People v. Bass

2019 IL App (1st) 160640
No. 1-16-0640
Opinion filed July 25, 2019

Second Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 15846
)
CORDELL BASS, ) Honorable
) Neera Lall Walsh,
Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice Pucinski concurred in the judgment and opinion.
Justice Mason concurred in part and dissented in part, with opinion.

OPINION

¶1 Cordell Bass was arrested solely on the authority of what the Chicago Police Department

calls an “investigative alert.” Department regulations allow officers to arrest people on the basis

of an alert where there is probable cause to believe the suspect has committed a crime. But, the

regulations allow for police supervisors to internally make that probable cause determination.

Officers are not required to take their case for probable cause to a judge, as they would for an

arrest warrant. We are asked to determine whether this practice is constitutional. We hold that it

is not.
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¶2 Our conclusion is based on the Illinois Constitution. Often (too often for some), if a

provision of our constitution dovetails with one in the United States Constitution, we look only

to judicial interpretation of the United States Constitution to answer constitutional questions. Our

supreme court calls this the “limited lockstep” approach to Illinois constitutional interpretation.

We only can depart from “limited lockstep” if the text and history of our constitution differs

from the federal constitution. We also can look to preexisting Illinois law or any traditions,

values, or public attitudes that qualify as unique to our State. People v. Caballes, 221 Ill. 2d 282,

309-10 (2006).

¶3 A critical difference exists between the fourth amendment to the United States

Constitution (U.S. Const., amend. IV) and Illinois’s search and seizure clause. Ill. Const. 1970,

art. I, § 6. In the portion of the text that pertains to issuing a warrant, the United States

Constitution requires probable cause supported by “oath or affirmation” (U.S. Const., amend.

IV) the Illinois Constitution requires probable cause supported by “affidavit.” Ill. Const. 1970,

art. I, § 6. The Illinois Supreme Court, in cases decided close in time to the amendment of our

constitution, explained that the requirement of an affidavit goes “a step beyond” the United

States Constitution. Importantly, those cases do not limit their reasoning to just the requirement

for a warrant but apply it to the requirement for probable cause more generally. A long legal

tradition in this State requires more than just the word of an official accuser (usually a police

officer) to support a finding of probable cause.

¶4 Against this rule, the Chicago Police Department has a system where an officer reports a

suspected crime to his or her supervisor, not a judge. If the supervisor agrees that there is

probable cause, an investigative alert goes out ordering the arrest of a suspect. In other words,

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police officers can obtain approval for arrests without the one thing the framers of the Illinois

Constitution thought most essential—the presentation of sworn facts to a judge.

¶5 Notably, investigative alerts are not issued instantaneously; in many cases, investigative

alerts take the same or more time to procure than a warrant. We understand that some may worry

that finding investigative alerts unconstitutional will hamper legitimate law enforcement efforts

to prevent crime. We take those concerns seriously, but in Illinois, only the Chicago Police

Department appears to use investigative alerts. So our decision merely puts the Chicago police

officers on equal footing with their colleagues in other departments throughout the State of

Illinois.

¶6 Background

¶7 On July 27, 2014, Bass and his girlfriend spent the night at the house of the victim, T.P.

In the morning, while T.P.’s boyfriend was in the bathroom, Bass went into T.P.’s room and

molested her as she slept. When T.P. turned around and saw Bass, she screamed causing Bass to

flee. T.P. reported the incident to police, who issued an investigative alert for Bass’s arrest. The

investigative alert summarized the incident as reported by T.P. and stated that there was probable

cause to arrest Bass. Significantly, the officers did not get a warrant for Bass’s arrest.

¶8 Almost three weeks later, officers pulled over a red minivan for running a red light. Bass

was a passenger. For safety reasons, the officers had all of the passengers get out of the van. The

officers did not observe Bass violate any laws or act suspiciously. But, they ran a “name check”

on him and discovered the investigative alert. On the basis of the investigative alert, the officers

arrested Bass.

¶9 After his arrest, Bass gave a statement to investigators. He admitted that he went into

T.P.’s bedroom because she “looked good.” He lifted up the sheets and saw that her underwear

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was partially off. He said that he started to kiss “along the crease of her buttocks, but did not go

inside it.” Bass stated that T.P. woke up and started yelling before he touched her vagina.

¶ 10 Ahead of trial, Bass moved to quash his arrest and suppress his statement. Officers

Jeffrey Carrero and Salvador Serrano testified that they were patrolling in the area of Marquette

Road and Normal Boulevard in Chicago in a marked squad car at about 1:00 a.m. when they saw

a red van fail to stop at a red light. Officer Carrero pulled over the van, told the driver the reason

for the stop, and asked the driver for his license. The officer could not recall whether the driver

produced his license, but he did ask the driver to get out of the car, which is his usual practice

when a driver fails to provide a license. After running a Law Enforcement Agencies Data System

check on the driver (based on either a license, an Illinois identification card, or the driver’s

name), Officer Carrero gave the driver a verbal warning for running the red light but did not

issue a ticket for failing to have a license. Officer Carrero also completed a “TSS card,” which

documents the driver’s information, the vehicle’s information, the reason for the stop, and

whether the vehicle was searched.

¶ 11 As Officer Carrero approached the driver, Officer Serrano approached the front passenger

side, where Bass was sitting. Officer Serrano asked Bass and the rear passengers to get out for

safety reasons. Neither officer saw Bass make any furtive movements or violate any laws.

¶ 12 Bass gave Officer Serrano his driver’s license. Officer Carrero performed a “name

check” and discovered an active investigative alert on Bass that read:

“The victim was asleep in her bed when she was awakened by someone licking her anus.

The victim turned around and observed the offender who is her sister’s boyfriend and

who was spending the night at the victim’s residence with her sister. The victim did not

give the offender permission to lick her anus.”

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After a total of eight minutes, the officers arrested Bass.

¶ 13 Detective Dwayne Davis explained the circumstances under which he issued the

investigative alert. Detective Davis testified that he interviewed T.P. and her boyfriend two days

after the incident. T.P. told the detective that she awoke from sleep to discover Bass licking her

buttocks and moving into her groin without her consent. T.P’s boyfriend told Davis that he saw

Bass leave T.P.’s bedroom. Both identified Bass from a photo array. Based on these interviews,

Detective Davis put out an investigative alert for Bass but did not obtain an arrest warrant.

¶ 14 Following argument, the trial court denied the motion to suppress, finding that officer

safety justified ordering the passengers out of the car and that the name check was likewise

legitimate. Further, the court held that because the State presented the testimony of the detective

who promulgated the investigative alert, probable cause supported Bass’s arrest.

¶ 15 At trial, T.P. testified that she lives with her boyfriend, Dunkin, and her three children. In

July 2014, her sister, Tina, and Tina’s three children were staying with them. T.P. had known

Bass, who was dating Tina, for a year and a half, and he occasionally stayed over as well.

¶ 16 Everyone—T.P., Dunkin, Tina, Bass, and the six children—were staying at the house on

July 27, 2014. After a family gathering, Dunkin went to bed at 9 p.m. and Tina joined him at 10

p.m. T.P. went to bed in only a T-shirt and underwear. In the morning, as T.P. slept facedown

she awoke to someone touching the lower part of her butt cheeks going into her vagina. T.P. felt

a tongue on her anus, and thinking it was Dunkin, she lifted her body up to encourage him. After

she lifted her body up, she felt a tongue in her vagina. At that point, T.P. turned over and saw

that it was Bass, not Dunkin. T.P. yelled for her sister and jumped out of bed. Dunkin, who had

been in the bathroom, came to the door to ask what was wrong. T.P. told him, “this [expletive]

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was licking my a***.” Bass then ran out of the residence, and T.P. and Dunkin called the police.

The next day, T.P. identified Bass as in a photo array.

¶ 17 Dunkin explained that when he came back from the bathroom he asked Bass what was

wrong with T.P. Bass said, “I made a mistake. I walked in the room. She had no clothes.”

Dunkin went into the bedroom, and T.P. explained that Bass had licked her. Dunkin also

identified Bass in a photo array the next day.

¶ 18 Detective Davis testified that Bass gave a statement after being arrested during the traffic

stop. Bass said that he had come back into the house after walking with Tina and saw T.P. lying

in her bed covered by a sheet. Bass lifted up the sheet, saw T.P.’s underwear was in the middle

of her buttocks. He admitted to kissing the crease of her buttocks but denied “going inside.” Bass

explained that he kissed T.P. because she “looked good” and also because he wanted to “get

back” at Tina, who had been talking to other men. Bass said that he ran when T.P. started

yelling.

¶ 19 After trial, the court found Bass guilty on a single count of criminal sexual assault. The

court found T.P., her boyfriend, and Detective Davis credible and also referenced Bass’s

statement to the detective that T.P. “looked good” as evidence that he took advantage of the

situation despite knowing he did not have T.P.’s consent. Following the denial of his posttrial

motion, the trial court sentenced Bass to eight years in prison.

¶ 20 Analysis

¶ 21 Bass raises three arguments: (i) the evidence is insufficient to prove that he knew T.P.

was unable to give knowing consent, (ii) the trial court erred in denying his motion to suppress

statements, and (iii) various monetary assessments should be vacated. We agree that the trial

court erroneously denied Bass’s motion to suppress, and we reverse his conviction and remand

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for a new trial. We begin our analysis, however, with Bass’s claim as to the sufficiency of the

evidence as it will be relevant to our discussion of the remedy.

¶ 22 A. Sufficiency of the Evidence

¶ 23 Bass argues that the State failed to prove that he did not know of T.P.’s incapability of

giving knowing consent. When we review a challenge to the sufficiency of the evidence, we

determine whether, viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the required elements beyond a reasonable doubt. People v.

Newton, 2018 IL 122958, ¶ 24. We draw all reasonable inferences in favor of the prosecution,

and we will not reverse the trial court’s judgment unless the evidence is so “unreasonable,

improbable, or unsatisfactory” as to raise a reasonable doubt of Bass’s guilt. Id.

¶ 24 Bass was charged with criminal sexual assault under section 11-1.20(a)(2) of the

Criminal Code of 2012, which provides that a person commits criminal sexual assault by

committing “an act of sexual penetration” and “knows that the victim is unable to understand the

nature of the act or is unable to give knowing consent.” 720 ILCS 5/11-1.20(a)(2) (West 2014).

On appeal, Bass challenges the State’s evidence on the element of knowledge. By statute, Bass

acted with knowledge that T.P. was unable to give knowing consent if he was “consciously

aware *** that those circumstances exist.” 720 ILCS 5/4-5(a) (West 2014). Ordinarily,

circumstantial evidence proves knowledge, and it can be inferred from a defendant’s acts,

statements, or conduct, as well as surrounding circumstances. People v. Fleming, 2013 IL App

(1st) 120386, ¶ 74. In cases arising under section 11-1.20(a)(2), our supreme court has

emphasized a case by case approach to determine the defendant’s “particular knowledge” of a

victim’s ability to give knowing consent. People v. Lloyd, 2013 IL 113510, ¶ 33.

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¶ 25 The State presented more than sufficient evidence to prove Bass knew T.P. unable to give

knowing consent. When Bass entered and began licking her, T.P. was asleep on her stomach in

the bedroom she shared with her boyfriend. This cuts against Bass’s argument on appeal that he

made no attempt to conceal his identity or trick T.P.—she could not see him, and he knew she

could not see him. While T.P. may have awoken before Bass committed any act of penetration,

the fact remains that T.P. had no reason to suspect that anyone other than Dunkin, her boyfriend,

was performing these acts.

¶ 26 The rest of State’s evidence also supports the conclusion that Bass knew T.P. had not

given knowing consent. The fact that Bass was T.P.’s sister’s boyfriend alone gives rise to an

inference that Bass knew T.P. would not welcome his advances. Further, his explanation to

Detective Davis that he committed these acts because he thought T.P. “looked good” reveals

much. He did not attempt to justify his behavior by claiming that he believed T.P. had given him

permission to enter her bedroom and engage in sex acts. T.P.’s maneuvering of her body to give

Bass easier access to her private areas proves only that T.P. consented to an act. But this was not

knowing consent within the meaning of the statute, as there was no reason for T.P. to believe that

Bass was performing these acts or for Bass to believe that T.P. knew it was Bass. For these

reasons, we believe the evidence was sufficient to sustain Bass’s conviction.

¶ 27 B. Motion to Suppress

¶ 28 Bass argues that the trial court erred when it denied his motion to suppress on two

grounds. He primarily argues that the traffic stop was unlawfully extended under Rodriguez v.

United States, 575 U.S. ___, 135 S. Ct. 1609 (2015), because asking him, as a passenger, for his

identification and running a name check unreasonably prolonged the stop for reasons unrelated

to its initial purpose. Alternatively, Bass argues that even if the stop was conducted in a

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constitutionally permissible manner, the information that the officers learned after running the

name check—in the form of an investigative alert—constitutes an unconstitutional basis on

which to arrest him. We agree with both of Bass’s arguments.

¶ 29 We review a motion to suppress with a two-part standard of review, accepting the facts as

found by the trial court unless those findings are manifestly erroneous. People v. Harris, 228 Ill.

2d 222, 230 (2008). Applying de novo review, we may make our own determinations as to

whether the facts justify the challenged police action as a matter of law. Harris, 228 Ill. 2d at

230.

¶ 30 Investigative Alerts in Illinois Cases

¶ 31 The Chicago Police Department employs two types of investigative alerts. The first is

called “Investigative Alert/Probable Cause to Arrest,” and it “identifies an individual that is

wanted by Bureau of Detective[s] [(BOD)] or Bureau of Organized Crime [(BOC)] investigative

personnel concerning a specific crime, and while an arrest warrant has not been issued, there is

probable cause for an arrest.” (Emphasis added.) Chicago Police Department Special Order No.

S04-16, § II.A.1 (eff. Dec. 18, 2018), http://directives.chicagopolice.org/directives/data/

a7a57be2-12b780f4-30412-b787-088f791c8131bbf7.html (last visited July 22, 2019)

[https://perma.cc/BGH5-E44M]. The second type is called, “Investigative Alert/No Probable

Cause to Arrest,” and it “identifies an individual that [BOD] or [BOC] investigative personnel

seek to interview concerning a specific police matter. However, an arrest warrant for that

individual has not been issued, and there is no probable cause to arrest that person on the strength

of the investigative alert alone.” Id. § II.A.2.

¶ 32 The special order also directly instructs police officers confronting a person subject to the

“No Probable Cause” alert that they not make an arrest unless the person committed another

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crime. See id. § V.A.2.a. By contrast, if a “Probable Cause” alert has been issued, the special

order instructs the officers to immediately “place the subject into custody if not already in

custody.” Id. § V.A.1.b. The City of Chicago has affirmatively represented in federal litigation

that these are the two types of investigative alert orders. E.g., Sanders v. Cruz, No. 08 C 3318,

2010 WL 3004636, at *3 (N.D. Ill. July 29, 2010).

¶ 33 This court has described either the issuance of investigative alerts or officers’ knowledge

that an alert had or had not been issued in the factual summaries of a heap of cases (see

appendix, infra ¶ 114). This court has also mentioned investigative alerts as non-dispositive

components of other legal arguments in a variety of contexts (see infra ¶ 114). And these

references represent only published decisions. Many more cases discuss investigative alerts

under their former name, “stop orders.” E.g., People v. Cokley, 347 Ill. App. 3d 292, 298-300

(2004), vacated, 211 Ill. 2d 589 (2004) (supervisory order directing appellate court to retain

jurisdiction in event that outcome of suppression hearing on remand did not result in new trial).

Thus, while our research has uncovered no other jurisdiction in Illinois that uses a system like

investigative alerts, the practice of issuing investigative alerts and acting on them has had a

recurring appearance in this Appellate District.

¶ 34 Prolific though it may be, the practice of arrests based on investigative alerts has been

strongly condemned in this court. E.g., People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 39-52

(Salone, J., specially concurring, joined by Neville, J.). Justice Salone’s concurrence in Hyland

focused heavily on the lack of judicial review, which allows police “unbridled power to take into

custody persons without the benefit of an arrest warrant.” Id. ¶ 46. While Justice Salone opined

on the propriety of investigative alerts, critical to the decision in Hyland was the court’s

conclusion that the officers did not have probable cause to arrest the defendant. Id. ¶ 39. So,

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while Justice Salone raised many important prudential concerns, Hyland itself did not pose the

constitutional question we confront here.

¶ 35 Investigative Alerts and the United States Constitution

¶ 36 Unlike Hyland, we are confronted with the only circumstance in which the constitutional

question appears at all, which is where an officer had become aware of facts amounting to

probable cause. If we were convinced that at the time of Bass’s arrest no probable cause existed

in the first place, then we could so hold and go no further because our conclusion would be the

same regardless of whether the police issued an investigative alert or a neutral magistrate issued

a warrant. See, e.g., People v. Manzo, 2018 IL 122761, ¶ 61 (reversing trial court’s determination

that probable cause existed to issue warrant). But, we are not asked to decide whether there was

probable cause for Bass’s arrest; we are asked to decide who has the constitutional authority to

make that determination. That question only arises when there is probable cause to arrest either

way.

¶ 37 Under the United States Constitution, the existence of probable cause also answers the

question. It is well-settled that the fourth amendment allows for warrantless arrests outside the

home as long as the police have probable cause to arrest the suspect. See United States v.

Watson, 423 U.S. 411, 417 (1976); People v. Tisler, 103 Ill. 2d 226, 237 (1984). Because Bass

has conceded that the facts in the investigative alert amounted to probable cause, his warrantless

arrest did not violate the fourth amendment to the United States Constitution.

¶ 38 Investigative Alerts and the Illinois Constitution

¶ 39 Our agreement that the existence of probable cause satisfies the United States

Constitution does not end the inquiry as to the Illinois Constitution. Bass’s original brief cited the

Illinois Constitution, but did so without exposition on why the result might differ by applying its

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unique language and the precedent interpreting it. We requested supplemental briefs from the

parties on the Illinois constitutional question and, after reviewing them, agree that the language

of the Illinois Constitution and precedent interpreting it supports Bass’s argument.

¶ 40 There are several approaches to state constitutional interpretation ranging from true

“lockstep,” viewing interpretations of the federal constitution as binding, to “primacy”

approaches, viewing interpretations of the federal constitution as mere guidance. See Caballes,

221 Ill. 2d at 307-09. Our supreme court has called it an “overstatement” to say that Illinois

employs a true “lockstep” approach to interpretation of provisions of our constitution that have

federal constitutional analogs. Id. at 309. Instead, as both parties acknowledge in their

supplemental briefs, Illinois follows a “limited lockstep” approach, which assumes the primacy

of federal constitutional interpretation but looks to the Illinois Constitution for any gap-filling

potential it may have. Id.

¶ 41 The State argues that the limited lockstep approach “demands *** strict conformance to

the United States Supreme Court and Constitution.” Our supreme court has not taken an all-or-

nothing view. Instead, when determining whether to depart from limited lockstep, Illinois courts

look to the language of our constitution or the debates and committee reports from the

constitutional convention. Id. at 310 (citing Tisler, 103 Ill. 2d at 245). For further guidance, we

can look to our own state traditions and preexisting law. Id. at 310-11 (discussing People v.

Washington, 171 Ill. 2d 475 (1996), and People v. Brocamp, 307 Ill. 448 (1923)).

¶ 42 A substantial body of criticism has been leveled against Illinois’s use of the “limited

lockstep” approach to interpreting our constitution. E.g., Caballes, 221 Ill. 2d at 307 (citing

Thomas B. McAffee, The Illinois Bill of Rights and Our Independent Legal Tradition, 12 S. Ill.

U. L.J. 1, 87 (1987)); see also e.g., Hon. John Christopher Anderson, Can State Constitutional

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Development Make a Difference in Illinois?, 39 N. Ill. L. Rev. 48, 59-60 (2018) (noting that

Caballes left open possibility that Illinois courts could depart from lockstep with the federal

constitution if they find the federal interpretation badly reasoned); Timothy P. O’Neill, Escape

From Freedom: Why “Limited Lockstep” Betrays Our System of Federalism, 48 J. Marshall L.

Rev. 325 (2014)). Much of Bass’s argument focuses on these kinds of policy judgments about

the value of limited lockstep. For example, he argues that Illinois “does not blindly follow

federal courts when the legitimate interests of our citizens are at risk” and our courts have shown

“willing[ness] to exercise judicial independence in interpreting the Illinois Constitution when the

rights of Illinois’s citizens are infringed.”

¶ 43 While calls to reconsider an approach to Illinois constitutional interpretation that tracks

so closely with the federal constitution have much to recommend them, we need not (and do not)

take a side in those debates. For the purposes of Bass’s case, we find, with regard to the necessity

of a warrant issued by a neutral magistrate, historical precedent concludes that article I, section 6

provides greater protections than the fourth amendment. Indeed, arrests based solely on

investigative alerts, even those supported by probable cause, are unconstitutional under the

Illinois Constitution.

¶ 44 Constitutional Text

¶ 45 Following the analytical framework in Caballes, the text of the Illinois Constitution sets

the beginning of the inquiry. Bass argues that the language in the 1970 constitution indicates the

General Assembly’s and (by extension) the people’s intent to depart from the limited lockstep

approach to interpreting our search and seizure clause. He’s right, but he focuses on the wrong

text. But, we have the obligation to properly apply the law even where the parties have not. See

Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc., 783 F.3d 976, 980 (4th Cir. 2015)

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(“A party’s failure to identify the applicable legal rule certainly does not diminish a court’s

responsibility to apply that rule. The judiciary would struggle to maintain the rule of law were it

limited to the parties’ competing assertions about what the law requires. For this reason, it is well

established that ‘[w]hen an issue or claim is properly before the court, the court is not limited to

the particular legal theories advanced by the parties, but rather retains the independent power to

identify and apply the proper construction of governing law’ ” (quoting Kamen v. Kemper

Financial Services, Inc., 500 U.S. 90, 99 (1991))); see also People v. Knapp, 2019 IL App (2d)

160162, ¶¶ 45, 57.

¶ 46 We do not rely on these cases, as the partial dissent suggests, to justify our review of the

purportedly “unargued and unbriefed issues.” As we have said, Bass raised the constitutionality

of investigative alerts in his original briefs. We point to these cases only as examples of

situations where courts of review do not rely on a party’s precise legal theory to address the

question presented where the party’s analysis goes astray. Ultimately, Bass points us in the right

direction and arrives at the right destination.

¶ 47 Bass emphasizes the language in our constitution that protects our citizens from

“invasions of privacy or interceptions of communications by eavesdropping devices or other

means.” Ill. Const. 1970, art. I, § 6. Bass takes this language to mean the General Assembly that

proposed this amendment must have thought the Illinois Constitution went beyond the federal

constitution because this language does not appear in the fourth amendment at all. Compare U.S.

Const., amend. IV.

¶ 48 In a literal sense, this is right, because we afford (and have always afforded) independent

meaning to portions of our constitution that have no federal analog. Hope Clinic for Women, Ltd.

V. Flores, 2013 IL 112673, ¶ 42 (“The privacy clause is unique to the Illinois Constitution, there

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being no cognate provision in the federal constitution. Accordingly, we interpret the provision

without reference to the federal counterpart.”). Even though the federal constitution has no

provision expressly protecting privacy or protecting against the interception of communications

by eavesdropping (see id.), it does have a provision protecting against unreasonable searches and

seizures and requiring a warrant. It is the analogous text in our constitution related to those

provisions that we must analyze to determine if a basis exists for a different interpretation under

our law.

¶ 49 In its first form, our constitution’s search and seizure clause read:

“That the people shall be secure in their persons, houses, papers, and possessions, from

unreasonable searches and seizures; and that general warrants whereby an officer may be

commanded to search suspected places without evidence of the fact committed, or to

seize any person or persons not named, whose offenses are not particularly described and

supported by evidence, are dangerous to liberty, and ought not to be granted.” Ill. Const.

1818, art. VIII, § 7.

That same language persisted in the next ratified constitution. Ill. Const. 1848, art. XIII, § 7.

Under these versions, the only mention of warrants involved a condemnation of the issuance of a

general warrant. Not until 1870 did the language in the search and seizure clause of our

constitution appear substantially similar to its current counterpart. Compare Ill. Const. 1870, art.

II, § 6, and Ill. Const. 1970, art. I, § 6. That language differs from the fourth amendment in one

critical respect relevant here:

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated and no

[w]arrants shall issue, but upon probable cause, supported by [o]ath or

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affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.” (Emphasis added.) U.S. Const., amend. IV.

Compare with:

“The right of the people to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures, shall not be violated; and no warrant

shall issue without probable cause, supported by affidavit, particularly describing

the place to be searched, and the persons or things to be seized.” (Emphasis

added.) Ill. Const. 1870, art. II, § 6.

¶ 50 We can tell from the debates during the 1870 Constitutional Convention that the

delegates intentionally included the word “affidavit.” The first proposed version of the search

and seizure clause at the 1870 convention included the words “oath or affirmation” instead of

“affidavit,” tracking the text of the fourth amendment almost verbatim. Journal of the

Constitutional Convention of the State of Illinois 664-65 (Apr. 23, 1870),

https://babel.hathitrust.org/cgi/pt?id=hvd.li2qkb;view=1up;seq=678 (last visited July 22, 2019)

[https://perma.cc/9US2-BBZP]. During debate, one of the delegates proposed striking the phrase

“oath or affirmation” and replacing it with the word “affidavit.” Id. at 772. The convention

adopted that amendment (id. at 773), and included it in the language of the ratified constitution.

Ill. Const. 1870, art. II, § 6.

¶ 51 Early Interpretations of the 1870 Constitution

¶ 52 Close in time to the addition of this language, our supreme court held that requiring an

“affidavit” as opposed to mere “oath or affirmation” was “a step beyond the constitution of the

United States.” Lippman v. People, 175 Ill. 101, 112 (1898). The court found that

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“[w]herever a statute requires probable cause, supported by oath or affirmation, the

complaint must set up facts and cannot rest on mere belief ***. *** [T]he law, in

requiring a showing of probable cause, supported by affidavit, intends that the facts shall

be stated which shall satisfy the magistrate that suspicion is well founded. The mere

expression of opinion, under oath, is no ground for the warrant, except as the facts justify

it.” (Emphasis added. ) Id. at 113.

The purposes of going “a step beyond” the federal constitution involves limits on “the abuse of

executive authority” and “to substitute judicial discretion for arbitrary power, so that the security

of the citizen and his [or her] property shall not be at the mercy of individuals or officers.” Id. at

112.

¶ 53 While Lippman dealt with a search warrant (id. at 104), our supreme court later found

that “[t]he language of section 6 of article 2 of our constitution provides exactly the same

protection whether the warrant be for the search of a house and the seizure of property or for the

search or seizure of a person.” People v. Elias, 316 Ill. 376, 382 (1925), overruled on other

grounds by People v. Williams, 27 Ill. 2d 542, 544 (1963) (allowing warrant affidavits based on

credible hearsay). The court in Elias reaffirmed our supreme court’s commitment to vesting the

probable cause determination in a neutral magistrate, not an executive branch officer:

“The magistrate must exercise his [or her] own judgment and not act on the

judgment of the official accuser. A warrant issued upon a conclusion of the

accuser, without any facts stated in the application upon which a judicial officer to

whom it is addressed may form his [or her] own conclusion, does not show

‘probable cause supported by affidavit,’ within the meaning of the [constitutional]

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guaranty.” Elias, 316 Ill. at 381 (quoting State ex rel. Samlin v. District Court of

Sixteenth Judicial District, 198 P. 362, 365 (Mont. 1922)).

¶ 54 Our supreme court has similarly concluded that a citizen cannot be arrested “on the

unsworn complaint or information of the [s]tate’s attorney any more than on the unsworn

complaint of a private citizen or on no complaint at all.” People v. Clark, 280 Ill. 160, 167

(1917). Even though a state’s attorney, like the police officer in Bass’s case, is sworn to uphold

the laws and constitution of the United States and Illinois, this oath cannot substitute for a sworn

affidavit presented to a neutral magistrate. Id.

¶ 55 Other decisions in the decades following the ratification of the 1870 constitution confirm

the primacy of the role of the neutral magistrate in the probable cause determination. In People v.

McGurn, the defendant rode in a taxi that was stopped on a Chicago street. 341 Ill. 632, 634

(1930). Two police officers, riding on a street car, saw the defendant. Id. They did not see the

defendant committing a crime and knew only that they had a “standing order” from a superior

officer to arrest the defendant. Id. at 634-35. The officers got into the taxi, found a gun on the

defendant, and arrested him. Id.

¶ 56 The court, again reaffirming the necessity of a determination of probable cause by a

neutral magistrate, found that “under the constitution of this [s]tate no municipality has authority

to clothe any officer with the autocratic power to order the summary arrest and incarceration of

any citizen without warrant or process of law and thus render the liberty of every one of its

citizenry subject to the arbitrary whim of such officer.” (Emphasis added.) Id. at 638. Even while

acknowledging the statutory authority to arrest without a warrant, the court emphasized that an

officer “has no authority, upon bare suspicion, or upon mere information derived from others, to

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arrest a citizen and search his person in order to ascertain whether or not he was [violating the

law].” Id. at 642.

¶ 57 The common thread through all of these amendment-era cases is that the mere word of an

executive branch official fails, on its own, as a substantiate for a finding of probable cause. The

interposition of a neutral magistrate became the paradigm of investigative propriety. Notably,

had Illinois borrowed the language of the fourth amendment verbatim, the foundations of these

cases would be severely eroded. The fourth amendment allows a finding of probable cause on

“oath or affirmation.” So while the “judgment of the official accuser” would not be enough

under the Illinois Constitution (Elias, 316 Ill. at 381), mere affirmation by an executive branch

official would be enough under the fourth amendment. This is yet further evidence that the

drafters of our constitution made a deliberate choice to use the word “affidavit” in order to

provide greater protections in Illinois than the protections enjoyed under the fourth amendment.

¶ 58 We acknowledge the long-standing common-law tradition allowing warrantless arrests

for felonies where a citizen was “reasonably suspected of being [a] felon[ ].” McGurn, 341 Ill. at

636. That common-law rule has been part of the law in Illinois for many decades. Id. (citing

Illinois statute allowing for warrantless arrest where “a criminal offense has, in fact, been

committed and [the officer] has reasonable ground for believing that the person to be arrested has

committed it” (citing Ill. Rev. Stat. 1929, ch. 38, ¶ 657)). A similar statutory provision exists

today. 725 ILCS 5/107-2(1)(c) (West 2016) (allowing for warrantless arrest where officer “has

reasonable grounds to believe that the person is committing or has committed an offense”).

¶ 59 But, as we have described, McGurn itself placed limits on this common-law rule that are

relevant to the constitutionality of investigative alerts. The constitution of this state does not

“clothe any officer with the autocratic power to order the summary arrest and incarceration of

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any citizen without warrant or process of law.” McGurn, 341 Ill. at 638. To hold otherwise

would allow “ ‘for officers of the law, urged in some cases by popular clamor, in others by the

advice of persons in a position to exert influence, and yet in others by an exaggerated notion of

their power and the pride in exploiting it, to disregard the law on the assumption that the end

sought to be accomplished will justify the means.’ ” Id. (quoting Youman v. Commonwealth, 224

S.W. 860, 863 (Ky. 1920)). The mere word of another officer, based on the mere word of another

citizen, does not meet the Illinois constitutional threshold for effectuating a lawful arrest.

¶ 60 We pause to emphasize that applying the limitation set out in McGurn does not impede

officers from relying on the collective knowledge of their fellows. The State argues that arresting

officers can rely on information provided by nonarresting officers as long as the facts known to

the nonarresting officers suffice to establish probable cause. See People v. McGee, 2015 IL App

(1st) 130367, ¶ 49. That is the rule and has been at least since the United States Supreme Court’s

decision in Whiteley v. Warden, 401 U.S. 560, 568 (1971) (“Certainly police officers called upon

to aid other officers in executing arrest warrants are entitled to assume that the officers

requesting the aid offered the magistrate the information requisite to support an independent

judicial assessment of probable cause.”). See also United States v. Hensley, 469 U.S. 221, 232

(1985) (“[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a

reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer

or bulletin justifies a stop to check identification [citation], to pose questions to the person, or to

detain the person briefly while attempting to obtain further information.”).

¶ 61 Significantly, the principles in Whiteley and Hensley apply in a world without

investigative alerts. In Whiteley, officers relied on information from their colleagues that an

arrest warrant had been issued after assessment of the facts by a neutral magistrate. There,

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probable cause had been asserted and properly tested before a judge, so unless the nonarresting

officers turned out to be lying, the arrest would still be valid. See Whiteley, 401 U.S. at 568.

Hensley did not involve arrests and permitted Terry stops (Terry v. Ohio, 392 U.S. 1 (1968)) to

be made based on the issuance of a bulletin by another police department. Hensley, 469 U.S. at

233. Even without an investigative alert, an officer may still conduct Terry stops when he or she

has information from another officer that a reasonable suspicion exists that a crime has been

committed. In sum, our conclusion that investigative alerts are unconstitutional does not deprive

police of their ability to rely on the collective knowledge of their colleagues.

¶ 62 As we have set out, the text of the Illinois Constitution leaves beyond dispute that a

finding of probable cause must be based, not only on a minimum threshold of sufficient facts, but

sufficient facts presented in proper form (a sworn affidavit) to the appropriate person (a neutral

magistrate). The Illinois Supreme Court’s early interpretations of our warrant clause shows a

strong presumption against executive branch officers making their own probable cause

determinations without swearing to facts before a magistrate. Taking together the text of our

constitution and its historical interpretation by our supreme court, we conclude that the Illinois

Constitution requires, in the ordinary case, a warrant to issue before an arrest can be made.

Arrests based on investigative alerts violate that rule.

¶ 63 The 1970 Constitution

¶ 64 The 1970 Constitution bolsters our conclusion. Caballes found it appropriate to continue

following the United States Constitution in limited lockstep, in part, because the drafters of the

1970 Constitution were aware of that interpretive framework at the time of the ratification

debates and took no affirmative steps to amend the constitution to get around it. Caballes, 221

Ill. 2d at 292-94 (discussing People v. Rolfingsmeyer, 101 Ill. 2d 137, 142 (1984)). A no less

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powerful consequence of that logic means that we must presume those same drafters knew of

historical instances in which the Illinois Supreme Court departed from the limited lockstep

approach. By not altering the language, we must presume they accepted those interpretations of

the constitution as well.

¶ 65 This canon of construction examines the ratification debates surrounding article I, section

6, revealing little attention having been paid to its pre-existing language. Indeed, the highlight of

the 1970 Constitutional Convention, at least as far as section 6, was the new language expanding

protections for privacy and against the unreasonable interception of communications. From the

historical record, the drafters meant to leave substantial portions of section 6, and by extension

any previous interpretations of its language, unchanged: “There is nothing new or no new

concepts that the Bill of Rights Committee intended to provide insofar only as the search and

seizure section—or the search and seizure concept—is concerned ***.” 3 Record of Proceedings,

Sixth Illinois Constitution Convention 1524 (statements of Delegate Dvorak),

http://www.idaillinois.org/cdm/ref/collection/isl2/id/3982 (last visited July 22, 2019)

[https://perma.cc/5PNE-ERAD]. Most of the discussion, and debate, focused on two new

concepts introduced into section 6 in the 1970 constitution—protections against eavesdropping

and the privacy clause. See generally id. at 1524-45. We must presume, based on the drafters’

relative silence, that they acquiesced in the historical application of the limited lockstep doctrine,

both where our supreme court has adhered to it and departed from it.

¶ 66 Traditional Law Enforcement Tools

¶ 67 Our conclusion about investigative alerts under the Illinois Constitution does not take

away any of the traditional tools available to law enforcement. Invalidating the investigative alert

procedure does not alter any of the already-existing constitutional doctrines allowing them to

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work around the warrant requirement. For example, officers can already act without a warrant

when they are confronted with “the need to render emergency assistance, the ‘hot pursuit of a

fleeing suspect,’ and the need to prevent the imminent destruction of evidence.” People v.

Harrison, 2016 IL App (5th) 150048, ¶ 17 (quoting Kentucky v. King, 563 U.S. 452, 460

(2011)). These exceptions already apply to situations that require a warrant.

¶ 68 We cannot stress enough that our holding rests on the structure of the investigative alert

system. An investigative alert is not a fast-acting response to an evolving scenario in the field.

The system parallels the warrant system, in both the time it takes and the deliberation required,

and in that way the procedure allows police to obtain warrant-like documents without the one

safeguard that the framers of the Illinois Constitution found most important—an affidavit

presented to a neutral magistrate. The oddity of the investigative alert system is that it appears to

be no less burdensome for police than the procedure for actually obtaining a warrant. To get an

investigative alert issued, an officer “must submit to a supervisor a report explaining what

investigative steps have been taken in the case and the basis of the officer’s belief that probable

cause exists.” Craig v. City of Chicago, No. 08 C 2275, 2011 WL 1196803, at *3 (N.D. Ill. Mar.

25, 2011). It can take up to a full day for a supervisor to approve the request for an investigative

alert. Hale v. City of Chicago, No. 10 C 0547, 2013 WL 2338125, at *4 (N.D. Ill. May 22, 2013).

As Justice Salone noted in Hyland, “[i]f there is time to get a supervisor’s approval for the

investigative alert, as the special order requires, there is time to seek an arrest warrant from a

member of the judiciary.” Hyland, 2012 IL App (1st) 110966, ¶ 51 (Salone, J. specially

concurring, joined by Neville, J.).

¶ 69 Another oddity of the investigative alert system related to the suppression remedy is that,

compared to the warrant system, the costs are much higher in terms of suppression of evidence

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that is discovered as a result of an arrest later determined to be lacking probable cause.

Traditionally, where an officer does not have probable cause to arrest, the evidence the officer

discovers as a result of that arrest must be suppressed absent a warrant or exigent circumstance.

See In re D.W., 341 Ill. App. 3d 517, 529-30 (2003). But, when the officer acts under the cover

of a warrant, the evidence the officer discovers may still be admitted even if a court eventually

invalidates the warrant for lack of probable cause. People v. Manzo, 2018 IL 122761, ¶ 63

(“exclusion of evidence was not required where a police officer acted in objectively reasonable

reliance on a facially valid warrant *** later found invalid based upon a lack of probable cause”

(citing United States v. Leon, 468 U.S. 897 (1984))).

¶ 70 So when an officer acts on the department’s own determination that probable cause

exists, he or she risks suppression of the evidence uncovered, but when an officer acts with the

imprimatur of a neutral magistrate, the evidence the officer uncovers will still be admitted even if

the magistrate turns out to have been wrong. Indeed, in this additional way, investigative alerts

fail to improve the administration of criminal justice. They increase the risk of the “ ‘substantial

social cost’ ” incurred by suppression of competent evidence. Id. ¶ 64 (quoting People v.

LeFlore, 2015 IL 116799, ¶ 23).

¶ 71 These policy considerations augment our conclusion that the Illinois Constitution’s

search and seizure provision pointedly prevents overreaching by officers of the executive branch.

See Caballes, 221 Ill. 2d at 310-11 (noting that we look to our State’s “traditions and values” in

determining whether to depart from lockstep interpretation of federal constitution). The officers

here undoubtedly acted consistently with the established policy at the time, but that policy

allowed them to subjectively determine the sufficiency of their own probable cause without the

protection of neutral magistrate. We find that our constitution goes “a step beyond” the United

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States Constitution and requires, in ordinary cases like Bass’s, that a warrant issue before a valid

arrest can be made. We hold an arrest unconstitutional when effectuated on the basis of an

investigative alert issued by the Chicago Police Department.

¶ 72 Unlawful Extension of the Traffic Stop

¶ 73 For the sake of completeness, we also address the legality of the traffic stop, which we

find to have been unconstitutionally extended. A traffic stop, like an arrest, is a seizure that

implicates the fourth amendment’s prohibition against unreasonable searches and seizures. U.S.

Const., amend. IV; see also People v. Jones, 215 Ill. 2d 261, 268 (2005). As we have discussed,

the default requirement for effectuating a reasonable seizure is a warrant supported by probable

cause. Jones, 215 Ill. 2d at 269 (citing Katz v. United States, 389 U.S. 347, 357 (1967)). But a

lesser standard applies to brief investigatory detentions—colloquially know as Terry stops—

where a police officer need only have reasonable suspicion that person has committed, or is

about to commit, a crime. People v. Duran, 2016 IL App (1st) 152678, ¶ 13 (citing Terry, 392

U.S. at 21-22). We analyze a traffic stop applying the same standards we would to a Terry stop.

Jones, 215 Ill. 2d at 270.

¶ 74 A seizure, lawful at its inception, may nevertheless violate the fourth amendment if it is

“prolonged beyond the time reasonably required to complete [its] mission.” Illinois v. Caballes,

543 U.S. 405, 407 (2005). The United States Supreme Court has recently applied this principle in

Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015). There, the court held that “the

tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s

‘mission’—to address the traffic violation that warranted the stop.” Id. at ___, 135 S. Ct. at 1614.

Ordinary inquires related to traffic stops include checking the driver’s license, doing a warrant

check on the driver, or asking for registration and proof of insurance. Id. at ___, 135 S. Ct. at

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1615. Officers also may attend to safety concerns as part of the stop’s “mission.” Id. at ___, 135

S. Ct. at 1616. Authority for the stop ends when tasks related to the stop’s purpose are, or

reasonably should have been, completed. Id. at ___, 135 S. Ct. at 1614.

¶ 75 We are not concerned solely with the duration of the stop or the order of events. The

Court in Rodriguez explained that officers cannot act outside the scope of the stop’s mission just

because they act quickly. Id. at ___, 135 S. Ct. at 1616 (rejecting argument that officers can get

“bonus time” by “completing all traffic-related tasks expeditiously”). The Court also explained

that the question is not “whether the [unrelated act] occurs before or after the officer issues a

ticket.” Id. at ___, 135 S. Ct. at 1616. Put in terms of Bass’s case, the officers could not buy time

to run a name check on Bass just because they finished with the driver more quickly. They also

could not run a name check on Bass just because they had not yet finished with the driver. Bass’s

name check, whenever it occurred, added time to the stop, so we must answer one question: Did

the name check on Bass exceed the scope of the traffic stop’s mission?

¶ 76 The State’s brief makes only one argument, namely, that the running Bass’s name check

was related to the mission of the stop due to officer safety. Yet, at the same time, the State points

out the officers had already ordered all of the passengers out of the car, including Bass. Officers

are allowed to do this for safety reasons. See Maryland v. Wilson, 519 U.S. 408, 414 (1997). But,

we see no safety justification, and the State has offered none, for running name checks on the

passengers when they are already in the control of the officers.

¶ 77 The State’s primary argument asserts that the officers did not extend the stop because

“the name checks were all done at the same time, prior to the officer issuing the driver his verbal

warning.” As we have said, the question is not whether the officers did things in the proper

order; the question is whether the challenged action was outside the scope of the stop’s mission.

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Were it otherwise, officers could conduct tasks unrelated to the mission of the traffic stop as long

as they do so before they issue a ticket. Rodriguez does not allow that.

¶ 78 Even if we were concerned with the temporal order of the officer’s actions, we would

reject the State’s argument. At oral argument, the State conceded that it had the burden to show

that the officers’ conduct was lawful because Bass made a prima facie case that the officers’

check of the passengers’ identifications was unrelated to the mission of the stop. The record does

not reveal when Bass’s name check was run in relation to the name checks of the other

passengers, the LEADS check on the driver, and the completion of the TSS card. The State’s

failure to clarify the timeline of the stop and thereby meet its burden leads us to conclude that the

motion to suppress should have been granted.

¶ 79 C. Remedy

¶ 80 The traditional remedy for an unconstitutional arrest is to suppress the fruit of that arrest,

including postarrest statements. People v. Jennings, 296 Ill. App. 3d 761, 763 (1998). The only

exception is where a statement is “ ‘sufficiently an act of free will’ ” such that “ ‘the primary

taint of the unlawful invasion’ ” is purged. Id. at 763-64 (quoting People v. White, 117 Ill. 2d

194, 222 (1987)). Here, the State has not argued that Bass’s postarrest statements should not be

suppressed. The State only argues that failure to suppress the statement at Bass’s first trial was

harmless. See Arizona v. Fulminante, 499 U.S. 279, 307 (1991) (admission of evidence obtained

in violation of fourth amendment subject to harmless error analysis); see also People v. Mitchell,

152 Ill. 2d 274, 328 (1992).

¶ 81 For a constitutional error to prove harmless, it must appear beyond a reasonable doubt

that the verdict would have been the same absent the error. People v. Patterson, 217 Ill. 2d 407,

428 (2005). On this issue, the State has the burden of proof. Id. Three approaches have been used

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for determining whether an error is harmless beyond a reasonable doubt: (1) focusing on the

error to determine whether it may have contributed to the conviction; (2) examining the other

evidence in the case to see if overwhelming evidence supports the conviction; and

(3) considering whether the evidence is cumulative or duplicates properly admitted evidence.

People v. Wilkerson, 87 Ill. 2d 151, 157 (1981).

¶ 82 One cannot seriously dispute that the error contributed to Bass’s conviction and that the

unlawfully admitted evidence was not cumulative to the properly admitted evidence. The trial

court explicitly referenced Bass’s statement during its ruling, describing the statement as

“telling” and noting that Bass “took advantage of the situation” in a way that was “devious” and

“manipulative” to “get back at [his] own girlfriend.” Under these circumstances, we conclude

that the error in admitting Bass’s statements may well have contributed to his conviction. And

because the error may have contributed to the conviction and Bass’s statement to the police was

not merely cumulative to the testimony of T.P. and Dunkin, the error in admitting Bass’s

statement was not harmless.

¶ 83 The remedy for reversible error is a new trial, but because Bass alleges that the evidence

was insufficient to sustain his conviction, we must first consider whether a new trial poses

double jeopardy concerns. See People v. Hernandez, 2017 IL App (1st) 150575, ¶¶ 134-36.

¶ 84 The double jeopardy clause, found in both the United States Constitution as well as the

Illinois Constitution (U.S. Const., amend. V; Ill Const. 1970, art. I, § 10), prohibits retrial “for

the purpose of affording the prosecution another opportunity to supply evidence which it failed

to present in the first proceeding” but does not “preclude retrial where a conviction has been set

aside because of an error in the proceedings leading to the conviction” (People v. Lopez, 229 Ill.

2d 322, 367 (2008)). Therefore, to determine whether a new trial poses double jeopardy

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concerns, we must examine the sufficiency of the evidence at the initial trial—including that

which was improperly admitted. Id.; see also Hernandez, 2017 IL App (1st) 150575, ¶ 136. As

we have set out (supra ¶¶ 19-22), the evidence was sufficient to convict Bass and so there is no

double jeopardy bar to retrying him.

¶ 85 As we alluded to before, suppression of evidence exacts a “substantial social cost[ ].”

(Internal quotation marks omitted.) Manzo, 2018 IL 122761, ¶ 64. In no way should our

conclusion about the unlawfulness of Bass’s arrest diminish the seriousness of Bass’s offense or

the harm done to the victim. But the Illinois Constitution, like the fourth amendment, must

protect the guilty and innocent just the same. See Mapp v. Ohio, 367 U.S. 643, 659 (1961) (“The

criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a

government more quickly than its failure to observe its own laws, or worse, its disregard of the

charter of its own existence.”). It is with this understanding that we remand for a new trial.

¶ 86 D. Responses to Partial Dissent

¶ 87 We reject the assertion that we “decide[d] this case based on a constitutional issue of first

impression [we] sua sponte raised postargument.” Infra ¶ 99. Bass’s original briefing raised the

question of the constitutionality of investigative alerts. Bass framed the issue this way: “Whether

the trial court erred in denying Bass’s motion to quash arrest and suppress evidence where the

police *** used an investigative alert as an end-run around obtaining an arrest warrant in

violation of the fourth amendment’s prohibitions on unreasonable searches and seizures.” In the

body of his argument he highlighted that “[b]oth the United States and Illinois Constitutions

provide for the use of warrants, issued on probable cause and supported by affidavit.” He cited

both constitutions in support of that proposition.

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¶ 88 We have not “ ‘sall[ied] forth *** looking for wrongs to right.’ ” Greenlaw v. United

States, 554 U.S. 237, 244 (2008) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th

Cir. 1987) (Arnold, J., concurring in denial of rehearing en banc). Placed in its proper context,

this quotation does not support the partial dissent’s point. Judge Arnold, the author of the

sentiment, was concurring in the denial of the Eighth Circuit’s decision to hear a case en banc (as

a full court). The United States Government, through the Solicitor General’s office, had declined

to seek rehearing, to the ire of the dissenters. Samuels, 838 F.2d at 1302 (Fagg, J., dissenting

from denial of rehearing en banc, joined by Ross, Gibson, and Bowman, JJ.) (“The Justice

Department’s failure to act should never paralyze this court.”). In other words, when Judge

Arnold spoke of “sally[ing] forth,” he meant courts should refrain from making what amount to

litigation decisions on behalf of parties; he did not suggest that appellate courts should refrain

from requesting more fully developed argument on an issue that is already presented.

¶ 89 And we have not made any of those litigation decisions. Bass did elect to advance the

argument that investigative alerts are unconstitutional. He also addressed the Illinois

constitutional question in supplemental briefing. In two rounds of briefing the State had an

opportunity to respond to Bass’s arguments. Depriving parties of any opportunity to raise an

argument (which we have not done) differs entirely from disagreeing with the parties’ analysis of

an issue that is presented. In any event, a petition for rehearing provides the losing party with an

opportunity to raise misstatements of facts and mistakes of law. People v. Rossi, 387 Ill. App. 3d

1054, 1060 (2009) (“[t]he purpose of a petition for rehearing is to provide litigants with the

opportunity to direct the court’s attention to errors in the court’s previous application of existing

law”).

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¶ 90 Properly understood, our reliance on an analysis that departs from the precise argument

that Bass made in his supplemental brief is not unusual. Appellate courts regularly and must do

so. See Miller v. Civil Constructors, Inc., 272 Ill. App. 3d 263, 265 (1995) (addressing issue

raised in plaintiff’s brief even though “plaintiff’s counsel has failed to provide much in the way

of legal authority or even persuasive legal analysis”). If we had to follow parties’ arguments to

the letter, we would be constrained to issue decisions that got the law wrong because the only

analysis presented by the parties was wrong. See Dan Ryan Builders, 783 F.3d 976 at 980. This

would be an abdication, not vindication, of our judicial duties.

¶ 91 Two further examples provide guidance. We have the authority to reject concessions

when we believe a party has gotten the law wrong. See People v. Sykes, 2012 IL App (4th)

100769, ¶¶ 21-22 (rejecting State’s concession of error where court believed trial court to be

incorrect); In re T.A., 359 Ill. App. 3d 953, 957 (2005) (rejecting parties’ concession that case

from another district controlled where court disagreed with outcome of other case); see also

People v. Hollins, 2012 IL 112754, ¶ 70 (Burke J., dissenting, joined by Freeman, J.) (similar).

We also see courts address the merits even where the parties have not complied with Illinois

Supreme Court Rule 341 (eff. May 25, 2018). See People v. Grenko, 356 Ill. App. 3d 532, 534-

35 (2005) (addressing merits on appeal even though the defendant’s brief failed “to address the

merits of the [trial court’s] decision”); People v. Patrick, 298 Ill. App. 3d 16, 31 (1998)

(addressing defendant’s argument about sufficiency of the evidence even though the point was

“raised but not argued” in violation of Rule 341).

¶ 92 The partial dissent suggests that a factual reason bars our taking up the issue of

investigative alerts: “Had the issue been raised at the trial level, a factual record necessary to

address these issues could have been developed.” But, the partial dissent does not indicate what

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additional facts we would need. The record shows that the police issued an investigative alert

after talking to the victim. The record shows that the investigative alert was the sole basis for

Bass’s arrest. And critically, the record shows that the police did not arrest Bass until weeks after

the investigative alert issued, an ample amount of time within which officers could have gotten a

warrant. We are at a loss to understand what other facts would aid our consideration of the

propriety of investigative alerts as a constitutional matter, especially given that our ultimate

determination as to whether suppression of evidence is warranted mandates de novo review.

Harris, 228 Ill. 2d at 230.

¶ 93 We have also not engaged in any of our own “factfinding” (infra ¶ 109) to reach our

decision. The information that investigative alerts are not issued instantaneously is apparent from

judicial decisions. E.g., Hale, 2013 WL 2338125, at *4 (investigative alert approved one day

after submitting to supervisor). We also did not make a finding of fact to determine that

investigative alerts are unique to Cook County; every single Illinois decision referencing

investigative alerts comes from the First District, which only covers Cook County. What the

partial dissent describes as “factfinding” is no more than legal research.

¶ 94 As part of that research, we have cited 22 cases mentioning or discussing investigative

alerts. But, in addition to the 22 cases mentioned in the appendix, a Westlaw search shows that

investigative alerts have been mentioned or discussed in 97 Rule 23 orders, 81 of those after the

partial dissent’s cutoff date of December 20, 2012. And that’s to say nothing of the additional 36

federal cases in the Seventh Circuit and Illinois District Courts (27 after December 20, 2012).

And, as we set out, investigative alerts were formerly known as “stop orders.” At least a dozen

cases in Illinois mention or discuss investigative alerts under their former name (and that is only

on the first page of Westlaw results). E.g., People v. Lewis, 92 Ill. App. 2d 463, 467 (1968). We

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are comfortable describing the over 155 mentions of investigative alerts in court decisions as a

“heap.”

¶ 95 Despite their frequent mention, investigative alerts have not been addressed often. We do

so now because, as we have underscored throughout this opinion, Bass raised the

constitutionality of investigative alerts, pointing to both the United States and Illinois

Constitutions in his original briefing. We see no impropriety in attempting to correctly answer a

question that was presented to us.

¶ 96 Because we remand for a new trial, we need not address Bass’s challenge to the fines and

fees the trial court imposed.

¶ 97 Reversed and remanded.

¶ 98 JUSTICE MASON, concurring in part and dissenting in part:

¶ 99 I agree that Bass’s conviction must be reversed and so concur in the ultimate result. I

further concur in the conclusion that, even without Bass’s incriminating statements, the evidence

was sufficient to sustain his conviction. I write specially because I do not agree with the

majority’s analysis on the issue of whether the traffic stop was unnecessarily prolonged. I

respectfully dissent, in part, because the majority decides this case based on a constitutional issue

of first impression it raised sua sponte postargument. The majority’s decision to reverse Bass’s

conviction on this self-styled constitutional issue is neither necessary nor appropriate.

¶ 100 I first address the majority’s decision to raise and resolve the broad constitutional issue

under the Illinois constitution that is the centerpiece of its analysis. The majority’s conduct in

raising a constitutional issue sua sponte is improper. In People v. Givens, 237 Ill. 2d 311 (2010),

the appellate court reversed a defendant’s conviction based not on any of the issues raised by

defendant on appeal but on a different issue the court raised sua sponte. In plain language, our

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supreme court criticized this practice: “Illinois law is well settled that other than for assessing

subject matter jurisdiction, ‘a reviewing court should not normally search the record for

unargued and unbriefed reasons to reverse a trial court judgment.’ ” (Emphasis in original.) Id. at

323 (quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 386 (1978)). The court quoted with

approval the following passage from the United States Supreme Court decision in Greenlaw v.

United States, 554 U.S. 237 (2008):

“ ‘In our adversary system, in both civil and criminal cases, in the first instance

and on appeal, we follow the principle of party presentation. That is, we rely on

the parties to frame the issues for decision and assign courts the role of neutral

arbiter of matters the parties present. To the extent courts have approved

departures from the party presentation principle in criminal cases, the justification

has usually been to protect a pro se litigant’s rights. [Citation.] But as a general

rule, “[o]ur adversary system is designed around the premise that the parties know

what is best for them and are responsible for advancing the facts and arguments

entitling them to relief.” [Citation.] As cogently explained:

“[Courts] do not, or should not, sally forth each day looking for

wrongs to right. We wait for cases to come to us, and when they do

we normally decide only questions presented by the parties.

Counsel almost always know a great deal more about their cases

than we do ***.” [Citation.] ’ ”Givens, 237 Ill. 2d 323-24 (quoting

Greenlaw, 554 U.S. at 243-44).

The majority’s analysis of investigative alerts under the Illinois constitution makes litigation

decisions on behalf of the parties. Specifically, despite its extended disclaimer (supra ¶¶ 86-95),

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the majority has decided that the argument Bass should have made, and which warrants reversal,

is one his counsel never elected to advance and one that the State has never had an opportunity to

address. See also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The premise of our

adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and

research, but essentially as arbiters of legal questions presented and argued by the parties before

them.”).

¶ 101 The fact that the majority solicited postargument briefs on the issue it determined to raise

does not change the impropriety of its decision to act sua sponte. Bass, represented by counsel,

did not elect to argue the issue of the constitutionality of investigative alerts under the Illinois

Constitution and even when invited to, did not advance the rationale the majority now adopts.

The majority’s analysis—emanating solely from the majority and not from the advocates—

remains “unargued and unbriefed.”

¶ 102 The majority cites Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc., 783 F.3d

976, 980 (4th Cir. 2015), nonbinding authority from another federal circuit, and People v. Knapp,

2019 IL App (2d) 160162, for the proposition that “we have the obligation to properly apply the

law even where the parties have not” (supra ¶ 45). Yet both cases affirmed the trial court’s

decision, an important distinction the majority fails to mention. No case—and certainly no

binding decision from our supreme court—approves of a court of review reversing a trial court’s

decision on unargued and unbriefed issues. Indeed, binding authority dicates otherwise. Givens,

237 Ill. 2d at 323. Further, because the majority is admittedly addressing a constitutional issue of

first impression raised sua sponte upon which there is no law, the source of its purported

obligation “to properly apply the law” remains unclear.

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¶ 103 Apart from its decision to act sua sponte, the majority is unnecessarily addressing a

constitutional issue, a practice repeatedly criticized by our supreme court. As the court stated

recently in The Carle Foundation v. Cunningham Township, 2017 IL 120427, ¶ 34:

“[T]his court’s longstanding rule is that ‘cases should be decided on

nonconstitutional grounds whenever possible, reaching constitutional issues only

as a last resort.’ In re E.H., 224 Ill. 2d 172, 178 (2006). Consequently, ‘courts ***

must avoid reaching constitutional issues when a case can be decided on other,

nonconstitutional grounds,’ and such issues ‘should be addressed only if

necessary to decide a case.’ People v. Hampton, 225 Ill. 2d 238, 244 (2007).”

In frustration, the court has noted that its admonishments “seem to fall not infrequently on deaf

ears.” In re E.H., 224 Ill. 2d at 172; see also In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) (“As a

general rule, courts in Illinois do not *** render advisory opinions, or consider issues where the

result will not be affected regardless of how those issues are decided.”); People v. Lee, 214 Ill.

2d 476, 482 (2005) (declining to address alleged facial unconstitutionality of loitering statute

because case could be resolved on more limited ground that police lacked probable cause to

arrest defendant); Ill S. Ct. R. 18(c)(4) (eff. Sept. 1, 2006) (requiring any opinion declaring

unconstitutional a “statute, ordinance, regulation or other law” to articulate specific grounds for

the determination “that the finding of unconstitutionality is necessary to the decision or judgment

rendered, and that such decision or judgment cannot rest upon an alternative ground”).

¶ 104 Indeed, the majority specifically discusses the much narrower issue that is case-specific:

whether the traffic stop was unnecessarily prolonged by investigation into matters unrelated to its

mission (supra ¶¶ 72-78). Because (i) Bass’s conviction should be reversed this narrower

ground, i.e., that this traffic stop was unduly prolonged (see Illinois v. Caballes, 543 U.S. 405,

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407 (2005) (police seizure that is lawful at its inception may nevertheless violate the fourth

amendment if it is “prolonged beyond the time reasonably required to complete [its]

mission.”)), 1 and (ii) the majority does not even attempt to articulate why resolution of the

broader constitutional issue is necessary or why resolution of this appeal cannot rest on narrower

grounds, this decision contravenes our supreme court’s directives.

¶ 105 A recap of the procedural history of this appeal illustrates the impropriety of the

majority’s course of conduct. In his first round of briefs, Bass argued that investigative alerts

were unconstitutional under the fourth amendment, an argument the majority recognizes is a

nonstarter. Supra ¶ 37 (“It is well-settled that the fourth amendment allows for warrantless

arrests outside the home as long as the police have probable cause ***.”). Under the fourth

amendment, if police have probable cause to arrest a defendant, the lack of a warrant is of no

moment. United States v. Watson, 423 U.S. 411, 417 (1976) (postal inspector’s failure to secure

warrant for defendant’s arrest even though he concededly had time to do so did not invalidate

warrantless arrest). And under the fourth amendment, it does not matter how or when the police

acquired the information giving rise to probable cause, as long as they possess it prior to the

defendant’s arrest. Id. at 423 (“Congress has plainly decided against conditioning warrantless

arrest power on proof of exigent circumstances.”). A finding that probable cause existed for

defendant’s arrest precludes invalidation of that arrest on fourth amendment grounds. Illinois

cases have long reached the same result. See People v. Jones, 16 Ill. 2d 569, 572-73 (1959)

1
My rationale for reversing on this narrow ground is as follows: The State concedes it had the
burden to prove that the traffic stop was not unduly prolonged by virtue of the officers’ decision to run
“name checks” on the passengers. The record is unclear in what order the name checks were completed
and whether they were completed simultaneously with the check of the driver’s license. Accordingly, the
State did not sustain its burden to show that the seizure extraneous to the purpose of the traffic stop did
not impermissibly extend its duration, and therefore, the motion to suppress should have been granted.
Both this and the majority’s analysis of whether running name checks was “unrelated to the mission” of
the traffic stop constitute narrow, independent, and legally sufficient bases upon which to reverse. The
analysis should, therefore, stop there.

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(police had information that defendant had previously supplied informant drugs; informant

arranged for defendant to bring drugs to his home; instead, police met defendant and arrested

him, finding drugs on his person; denial of defendant’s motion to suppress drugs affirmed: an

“arrest without a warrant is lawful if a criminal offense has in fact been committed and the

arresting officer has reasonable grounds for believing that the person arrested committed it”).

¶ 106 Here, because Bass concedes and it is readily apparent that the police did have probable

cause to arrest him based on the contents of the investigative alert, which provided the details of

his sexual assault of the victim, the only constitutional argument he elected to advance under the

fourth amendment fails. Bass advanced no separate or independent argument under the Illinois

Constitution, and even if he did, I have no reason to believe that this case would present one of

those narrow exceptions to the “limited lockstep” doctrine under which our supreme court has

consistently interpreted the Illinois Constitution’s search and seizure clause in conformity with

the United States Supreme Court’s interpretation of the fourth amendment. See People v. Burns,

2016 IL 118973, ¶ 19; People v. Fitzpatrick, 2013 IL 113449, ¶ 15; People v. Caballes, 221 Ill.

2d 282, 316 (2006); People v. Lampitok, 207 Ill. 2d 231, 240-41 (2003).

¶ 107 Not content with that result and unwilling to decide the case based on the arguments

raised by the parties, the majority, two months after oral argument, entered an order directing the

parties to address the constitutionality of investigative alerts under the Illinois constitution, thus

signaling that the fourth amendment argument of the Office of the State Appellate Defender

decided to raise would not carry the day. (I did not sign that order.) Bass nevertheless did not

advance the rationale the majority utilizes to reverse his conviction. Instead, Bass argued that the

Illinois constitution’s language prohibiting “invasions of privacy or interceptions of

communications by eavesdropping devices or other means” could be interpreted to prevent the

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police from maintaining a “database of potentially arrest-worthy individuals” since such conduct

“plainly implicates the privacy rights of the citizens of Chicago.” Rejecting this argument, the

majority comes up with its own analysis. See supra ¶ 45 (“[Bass is] right, but he focuses on the

wrong text.”). We will not find in the parties’ supplemental briefs (or in any reported decision for

that matter) a discussion of the difference between the fourth amendment’s requirement that

warrants be issued based on “oath or affirmation” versus the Illinois constitution’s inclusion of

the word “affidavit.” Nor will we find any discussion of cases dating back to 1898 as the source

for the conclusion that the difference in wording was intended to be meaningful and to broaden

the protection Illinois citizens enjoy from unlawful searches and seizures. But this is the basis on

which the majority resolves this appeal. This is not a proper basis upon which to reverse a circuit

court’s ruling.

¶ 108 The majority rationalizes its decision to raise and resolve its own constitutional issue on

the ground that the use of investigative alerts is “prolific” (supra ¶ 34) and attaches an appendix

citing 22 reported decisions (labeled “a heap” (supra ¶ 33)) in which investigative alerts are

mentioned but not discussed in any detail. Of those 22 cases, 7 were decided well before any

member of this court raised a concern about the use of investigative alerts, leaving 15 cases

decided since December 20, 2012 (the date Hyland was filed) that refer to investigative alerts in

the facts. Add to those the reported decisions actually discussing investigative alerts (Hyland,

Starks, and Jones) and the grand total rises to 18. Since December 20, 2012, and through June

30, 2019, this court has decided by published opinion 877 criminal appeals. Accordingly, the 18

cases, including Hyland, in which investigative alerts are mentioned comprise slightly over 2%

of the criminal appeals decided in the last 6½ years, providing no support for the majority’s

characterization of the use of investigative alerts as “prolific.”

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¶ 109 The majority also engages in fact-finding and then declares those “facts” “notabl[e]” (see

supra ¶ 5). Specifically, the majority finds that “investigative alerts are not issued

instantaneously; in many cases, investigative alerts take the same or more time to procure than a

warrant” (supra ¶ 5). The majority also observes that it “appears,” based on its own research

(into facts, not law), that Cook County is the only jurisdiction in Illinois in which investigative

alerts are used. The source of these “facts” is undisclosed, and the majority’s reliance on them is

improper. See People v. Hughes, 2015 IL 117242 ¶ 46 (“The dissenting justice below quite aptly

pointed out the difficulty of discerning the appellate majority’s standard of review; this was

because the appellate majority was deciding new issues of fact for the first time on appeal.”).

¶ 110 For this additional reason, this case is an inappropriate vehicle to serve as the means to

resolve the majority’s constitutional issue. Facts regarding the police department’s use of

investigative alerts have never been developed. Hyland recognized as much. 2012 IL App (1st)

110966, ¶ 39 (Salone, J., specially concurring, joined by Neville, J.) (“I *** question the legality

of the Chicago police department’s *** policy of issuing investigative alerts under any

circumstances. In doing so, I acknowledge this issue has yet to be addressed in any detail.”

(Emphasis added.)). No case since Hyland, including this one, has developed any facts regarding

how often investigative alerts are used and why. Although the majority is willing to assume that

investigative alerts are routinely used by police to circumvent the process of obtaining a warrant,

there is no apparent reason why, when police have probable cause to arrest an individual (as they

did here), the use of an investigative alert gives them any untoward advantage. See 725 ILCS

5/107-2(1)(c) (West 2014) (permitting warrantless arrest when police officer “has reasonable

grounds to believe the person *** has committed an offense”); People v. Buss, 187 Ill. 2d 144,

204 (1999) (permitting officers to rely on the collective knowledge of other officers for purposes

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of establishing probable cause). The majority certainly does not articulate any. And I can

perceive no principled basis on which to hold that police may arrest an individual without a

warrant and without an investigative alert as long as they have probable cause, but if they issue

an investigative alert based on the same facts giving rise to probable cause, they have run afoul

of the Illinois Constitution.

¶ 111 Despite the fact that Hyland was decided over six years ago, no defendant in any reported

case has raised the constitutionality of investigative alerts at the trial level as a basis to quash his

arrest and suppress evidence obtained as a result. Had this issue been raised at the trial level, a

factual record necessary to address these issues could have been developed. In the absence of any

factual record, it is apparent that not only is the majority’s decision to address a constitutional

issue not raised by Bass prudentially unsound, but its conclusion that this practice is widespread

has no factual underpinnings.

¶ 112 Under identical circumstances, courts in this district have refrained from addressing the

constitutionality of investigative alerts. See People v. Brookins, 2018 IL App (1st) 151431-U, ¶

62 (finding police had probable cause to arrest defendant; fact that arrest was accomplished after

investigative alert issued not discussed); People v. Starks, 2014 IL App (1st) 121169, ¶ 77

(“whether the failure of the police to obtain an arrest warrant and instead pursue an individual via

an investigative alert poses issues of constitutional dimension must await another case”). We

should do the same here.

¶ 113 In sum, I can discern no apparent explanation for the conclusion that this case at this time

presents the ideal opportunity to resolve a constitutional issue of first impression raised

sua sponte by the majority. For all of the foregoing reasons, I respectfully dissent.

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¶ 114 Appendix

Illinois cases mentioning investigative alerts in facts:

People v. Davison, 2019 IL App (1st) 161094, ¶ 21

People v. Middleton, 2018 IL App (1st) 152040, ¶ 11

People v. Evans, 2017 IL App (1st) 150091, ¶¶ 5-6

People v. Thomas, 2016 IL App (1st) 141040, ¶ 13, vacated, No. 121947 (Ill. Sep.

27, 2017)

People v. Randall, 2016 IL App (1st) 143371, ¶ 15

People v. Robinson, 2016 IL App (1st) 130484, ¶ 18

People v. Abram, 2016 IL App (1st) 132785, ¶ 19

People v. Brock, 2015 IL App (1st) 133404, ¶ 7

People v. Thompson, 2015 IL App (1st) 122265, ¶ 7

People v. Rankin, 2015 IL App (1st) 133409, ¶ 8

People v. Lewis, 2015 IL App (1st) 130171, ¶ 6

People v. Lewis, 2015 IL App (1st) 122411, ¶ 22

People v. Wilson, 2014 IL App (1st) 113570, ¶ 11

People v. Alicea, 2013 IL App (1st) 112602, ¶ 9

People v. Flynn, 2012 IL App (1st) 103687, ¶ 10

People v. Walker, 2012 IL App (1st) 083655, ¶¶ 5, 16-17

People v. Wilborn, 2011 IL App (1st) 092802, ¶¶ 19, 25

People v. Peters, 2011 IL App (1st) 092839, ¶ 16

People v. Nugen, 399 Ill. App. 3d 575, 583 (2010)

People v. Aguilar, 396 Ill. App. 3d 43, 48 (2009)

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People v. Cotton, 393 Ill. App. 3d 237, 246 (2009)

In re Dante W., 383 Ill. App. 3d 401, 408 (2008).

Illinois cases mentioning investigative alerts in analysis of other issues:

People v. Velez, 388 Ill. App. 3d 493, 504 n.3 (2009) (Defendant argued that

counsel was ineffective for failing to move to suppress based on lack of probable cause;

in support defendant attached investigative alert to appendix, which court declined to

consider because it was not part of the record)

People v. Echols, 382 Ill. App. 3d 309, 320-21 (2008) (testimony about

investigative alert does not support defendant’s argument that State improperly elicited

evidence from which jury could infer that he was in a gang)

People v. Cox, 377 Ill. App. 3d 690, 701 (2007) (investigative alert mentioned,

but not analyzed, as part of defendant’s argument that State elicited improper hearsay

about a phone call that led to a photo array being generated).

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No. 1-16-0640

Cite as: People v. Bass, 2019 IL App (1st) 160640

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CR-
15846; the Hon. Neera Lall Walsh, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Brian L. Josias, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Douglas P. Harvath, and Tasha-Marie Kelly, Assistant
Appellee: State’s Attorneys, of counsel), for the People.

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