People v. Erwin

2023 IL App (1st) 200936

FIRST DISTRICT
SECOND DIVISION
March 31, 2023

No. 1-20-0936

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 06617 (02)
)
DEAUNTE ERWIN, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge Presiding.

JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices Howse concurred in the judgment and opinion.
Justice Cobbs specially concurred, with opinion.

OPINION

¶1 After he was arrested on February 17, 2003, pursuant to an investigative alert issued by

Chicago Police Department (CPD) detectives, petitioner Deaunte Erwin was convicted of the

first degree murder of Carlyle Barnhill and the armed robberies of Larry Martin and Christopher

Holmes. In his successive post-conviction petition, he alleged that his arrest violated the search

and seizure clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 6), for the reasons first

announced in the now-vacated portions of People v. Bass, 2019 IL App (1st) 160640, aff’d in

part & vacated in part, 2021 IL 125434, and recently reiterated in People v. Smith, 2022 IL App

(1st) 190691. He appeals the circuit court’s denial of leave to file.

¶2 Petitioner does not claim that the officers, in relying on the detectives’ investigative alert,

lacked probable cause to arrest him. He lost that argument long ago, at his suppression hearing.

His only claim is that an arrest based on an investigative alert, even when supported by probable

cause, violates our state constitution’s analogue of the fourth amendment, albeit not the fourth
No. 1-20-0936

amendment itself.

¶3 The facts of petitioner’s offenses and trial are set forth in our prior decisions and do not

bear repetition here. See People v. Erwin, No. 1-07-0687 (2009) (unpublished order under

Illinois Supreme Court Rule 23); People v. Erwin, 2011 IL App (1st) 101815-U. This much will

suffice: In 2003, petitioner was detained on an unrelated matter; the officers arrested him for

murder upon discovering that an investigative alert had been issued; more than enough time had

passed for the detectives to apply for an arrest warrant; petitioner confessed when questioned;

and he would now like that confession suppressed, as the product of a warrantless and thus

illegal arrest. With that said, we proceed directly to the issues at hand.

¶4 We decline to decide whether an arrest based solely on the authority of a police-issued

investigative alert, instead of a judicially issued arrest warrant, violates our state constitution. See

Bass, 2019 IL App (1st) 160640, ¶¶ 4, 31-32 (describing CPD’s investigative alert system).

Because the good-faith exception to the exclusionary rule applies, petitioner would not be

entitled to the suppression of any evidence (principally, his confession), even if we now held his

arrest to be illegal. For this reason alone, petitioner cannot show prejudice, as required for leave

to file his successive petition. 725 ILCS 5/122-1(f) (West 2020).

¶5 I

¶6 A bit of recent (and local) legal history will give context to petitioner’s claim. As far as

we know, from the briefs and from our own research, the constitutionality of investigative alerts

was first called into question in 2012, some nine years after petitioner was arrested, in the special

concurrence filed in People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 38-52 (Salone, J., specially

concurring, joined by Neville, J.).

¶7 Hyland was decided on the workaday issue of probable cause: the defendant was arrested

-2-
No. 1-20-0936

pursuant to an investigative alert, but the evidence at the suppression hearing failed to establish

that the alert itself was based on facts that gave rise to probable cause for an arrest. Id. ¶¶ 25, 29-

31 (majority opinion). The special concurrence also took the view that any arrest pursuant to an

investigative alert is per se unconstitutional, even if the alert is later found to have been based on

probable cause. The problem, as the Hyland concurrence saw it, was that the finding of probable

cause had only been made in advance of the arrest by the police, when it should have been made

by a judge issuing an arrest warrant. Id. ¶¶ 46-47 (Salone, J., specially concurring, joined by

Neville, J.).

¶8 The Hyland concurrence thus stood as a notable objection to a longstanding and

judicially tolerated police practice. But because “the words and ideas expressed in [a] special

concurrence” “do not speak for this court,” it did not change what seemed to be settled law.

Southwestern Illinois Development Authority v. Al-Muhajirum, 318 Ill. App. 3d 1005, 1008

(2001). Nor did it provide cause for petitioner, or others like him, to raise a fresh challenge to an

old arrest in a successive petition.

¶9 Three years later, People v. Jones, 2015 IL App (1st) 142997, ¶¶ 19-21, was decided on

the same narrow and unremarkable ground as Hyland, a case on which Jones expressly relied. In

dictum, Jones took “note” of the special concurrence, echoing its view that investigative alerts

pose a “troubling” and still “unresolved” constitutional question, and one that “[h]opefully ***

will be addressed on appeal at some point.” Id. ¶ 22. But to be clear, it was not addressed in

Jones. The law had not budged; there was no precedent holding that investigative alerts were

anything other than a constitutionally permissible practice, though judicial skepticism, if not

outright disapproval on this point had no doubt emerged.

-3-
No. 1-20-0936

¶ 10 The question eventually took center stage in Bass, 2019 IL App (1st) 160640. Over a

vigorous partial dissent, the Bass majority held that an arrest made solely on the authority of an

investigative alert per se violates the search-and-seizure clause of the Illinois Constitution, even

if the alert was based on probable cause (as it was in Bass). Id. ¶¶ 36-71.

¶ 11 The majority recognized that such arrests do not violate the federal constitution’s fourth

amendment, which permits public warrantless arrests that are based on probable cause, even if

the police had time to get an arrest warrant. Id. ¶ 37; United States v. Watson, 423 U.S. 411, 416-

17 (1976); Carroll v. United States, 267 U.S. 132, 156 (1925). The fourth amendment simply

requires that the arrestee is promptly brought before a judge, for a probable-cause determination,

after the warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991); Gerstein

v. Pugh, 420 U.S. 103, 113-19 (1975).

¶ 12 But in the Bass majority’s view, the search-and-seizure clause departs from the fourth

amendment in this respect, by generally prohibiting warrantless arrests, except in certain exigent

circumstances. Bass, 2019 IL App (1st) 160640, ¶¶ 39-67. The investigative alert system

bypasses this requirement and substitutes the judgment of the police for that of a neutral

magistrate, the majority reasoned; the Illinois Constitution requires the latter, not the former, to

render a probable-cause determination before the arrest is made, upon review of a written

affidavit setting forth the known facts. Id.

¶ 13 Here, petitioner moved for leave to file his successive petition about two weeks after

Bass was decided. Strangely enough, the timing appears to be a coincidence: he did not cite Bass

in his petition; instead, he relied on Jones, which was decided after his initial petition was filed,

as cause for his failure to raise the issue in an earlier proceeding. (That argument would have

failed, for reasons we have already noted.) But in short order, he got wind of Bass and moved to

-4-
No. 1-20-0936

amend his motion accordingly. The circuit court granted that motion but ultimately denied him

leave to file, in January 2020, for two reasons.

¶ 14 First, Bass was “repudiated” by People v. Braswell, 2019 IL App (1st) 172810, ¶ 37. The

circuit court did not explain any further how it chose between these admittedly “conflicting”—

and equally binding—authorities from the appellate court. Second, even if Bass was correctly

decided, it would not apply to petitioner, because the rule it announced did not meet the criteria

for retroactive application on collateral review. See Teague v. Lane, 489 U.S. 288 (1989); People

v. Flowers, 138 Ill. 2d 218, 237-38 (1990) (Teague framework applies to proceedings under

Post-Conviction Hearing Act).

¶ 15 While petitioner’s appeal from the denial of leave to file was pending, our supreme court

decided the State’s appeal in People v. Bass, 2021 IL 125434. It affirmed the appellate court’s

judgment on a narrow ground, one on which all three appellate justices had agreed: the police

exceeded the permissible scope of a traffic stop, for reasons we need not dwell on here. Id. ¶¶ 15-

26; see Bass, 2019 IL App (1st) 160640, ¶¶ 73-78; id. ¶ 114 (Mason, J., concurring in part and

dissenting in part). Based on principles of constitutional avoidance, and the supreme court’s

prudential objections to advisory opinions, it “vacated” the portions of the appellate opinion that

addressed the “constitutionality of investigative alerts” and associated issues. Bass, 2021 IL

125434, ¶¶ 30-31.

¶ 16 The vacatur in Bass left petitioner without any precedent to support his claim. Neither

Hyland, a special concurrence, nor Jones, with its dictum, stood as precedent on this issue. The

first precedent was Bass, but once an appellate decision has been vacated by our supreme court,

it “carries no precedential weight.” Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 66

(2006); Carmichael v. Professional Transportation, Inc., 2021 IL App (1st) 201386, ¶ 22.

-5-
No. 1-20-0936

¶ 17 Meanwhile, appellate cases from this district, both before and after the vacatur in Bass,

uniformly sided with Braswell, 2019 IL App (1st) 172810, and upheld the constitutionality of

investigative alerts issued by the CPD. See People v. Butler, 2021 IL App (1st) 171400, ¶ 55;

People v. Little, 2021 IL App (1st) 181984, ¶¶ 63-64; People v. Simmons, 2020 IL App (1st)

170650, ¶¶ 62-64; People v. Bahena, 2020 IL App (1st) 180197, ¶¶ 59-64; People v. Thornton,

2020 IL App (1st) 170753, ¶¶ 45-50. The Third District likewise upheld the Peoria Police

Department’s own practice of using investigative alerts. People v. Harris, 2022 IL App (3d)

200234, ¶ 12.

¶ 18 But the conflict in appellate authority re-emerged with the recent decision in Smith, 2022

IL App (1st) 160640, ¶ 99, which reiterated the Bass majority’s holding that an arrest based on

an investigative alert per se violates our state constitution. Smith was issued after this case was

briefed, and we granted petitioner’s motion to cite it as additional authority. Smith now leaves

petitioner right back where he was at the time of summary dismissal—with the issue having

received conflicting answers in the appellate court, and yet to be resolved definitively by our

supreme court.

¶ 19 II

¶ 20 If we sided with Smith, the one appellate ruling that favors petitioner’s claim, that would

not necessarily entitle him to relief; it would only be the first step toward establishing prejudice.

And even if our supreme court eventually agreed with Smith and petitioner’s argument here, that

would still not necessarily entitle him to relief.

¶ 21 Petitioner’s opening brief, and the circuit court’s order denying leave to file, both assume

that the next question to be answered is whether a ruling in petitioner’s favor would apply

retroactively to a case pending on collateral review. But retroactivity is not the next step. If we

-6-
No. 1-20-0936

held that petitioner’s arrest was unconstitutional, the next step would be determining whether

that unconstitutional seizure warrants the remedy of suppression—what is often called the

“exclusionary rule.” People v. LeFlore, 2015 IL 116799, ¶ 22. Without suppression, petitioner’s

confession stands as admissible evidence, and he has no favorable ruling to apply, retroactive or

otherwise.

¶ 22 And whether petitioner would be entitled to suppression, if he first convinced us that his

arrest violated the Illinois Constitution, would depend, among other things, on whether the good-

faith exception to the exclusionary rule applied. See id. ¶¶ 22-25.

¶ 23 For a stark illustration of this point, consider that the defendant in Carpenter v. United

States, 585 U.S. ___, 138 S. Ct. 2206 (2018), was not entitled to the suppression of his illegally

obtained cell-site location information (CSLI), despite prevailing in that landmark case, because

the court of appeals on remand found the good-faith exception applicable. See United States v.

Carpenter, 926 F.3d 313, 317-18 (6th Cir. 2019).

¶ 24 And we recently applied the good-faith exception in a case that was pending on direct

review when the Carpenter decision was issued; as a result, we denied the defendant’s request

for a suppression remedy, even though Carpenter applied and thus rendered the warrantless

collection of his CSLI illegal. Potts, 2021 IL App (1st) 161219, ¶¶ 108-131; People v. Erickson,

117 Ill. 2d 271, 288 (1987) (new constitutional rulings apply retroactively to all cases pending on

direct appeal); Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also United States v. Chavez,

894 F.3d 593, 608 (4th Cir. 2018) (Carpenter is “controlling going forward,” but does not afford

relief to defendant whose CSLI was collected beforehand).

¶ 25 In short, the good-faith exception, not general principles of retroactivity and/or collateral

review, ultimately determines whether petitioner would be entitled to a remedy.

-7-
No. 1-20-0936

¶ 26 The rationale for the good-faith exception is well-known, so a brief recap will suffice.

There is no constitutional right to the suppression of evidence obtained as a result of an illegal

search or seizure. LeFlore, 2015 IL 116799, ¶ 22. The exclusionary rule is a judicially created

remedy whose sole purpose is to deter future constitutional violations; thus, it is to be applied

only where its deterrence benefits outweigh the substantial social costs of excluding reliable,

probative evidence of guilt. Id. ¶ 23. When the police conduct a search or seizure based on an

“objectively reasonable good-faith belief” that it is lawful, the rule’s deterrence rationale has

little or no force, and the exclusion of evidence is not warranted. (Internal quotation marks

omitted.) Id. ¶ 24.

¶ 27 One source of an “objectively reasonable good-faith belief” (among others) is “binding

appellate precedent” that existed at the time of the search or seizure in question but was later

overruled or limited. See Potts, 2021 IL App (1st) 161219, ¶ 112-13 (distinguishing versions of

good-faith exception). Since this version of the good-faith exception was articulated in Davis v.

United States, 564 U.S. 229 (2011), and adopted by our supreme court in Leflore, 2015 IL

116799, we will refer to it as the Davis/Leflore exception.

¶ 28 “Binding appellate precedent” is a term of art in this context, and not all of its niceties are

relevant here. The key point is that the category includes, but is not limited to, appellate holdings

that specifically authorized the type of search or seizure in question. But because there will not

always be a precedent squarely on point, and the police inevitably must act on incomplete and

ever-evolving guidance from the reviewing courts, they can—indeed, they must—take a broader

view of the existing law. Id. ¶¶ 19-20.

¶ 29 Absent directly applicable precedent, the police may rely on a well-established doctrine

that is “ ‘not exactly on point’ ” (id. ¶ 44, quoting United States v. Stephens, 764 F.3d 327, 337

-8-
No. 1-20-0936

(4th Cir. 2014)) if its underlying rationale is nonetheless “ ‘sufficiently clear and apposite’ ” (id.

¶ 20, quoting United States v. Sparks, 711 F.3d 58, 65 (1st Cir. 2013) and thus “ ‘widely and

reasonably understood’ ” (id. ¶ 44, quoting Stephens, 764 F.3d at 337) to resolve the novel

question at hand.

¶ 30 And if there is no one case that qualifies as “ ‘binding appellate precedent’ ” in this

broader sense of the term, Leflore requires us to conduct a “general good-faith analysis” and

determine “ ‘whether a reasonably well-trained officer would have known that the search [or

seizure] was illegal in light of all of the circumstances.’ ” Id. ¶ 29 (quoting Herring v. United

States, 555 U.S. 135, 145 (2009)). In the context of police reliance on appellate precedent, the

question becomes whether it was “objectively reasonable” for the police to rely on the overall

“legal landscape that existed at the time,” meaning that a reasonable officer, surveying the law as

a whole, would have “no reason to suspect” that the search or seizure in question was unlawful.

Id. ¶ 31.

¶ 31 In Leflore, our supreme court applied this version of the good-faith exception to a claim

raised under both the fourth amendment and the Illinois Constitution’s search-and-seizure clause,

so there is no doubt that it applies in the latter context and thus here. Id. ¶¶ 15-18, 62-67. The

State has raised it, so there is no question of forfeiture. See People v. Turnage, 162 Ill. 2d 299,

313 (1994) (State’s burden to raise good-faith exception). And though the circuit court did not

address the good-faith exception, we can affirm the denial of leave to file on any basis supported

by the record. People v. Horton, 2021 IL App (1st) 180551, ¶ 42. Whether the exception applies

is a question of law that we review de novo. People v. Manzo, 2018 IL 122761, ¶ 67.

¶ 32 III

¶ 33 When petitioner was arrested in 2003, no case from a reviewing court had directly ruled

-9-
No. 1-20-0936

on the legality of investigative alerts—or “stop orders,” as they were formerly called (Bass, 2021

IL 125434, ¶ 3)—under our search-and-seizure clause (or, for that matter, the fourth

amendment).

¶ 34 And not because the practice was new. It was already longstanding and well entrenched

by 2003. Still, it appears that no litigant had ever argued that an arrest, based on demonstrated

probable cause, was nonetheless unconstitutional because the arresting officer relied on a police-

issued investigative alert in lieu of a judicially issued warrant. See Hyland, 2012 IL App (1st)

110966, ¶ 39 (Salome, J., specially concurring, joined by Neville, J.) (noting that issue had yet to

be addressed); Bass, 2019 IL App (1st) 160640, ¶ 121 (Mason, J., concurring in part &

dissenting in part) (noting that no litigant had raised issue in years since Hyland).

¶ 35 There are scores of cases, dating back at least to the 1970s, in which we matter-of-factly

state, by way of background, that the defendant was arrested pursuant to an investigative alert or

stop order. We will not try to catalog them here. The point is simply that this practice routinely

went unchallenged, even largely unremarked, for several decades.

¶ 36 And when the investigative alert or stop order was central to a point of error raised on

appeal, the issue—and its resolution—would fit the mold of later cases like Hyland and Jones.

The actual dispute would be about probable cause, and the rule we would apply was that the

State could demonstrate probable cause by relying, in whole or in part, on the facts known to the

officer(s) who issued the investigative alert. See, e.g., People v. Simpson, 129 Ill. App. 3d 822,

830-31 (1984); People v. Green, 88 Ill. App. 3d 929, 931-33 (1980); People v. Harper, 16 Ill.

App. 3d 252, 257 (1973).

¶ 37 The same rule applied when the arresting officers relied on other official channels of

police communication, such as a radio bulletin or dispatch, to arrest a suspect before a warrant

- 10 -
No. 1-20-0936

had been issued. See, e.g., People v. Lawson, 298 Ill. App. 3d 997, 1001-03 (1998) (collecting

cases); People v. Brooks, 13 Ill. App. 3d 1003, 1005-07 (1973); see also United States v.

Hensley, 469 U.S. 221, 231 (1985) (noting that Court’s precedent in Whiteley v. Warden, 401

U.S. 560 (1971) “supports the proposition that, when evidence is uncovered during a search

incident to an arrest in reliance merely on a flyer or bulletin, its admissibility turns on whether

the officers who issued the flyer possessed probable cause to make the arrest” (emphasis in

original)).

¶ 38 As we summed up the general rule in one characteristic case: “Police officers are entitled

to act in reliance upon information received in official police communications. [Citations.] To

predicate an arrest, however, the communication must be based upon facts sufficient to constitute

probable cause for arrest.” People v. Rimmer, 132 Ill. App. 3d 107, 113 (1985).

¶ 39 The existing cases, in short, never hinted that an arrest made pursuant to an investigative

alert raised any constitutional question beyond the existence of probable cause. A reasonable

officer would thus be entitled to conclude that a showing of probable cause at a suppression

hearing, based on the facts known to law enforcement as a whole, would validate a warrantless

arrest without further ado.

¶ 40 And that impression was only reinforced by the “legal landscape” more generally. After

all, the cases involving warrantless arrests made pursuant to investigative alerts, police bulletins,

or other such communications appeared to be a straightforward application of two unassailable

legal principles: (1) that public, warrantless arrests are constitutional, as long as the police have

probable cause and (2) the “collective knowledge” doctrine, which, roughly put, allows officers

to act on facts known to other members of law enforcement without having personal knowledge

of those facts themselves. See, e.g., People v. Buss, 187 Ill. 2d 144, 204 (1999) (officers may rely

- 11 -
No. 1-20-0936

on each other’s collective knowledge to establish probable cause); Hensley, 469 U.S. at 230-32.

¶ 41 Neither petitioner nor the Bass majority (nor Smith following it) claims that the alleged

constitutional problem with arrests based on investigative alerts results from the application of

the collective-knowledge doctrine in this context. See Bass, 2019 IL App (1st) 160460, ¶ 60. So

we can leave this doctrine aside. The problem is said to arise, instead, from the failure to secure

an arrest warrant. But the broader “legal landscape” gave no hint that one was required.

¶ 42 For one, as we noted above, it was settled law that warrantless arrests made in public and

based on probable cause do not violate the fourth amendment, even when the officers had time to

get a warrant before making the arrest. Watson, 423 U.S. at 416-17; Carroll, 267 U.S. at 156.

Although petitioner’s claim here arises under the search-and-seizure clause of our state

constitution, our jurisprudence under the fourth amendment, and the Watson decision in

particular, remains relevant for two reasons.

¶ 43 First, the Supreme Court’s fourth-amendment doctrine is based, in significant part, on the

fact that a tolerance of warrantless public arrests is a deeply rooted feature of our nation’s legal

history. It was inherited from the common law, has been uniformly reinforced by legislative and

judicial judgment at the state and federal levels, and has long been “the prevailing rule under

state constitutions.” Watson, 423 U.S. at 418-19, 422-23. Thus, while Watson acknowledged that

the “judicial preference” is for the police to obtain an arrest warrant where it is “practicable” to

do so, the Court declined to “transform” this preference into a constitutional rule “when the

judgment of the Nation and Congress has for so long been to authorize warrantless public arrests

on probable cause,” without conditioning that authorization on the presence of any exigent

circumstances. Id. at 423-24.

¶ 44 Second, our supreme court has long held that the federal and state constitutional

- 12 -
No. 1-20-0936

provisions are to be interpreted in “limited lockstep” and, in this context, has expressly rejected

the idea that the search-and-seizure clause “guarantees more individual rights” than the fourth

amendment. People v. Tisler, 103 Ill. 2d 226, 241 (1984); see also People v. Caballes, 221 Ill. 2d

282, 316-17 (2006). And our supreme court has reiterated the settled rule about warrantless

arrests countless times: they are generally permissible, when made in public, even if the police

had time to secure a warrant first. See, e.g., Buss, 187 Ill. 2d at 204; People v. Campbell, 67 Ill.

2d 308, 313 (1977). For example, in Buss, 187 Ill. 2d at 204, our supreme court explicitly said

that a warrantless arrest founded on probable cause is permissible under the state and federal

constitutions, without suggesting any distinction in their respective warrant requirements.

¶ 45 Other cases are admittedly not always clear whether this rule is being applied to a claim

raised under the state or federal constitution. But Buss aside, given the near identicality of the

relevant provisions and our supreme court’s lockstep precedents, a reasonable officer could—and

surely would—see this as a distinction without a difference, until such time as an appellate

precedent plainly stated otherwise. In 2003, the relevant time period in our case, that had not

happened. See People v. Charles, 2022 IL App (1st) 210247-U, ¶¶ 12-14 (granting Finley

motion, based on Davis-Leflore exception, where no appellate authority addressed issue at time

of 2011 arrest). Just as the Bass majority correctly took Watson’s holding to immediately settle

the fourth-amendment question (Bass, 2019 IL App (1st) 160640, ¶ 37), at the time of

petitioner’s arrest, a reasonable officer would surely be entitled to reach the same conclusion

under the search-and-seizure clause of the Illinois Constitution.

¶ 46 There is of course much more that could be said about the lockstep doctrine and other

relevant precedents from our supreme court, but we will leave the matter at that. The overall

legal landscape at the time of petitioner’s arrest leaves no doubt that a reasonable officer, striving

- 13 -
No. 1-20-0936

in good faith to comply with the law, would conclude that a warrantless public arrest, pursuant to

an investigative alert, was perfectly legal under both Illinois and federal constitutional law—as

long as there was probable cause for the arrest, as is uncontested here.

¶ 47 We thus need not decide whether the holding in Smith, which echoed the Bass majority’s

now-vacated holding, was correctly decided. Even if petitioner could establish a constitutional

violation, the good-faith exception would apply here. Because petitioner would not be entitled to

a suppression remedy, he cannot establish prejudice. The denial of leave to file his successive

petition is affirmed on this narrow ground.

¶ 48 IV

¶ 49 The judgment of the circuit court of Cook County is affirmed.

¶ 50 Affirmed.

¶ 51 JUSTICE COBBS, specially concurring:

¶ 52 Although I ultimately agree that the circuit court’s denial of defendant’s motion for leave

to file a successive postconviction petition should be affirmed, I would base affirmance on

defendant’s failure to establish cause as required under the Post-Conviction Hearing Act (725

ILCS 5/122-1(f) (West 2020)).

¶ 53 In a successive petition, a defendant may raise a waived constitutional claim such as the

one before this court by satisfying the cause-and-prejudice test. People v. Coleman, 2013 IL

113307, ¶¶ 82-83. The cause-and-prejudice test for a successive petition involves a higher standard

than for a first-stage initial petition. People v. Smith, 2014 IL 115946, ¶ 35. To establish cause, a

defendant must show some objective factor external to the defense that impeded his ability to raise

the claim in the initial postconviction proceeding. 725 ILCS 5/122-1(f) (West 2020).

- 14 -
No. 1-20-0936

¶ 54 Defendant argues that he has established cause “as he could not have previously relied on

the reasoning in [People v. Bass, 2019 IL App (1st) 160640, aff’d in part, vacated in part, 2021 IL

125434] that all arrests solely based on investigative alerts are illegal.” Defendant was convicted

in 2006 and his initial postconviction petition was filed in 2010. Bass was issued in 2019; however,

in 2021, the Illinois Supreme Court vacated the portion of this court’s decision finding the use of

investigative alerts unconstitutional. As such, he cannot rely on Bass for cause.

¶ 55 Instead, this court allowed defendant to cite to additional authority, namely People v. Smith,

2022 IL App (1st) 190691. There, this court held that the defendant’s warrantless arrest was

improper under the Illinois Constitution because it was premised solely on an investigative alert

issued six months earlier. Id. ¶ 66. Defendant now argues that the Smith decision “provides critical

support” for his claim that his arrest was illegal as it was solely based on an investigative alert, and

the decision and its reasoning was not previously available to him.

¶ 56 In response, the State contends that defendant’s own posture—that since the 1800s, our

supreme court has interpreted the Illinois Constitution to require probable cause to be supported

by facts included in a sworn affidavit and submitted to a neutral magistrate for assessment—belies

his assertion that the challenge to his arrest based on an investigative alert could not have been

raised earlier. Effectively, defendant’s challenge was not dependent on the later appellate court

decisions he cites within his brief. I agree with the State on this point.

¶ 57 In People v. Guerrero, 2012 IL 112020, ¶ 20, our supreme court expressly stated that “the

lack of precedent for a position differs from ‘cause’ for failing to raise an issue, and a defendant

must raise this issue, even when the law is against him, in order to preserve it for review.” We find

this principle applicable to the case before us. The clause in the Illinois Constitution upon which

defendant’s claim is based has been in existence for over a century, and the issue of

- 15 -
No. 1-20-0936

unconstitutional arrests is not novel; rather, a large portion of criminal jurisprudence is comprised

of this variety of claim. Although we are not aware of any cases specifically concerning the

constitutionality of investigative alerts, nothing precluded defendant from challenging that aspect

of his arrest previously. See Guerrero, 2012 IL 112020, ¶ 20 (“[T]he mere possibility that

defendant’s claim would have been unsuccessful does not equate to an objective factor external to

the defense which precluded him from raising [the claim] in his initial postconviction petition.”).

¶ 58 This conclusion is further bolstered by our supreme court’s decision in People v. Dorsey,

2021 IL 123010. There, the juvenile defendant challenged his sentence under the proportionate

penalties clause of the Illinois Constitution and argued that he had established cause because Miller

v. Alabama was issued after he filed his initial postconviction petition. Id. ¶ 68. In holding that the

defendant could not establish cause, the supreme court stated that “Miller’s unavailability prior to

2012 at best deprived [the] defendant of ‘some helpful support’ for his state constitutional claim,

which is insufficient to establish cause.” Id. ¶ 74; see also People v. Clark, 2023 IL 127273, ¶ 67

(citing to Dorsey in rejecting the defendant’s reliance on two precedential cases to support his

argument that he established cause).

¶ 59 Just as in Guerrero and Dorsey, I believe that Smith’s nonexistence at the time defendant’s

initial postconviction petition was filed did not prevent him from raising the claim that his

warrantless arrest based on an investigative alert was unconstitutional. It was not necessary for

him to wait until there was caselaw supporting his position to raise the argument. Accordingly,

because defendant is unable to establish cause for his successive postconviction petition, and I

would affirm the circuit court’s denial of leave to file his successive postconviction petition. See

People v. Brown, 225 Ill. 2d 188, 207 (2007) (where defendant has failed to establish cause, it is

not necessary for the court to consider prejudice).

- 16 -
No. 1-20-0936

¶ 60 As a final aside, the majority’s decision to resolve the issue of whether the good faith

exception would apply regardless of the constitutionality of warrantless arrests based on

investigative alerts gives me pause. The defendant has not been given any opportunity to develop

an adequate factual record to contest the good faith exception, which we point out is the State’s

burden to prove. I believe it to be premature to consider the application of the good faith exception,

particularly at the leave-to-file stage in the pleadings. To do so so is contrary to the general

principle that a reviewing court should avoid speculative analysis on issues that have not been

adequately developed. I am mindful of our supreme court’s preference for review of claims on a

case-by-case basis with a fully developed record and its rejection of applying “a broad-sweeping

‘categorical approach’ ” to certain claims. People v. Veach, 2017 IL 120649, ¶¶ 46-48.

¶ 61 Here, I would adopt the position taken in People v. Walker, 2022 IL App (1st) 210508-U,

¶ 30. Although that case involved an initial postconviction petition, the court nevertheless rejected

the State’s argument on appeal that the good faith exception would apply because it would be

premature and “[m]ore information and evidence would be necessary about the procedures by

which investigative alerts are issued and executed, both in general and in petitioner’s case

specifically, before the court could conclude that the good faith exception to the exclusionary rule

applies.” See also People v. Pierce, 2022 IL App (1st) 201040-U, ¶ 21 (stating that “reliance on

the good faith exception to the exclusionary rule would be speculative at this stage”).

¶ 62 For these reasons, I would affirm the circuit court’s denial of defendant’s leave-to-file

motion because defendant failed to establish cause to avoid the statutory waiver set out in section

122-3 of the Act (725 ILCS 5/122-3 (West 2020)).

- 17 -
No. 1-20-0936

People v. Erwin, 2023 IL App (1st) 200936

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 03-CR-
06617(02); the Hon. William G. Gamboney, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Eric E. Castañeda, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, Brian K. Hodes, and Hareena
Appellee: Meghani-Wakely, Assistant State’s Attorneys, of counsel), for
the People.

- 18 -