¶ 25. There is no support
for this restrictive interpretation of the State’s Attorney’s duties in our common law
or the Counties Code. Therefore, I respectfully dissent.
¶ 44 Section 3-9005(b) of the Counties Code provides State’s Attorneys with the
authority to appoint special investigators to “conduct investigations which assist
the State’s Attorney in the performance of his duties.” 55 ILCS 5/3-9005(b) (West
2012). The powers of the State’s Attorneys are derived from the constitution and
include both common-law and statutory duties. County of Cook ex rel. Rifkin v.
Bear Stearns & Company, Inc., 215 Ill. 2d 466, 475-78 (2005). The legislature can
prescribe additional duties to the State’s Attorney but cannot take away or transfer
the State’s Attorney’s constitutional powers. Id.
¶ 45 One duty of the State’s Attorney is to investigate suspected illegal activity. See
People v. Williams, 147 Ill. 2d 173, 256 (1991) (recognizing the duty of the State’s
Attorney to investigate suspected illegal activity); People v. Nohren, 283 Ill. App.
3d 753, 758 (1996) (“It is the duty of the State’s Attorney to investigate facts and
determine whether an offense has been committed. [Citations.] *** The State’s
Attorney is *** charged with these duties prior to the filing of formal accusations
by the State.”). State’s Attorney Towne testified that he created the SAFE unit to
investigate felony trafficking on the highways of La Salle County. Specifically,
Towne testified that he intended to use the unit to investigate drug trafficking on
Interstate 80. He appointed investigators with previous experience in drug
interdiction for this purpose. Special Investigator Gaither also testified that the
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SAFE unit was tasked with conducting drug interdictions on Interstate 80 and other
local highways.
¶ 46 The majority cites several cases in support of its claim that the duty to
investigate is limited. None of these cases directly address the scope of the State’s
Attorney’s duty to investigate suspected illegal activity. In Williams, this court
addressed the duty of the State’s Attorney to investigate information implicating
other persons when prosecuting a case. 147 Ill. 2d at 255. In People v. Wilson, the
appellate court discussed the duty to investigate in the context of deciding whether
the prosecutor’s involvement in approving a warrant committed the prosecutor to
subsequent prosecution. 254 Ill. App. 3d 1020, 1039 (1993). In Nohren, the court
confirmed the power of the State’s Attorney to use a subpoena duces tecum to
investigate a crime with which the defendant has not yet been charged. 283 Ill. App.
3d at 758. In Ware v. Carey, the appellate court considered the duties of the State’s
Attorney to determine whether a State’s Attorney’s statement to the press should be
afforded absolute privilege. 75 Ill. App. 3d 906, 916-17 (1979).
¶ 47 In Williams, Nohren, and Ware, the court quoted an edition of the ABA
Standards for Criminal Justice, Standard 3-3.1(a). “A prosecutor ordinarily relies
on police and other investigative agencies for investigation of alleged criminal acts,
but the prosecutor has an affirmative responsibility to investigate suspected illegal
activity when it is not adequately dealt with by other agencies.” ABA Standards for
Criminal Justice, Standard 3-3.1(a), at 47 (3d ed. 1993). Similarly, in Wilson, the
court discussed the State’s Attorney’s duty to investigate and noted that it is the
general practice of the State’s Attorney to defer to the police in investigations. 254
Ill. App. 3d at 1039. However, nothing in these cases or in the ABA Standard
indicates that the State’s Attorney’s investigative duties are triggered only after it is
determined that suspected illegal activity is not adequately being dealt with by
other agencies. The Standards section simply notes that the State’s Attorney
typically cooperates with law enforcement agencies for the purpose of investigation
and that the State’s Attorney has a duty to take action when such agencies fail. It
says nothing about the State’s Attorney’s duties in other situations. Although it may
be good policy for the State’s Attorney to cooperate with other agencies on
investigations, there is nothing in our common or statutory law prohibiting the
State’s Attorney from undertaking independent investigations.
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¶ 48 Imposing such a restriction as a matter of law, however, is unworkable. It is not
clear who will be expected to determine that no other agency has adequately
addressed a particular situation, how inadequacy should be measured, or how a
court should review that determination retroactively.
¶ 49 Additionally, the majority opinion fails to address how these restrictions would
impact the ability of the State’s Attorney to rely on the investigatory powers of the
grand jury. 1 Wayne R. LaFave et al., Criminal Procedure § 1.5(b), at 216-17 (4th
ed. 2015) (“The prosecutor is granted investigative authority that is even broader in
some respects [than that of the police] through the use of the investigative grand
jury.”); see generally 3 Wayne R. LaFave et al., Criminal Procedure §§ 8.1 to 8.14
(4th ed. 2015) (discussing the investigatory powers of the grand jury); id. § 8.4(b)
(discussing the relationship between the prosecutor and the grand jury). In no case
has the court conditioned the State’s Attorney’s ability to request a subpoena from a
grand jury on a requirement that the State’s Attorney first prove that law
enforcement has inadequately handled an investigation or that law enforcement has
requested assistance. See, e.g., People v. Boston, 2016 IL 118661, ¶ 4 (no
discussion of the involvement of law enforcement when discussing the State’s
Attorney’s request for a subpoena to investigate a cold case); People v. Pawlaczyk,
189 Ill. 2d 177 (2000) (no discussion of other agency involvement in analysis of
whether special prosecutor properly sought to divest the defendants of their
reporter’s privilege in a grand jury investigation); People v. Wilson, 164 Ill. 2d 436,
458 (1994) (no discussion of other agency involvement in analysis of grand jury’s
power to disclose subpoenaed documents to the State’s Attorney and the State’s
Attorney’s power to subpoena documents); see also 3 LaFave et al., supra § 8.4(b)
(noting that “the typical grand jury investigation is dominated by the prosecutor”
without any mention of restrictions based on the involvement of other agencies).
¶ 50 To the extent the majority suggests its novel restriction applies only in
circumstances involving law enforcement or the exercise of peace officer powers,
there is no support in our common law for restraining the common-law duties of the
State’s Attorney based on different types of investigations. Nor is there any support
in section 3-9005(b), which spells out the powers of special investigators, for
limiting the exercise of peace officer powers based on the request or failure of other
agencies.
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¶ 51 The majority insists that without such restrictions, each State’s Attorney would
be able to create his or her own police force. This concern is baseless. The
consolidated cases at issue involved only stops within the scope of the SAFE unit’s
assignment to investigate trafficking on the highways of La Salle County. Holding
that the stops were valid would not authorize State’s Attorneys to create police
forces with broad powers. The facts suggested by the majority in a footnote (supra
¶ 31 n.7) are not before the court, and therefore any analysis of whether the State’s
Attorney could “declare” such a broad duty is speculative.
¶ 52 For these reasons, I would conclude that the State’s Attorney has authority to
investigate suspected illegal activity regardless of how other agencies have
addressed the activity and in the absence of any request for assistance. The special
investigators here were appointed to conduct investigations to assist the State’s
Attorney with this duty.
¶ 53 Defendants also argued that their motions to suppress evidence should have
been granted because the special investigators were not authorized to conduct the
traffic stops that led to their arrests. Section 3-9005(b) provides that, subject to
qualifications, “special investigators shall be peace officers and shall have all the
powers possessed by investigators under the State’s Attorneys Appellate
Prosecutor’s Act.” 55 ILCS 5/3-9005(b) (West 2012). The State’s Attorneys
Appellate Prosecutor’s Act provides that special investigators “shall have all the
powers possessed by policemen in cities and by sheriffs; provided, that
investigators shall exercise such powers anywhere in the State only after contact
and in cooperation with the appropriate local law enforcement agencies.” 725 ILCS
210/7.06(a) (West 2012). As soon as a SAFE investigator initiated a traffic stop, he
called the stop in to the police department, which immediately dispatched an officer
with a drug-detection dog. Officer Brown of the Peru police department testified
about his experience stopping defendant Ringland with Gaither. Thus, the SAFE
unit investigators were in contact with and acting in cooperation with the Peru and
La Salle police departments, and the investigators were entitled to peace officer
powers.
¶ 54 Peace officers have the authority to make a traffic stop, so long as the stop does
not violate the driver’s constitutional rights. See Whren v. United States, 517 U.S.
806, 809-10 (1996). A stop does not violate a driver’s fourth amendment rights if it
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is reasonable; the officer must have probable cause to believe that a traffic violation
has occurred. Id. Gaither testified that, when making each traffic stop, he had
probable cause to believe that a traffic violation had occurred based on his
observation of the driver or his vehicle. Defendants do not argue that Gaither
lacked probable cause to initiate each traffic stop.
¶ 55 Nor did the use of a drug-detection dog violate defendants’ rights. “[T]he use of
a well-trained narcotics-detection dog *** during a lawful traffic stop generally
does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405,
409 (2005); see People v. Caballes, 221 Ill. 2d 282, 331 (2006) (interpreting the
phrase “search and seizure” in the Illinois Constitution as analogous to that phrase
as it is used in the United States Constitution and holding that a dog sniff of a
vehicle does not constitute an invasion of privacy that would violate the Illinois
Constitution). However, a justified seizure can become unconstitutional if it is
prolonged beyond the time reasonably required to complete the traffic ticket or
warning. Caballes, 543 U.S. at 407. Here, the canine unit arrived at each scene as
the investigator was writing up a warning and did not unconstitutionally prolong
the traffic stops.
¶ 56 Alternatively, defendants assert that Gaither was never properly appointed as a
special investigator as required by the Code. Section 3-9005(b) states:
“Before a person is appointed as a special investigator, his fingerprints shall
be taken and transmitted to the Department of State Police. The Department
shall examine its records and submit to the State’s Attorney of the county in
which the investigator seeks appointment any conviction information
concerning the person on file with the Department. No person shall be
appointed as a special investigator if he has been convicted of a felony or other
offense involving moral turpitude.” 55 ILCS 5/3-9005(b) (West 2012).
State’s Attorney Towne testified that, because Gaither had been a police officer, his
fingerprints were already on file with the Illinois State Police. Towne further
testified that he was familiar with Gaither’s record as a member of the Illinois State
Police and that Gaither had been through all of the required police trainings. He
testified that his office had been in communication with the Illinois Law
Enforcement Training and Standards Board to ensure that all requirements were
satisfied, although no written waiver had been granted at the time Gaither was
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appointed. He testified that, “through [his] investigation and [his] knowledge,” he
was certain that Gaither had never been convicted of a felony or crime of moral
turpitude. Furthermore, the parties stipulated that if Laura Baker, an employee of
the Illinois Law Enforcement Training and Standards Board, were called to testify,
she would state under oath that a background check was performed on Jeffrey
Gaither, that there were no felony convictions or crimes of moral turpitude found
on the background check, and that there was no information gained from the
background check that would have interfered with the issuance of Gaither’s waiver
request. Regardless, defendants contend that because the State’s Attorney’s office
did not submit Gaither’s fingerprints and because no background check
information was relayed to Towne, Gaither’s appointment was invalid.
¶ 57 The fingerprint and background check requirements of section 3-9005(b) are
directory, not mandatory. A statute is mandatory “if the intent of the legislature
dictates a particular consequence for failure to comply with the provision.” People
v. Delvillar, 235 Ill. 2d 507, 514 (2009). “In the absence of such intent the statute is
directory and no particular consequence flows from noncompliance.” Id. at 515; id.
at 526 (Freeman, J., specially concurring) (“ ‘[W]hen a statute specifies what result
will ensue if its terms are not complied with, the statute is deemed mandatory ***;
[h]owever, if it merely requires certain things to be done and nowhere prescribes
results that follow, such a statute is merely directory.’ ” (quoting 3 Norman J.
Singer, Statutes and Statutory Construction § 57:3, at 23-24 (6th rev. ed. 2001))).
Statutes that issue a procedural command to a government official are
presumptively directory. Id. at 517 (citing People v. Robinson, 217 Ill. 2d 43, 58
(2005)). The presumption is overcome if there is “negative language prohibiting
further action in the case of noncompliance” or “when the right the provision is
designed to protect would generally be injured under a directory reading.” Id.
(citing Robinson, 217 Ill. 2d at 58). Here, the statute states that “fingerprints shall
be taken and transmitted” and that the Department of State Police shall conduct a
background check and transmit the results to the State’s Attorney. Nothing in the
statute states a consequence for failure to take and transmit a potential
investigator’s fingerprints or for failure of the Department of State Police to
conduct a background check and submit conviction information to the State’s
Attorney. Defendants agree that the purpose of the requirements is to protect the
public. Reading the fingerprinting and background information requirements as
directory does not generally frustrate that purpose. The purpose would be frustrated
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by a violation of the provision prohibiting the appointment of a special investigator
that has been convicted of a felony or other offense involving moral turpitude.
¶ 58 “[A] defendant must show he was prejudiced to be entitled to relief for violation
of a directory rule.” People v. Geiler, 2016 IL 119059, ¶ 25 (citing People v.
Ziobro, 242 Ill. 2d 34, 45 (2011)). Although the State’s Attorney failed to strictly
comply with the requirements of the Code, Gaither’s fingerprints were on file with
the State Police Board, a background check was completed, and the State’s
Attorney was informed that Gaither had never been convicted of a felony or crime
of moral turpitude. Defendants have not alleged that Gaither has ever been
convicted of such crimes. Assuming the Department of State Police’s failure to
submit the results of the background check violated the requirements, defendants
have not shown that they suffered any prejudice. Therefore, defendants’ motions
should have been denied.
¶ 59 In sum, the State’s Attorney has the duty to investigate suspected illegal
activity, and until today, that duty had not been limited to circumstances in which a
law enforcement agency has failed to adequately address the situation or in which a
law enforcement agency requests assistance. Neither our common law nor our
statutory law supports these restrictions. For this reason, I respectfully dissent.
¶ 60 Because State’s Attorney Towne had a duty to investigate suspected illegal
activity, he had the authority under section 3-9005(b) to appoint special
investigators to assist in his investigation of drug trafficking on the highways in
La Salle County. The SAFE investigators cooperated with local law enforcement
and, as duly authorized peace officers, conducted constitutional traffic stops within
the scope of the investigation. Gaither, the investigator involved, was a recently
retired police officer, so the Department of State Police already had his fingerprints
and was able to search for any conviction information. Towne and an employee of
the Law Enforcement Training and Standards Board testified that Gaither had not
been convicted of any felonies or other crimes of moral turpitude. Any procedural
error made in Gaither’s appointment did not render the arrests invalid or justify
suppressing evidence of illegal narcotics. I would reverse the judgment of the
appellate and circuit courts.
¶ 61 JUSTICE KILBRIDE joins in this dissent.
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